Opinion
A156382
03-23-2020
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN SURETY COMPANY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR184874)
American Surety Company (American Surety) appeals from an order denying its motion to vacate a bail forfeiture and to exonerate a bail bond, and from summary judgment subsequently entered against it. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2017, defendant Federico Audelo was charged with drug offenses in Napa County case number CR184119. The trial court set bail at $150,000. At a hearing in November, he waived his preliminary hearing and the court scheduled the next hearing for December 8, for arraignment on the information and a settlement conference. The court ordered defendant to appear at the next scheduled hearing (December 8). Defendant was represented in this case by an attorney named Flinn. For ease of reference, we will hereafter refer to this case as "Case 1."
The instant appeal does not directly arise from Napa County case number CR184119, though that case gives rise to a contemporaneous appeal that American Surety filed, case number A156293. We take judicial notice of the record in that appeal. (Evid. Code, §§ 452, 459.) We address case number A156293 by a separate opinion.
In the meantime, in early October 2017, defendant was charged with drug and firearm related offenses in Napa County case number CR184874, from which this appeal arises. The trial court again set bail at $150,000. At a hearing in November, the court scheduled a pre-preliminary hearing for December 7, and a preliminary hearing for December 8, and ordered defendant to appear at the next scheduled hearing (December 7). Defendant was represented in this case (hereafter, "Case 2") by an attorney named Pharr.
Through November 2017, none of these hearings in the two cases were ever scheduled on the same days.
In mid-November 2017, American Surety, through its agent Act Fast Bail Bonds, posted bond for defendant's release in Case 1 (bond no. AS150-101246) and in Case 2 (bond no. AS150-101237). Both bonds indicated defendant was to appear on December 7, 2017, at 8:30 a.m. in Department E.
On December 7, 2017, Case 2 was called, but not Case 1, and defendant failed to appear. Defense attorney Pharr appeared and said he did not know where defendant was. The deputy district attorney asserted defendant had two cases, and he had not seen defendant's attorney in Case 1 (Flinn) that morning. The trial court responded that it only had Case 2 before it, and asked if defendant might be in a different department of the courthouse. The deputy district attorney then stated: "Prelim had been waived on that one, your Honor. [¶] . . . [¶] My mistake." After the deputy district attorney asked for a warrant, the clerk informed the court that defendant's arraignment in Case 1 was scheduled for the next day. The court solicited the parties' thoughts about issuing but holding the requested warrant until the next day, and both parties agreed with that course of action.
The minute order for the December 7, 2017 hearing in Case 2 indicates the trial court issued a bench warrant and set bail at $250,000, withheld service of the warrant until the next day, and ordered defendant to appear the next day at 8:30 a.m. While the reporter's transcript of the hearing contained no discussion of the bail bonds, the minute order for the hearing in Case 2 stated "[d]efendant shall remain at liberty on bail previously posted."
The next day (December 8), defendant failed to appear in either of his cases, at which point the trial court issued the warrant and ordered bail in both cases forfeited. The court mailed notice of the forfeitures to American Surety and Act Fast Bail Bonds on December 15, 2017.
On July 2, 2018, the trial court granted American Surety's unopposed motion in both cases to extend the forfeiture to December 28, 2018 pursuant to Penal Code section 1305.4.
All subsequent statutory references are to the Penal Code.
On December 27, 2018, American Surety filed motions to vacate the forfeitures and exonerate the bonds in both cases. County counsel for Napa County (the County) opposed these motions. On December 28, 2018, while the motions were still pending, the trial court entered summary judgment in favor of the People on the bond in Case 1. The court ultimately denied American Surety's motions to vacate the forfeitures and exonerate the bonds on January 17, 2019.
On January 22, 2019, the trial court filed an order entering summary judgment in favor of the People on the bond in Case 2. On January 31, 2019, the court issued an amended summary judgment in favor of the People on the bond in Case 2 indicating the judgment was "nunc pro tunc to 1/18/19." The court also issued an amended summary judgment in favor of the People on the bond in Case 1 indicating the judgment was "nunc pro tunc to 12/28/19." In the instant matter, American Surety appeals from the court's order denying its motion in Case 2 to vacate the forfeiture and exonerate the bond, and the summary judgment subsequently entered in Case 2.
The amended summary judgments differ from the originals in that they identify American Surety, rather than Act Fast Bail Bonds, as the surety against whom the summary judgments were entered.
DISCUSSION
American Surety contends the trial court lost jurisdiction to declare forfeiture of the bond in Case 2 and to enter summary judgment when it failed to order bail immediately forfeited on December 7, 2017 pursuant to section 1305. There is no disagreement amongst the parties that defendant was lawfully required to appear on that date, but the parties do dispute whether the record of the December 7 hearing discloses an excuse for defendant's nonappearance such that the court could postpone declaring forfeiture pursuant to section 1305.1. American Surety argues the record discloses no sufficient excuse as required by section 1305.1. For the reasons set out below, we disagree.
A. Standard of Review
"Generally, we review an order resolving a motion to vacate a bond forfeiture under an abuse of discretion standard," but " '[w]here, as here, the facts are uncontested, and the issue concerns a pure question of law, we review the decision de novo.' " (County of Yolo v. American Surety Co. (2019) 43 Cal.App.5th 520, 524.)
B. Legal Principles
"Sections 1305 through 1309 govern the forfeiture of bail bonds. Because the law disfavors forfeitures, including the forfeiture of bail, these statutory provisions must be strictly construed in favor of the surety to avoid the harsh results of forfeiture." (People v. Frontier Pac. Ins. Co. (1998) 63 Cal.App.4th 889, 894.)
Section 1305 provides that a court must declare a bail bond forfeited when a defendant, without sufficient excuse, fails to appear on an occasion when his or her presence in court is lawfully required. (§ 1305, subd. (a)(1)(D), italics added.) Generally, "[i]f the court fails to declare a forfeiture at the time of the defendant's unexcused absence, it is without jurisdiction to do so later." (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 710.) Further, if a court fails to declare a forfeiture as required by section 1305, it loses jurisdiction over the bond and a subsequent summary judgment is rendered void and subject to collateral attack any time. (People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 550.)
Section 1305.1, however, provides an exception: "[when] the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant." Application of this exception appears to serve the long tradition in the law that forfeitures are disfavored, and also to promote other policy interests, such as avoiding the imposition of additional penalties on defendants or on family members who help secure a defendant's release. (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 950-951.)
In determining whether there was sufficient excuse for nonappearance under section 1305.1, we may review the entire record of the hearing where defendant failed to appear—i.e., the minutes and the reporter's transcript of the hearing. (People v. Frontier Pac. Ins. Co., supra, 63 Cal.App.4th at p. 895.) Because a failure to appear is presumed to be without excuse, the record must disclose some rational basis for the trial court to believe that a sufficient excuse may exist for the nonappearance. (People v. The North River Ins. Co. (2019) 37 Cal.App.5th 784, 796.) That said, an actual and valid excuse need not be conclusively demonstrated; all that is required is the trial court have " 'reason to believe that sufficient excuse may exist for the failure to appear.' " (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 953.) The excuse need not be expressly set out in the minutes (People v. Frontier Pac. Ins. Co., at p. 895), and a finding of sufficient excuse may be implied (see, e.g., People v. Ranger Ins. Co., at p. 953). There are no rigid rules concerning what will support a rational basis for such a belief, and the analysis must be done case-by-case. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 923.)
For instance, in People v. Surety Ins. Co. (1984) 160 Cal.App.3d 963, defense counsel represented that he would endeavor to bring the defendant in but did not offer any other information. Finding nothing that implied a justification for the defendant's nonappearance, the Court of Appeal held this was insufficient to support the trial court's continuance under former section 1305, subdivision (b) (now § 1305.1). (160 Cal.App.3d at p. 969.)
Similarly, in People v. The North River Ins. Co., supra, 37 Cal.App.5th 784, the defendant did not appear at a hearing and instead, defense counsel said she was appearing on behalf of the nonappearing defendant and asked that the defendant's appearance be excused. (37 Cal.App.5th at p. 789.) The trial court did not declare the bond forfeited at that hearing, but ordered a forfeiture at a later date. (Id. at pp. 789-790.) The Court of Appeal concluded the trial court lost jurisdiction to forfeit the bond on the later date. (Id. at p. 798.) While acknowledging that "[e]ven vague assertions by defense counsel have been found to provide sufficient excuse," the court ultimately found the record in the case was silent concerning the reason for the defendant's nonappearance. (Id. at pp. 797-798.)
In contrast, a sufficient excuse for nonappearance was found in People v. Ranger Ins. Co., supra, 108 Cal.App.4th 945, where the defendant failed to appear for trial in April but had previously always appeared in the case (including on at least eight specifically identified occasions) since being released on bail around June the prior year. (108 Cal.App.4th at p. 948.) Defense counsel said it was unusual for defendant not to appear and expressed concern that something happened. (Id. at pp. 948-949.) The trial court continued the matter to the next day. (Ibid.) When the defendant did not appear the next day, the court forfeited bail. (Id. at p. 950.) The Court of Appeal found sufficient basis to believe an excuse existed, stating: "The trial court in the present case impliedly agreed with defense counsel the defendant's absence was so unusual something must have happened. The court specifically noted 'he hasn't missed in the past. There is no reason to think otherwise yet.' . . . The court's own experience with the defendant's past behavior over a several month period provided a 'rational basis' for believing there might be a sufficient excuse for the defendant's absence." (Id. at p. 953.)
Similarly, in People v. Frontier Pac. Ins. Co. (2000) 83 Cal.App.4th 1289, the defendant was not present when the jury reached its verdict. (83 Cal.App.4th at p. 1292.) Defense counsel told the trial court he believed the defendant's nonappearance was due to a misunderstanding or miscommunication, since the defendant had made every other required court appearance. (Ibid.) Counsel also noted that "when the jury began deliberating, the defendant had not been told to return to court at any particular time." (Ibid.) The Court of Appeal found it was reasonable for the trial court to believe there was a sufficient excuse for the defendant's nonappearance, stating: "The record in the instant case reflects confusion whether [the defendant] was required to appear when the jury rendered its verdict, there was no order specifically requiring his appearance, and he had appeared at every previous hearing and throughout the trial." (Id. at p. 1293.)
In People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 127, the trial court set bail on February 11, and ordered the defendant to appear on February 18 for a supervised pretrial release eligibility report, and on February 26, for a preliminary hearing. (14 Cal.App.5th at p. 131.) The defendant was released from custody on bail the same day the court set bail. (Ibid.) The defendant failed to appear on February 18, and his lawyer told the court he believed the defendant got confused because the defendant's case was referred for a supervised pretrial release eligibility report, but then the defendant bailed out. (Ibid.) "The court decided that in light of the possible confusing circumstances, it would give [the defendant] the benefit of the doubt and did not forfeit the posted bail." (Ibid.) The court did forfeit bail when defendant failed to appear on February 26. (Ibid.) The Court of Appeal concluded the trial court properly exercised its discretion by not ordering bail forfeited on February 18, stating the record demonstrated a reasonable explanation for the defendant nonappearance, namely, "the possible confusing issuance of two separate court dates, and the uncommon setting of bail and a referral [for a supervised pretrial release eligibility report]." (Id. at p. 135.)
Moreover, in People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th 915, a defendant failed to appear, and an attorney specially appearing for defense counsel told the court " 'that there may be an emergency [the defendant] attended to, and . . . he may be available tomorrow morning.' " (56 Cal.App.4th at p. 918.) The trial court then continued the hearing to the next day, and in the interim held the bench warrant and forfeiture of the bond. (Ibid.) Based on the specially appearing attorney's representation, the Court of Appeal concluded the trial court had "ample" reason to believe there might be a sufficient excuse for the defendant's nonappearance. (Id. at p. 925.)
C. Analysis
In the instant case, the reporter's transcript and minute order for the hearing showed the following. Defendant had two ongoing criminal cases, two different defense attorneys in those cases, and he waived his preliminary hearing in Case 1. Further, in Case 2, a pre-preliminary hearing was scheduled for December 7, 2017 and a preliminary hearing was scheduled for the next day, December 8, which was the same date as the arraignment on the information in Case 1 (in which defendant had already waived his preliminary hearing). The deputy district attorney who appeared on December 7, 2017 initially indicated confusion about which case defendant was required to appear in on that day. The trial court also seemed confused insofar as it asked whether defendant might be in a different department of the courthouse, until the deputy district attorney informed the court that the preliminary hearing in Case 1 had been waived and that Case 1 was on for arraignment and settlement conference the next day. Under these circumstances, we may reasonably infer that the court believed there was a sufficient excuse for defendant's nonappearance on December 7, 2017, i.e., defendant might similarly have been confused about whether he had to appear on December 7, 2017, rather than just on December 8.
In reaching this conclusion, we are unpersuaded by American Surety's suggestion that the reasons for a defendant's nonappearance must come from defense counsel or some other representative of the defendant. The authorities American Surety relies on do not squarely address the issue of where the information supporting an excuse must originate. (People v. Barker (2004) 34 Cal.4th 345, 354 ["it is axiomatic that a decision does not stand for a proposition not considered by the court"].) Although American Surety's authorities reflect that the information supporting an excuse in those cases came from defense attorneys or an attorney appearing for the defense attorney, they do not suggest that otherwise relevant information cannot come from other sources. Indeed, the plain language of section 1305.1 defies American Surety's proposed construction. (§ 1305.1; see People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 953 ["the statute requires the court only have 'reason to believe that sufficient excuse may exist for the failure to appear' "].)
E.g., People v. Wilshire Ins. Co. (1975) 53 Cal.App.3d 256, 258-261; People v. Sur. Ins. Co. (1976) 55 Cal.App.3d 197, 199, 201; People v. Nat'l Auto. & Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 304, 306; People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 20; People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th at pp. 925-926; People v. Ranger Ins. Co., supra, 108 Cal.App.4th at pp. 949 & 953; People v. Financial Casualty & Surety, Inc., supra, 14 Cal.App.5th at p. 135. --------
DISPOSITION
The order denying American Surety's motion to vacate bail forfeiture and to exonerate the bond (bond no. AS150-101237), and the summary judgment subsequently entered, are affirmed. The People shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Fujisaki, Acting P. J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.