Opinion
H044061
12-10-2018
THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE CO., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1366785)
Bankers Insurance Company (Bankers) appeals from an order denying its motion to vacate forfeiture and exonerate a bail bond and from the subsequent judgment. Bankers contends that the trial court lost jurisdiction over the bond by failing to declare a forfeiture pursuant to Penal Code section 1305, subdivision (a)(1) when defendant Luis Banuelos failed to appear at two hearings. Bankers also argues that the bond was exonerated by operation of law when the trial court imposed supervised release conditions upon Banuelos at the conclusion of his preliminary hearing without first exonerating the bail bond.
All further statutory references are to the Penal Code.
We agree with Bankers that the trial court lost jurisdiction to forfeit the bail bond after failing to declare a forfeiture when Banuelos did not appear at a motion hearing. In light of this conclusion, we do not reach Bankers's alternative argument that the release conditions added by the trial court after the preliminary hearing acted to exonerate the bond.
I. FACTS AND PROCEDURAL BACKGROUND
On October 2, 2013, the trial court arraigned Luis Banuelos on several felony charges, remanded him, and set bail at $125,000. On December 15, 2013, All-Pro Bail Bonds, an agent of Bankers, posted a $125,000 bail bond for Banuelos. On May 12, 2014, a magistrate held Banuelos to answer on the charges at the conclusion of the preliminary hearing. The magistrate stated that he was "thinking of doubling the bail." Banuelos objected and told the magistrate that he was working full-time. Instead of increasing bail, the magistrate elected to impose a number of supervised release conditions upon Banuelos "in addition to bail."
The magistrate told Banuelos that "there [are] going to be a number of conditions that will allow you to remain out on bond. If you violate any of those conditions, I will take you into custody." Among other terms, the court ordered that Banuelos have no contact with any witnesses, use no alcohol or illegal narcotics, and permit search of his person, property, or vehicle "with or without a warrant by a peace officer, with or without probable cause." Banuelos agreed to the conditions, and the magistrate permitted him to remain out of custody subject to both the new conditions and the original bail bond.
On May 27, 2014, the trial court arraigned Banuelos on the information. After a number of court appearances, Banuelos's trial was set to begin on November 17, 2014. On November 4, 2014, the District Attorney filed a motion to amend the information and calendared the motion for a hearing on November 12, 2014. The motion to amend included a proof of service stating that the motion had been mailed to Banuelos's defense counsel. Neither Banuelos nor his counsel was present at the motion hearing on November 12. According to the November 12 minute order, defense counsel "phoned [and] did not get [the] motion." The trial court did not forfeit the bail bond, kept the trial date of November 17, and continued the motion hearing to November 19. On November 17, Banuelos and defense counsel appeared for trial, and Banuelos's trial was continued until December 1. The November 17 minute order does not refer to the November 19 motion hearing.
The trial court's only reported statement at the November 12 hearing was that the "matter is continued to November 19th, at 1:30, in this department."
The trial appearances and the motion hearings occurred before different judges.
Neither Banuelos nor his counsel appeared on November 19 for the hearing on the motion to amend the information. The minute order for the November 19 hearing indicated, "per [Deputy District Attorney] - defense did not receive copy of motion [and] requests [continuance]." The trial court stated, "[T]hat matter has been continued also to November 25th, at 1:30, in this department. [¶] A good cause for the continuance is the Defense did not receive a copy of the motion . . . in a timely manner." The trial court did not forfeit the bail bond.
On November 25, at the third hearing on the motion to amend the information, defense counsel was present, but Banuelos was not. The minute order for the November 25 hearing did not record any reason for Banuelos's failure to appear but instead contained the statement: "[N]ew date for defendant to be present." The trial court did not forfeit the bail bond, kept the trial date of December 1, and continued the motion hearing to December 3. The record contains no other findings by the trial court from the November 25 hearing.
Banuelos appeared in court both on December 1 for trial, which was continued to a later date, and on December 3 for the fourth hearing on the motion to amend the information. With Banuelos present on December 3, the court granted the motion to amend. On February 19, 2015, the District Attorney filed a second motion to amend the information and a motion to increase bail, which was calendared for February 25. On February 25, defense counsel appeared in court but Banuelos failed to appear. The trial court forfeited the bail bond on February 25 and issued a no-bail bench warrant for Banuelos. The trial court issued a notice of bail forfeiture to Bankers on February 27, 2015.
Bankers later filed a motion to extend time on the bail forfeiture period, which the trial court granted, extending the forfeiture period until March 19, 2016. On March 21, 2016, Bankers filed a motion to vacate the bond forfeiture and exonerate the bail bond. In the motion Bankers argued that the magistrate's addition of supervised release conditions following the preliminary hearing exonerated the bail bond as a matter of law and, in the alternative, that the bail bond should be exonerated because Banuelos was deceased. Bankers did not assert in the trial court that the court had lost jurisdiction to forfeit the bail bond when it did not forfeit the bond on November 19 or 25.
The District Attorney argued in the trial court that there was no evidence that Banuelos was deceased. The record contains no other information about this issue, which neither party raises on appeal.
On May 16, 2016, the trial court denied Bankers's motion to vacate and exonerate the bond. On May 23, 2016, the trial court entered judgment against Bankers. Bankers timely appealed.
II. DISCUSSION
Bankers argues that the judgment should be reversed because the bail bond was exonerated by operation of law prior to the trial court's forfeiture of the bond on February 25, 2015. In particular, Bankers contends that the trial court lost jurisdiction over the bail bond on one of three dates: May 12, 2014, when the magistrate placed Banuelos on supervised release without first exonerating the bail bond; November 19, 2014, when Banuelos failed to appear for a hearing on the motion to amend the information; or November 25, 2014, when Banuelos again failed to appear for the hearing on the motion to amend the information. We conclude that the trial court retained jurisdiction over the bail bond on November 19 but agree with Bankers that the trial court lost jurisdiction on November 25 to later forfeit the bail bond.
Bankers's argument with respect to the May 12 date centers on the supervised release conditions added by the magistrate following the preliminary hearing. Bankers's challenge rests in part on its contentions that the addition of the search condition violated Banuelos's constitutional rights and that it is permitted to raise the violation of Banuelos's rights as a party to the bail bond contract. In light of our conclusion that the trial court lost jurisdiction to forfeit the bail bond on November 25, we do not reach Bankers's constitutional challenge to the conditions added by the magistrate. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1102 ["Our jurisprudence directs that we avoid resolving constitutional questions if the issue may be resolved on narrower grounds"].)
A. Standard of Review
While a reviewing court ordinarily assesses the trial court's denial of a motion to set aside an order of forfeiture under an abuse of discretion standard (People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 127, 134 (Financial Casualty)), here the "evidence before the appellate court is not in dispute" and we therefore employ de novo review. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 919 (Amwest Surety).) The party challenging the order carries the burden of establishing error. (See Financial Casualty, supra, at p. 134.)
B. General Principles
Under section 1305, subdivision (a)(1), "[w]hen a defendant facing criminal charges is released on bail and fails to appear as ordered or as otherwise required and does not have a sufficient excuse, a trial court must declare the bail bond forfeited." (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 707 (Safety National).) "If the court fails to declare a forfeiture at the time of the defendant's unexcused absence, it is without jurisdiction to do so later." (Id. at p. 710, italics omitted.) Section 1305 is "subject to precise and strict construction" (Amwest Surety, supra, 56 Cal.App.4th at p. 921, internal quotation marks omitted), and a trial court must "carefully follow [the statute] or its acts may be found to be without, or in excess of, its jurisdiction" (Financial Casualty, supra, 14 Cal.App.5th at p. 133). Because section 1305 delineates a trial court's jurisdiction over a bail bond, noncompliance with the statute poses a jurisdictional question that may be raised for the first time on appeal. (People v. Lexington National Ins. Corp. (2010) 181 Cal.App.4th 1485, 1492 (Lexington National).)
Section 1305, subdivision (a)(1) states: "A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: [¶] (A) Arraignment. [¶] (B) Trial. [¶] (C) Judgment. [¶] (D) Any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required. [¶] (E) To surrender himself or herself in execution of the judgment after appeal."
While a trial court ordinarily must "declare an immediate forfeiture upon the nonappearance of a defendant," it may delay taking this step if there is a sufficient excuse for a defendant's nonappearance. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906 (United Bonding).) Pursuant to section 1305.1, "the trial court may continue a case for a reasonable period without ordering a forfeiture of bail or issuing a bench warrant, if it 'has reason to believe that sufficient excuse may exist' for the defendant's failure to appear. (§ 1305.1; [citation].)" (Safety National, supra, 62 Cal.4th at p. 710.) Section 1305.1 allows a defendant with a valid reason for nonappearance to avoid "having his bail forfeited [and] the additional penalty of possibly being required to pay another premium for its reinstatement." (Financial Casualty, supra, 14 Cal.App.5th at p. 135, internal citations and internal quotation marks omitted.)
Whether a trial court retains jurisdiction over a bail bond despite a defendant's nonappearance hinges on whether there exists "sufficient excuse" for that nonappearance. (§ 1305.1) The determination whether an excuse is sufficient is a matter within the trial court's discretion that should be "decided on a case-by-case basis." (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 952 (Ranger).)
"A failure to appear is presumed to be without excuse . . . ." (People v. Harco (2005) 135 Cal.App.4th 931, 934 (Harco).) To retain jurisdiction over the bond in the face of a defendant's nonappearance, the trial court must have " 'some rational basis' " to believe that a sufficient excuse exists. (Amwest Surety, supra, 56 Cal.App.4th at p. 923, quoting United Bonding, supra, 5 Cal.3d at p. 906.) A court finding sufficient excuse must ground that finding in facts in the record. "[I]t would be impossible for a trial court, in the exercise of sound judicial discretion, to have 'reason to believe that sufficient excuse may exist' for a nonappearance if there were not some basis in fact for such a conclusion." (People v. Surety Ins. Co. (1985) 165 Cal.App.3d 22, 27 (Surety Ins.).) While the factual basis for the sufficient excuse finding need not appear in the minutes—for example, the reporter's transcript could provide the necessary factual support—it must appear somewhere in the trial court record. (Amwest Surety, supra, at p. 922.) "[S]ilent records provide no grounds to justify continuing a hearing without declaring a forfeiture of bail when the defendant fails to appear." (Ranger, supra, 108 Cal.App.4th at p. 952.)
In finding sufficient excuse, trial courts frequently rely on representations by defense counsel. (Amwest Surety, supra, 56 Cal.App.4th at p. 922.) Even vague assertions by defense counsel have been found to provide sufficient excuse. For example, a statement by defense counsel that he did not know why a defendant was not present, but the defendant had " 'never failed to appear in any proceeding ever [and] is usually here early' " constituted sufficient excuse. (Ranger, supra, 108 Cal.App.4th at pp. 948-949, 953.)
Because the bail bond statutes delineate jurisdictional limits that are strictly construed, reviewing courts assessing the sufficiency of an excuse do not follow the "general rule . . . that, faced with a silent record, an appellate court will presume that the trial court performed its duty and acted in the lawful exercise of its jurisdiction . . . ." (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 715.) Therefore, "a record silent as to the trial court's reasons for believing there may be justification for a defendant's nonappearance will not support the court's continuance of the matter, and on collateral attack a subsequent bail forfeiture will be vacated." (Id. at p. 718; see also People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1554 ["A silent record requires the reviewing court to conclude that a nonappearance was without sufficient excuse and that the right to declare forfeiture not having been exercised was foreclosed"].) Furthermore, the record must provide a "rational basis" for the trial court's finding of sufficient excuse and not the "mere possibility of sufficient excuse." (Surety Ins., supra, 165 Cal.App.3d at p. 28.)
Applying these general principles, we examine whether the record contains any factual support for the trial court's implicit conclusion that there was "sufficient excuse" for Banuelos's nonappearance at the November 19 and November 25 hearings on the motion to amend the information such that the trial court need not have immediately forfeited the bail bond.
C. Banuelos's Nonappearances on November 19 and 25
Both Banuelos and his counsel failed to appear at the motion to amend the information on November 19. Bankers argues that there was not sufficient excuse for Banuelos's nonappearance on November 19 because "[t]he minutes fail to reflect an excuse for the defendant's failure to appear in court as required." With respect to the November 19 hearing, we disagree with Bankers and conclude that the record contains an adequate factual basis for the trial court's implicit finding that Banuelos had presented a sufficient excuse for his nonappearance—namely, lack of notice of the court date.
Lack of actual notice of a court date can constitute sufficient excuse. (See Safety National, supra, 62 Cal.4th at p. 717.) The record supports the trial court's conclusion that Banuelos and his counsel had not been given adequate notice of the November 19 hearing. Neither Banuelos nor his counsel had been present in court on November 12, the date the November 19 court date was set by the trial court. The November 12 date, in turn, had not been set by the trial court at a previous appearance but was instead calendared by the District Attorney in conjunction with the motion to amend the information. Although the proof of service accompanying the motion to amend states that a copy of the motion had been mailed to defense counsel, the minute order for the November 12 court date indicates that defense counsel had telephoned the court, stated that he had not received a copy of the motion, and had requested a continuance. The minute order for the court date immediately preceding the November 19 date—the trial date of November 17 at which both Banuelos and his counsel had been present—did not reference the November 19 hearing date.
Indeed, neither Banuelos nor his attorney appeared in court for the November 19 hearing. The minute order from November 19 indicates that, according to the District Attorney, the defense had not received a copy of the motion and was requesting a continuance. Furthermore, on November 19, the trial court stated on the record, "A good cause for the continuance is the Defense did not receive a copy of the motion . . . in a timely manner." The trial court credited the representation that defense counsel had not received the motion, and "the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance to justify continuing a hearing without declaring a bail forfeiture. Instead, the statute requires the court only have 'reason to believe that sufficient excuse may exist for the failure to appear.' " (Ranger, supra, 108 Cal.App.4th at p. 953, quoting § 1305.1.) Based upon defense counsel's lack of notice of the motion and the November 19 hearing date, the trial court implicitly found sufficient excuse for Banuelos's nonappearance. That defense counsel did not appear for the hearing on November 19, a fact reflected in the minute order for the hearing, constitutes a sufficient factual basis for the trial court's conclusion of sufficient excuse. Therefore, the trial court did not lose jurisdiction over the bond on November 19.
Turning to the November 25 hearing, we agree with Bankers that no facts in the record support a finding of an excuse for Banuelos's nonappearance on that date. Respondent County Counsel argues that "the absence of adequate notice forms a rational basis for a reasonable belief that the defendant's nonappearance at the November 19 and 25 hearings was sufficiently excused." While we agree lack of notice supports the trial court's decision not to forfeit the bond on November 19, that excuse does not stretch to Banuelos's nonappearance on the later date. "A nonappearance once excused does not constitute an excuse for subsequent nonappearances, and at any such nonappearance without sufficient excuse the court must thereupon declare the forfeiture." (United Bonding, supra, 5 Cal.3d at p. 907.) In order to retain jurisdiction over a bail bond when a defendant fails to appear on multiple court dates, the trial court must determine whether there is sufficient excuse for the defendant's nonappearance on each court date.
Banuelos's attorney was present in court on November 25, establishing that defense counsel had actual notice of the hearing. Crucially, the record for the November 25 hearing contains no indication that defense counsel proffered a reason for Banuelos's nonappearance. Had counsel provided a reason for Banuelos's nonappearance, had that reason been memorialized in the record, and had the trial court credited that explanation, then the trial court's decision not to forfeit the bail bond would have been well within its discretion. (See Amwest Surety, supra, 56 Cal.App.4th at p. 922.)
Nevertheless, in the absence of a representation by defense counsel memorialized in the record regarding why Banuelos was not present, and where the record contains no other fact supporting an excuse for defendant's nonappearance, there is insufficient excuse for the defendant's nonappearance as a matter of law. "The absence of any statements or actions by defendant or his counsel, from which it could be implied that defendant had justification for his absence, compels the conclusion that the trial court did not have reason to believe that sufficient excuse may have existed for defendant's failure to appear . . . ." (Amwest Surety, supra, 56 Cal.App.4th at p. 924, internal quotation marks omitted; see also Harco, supra, 135 Cal.App.4th at p. 935.)
Relying on the Supreme Court's decision in Safety National, County Counsel contends that lack of actual notice to a defendant (rather than lack of actual notice to his or her counsel) provides sufficient excuse for nonappearance. Indeed, Safety National does suggest that lack of notice could constitute "sufficient excuse" justifying a trial court's decision not to forfeit a bond when a defendant fails to appear. "Notwithstanding the jurisdictional nature of bail forfeiture, '[t]here is no danger the section would be used unfairly against a defendant who was ignorant of the court date because section 1305 only allows bail forfeiture if the defendant fails to appear "without sufficient excuse." ' " (Safety National, supra, 62 Cal.4th at p. 717, quoting People v. Jimenez (1995) 38 Cal.App.4th 795, 800, fn. 8 (Jimenez).) However, Jimenez, the case cited by Safety National for this proposition, infers notice to a defendant from actual notice to defense counsel, relying on counsel's ethical obligation "to inform his client of all material proceedings in the case." (Jimenez, supra, at pp. 802-803.)
Actual notice to defense counsel—established here with respect to the November 25 hearing by defense counsel's presence—suffices to demonstrate notice to Banuelos where the record contains no facts supporting the conclusion that Banuelos did not have actual notice. (See Ranger, supra, 108 Cal.App.4th at pp. 953-954 [rejecting the surety's argument that a defendant must have actual notice of a court date to forfeit the bond and noting that "requiring proof the defendant received actual notice of the continued date would also make forfeitures virtually impossible for any defendant who had already jumped bail and deliberately remained incommunicado"].) In light of defense counsel's actual notice of the November 25 hearing, the record must contain some other fact providing a sufficient excuse for Banuelos's nonappearance for the trial court to have retained jurisdiction over the bond. Our review of the record does not reveal any such fact, and County Counsel does not suggest an alternative excuse for Banuelos's failure to appear.
"If the court has no information that a sufficient excuse may exist so as to justify a continuance pursuant to section 1305.1, the court must declare a forfeiture. If the court fails to do so, it loses jurisdiction and the bond is exonerated by operation of law." (People v. Indiana Lumbermens Mutual Ins. Co. (2011) 194 Cal.App.4th 45, 49.) The record for the November 25 hearing establishes that Banuelos's counsel was present but Banuelos was not. The record contains no evidence that Banuelos did not have actual notice of the November 25 hearing, nor does it include any facts providing a basis to excuse his nonappearance for any other reason. Under these circumstances, the trial court was obligated to declare a forfeiture on November 25, 2014. By failing to do so, the bond was exonerated as a matter of law, and the trial court lost the ability to declare a bond forfeiture on a later date. Thus, the trial court's eventual forfeiture of the bail bond on February 25, 2015, was in excess of the trial court's jurisdiction, and the judgment on the bond against Bankers must be reversed.
Because the judgment against Bankers entered on May 23, 2016, is void, Bankers was within its rights to raise the jurisdictional issue for the first time on appeal. (See Lexington National, supra, 181 Cal.App.4th at p. 1492.) However, had the argument been raised in the trial court, the parties and this court most likely would have avoided the expense of time and resources required for this appeal. Therefore, in the interest of justice, each party is to bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
III. DISPOSITION
The judgment entered on May 23, 2016, is reversed. Each party is to bear its own costs on appeal.
/s/_________
DANNER, J.
WE CONCUR:
/s/_________
GREENWOOD, P.J.
/s/_________
GROVER, J.