Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC321423
Mihara, J.
Appellant Fairmont Specialty Group (Fairmont) appeals from a judgment forfeiting a bail bond. Fairmont challenges the trial court’s denial of its motion to vacate the forfeiture. It claims that the court lacked jurisdiction to forfeit the bond in the first place. Fairmont also contends that the trial court abused its discretion in denying Fairmont’s motion for a second extension of the period before the forfeiture would become final. We conclude that the court did not abuse its discretion in denying the motion to vacate as there was no lack of jurisdiction to forfeit the bond. On the other hand, the court failed to properly exercise its discretion in ruling on Fairmont’s motion to extend, and we remand for the court to properly exercise its discretion to determine whether Fairmont made an adequate showing of good cause.
I. Background
On September 28, 2006, Fairmont issued a $35,000 bond to ensure that Andrea Mann would appear in court. The bond stated that Mann was scheduled to appear in court on October 27, 2006. Mann was released from jail that day with a “BAIL/FINE RECEIPT” stating that she should appear in court on October 27, 2006.
Fairmont was the surety; Bad Boys Bail Bonds was the bail agent. Since they acted together below and only Fairmont is before us on appeal, we will refer to the actions of either entity as those of Fairmont.
On October 18, 2006, the superior court clerk addressed a “CASE NOTICE” to Mann and Fairmont. The notice bore an address of “2737 Humbolt Ave., Apt. 5” in Oakland for Mann and stated that Mann was required to appear in court on October 31, 2006 for a hearing on “BENCH WARRANT & PROBATION AND SENTENCING.”
No court hearing was held on October 27. On October 31, Mann failed to appear for the scheduled hearing. Her trial counsel appeared and explained that “on about the 17th of October the court sent [Mann] and [Fairmont] a letter indicating the I matter should be calendared properly for October 31st . . . .” He noted that the court’s letter “was sent to her [at] a 2003 address which is no longer her address.” “I can give the court the most current address that [Fairmont] has for her if the court would like to cite in the future if contact would be mailed at that address.” Mann’s trial counsel provided an address for Mann of “360 Grand, Number 257, Oakland, California, 94610.”
Mann’s trial counsel said he had called Fairmont when Mann did not appear for the hearing, and Fairmont had “tried every number they had to contact Ms. Mann.” Mann’s telephone number was disconnected, and Fairmont was unable to reach her cosigner. “In light of the fact that the date that was given is now passed we can assume if she did not get proper notice -- and it is unclear whether she did -- [Fairmont] can confirm from their records they attempted to call her when she received the notice about the new date but could not confirm that they had actually spoke[n] to her. However, if she was in ignorance of the new date would have appeared here on the 27th. And the clerk’s office most likely would have informed her of the stay.” Mann’s trial counsel pointed out that he had been “working on trying to locate her for a month.”
The court found that Mann had failed to appear. It issued a bench warrant for her arrest, and ordered Mann’s bail forfeited. On November 1, 2006, the court notified Fairmont of the forfeiture of its bail bond due to Mann’s failure to appear on October 31, 2006. This forfeiture was due to become final on May 5, 2007. In May 2007, the court granted Fairmont’s request for a 90-day extension of time. The forfeiture was then due to become final on August 3, 2007.
A bail bond becomes forfeited 180 days after the declaration with five days added for mailing. (Pen. Code, § 1305, subds. (b), (c).)
On July 10, 2007, Fairmont filed a motion seeking an additional 180-day extension of time. Fairmont’s points and authorities in support of its motion to extend the period accurately stated that the forfeiture was due to become final on “August 3, 2007.” In support of its motion to extend the period, Fairmont submitted the July 9, 2007 declaration of Scott R. Jones, a fugitive recovery agent.
Jones described his efforts to find Mann between May 2, 2007 and July 9, 2007. In May 2007, Jones twice checked to see if Mann was in custody in Santa Clara County or “multiple surrounding counties.” She was not. Jones performed an “extensive database search” using Mann’s social security number and known aliases and discovered no new addresses for Mann. Jones had already physically checked all of the addresses he had found for Mann. Jones performed the same search in June 2007, and found no new information. In June, he also checked “multiple jurisdictions” in California to see if Mann was in custody. She was not.
In mid-June 2007, Fairmont’s liability department notified Jones that it had received a telephone call from a woman who claimed to have information about Mann. Jones contacted the woman, and she denied making any such call and stated that she had not spoken to Mann “in some time.” The woman asserted that she “had heard” that Mann was working in Concord.
In July 2007, Jones again checked to see if Mann was in custody in Santa Clara County or its surrounding counties. She was not. He unsuccessfully tried to contact the woman he had spoken with previously. Jones tried to telephone the references provided in Mann’s file, but was unable to reach any of them. On July 9, Jones conducted another “extensive database search” using Mann’s social security number and known aliases. He found a possible address for Mann in Fremont and a possible address for Mann’s sister in Hayward. Jones wanted a 90-day extension to further investigate these two addresses.
On July 19, 2007, Fairmont filed a motion to vacate the forfeiture and exonerate the bail bond. Fairmont’s points and authorities, and its request for judicial notice in support of its motion to vacate, both erroneously stated that the forfeiture was due to become final on “August 30, 2007.” (Bold italics added.) Fairmont argued that the court lacked jurisdiction to declare a forfeiture of the bail on October 31, 2006, because it had failed to declare a forfeiture on October 27, 2006, and because it had not given proper notice to Mann of the October 31 hearing.
Both of Fairmont’s motions were heard on August 7, 2007. At the hearing, Fairmont argued that there was no evidence that Mann had received the case notice from the clerk because there was no proof of service, and “we don’t even know if it was mailed.” The court decided that it could presume that the clerk had performed the official duty to mail the notice to Mann, and it denied the motion to vacate.
The following colloquy then occurred. “MR. BERNSTEIN [Fairmont’s trial counsel]: Your Honor, in addition to that, there’s a motion to further extend time. [¶] THE COURT: That is also denied. [¶] MR. BERNSTEIN: Your Honor, I understand the district attorney is not opposing the further extension of time. [¶] MR. SHEARER: Your Honor, I’m willing to submit it on the court’s recommendation. [¶] THE COURT: Request is denied. [¶] MR. BERNSTEIN: Has the court had an opportunity to review the file for an extension? [¶] THE COURT: She has an extensive history so the sooner we get her, the better. The request is denied. [¶] MR. BERNSTEIN: Well, respectfully, denying extensions is not going to get her here any sooner, Your Honor. [¶] THE COURT: Well, it might. It might. [¶] MS. GILBERT [trial counsel for the bail agent]: With no extension nobody is going to be looking for her. [¶] THE COURT: Oh, I bet they will. [¶] MS. GILBERT: No, Your Honor. If I may clarify, the extension of time would allow for the bounty hunters to continue to investigate the case. And with no further time, they can no longer further investigate the case.” The court made no response, and the hearing ended.
The court thereafter entered judgment forfeiting the bond, and Fairmont filed a timely notice of appeal.
II. Discussion
A. Denial of Motion To Vacate Forfeiture
Fairmont renews the arguments it made below. It contends that the court lacked jurisdiction to declare a forfeiture of the bail on October 31, 2006, because it had failed to declare a forfeiture when Mann failed to appear on October 27. “The determination of a motion to set aside an order of forfeiture is entirely within the discretion of the trial court, not to be disturbed on appeal unless a patent abuse appears on the record.” (People v. Wilcox (1960) 53 Cal.2d 651, 656.)
Fairmont relies on Penal Code section 1269b, subdivision (a) to support its claim that Mann was required to appear on the October 27 date originally set by the “jailor” notwithstanding the superior court clerk’s subsequent “CASE NOTICE” changing the date of the required appearance to October 31.
Fairmont repeatedly refers to Mann’s obligation to appear for “arraignment.” There is no indication that Mann was due in court for an arraignment. The clerk’s notice stated that Mann was required to appear for a hearing on a bench warrant, probation, and sentencing.
“The officer in charge of a jail in which an arrested person is held in custody, an officer of a sheriff’s department or police department of a city who is in charge of a jail or is employed at a fixed police or sheriff’s facility and is acting under an agreement with the agency that keeps the jail in which an arrested person is held in custody, an employee of a sheriff’s department or police department of a city who is assigned by the department to collect bail, the clerk of the superior court of the county in which the offense was alleged to have been committed, and the clerk of the superior court in which the case against the defendant is pending may approve and accept bail in the amount fixed by the warrant of arrest, schedule of bail, or order admitting to bail in cash or surety bond executed by a certified, admitted surety insurer as provided in the Insurance Code, to issue and sign an order for the release of the arrested person, and to set a time and place for the appearance of the arrested person before the appropriate court and give notice thereof.” (Pen. Code, § 1269b, subd. (a).)
Contrary to Fairmont’s contention, Penal Code section 1269b does not grant the jailor the exclusive power to set the appearance date. Instead, this statute grants authority equally to the jailor “and the clerk of the superior court” to “set a time and place for the appearance . . . and give notice thereof.” (Italics added.) Thus, while the jailor acted within his or her authority in setting Mann’s appearance date for October 27, the superior court clerk also acted within his or her authority under Penal Code section 1269b in resetting the appearance date for October 31.
This poorly drafted statute is ungrammatical. The statute was obviously intended to grant authority to “approve and accept bail” and “to issue and sign an order for the release of the arrested person, and to set a time and place for the appearance of the arrested person before the appropriate court and give notice thereof.” However, the wording of the statute is confusing because it states that these persons “may approve and accept bail,” and then uses the word “to” before the description of the other acts that these persons are authorized to engage in. Notwithstanding this incongruity, it is clear that the statute grants each of these persons the authority to perform each of these acts.
Fairmont contends that the clerk’s notice was insufficient to require Mann’s appearance on October 31 because the notice was not “a court order,” “is not signed by any judge, and contains no words commanding appearance.” Since the clerk was authorized to set the appearance date and to give notice thereof, no court order was necessary, and no judge was required to command Mann’s appearance or to sign the clerk’s notice.
Fairmont relies on People v. Classified Ins. Corp. (1985) 164 Cal.App.3d 341 (Classified) to support its claim that the clerk’s notice was inadequate. In that case, the question was whether, under Penal Code section 1305, subdivision (a)(4), the defendant was “lawfully required” to be present for a hearing on his Penal Code section 995 motion. (Classified, at p. 344.) Penal Code section 1305, subdivision (a) provides: “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: [¶] (1) Arraignment. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required.” (Pen. Code, § 1305, subd. (a), italics added.) As there had been no court order requiring the defendant to be present for the hearing on his Penal Code section 995 motion, the court concluded that his failure to appear did not permit the forfeiture of bail. (Classified, at p. 344.) No such issue arises here. Mann’s failure to appear fell within Penal Code section 1305, subdivision (a)(3) as her appearance was for judgment. Consequently, no court order was necessary to require her appearance, and bail was properly forfeited after her nonappearance.
Fairmont also relies on People v. Ranger Ins. Co. (2006) 145 Cal.App.4th 23. In that case, Brittany Katora Cook was released by the jailor on Ranger’s bail bond and ordered by the jailor to appear in court on January 22, 2004 to answer charges in any accusatory pleading filed against her. (Id. at p. 25.) On January 13, 2004, the police department sent Cook a notice stating that, due to “investigative delay,” no complaint had been filed, and she should appear in court on February 26, rather than on January 22. (Id. at pp. 25-26.) Cook did not appear on January 22. The police department thereafter sent her a further notice substituting March 26 for the February 26 appearance date. Cook appeared on March 26, and was ordered to appear for a preliminary examination on April 29. She failed to appear, and the court ordered the bail forfeited. (Id. at p. 26.)
Ranger claimed that the court lost jurisdiction when it failed to forfeit the bail on February 6, after the prosecution failed to file a complaint within 15 days of Cook’s originally scheduled appearance date. (People v. Ranger Ins. Co., supra, 145 Cal.App.4th at pp. 26-27.) Penal Code section 1305, subdivision (a) explicitly provides that the court loses jurisdiction to forfeit bail if “no complaint is filed within 15 days from the date of arraignment.” The Court of Appeal agreed with Ranger that the court lost jurisdiction when no complaint was filed within 15 days of the originally scheduled arraignment. (People v. Ranger Ins. Co., supra, 145 Cal.App.4th at p. 28.) The court rejected the prosecution’s attempt to treat the police department’s notices “as court orders requiring Cook’s attendance on the dates specified in the notices.” (Id. at p. 30.) There was no indication that the police department was authorized under Penal Code section 1269b to set the appearance date, and the court assumed that the police department lacked the authority to reschedule Cook’s appearance date. (People v. Ranger Ins. Co., supra, 145 Cal.App.4th at p. 30.)
In People v. Ranger Ins. Co., supra, 145 Cal.App.4th 23, it was the police department that rescheduled the appearance date, and there was no evidence that the police department was authorized to do so. Here, on the other hand, the superior court clerk, a person explicitly authorized by Penal Code section 1269b to schedule an appearance date, rescheduled Mann’s appearance date. Since the superior court clerk was authorized to reschedule the appearance date, no court order was necessary to require Mann to appear on October 31.
Fairmont argues: “The so-called ‘Case Notice’ here was no more a court order than if it had been sent by the county assessor or any other government official.” The superior court clerk’s notice was not a court order, but it was quite different than a notice sent by the assessor. The clerk’s notice was explicitly authorized by Penal Code section 1269b. Assessors are not authorized by Penal Code section 1269b to give such notices.
Fairmont complains that there is no evidence that Mann had notice of the October 31 appearance date as the record contains no proof of service of the clerk’s notice. “It is presumed that official duty has been regularly performed.” (Evid. Code, § 664.) As the clerk had an “official duty” under Penal Code section 1269b to “give notice” to Mann of the time the clerk had set for Mann’s appearance, and the clerk’s notice in the record was addressed to both Mann and Fairmont, we must presume, in the absence of any evidence to the contrary, that the clerk in fact mailed the notice to Mann at the address on the notice.
Fairmont argues that it cannot be presumed that Mann actually received the clerk’s notice because Mann’s trial counsel subsequently told the court that the address to which the notice was addressed was no longer valid. “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.” (Evid. Code, § 641.) Based on a snippet from Mann’s trial counsel’s explanation for Mann’s nonappearance, Fairmont claims that the clerk’s notice was not “correctly addressed.” Mann’s trial counsel’s full explanation made crystal clear that, despite lengthy efforts, neither he nor Fairmont had been able to locate Mann at any address including “the most current address that [Fairmont] has for her[,]” which was not the address to which the clerk had addressed the notice. Mann’s trial counsel explained that “[Fairmont] can confirm from their records they attempted to call her when she received the notice about the new date but could not confirm that they had actually spoke[n] to her.” (Italics added.) Finally, Mann’s trial counsel noted that the clerk’s office likely would have informed Mann of the change of appearance date had she appeared on October 27.
Mann’s trial counsel’s full explanation does not support Fairmont’s claim that Mann was never notified of the change in the appearance date. Although his argument was that Mann may not have had notice of the change, his factual assertions did not support such a conclusion. First, he never asserted that Mann was actually residing at an address other than the address to which the clerk addressed the notice. Instead, he stated that the address utilized by the clerk was from 2003, was no longer her address, and was not the “most current address” that Fairmont had for Mann. Given that neither Fairmont nor Mann’s trial counsel had been able to contact Mann at the allegedly “current address” or at any telephone number, there was no reason to believe that the allegedly “current” address was any more valid than the address to which the clerk addressed the notice. At most, Mann’s trial counsel’s explanation tended to show that Mann’s actual residence address was unknown at the time that the clerk sent the notice.
Second, although Mann’s trial counsel suggested that it was “unclear” whether Mann had received the clerk’s notice, he conceded that Fairmont had attempted to contact, and possibly had contacted, Mann regarding the new date and that, had Mann appeared on October 27, “the clerk’s office most likely would have informed her” that the hearing had been rescheduled to October 31. This explanation did not attribute Mann’s nonappearance on October 31 to her lack of notice of the rescheduled date, but to the fact that she had absconded to avoid not only the court but also her trial counsel and the bail agent. The fact that Mann’s trial counsel had been “working on trying to locate her for a month” demonstrated that her nonappearance was not attributable to a misaddressed notice.
Fairmont maintains that neither Evidence Code presumption applied because it produced evidence that rebutted these presumptions. Fairmont did not rebut the official duty presumption, as it produced no evidence that the clerk had not mailed the notice to Mann. Fairmont relies on Mann’s trial counsel’s explanation as evidence that the notice was not addressed to Mann’s current address, but Mann’s trial counsel did not purport to know of any currently valid address for Mann. The clerk was obligated to give notice to Mann of the rescheduled court date. Mann’s apparent attempts to avoid contact with the court, her attorney, and Fairmont did not relieve her of the obligation to appear as directed. Mann’s trial counsel’s explanation did not reflect that Mann lacked knowledge of the rescheduling of the appearance date to October 31. She either received the clerk’s notice, was contacted by Fairmont about the rescheduling, or arrived on October 27 and learned from the clerk’s office the date had been rescheduled. As there was no evidence that the clerk’s notice was returned, an inference can be drawn that Mann received it. Finally, the validity of the clerk’s notice did not depend on whether the trial court accepted or rejected Mann’s trial counsel’s explanation as, in the absence of this explanation, there was no evidence that the address to which the clerk’s notice was addressed was not Mann’s current address.
Fairmont seems to contend that subdivision (h) of Penal Code section 1269b requires a defendant to appear on the appearance date scheduled by the jailor even if that date has been properly rescheduled. Not so. “If a defendant or arrested person so released fails to appear at the time and in the court so ordered upon his or her release from custody, Sections 1305 and 1306 apply.” (Pen. Code, § 1269b, subd. (h).) This subdivision obviously does not mean that a defendant is required to appear on the appearance date that was originally scheduled at the time of his or her release even if the appearance date has been properly rescheduled. So long as the appearance date has been properly rescheduled by one of those authorized to do so, and notice has been given to the defendant, it is the defendant’s failure to appear on the rescheduled appearance date that results in the application of Penal Code sections 1305 and 1306 under subdivision (h). Here, the scheduled appearance date became October 31 when the clerk properly issued the notice rescheduling the appearance date.
“It is well settled that whenever a defendant fails to appear in court on one of the occasions enumerated in section 1305, the court must declare a forfeiture (if the record does not show a sufficient excuse for defendant’s absence) or else the court loses jurisdiction and the bond is exonerated by operation of law.” (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1553.) “[I]f there is a sufficient excuse for defendant’s nonappearance such that the court may continue the matter, this fact must be noted somewhere on the record. 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.” (Id. at p. 1554.)
The clerk’s notice properly rescheduled Mann’s appearance date to October 31, and Mann failed to appear on that date. Fairmont does not claim that the court should have concluded that Mann had sufficient excuse for failing to appear on October 31. Consequently, Penal Code section 1305 required the court to declare the bail forfeited when Mann failed to appear on October 31. The trial court did not err in denying Fairmont’s motion to vacate the forfeiture.
B. Denial of Second Motion to Extend
Fairmont maintains that the trial court abused its discretion by “arbitrarily den[ying] the motion [to extend] without as much as considering the showing of good cause.”
Fairmont’s burden on its motion was to make a showing of good cause for extension of the period. “Notwithstanding Section 1305, the surety insurer, the bail agent, the surety, or the depositor may file a motion, based upon good cause, for an order extending the 180-day period provided in that section. The motion shall include a declaration or affidavit that states the reasons showing good cause to extend that period. The court, upon a hearing and a showing of good cause, may order the period extended to a time not exceeding 180 days from its order. A motion may be filed and calendared as provided in subdivision (i) of Section 1305.” (Pen. Code, § 1305.4.)
The trial court was required to draw every inference in favor of granting Fairmont’s motion. “Given the underlying policy of avoiding forfeitures in favor of bringing defendants before the court, a trial court, faced with a section 1305.4 motion for extension, should draw all inferences in favor of the surety. [Citation.] The good cause showing under section 1305.4 is a low threshold for the movant. If the surety demonstrates good cause by showing due diligence in the initial 180 days, a reasonable likelihood of success of capturing the defendant in a subsequent 180 days, and any other relevant circumstances, the court should grant the motion.” (People v. Accredited Sur. and Cas. Co., Inc. (2006) 137 Cal.App.4th 1349, 1358.) Our standard of review is abuse of discretion. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679-680.)
Fairmont’s motion contained evidence of the efforts that it had made to capture Mann during the 90-day extension and the basis for its belief that it could capture Mann if the period was extended. While Fairmont’s showing was not so strong that it required the trial court to find good cause, Fairmont made a credible showing that could have supported a finding of good cause. The problem with the trial court’s denial of Fairmont’s motion is that, based on the trial court’s comments, it is clear that the trial court’s ruling was not based on any inadequacy in Fairmont’s showing of good cause but on the trial court’s erroneous understanding of the facts.
The trial court seemed unaware at the outset that Fairmont had even made a motion to extend. When the existence of the motion was brought to its attention, the court summarily denied the motion. Fairmont’s counsel asked the court if it had reviewed the motion, but the court did not respond to the question. Instead, the court attributed its denial of the motion to its finding that Mann “has an extensive history so the sooner we get her, the better.” It is not clear exactly what the court meant by this statement. Perhaps the court meant that Mann had a history of absconding, but the court’s statement that “the sooner we get her, the better” demonstrated a misunderstanding of the status of the bail bond. The period expired on August 3; the hearing was held on August 7. Since the period had already expired, Fairmont had no incentive whatsoever to make any further efforts to capture Mann if the court refused to extend the period. Hence, as Fairmont’s counsel and the bail agent’s counsel attempted to explain to the trial court, denial of the motion to extend would not serve to hasten Mann’s capture. Notwithstanding their explanation, the court intransigently refused to belief them and insisted that the denial of the motion to extend “might” hasten Mann’s capture.
The trial court could have been led to this misunderstanding by Fairmont’s motion to vacate. Fairmont’s motion to vacate, but not its motion to extend, erroneously stated that the period would not expire until August 30, rather than correctly noting that the period expired on August 3. Fairmont’s motion to extend correctly stated that the period would expire on August 3. Though this may explain the trial court’s misunderstanding, it cannot excuse the trial court’s failure to properly exercise its discretion in considering whether Fairmont had demonstrated good cause for an extension.
“The concept of judicial discretion is difficult to define with precision. In the past we have described it as ‘the sound judgment of the court, to be exercised according to the rules of law.’ [Citation.] More recently we have said (quoting from another case) that the term judicial discretion ‘implies absence of arbitrary determination, capricious disposition or whimsical thinking.’ [Citation.] Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) “A trial court’s failure to exercise discretion is itself an abuse of discretion . . . .” (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515.)
In light of the trial court’s explicit statements on the record, we can reach only one conclusion. The trial court failed to exercise its discretion to determine whether Fairmont had made an adequate showing of good cause to extend. The court’s decision was arbitrary and exceeded the bounds of reason because it was based on the court’s erroneous belief that the period had not yet expired and Fairmont would have the opportunity to complete its efforts to capture Mann during the remainder of the period. Since the trial court’s erroneous belief was based on a misunderstanding of the undisputed facts, its ruling was an abuse of discretion. Where a trial court has failed to properly exercise its discretion, the appropriate remedy is a remand for the exercise of that discretion, and we will order such a remand.
III. Disposition
The judgment is reversed, and the matter is remanded to the trial court with directions to reconsider Fairmont’s motion to extend and determine whether Fairmont has demonstrated good cause. If the court decides that Fairmont has not demonstrated good cause, it shall reinstate the judgment. If the court concludes that Fairmont has demonstrated good cause, it shall vacate the judgment of forfeiture and proceed accordingly. The parties shall bear their own costs on appeal.
WE CONCUR: Elia, Acting P.J., McAdams, J.