Opinion
E073485
01-07-2021
THE PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
Law Office of John Rorabaugh, John M. Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Gregory P. Priamos, County Counsel, Tiffany North and Eric L. Stopher, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PSC1901686) OPINION APPEAL from the Superior Court of Riverside County. Burke Strunsky, Judge. Affirmed. Law Office of John Rorabaugh, John M. Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Gregory P. Priamos, County Counsel, Tiffany North and Eric L. Stopher, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
During a felony incustody arraignment hearing, the trial court set bail for defendant Jesus Alberto Hernandez (defendant) in the amount of $80,000, as prescribed by the county bail schedule, in accordance with the law in effect at the time. Appellant Financial Casualty & Surety, Inc. (Surety), through its agent Bail Hotline Bail Bonds (Agent), posted bond for defendant. After defendant did not appear in court as ordered, the court ordered bond forfeited and, later, entered summary judgment on the bond against Surety. Surety moved to set aside summary judgment, discharge forfeiture, and exonerate bail (motion to vacate summary judgment).
The trial court denied Surety's motion. Surety appeals summary judgment and the trial court's order denying the motion to vacate summary judgment. Surety contends the trial court failed to inquire into defendant's ability to pay when setting bail, which rendered the bond and summary judgment void. We conclude the trial court did not abuse its discretion in granting summary judgment or denying Surety's motion to vacate summary judgment. We therefore affirm the judgment.
II.
FACTS AND PROCEDURAL BACKGROUND
For purposes of this appeal, the facts are undisputed by the parties. On January 9, 2017, the People of the State of California (State) filed a felony criminal complaint against defendant, for firearm possession offenses (Pen. Code, §§ 29800 subd. (a)(1); 30305, subd. (a); 30605, subd. (a)). The complaint also alleged defendant had a strike prior and prison prior (§§ 667, subds. (c) & (e)(1); 1170.12, subd. (c)(1); 12025, sub. (b)).
All further statutory references are the Penal Code.
During arraignment on January 9, 2017, defendant pled not guilty to the charges and denied the priors. The trial court set bail at $80,000. When setting bail, the court noted that the bail amount per the bail schedule should be $80,000. The court asked counsel, "As far as bail is concerned, is there any reason why the requested amount is so far lower than the scheduled amount." The prosecutor responded that he believed the deputy attorney filing the charges mistakenly wrote the incorrect amount prescribed by the bail schedule. The trial court stated it intended to set bail in accordance with the bail schedule and asked for comment. Defense counsel responded, "Submitted."
On April 5, 2017, Surety posted an $80,000 bail bond on behalf of defendant. The bond was filed with the court the following day, and defendant was ordered to appear in court on April 24, 2017.
On April 24, 2017, defendant did not appear in court. The court ordered the bond forfeited in open court and mailed a notice of forfeiture to Surety. The court issued a bench warrant for failure to appear, with bail set at $250,000.
On November 21, 2017, the trial court granted Surety an extension of time on the forfeited bail bond until May 20, 2018. In June 2018, the court tolled the bond until December 17, 2018. Surety filed another motion to toll the forfeited bond, which the trial court denied on January 14, 2019.
After Surety was unable to return defendant to court within the statutory period as extended by the court, on March 7, 2019, the trial court entered summary judgment on the bond and against Surety in the amount of $80,000 plus $410 in costs.
On May 10, 2019, Surety filed a motion to set aside summary judgment, discharge forfeiture, and exonerate bail. Surety argued the court should vacate the bond forfeiture and exonerate bail because the court set bail unconstitutionally without inquiring into defendant's ability to pay the bond, and therefore the summary judgment was void under In re Kenneth Humphrey (2018) 19 Cal.App.5th 1006 (Humphrey) (rev. granted May 23, 2018, S247278). The State filed opposition, and Surety filed a reply.
On July 12, 2019, the trial court heard and denied Surety's motion to vacate summary judgment. The court noted that defendant's bail was set before Humphrey was decided. In addition, Humphrey was not binding because it was pending review by the California Supreme Court. The trial court concluded there was no evidence defendant's bail, which was set according to the bail schedule, was set in an unconstitutional manner. The court further noted that Surety's attorney made several appearances in the case, during which Surety's counsel did not object to the bail.
The trial court added that in the recent decision, People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891 (Accredited 2019), the court stated that "Nothing in Humphrey or the statutory rules regarding the setting of bail relieves the surety of its obligations under the bond once it has been executed." The trial court concluded "that seems pretty clear, and there's been no case law presented to the contrary." The trial court therefore denied Surety's motion to set aside summary judgment, discharge forfeiture, and exonerate bail. Surety filed a notice of appeal of the March 7, 2019 summary judgment and July 12, 2019 order denying its motion to vacate summary judgment.
III.
STANDARD OF REVIEW
Surety is appealing the summary judgment and trial court order denying Surety's motion to vacate summary judgment on the grounds the summary judgment is void and therefore can be set aside. Code of Civil Procedure section 473, subdivision (d) provides that the court "may, on motion of either party after notice to the other party, set aside any void judgment or order." "By its plain terms, this provision grants a trial court the discretion to set aside a judgment or order, but only if that judgment or order is 'void.' [Citation.] Voidness is a legal question we review de novo; the discretionary decision whether to set aside a void judgment or order is, as one would anticipate, reviewed solely for an abuse of that discretion." (People v. The North River Insurance Co. (2020) 48 Cal.App.5th 226, 232 (North River).) Where, as here, the facts are not in dispute, the issue is one of law and the trial court's legal conclusions are not binding on appeal. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 919.)
IV.
VALIDITY OF THE BOND
A bail bond is a three-party contract among a defendant, a surety, and the government, in which the surety agrees to pay the government an agreed upon, fixed amount set forth in a bond if the defendant, after release from custody, fails to appear in court as ordered by the court. (People v. Safety National Casualty Corporation (2016) 62 Cal.4th 703, 714.) "The very purpose of bail and its forfeiture is to ensure the defendant's attendance and obedience to the orders and judgment of the court. [Citations.] '"In general the state and surety agree that if the state will release the defendant from custody, the surety will undertake that the defendant will appear personally and at a specified time and place . . . . If the defendant fails to appear at the proper time and place, the surety becomes the absolute debtor of the state for the amount of the bond."' [Citation, italics added.]" (Id. at pp. 714-715.) The bail bond thus "'is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond.'" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.)
Citing Humphrey, supra, 19 Cal.App.5th 1006, Surety contends defendant's bail bond is void and unenforceable because the trial court violated defendant's federal and state constitutional rights to substantive due process, equal protection, and freedom from excessive bail when setting bail. Surety argues defendant's constitutional rights were violated by the trial court setting bail without considering and making findings on defendant's ability to pay or considering other possible alternatives to bail.
In Humphrey, the court reversed the trial court's order setting bail on the ground the trial court erred in failing to consider and make findings on the defendant's ability to pay and alternatives to money bail. (Humphrey, supra, 19 Cal.App.5th at pp. 1016, 1049.) The State argues that the court in the recent decision of Accredited 2019, supra, 34 Cal.App.5th 891, rejected the proposition a bail contract is void and unenforceable under Humphrey, supra, 19 Cal.App.5th 1006, where the trial court set bail based solely on the bail schedule.
In Accredited 2019, the defendant posted bail and then failed to appear at a court hearing. The court ordered the bond forfeited and granted summary judgment on the bond against the surety. The Accredited 2019 court held that the surety "waived any procedural irregularities in the bail setting hearing when it 'assume[d] its obligations . . . at the time of the execution of the bond.'" (Accredited 2019, supra, 34 Cal.App.5th at p. 898.) The court in Accredited 2019 further held that a trial court's failure to conduct the inquiry into ability to pay mandated by Humphrey had "'no legal effect on the forfeiture of bail upon defendant's failure to appear for sentencing' [citation]" and thus "did not render the subsequently issued bond void." (Accredited 2019, supra, at p. 898.) The Accredited 2019 court explained that "[f]ailure to comply with the procedural requirements of setting bail is not among the statutory grounds for exoneration of the bail bond." (Id. at p. 899.) Therefore, the court concluded "[f]ailure to comply with the procedural requirements of Humphrey, requirements intended to safeguard the defendant's constitutional rights, did not render the subsequently issued bond void." (Ibid.)
The Accredited 2019 court distinguished Humphrey, noting "[n]othing in Humphrey or the statutory rules regarding the setting of bail relieves the surety of its obligations under the bond once it has been executed." (Accredited 2019, supra, 34 Cal.App.5th at p. 898.) "Humphrey did not discuss the validity of a bail bond contract issued following a constitutionally inadequate hearing. Humphrey was concerned with how bail setting procedures can prevent a defendant from being able to make bail. The rights addressed in Humphrey, and the procedural requirements announced by the court, are intended to guard defendants' liberty interests." (Ibid.) Humphrey did not address the contractual rights and interest of a surety.
In North River, supra, 48 Cal.App.5th at pages 235-236, the court concluded that under Accredited 2019, supra, 34 Cal.App.5th 891, the surety's Humphrey-based argument "most certainly fails. Indeed, the limited effect of any non-compliance with Humphrey is confirmed by Humphrey itself, which specifies that the remedy for non-compliance is 'a new bail hearing at which . . . the court considers [the defendant's] financial resources' (Humphrey, supra, 19 Cal.App.5th at p. 1048)—not [the] defendant's immediate release or the invalidation of any and all subsequently issued bonds." (North River, supra, 48 Cal.App.5th at pp. 235-236.)
In North River, the trial court set the defendant's bail according to the bail schedule, the defendant posted bail, the defendant failed to appear, and the court ordered the bond forfeited. The trial court in North River entered summary judgment against the surety on the bond and denied the surety's motion to vacate summary judgment. (North River, supra, 48 Cal.App.5th at pp. 230-231.) On appeal, the court in North River rejected the surety's contention that the bond and summary judgment were void on the ground the trial court, when setting bail, had failed to inquire into the defendant's ability to pay, as mandated by the later-decided case of Humphrey. (North River, supra, at p. 230.) In affirming the trial court ruling, the North River court stated that "[t]he trial court acted within its discretion in denying relief. More to the point, the trial court would have abused its discretion had it awarded the relief the surety sought, and we publish to explain the many reasons why the surety's argument must be rejected as a matter of law." (Id. at p. 230.)
Likewise, here, we conclude the bond and summary judgment are not void, even assuming that, when the trial court set bail, it did not inquire into defendant's ability to pay, as mandated by the later-decided case of Humphrey. (North River, supra, 48 Cal.App.5th at p. 230.) The trial court complied with its statutory obligations when it ordered the defendant's bond forfeited. Section 1305 requires a declaration of forfeiture of bail if a defendant fails to appear at any "occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required." (§ 1305(a)(1)(D).) Defendant failed to appear and the court ordered the bail forfeited the same day. Surety's failure to produce defendant within the statutory time, which included extensions and tolling, required the court to "enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman [are] bound." (§ 1306(a).) The trial court's failure, if any, to set bail without considering defendant's ability to pay, has no effect on the validity of the bond as to Surety. (Accredited 2019, supra, 34 Cal.App.5th at p. 899.)
Surety cites seven cases in its appellate opening brief and reply for the proposition the bail contract's forfeiture provision is invalid and unenforceable because the court failed to follow the statutory and constitutional procedures required for setting bail, such as those stated in Humphrey. Surety argues that, although waiver applies to minor procedural or technical irregularities, waiver does not apply here because the error of not inquiring into defendant's ability to pay the bail bond or consider alternatives to bond was a violation of constitutional and substantive state law. Therefore the error could not be waived. We disagree. The error was procedural as to Surety's challenge under Humphrey to the bond.
The cited cases are People v. Accredited Sur. & Cas. Co. (2012) 209 Cal.App.4th 617; People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588; People v. Lexington Nat'l Ins. Co. (2015) 242 Cal.App.4th 1098; Kiperman v. Klenshetyn (2005) 133 Cal.App.4th 934; Merced County v. Schaffer (1919) 40 Cal.App. 163; City & Cnty. Of San Francisco v. Hartnett (1905) 1 Cal.App. 652; Coburn v. Townsend (1894) 103 Cal. 233.
As explained in Accredited 2019, "Humphrey was concerned with how bail setting procedures can prevent a defendant from being able to make bail." (Accredited 2019, supra, 34 Cal.App.5th at p. 898.) Recognizing the surety's objection to the bond was procedural in nature, the Accredited 2019 court concluded that the surety "waived any procedural irregularities in the bail setting hearing when it 'assume[d] its obligations . . . at the time of the execution of the bond.'" (Ibid.) The Accredited 2019 court thus held that the trial court's alleged non-compliance with the procedural requirements for setting bail under Humphrey had "'no legal effect on the forfeiture of bail upon defendant's failure to appear.'" (Ibid.)
Therefore, any error in the trial court setting bail without considering defendant's ability to pay or bond alternatives, was procedural as to Surety. Surety thus forfeited its objection to the bond under Humphrey. The seven cases Surety cites contesting this were decided before Humphrey was decided, are factually distinguishable, and do not support, discuss, or stand for the proposition the bond is void and unenforceable against Surety. We therefore affirm summary judgment on the bond against Surety and the trial court's order denying Surety's motion to vacate summary judgment, discharge forfeiture, and exonerate bail.
"Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a 'waiver,' the correct legal term for the loss of a right based on failure to timely assert it is 'forfeiture,' because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the '"intentional relinquishment or abandonment of a known right."'" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) --------
V.
DISPOSITION
The judgment is affirmed. The State is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. MENETREZ
J.