Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. S.D. No. 37-2009- 00096379-CU-PT-CTL Ronald F. Frazier, Judge.
BENKE, Acting P. J.
In People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 313 (Indiana), the Supreme Court recently resolved a conflict among Court of Appeal decisions with respect to when a surety on a bail bond must move to exonerate a bond when the accused has failed to appear, the bond has been forfeited and the accused has been taken into custody outside the county where the underlying criminal case was filed. In People v. Lexington National Ins. Co. (2007) 158 Cal.App.4th 370, 375 (Lexington), the court held that in such a case the surety must bring a motion to vacate forfeiture and exonerate the bond within 180 days after receiving notice the bond was forfeited. In People v. Ranger Ins. Co. (2006) 141 Cal.App.4th 867, 871 (Ranger), the court held that so long as the accused was in custody within 180 days after the forfeiture of the bond, the surety had a reasonable time to bring a motion to vacate the forfeiture and exonerate the bond. In Indiana the court approved the holding and reasoning in Lexington and held the surety's motion to vacate a forfeiture and exonerate its bond was untimely because the motion was made more than 180 days after bail had been forfeited.
In this case, which was decided by the trial court before the opinion in Indiana was filed, the trial court followed Ranger and vacated the forfeiture of a bond issued by respondent Indiana Lumbermens Mutual Ins. Co.'s (Indiana) bond and exonerated the bond, even though the criminal defendant in the case had been taken into custody outside the county where the criminal proceedings had been filed and Indiana's motion was made more than 180 days after the bond was forfeited. On the People's appeal, Indiana does not dispute that under Indiana its motion was untimely nor that this appeal is controlled by Indiana. Accordingly, we reverse the order vacating the forfeiture and exonerating the bond.
FACTUAL AND PROCEDURAL SUMMARY
Mario Mitchell, the criminal defendant in the underlying proceeding, was arrested in San Diego County and criminal proceedings were filed there. Indiana provided Mitchell with a $75,000 bail bond. On January 12, 2009, Mitchell failed to appear in the trial court, his bail was ordered forfeited, and on January 13, 2009, Indiana was given notice of the forfeiture.
On March 26, 2009, Mitchell was taken into custody in San Bernardino County and a "hold" was placed on him in the San Diego criminal case.
On August 17, 2009, the trial court entered summary judgment in favor of the People on the bail bond. Indiana was served with notice of entry of summary judgment the following day.
On September 9, 2009, Indiana moved to vacate the forfeiture and exonerate the bond. The People opposed the motion on the grounds it was untimely. The trial court granted Indiana's motion and the People filed a timely notice of appeal.
DISCUSSION
Vacation of a forfeiture and exoneration of a bond is automatic where the criminal defendant is taken into custody in the county where the underlying criminal proceedings were filed. (Pen. Code, § 1305, subd. (c)(2).) "On the other hand, when the defendant is returned to custody outside the county within the 180-day period, the statute provides only that 'the court shall vacate the forfeiture and exonerate the bail....'
All further statutory references are to the Penal Code unless otherwise sepcified.
"The parties agree that the surety may not rely on operation of law, but must affirmatively seek relief from forfeiture under section 1305(c)(3). [T]he statute does not require the court to take the initiative, because the court may not know that the defendant is in custody outside the county. Therefore, a motion by the surety is required." (Indiana, supra, 49 Cal.4th at pp. 305-306, fn. omitted.)
In determining when such a motion must be made, the court relied on section 1305, subdivision (c). Under, section 1305, subdivision (c), vacation of a forfeiture and exoneration of a corporate surety's bond is required if the fleeing defendant either appears or is returned to custody within 180 days after notice of forfeiture has been provided to the surety. Otherwise the People are entitled to summary judgment on the bond. (Indiana, supra, 49 Cal.4th at p. 305; § 1306, subd. (a).) After reviewing the legislative history of sections 1305 and 1306, the court in Indiana determined that the motion required when a criminal defendant comes into custody outside the county where criminal proceedings were initiated must be made within the 180-day period provided by section 1305, subdivision (c). (Indiana, supra, 49 Cal.4th at p. 313.)
Indiana concedes that because this case was not final when Indiana was decided, the rule in Indiana governs the disposition of the People's appeal. (See Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978-979.) Because there is no dispute in the record that Indiana's motion was made more than 180 days after it received notice that its bond had been ordered forfeited, its motion was untimely and should have been denied.
DISPOSITION
Accordingly, the order vacating forfeiture of the bond and exonerating the bond is reversed and the trial court is directed to enter judgment on the bond in favor of the People.
The People to recover their costs of appeal.
WE CONCUR: McDONALD, J., AARON, J.