Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, Super. Ct. No. F366651, Michael L. Duffy, Judge
Law Offices of Benjamin P. Wasserman, Benjamin P. Wasserman; Harold Mesick for Defendant and Appellant.
James B. Lindholm, Jr., County Counsel, Ann C. Duggan, Deputy County Counsel, for Plaintiff and Respondent.
PERREN, J.
International Fidelity Insurance Company (International) appeals from a summary judgment ordering forfeiture of its bail bond. International contends that the court lost jurisdiction when it failed to declare a forfeiture of the bond in open court. (Pen. Code, § 1305, subd. (a).) We affirm.
All statutory references are to the Penal Code unless otherwise specified.
FACTS
In January 2005, International issued a $10,000 bail bond to secure the release of Jose J. Carranza, a criminal defendant. On February 14, 2005, Carranza failed to appear in court as ordered and the court ordered the bail forfeited. (§ 1305, subd. (a).) No transcript of the proceeding was recorded by a court reporter, but the clerk's minutes contain a statement that "bail ordered forfeited." Notice of the forfeiture order was duly served on International.
In August 2005, the trial court granted International's motion to extend the 180-day period to produce Carranza in court or otherwise demonstrate that the forfeiture should be vacated. (See §§ 1305, subd. (c)(1), 1305.4.) International was unsuccessful in that endeavor.
In April 2006, International filed a motion to vacate the forfeiture and exonerate the bail bond. It claimed the trial court lacked jurisdiction to enter a summary judgment pursuant to section 1306 because the court did not declare the bond forfeited in open court at the February 14, 2005, hearing as required by section 1305, subdivision (a). On July 21, 2006, the trial court denied the motion, concluding that the court clerk's minutes provided a sufficient record that bail had been properly forfeited. International appeals the July 21, 2006, order and the ensuing July 27, 2006, summary judgment.
DISCUSSION
Section 1305, subdivision (a) provides in relevant part that "[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 a scheduled court appearance. (Italics added.) International contends that the "bail ordered forfeited" notation in the clerk's minutes of the February 14, 2005, proceedings is insufficient, and that a reporter's transcript must reflect that the judge actually declared a forfeiture in open court. We disagree. We conclude that the record in this case establishes that the trial court made the required declaration of forfeiture in open court. (§ 1305, subd. (a).)
Prior to its 1998 amendment, section 1305, subdivision (a) did not require a declaration of forfeiture to be made "in open court," and, through judicial interpretation, an appropriate entry in the clerk's minutes was deemed sufficient to establish forfeiture. (See People v. Topa Ins. Co. (1996) 42 Cal.App.4th 566, 567; People v. Ranger Ins. Co. (1993) 19 Cal.App.4th 353, 356-357.) In 1998, the phrase "in open court" was added to the statute which now requires that a "court shall in open courtdeclare forfeited the undertaking of bail . . . ." Appellate courts have construed the new "in open court" language in section 1305, subdivision (a) to require the judge to make an express verbal statement that bail is forfeited on the record when the court is in session. (People v. National Auto. & Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 283 entering a forfeiture order in the minutes "during a recess in the proceedings" insufficient; People v. Amwest Sur. Ins. Co. (2004) 125 Cal.App.4th 547, 554.)
Section 1305 is jurisdictional and a forfeiture is void where the court fails to comply with its requirements. (People v. Topa Ins. Co. (1995) 32 Cal.App.4th 296, 300.) Also, because it involves a forfeiture, section 1305 must be strictly construed in favor of the surety. (Ibid.)
As in the instant case, prior cases generally concern whether the record contains sufficient and persuasive evidence that the court made the required express verbal statement while in session. For example, in Amwest, a minute order stated that "bail ordered forfeited," but the reporter's transcript was entirely silent on the matter. The court concluded that a notation in the minutes was insufficient in the face of a reporter's transcript that, if accurate, showed that the judge had not made the required declaration. (People v. Amwest Sur. Ins. Co., supra, 125 Cal.App.4th at pp. 549-550.)
The Supreme Court has granted a hearing in a case where the only evidence in the record was a "bail ordered forfeited" notation in the clerk's minutes. (People v. Allegheny Cas. Co. (2006) 136 Cal.App.4th 410, review granted May 17, 2006, S141483.) In that case, there was no reporter's transcript at all, and the appellate court concluded that the minute order was insufficient without confirmation in a reporter's transcript or other evidence in the record.
Here, the record includes evidence in addition to the minute order that confirms and establishes that the trial court made the required declaration in open court. The court clerk who was present and personally prepared the minutes of the February 14, 2005, proceeding submitted a declaration in International's motion to vacate the forfeiture. In the declaration, the clerk stated that, although he had no "present recollection" of the fact, it "is the court's routine practice to declare the bail forfeited at the time of the failure to appear and to do so in open session of the court." He further stated that, because he prepares the minute order while the court is still in session, "I am certain that the minute order, reflecting the record of the court's declaration that bail was forfeited in open court, was also prepared at or very near the time bail was forfeited in open session." And, "I have not prepared a minute order other than in open session indicating bail is forfeited in any felony matter that Judge Duffy has heard. For this additional reason, I am certain, in this matter, that the court's duty to declare in open court that bail is forfeit was regularly performed."
International argues that the clerk's declaration is inadequate because he has no specific recollection of the fact, his reconstruction of events is not credible or adequate, and the existence of a routine practice is not the issue. International, however, does not challenge the admissibility of the declaration or the principle that the weight to be given evidence is a function of the trial court. Moreover, Evidence Code section 1105 authorizes the use of "[a]ny otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom." (Curl v. Superior Court (1990) 51 Cal.3d 1292, 1297 [evidence by retired judge without specific recollection admitted to show his regular custom and habit]; see also In re Tucker (1966) 64 Cal.2d 15, 18 [clerk's affidavit concerning practice of deceased judge admissible to establish existence of specific fact].)
The judgment is affirmed. Costs to respondent.
We concur: GILBERT, P.J., COFFEE, J.