Opinion
B292401 C/w B292408
04-01-2020
THE PEOPLE, Plaintiff and Respondent, v. THE NORTH RIVER INSURANCE CO. et al., Defendants and Appellants.
Jefferson T. Stamp, for Defendants and Appellants. Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel, and Jessica C. Rivas, Deputy County Counsel, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on April 1, 2020, be modified as follows:
1. On page 11, the first full sentence at the top of the page beginning with "But it is not enough" is modified to read as follows:
But it is not enough merely to be physically present in the courthouse because a defendant by merely being present does not subject himself "to the prospect of being remanded" and hence does not submit himself to the court's jurisdiction. (Id. at p. 919; People v. Ranger Ins. Co. (2005) 133 Cal.App.4th 1000, 1002 [defendant's physical presence "in the courthouse vestibule, hallway, restroom, or clerk's office is not an appearance in court"].)
2. On page 11, the second full sentence at the top of the page beginning with "Because defendant's case" is modified to read as follows:
Because defendant's case was not called for hearing until after he fled, he was never faced with the prospect of being remanded into custody and thus had not submitted himself to the court's jurisdiction.
3. On page 11, after the sentence beginning with "Until that time," and before the sentence beginning with "On these facts" insert the following as two new paragraphs:
Resisting this conclusion, the surety in its petition for rehearing points to the portion of the trial court's minute order for the November 1, 2016 hearing, which states, "[t]he defendant appears in court, but leaves after being advised that he would be remanded." Read in conjunction with the minute
order's further statement that "[t]he defendant fails to appear," the sentence cited by the surety likely refers to defendant's physical appearance in the courtroom during the off-the-record bench conference, yet as we conclude, this does not amount to an "appear[ance]" within the meaning of the pertinent statute; as such, it does not alter our conclusion. And to the extent the trial court was intending to make a finding under section 1305, subdivision (c)(1), we disagree with that finding for the reasons stated above. Further, and contrary to what the surety also asserts in its petition for rehearing, our ruling does not impose an extra-statutory "open court" requirement; we are merely applying the statutory "appear . . . in court" requirement as guided by the precedent in this area.
In its petition for rehearing, the surety further offers up a new affirmative argument for why defendant should be deemed to have "appear[ed] . . . in court"—namely, that the trial court's off-the-record conversation with the lawyers necessarily excused defendant from the operation of the fugitive disentitlement doctrine, and hence necessarily qualified as an "appear[ance] . . . in court." The surety waived this argument by making it for the first time in its petition for hearing, particularly after forgoing its right to file a reply brief. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1013.) The argument also lacks merit. Even assuming the surety has properly characterized the
contours of the equity-based fugitive disentitlement doctrine, that doctrine does not inform—let alone control—the meaning of the phrase "appear . . . in court" within the meaning of section 1305, subdivision (c)(1).
4. On page 11, the sentence "On these facts, defendant never appeared in court" should be a new paragraph, and add the following footnote at the end of the sentence:
In its petition for rehearing, the surety argues that we must grant rehearing because our conclusion that defendant did not "appear . . . in court" is an "issue . . . not proposed or briefed by any party to the proceeding." (Gov. Code, § 68081.) The surety is wrong. The surety argued in its opening brief that defendant "appear[ed]" in court on November 1, 2016. That we found that issue to be without merit under a different rationale than the one advanced by the county in its responsive brief does not entitle the surety to rehearing or supplemental briefing. (See People v. Alice (2007) 41 Cal.4th 668, 679 ["the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of section 68081"], italics added.)There is no change in the judgment. Appellants' petition for rehearing is denied. /s/_________
CHAVEZ, Acting P.J. /s/_________
WILLHITE, J. /s/_________
HOFFSTADT, J.
Associate Justice of the Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
NOT TO BE PUBLISHED IN THE 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. (Los Angeles County Super. Ct. No. SJ4480) APPEAL from a judgment of the Los Angeles Superior Court, Christopher K. Lui, Judge. Affirmed Jefferson T. Stamp, for Defendants and Appellants. Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel, and Jessica C. Rivas, Deputy County Counsel, for Plaintiff and Respondent.
******
A surety issued two bail bonds to a criminal defendant guaranteeing his appearance at a consolidated hearing for two different cases. When the defendant did not show, the trial court ordered the bonds forfeited. A year later, the court entered summary judgment for the county as to both bonds and denied the surety's motion to set aside that judgment. The surety argues that the court erred in denying its motion. We conclude there was no error as to the issues properly before us, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Criminal Charges and Bail Bonds
In July 2016, Marcus Jeffrey Lamour (defendant) pled no contest to a felony count of using personal identifying information to obtain goods or services (Pen. Code, § 530.5, subd. (a)). The trial court continued the sentencing for one year with the understanding that, if defendant picked up no further arrests, his conviction for this "wobbler" offense would be reduced to a misdemeanor.
All further statutory references are to the Penal Code unless otherwise indicated.
Approximately one month later, in August 2016, defendant was arrested at Los Angeles International Airport in possession of four credit cards in other people's names as well as an identification card bearing his photograph and someone else's name. For this conduct, the People charged defendant with four counts of possessing access card account information for a card issued to someone else (§ 484e, subd. (d)), and one count of forgery (§ 470, subd. (b)).
In September 2016, after the trial court set bail for the original case at $100,000 and for the new case at $150,000, defendant posted bail bonds in those amounts. For each, the surety is defendant North River Insurance Company (the surety). Each bond explicitly listed that defendant was required to appear in court on October 28, 2016.
II. Defendant's Nonappearance and Forfeiture of the Bond
A. The October 28 , 2016 hearing
Defendant did not appear in court on October 28, 2016.
However, defendant's attorney was present. He represented that defendant was absent because his flight—which was originally scheduled to arrive one hour before the court appearance—had been canceled, and that defendant's rescheduled flight would not arrive until later that day. The court found that defendant had "failed to appear" and, in open court, ordered both bonds forfeited. The court also issued a bench warrant for defendant, but set a hearing for November 1, 2016 and ordered the bench warrant held until that date to give defendant the opportunity to appear.
B. The November 1 , 2016 hearing
Before the trial court called defendant's cases, the court held an off-the-record bench conference with the prosecutor and defendant's attorney. Defendant did not participate in the bench conference, although he was present in the courtroom. During that conference, the court indicated its intent to remand defendant into custody and instructed defense counsel to tell his client not to leave the courtroom until the case was called. Defense counsel told defendant of the court's intention and defendant proceeded to walk out of the courtroom to a waiting car outside the courthouse. When the court called defendant's cases, it learned of defendant's flight, kept the bonds forfeited and issued a bench warrant for defendant's arrest.
C. Notice of forfeiture and appearance period
The court clerk mailed a Notice of Forfeiture of Bond to the surety and bail agent on November 4, 2016. Before the initial 185-day appearance period expired (that is, the period during which the forfeiture must be vacated and the bond exonerated if the defendant appears (§ 1305, subds. (b)(1), (c)(1) [180 days plus five days for mailing]), the court extended the period until November 22, 2017.
III. Motion to Vacate Forfeiture and Exonerate Bond
On the last day of the extended appearance period, the surety filed a motion to vacate the forfeiture on the grounds that (1) defendant had appeared in court on November 1, 2016, and (2) forfeiture of the bond would be inequitable. After considering further briefing, the trial court denied the motion.
IV. Entry of Summary Judgment and Motion to Vacate Summary Judgment
On January 5, 2018, the trial court entered summary judgment for the county on each bond, as required by section 1306, for the amount of each bond plus $435 in costs.
On March 19, 2018, the surety moved to set aside the summary judgments on the grounds that (1) the trial court lacked jurisdiction to forfeit the bond because defendant had a "sufficient excuse" for his absence on October 28, 2016, and (2) the then-recent decision in In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278, rendered the current, money-bail system unconstitutional. Following a full round of briefing, the trial court on July 30, 2018, issued a 15- page order denying the motion. As pertinent to this appeal, the court ruled that the trial court had jurisdiction to forfeit the bond because the court, at the time of the forfeiture, had "exercised its discretion" in finding "[d]efendant's excuse that he was flying in from New York insufficient" to excuse his absence.
V. Appeal
The surety filed notices of appeal in each case appealing solely from the trial court's July 30, 2018 order.
We subsequently consolidated the appeals.
DISCUSSION
In this now-consolidated appeal, the surety argues that the trial court erred in denying its motion to set aside the summary judgment because (1) the trial court lacked jurisdiction to forfeit the bonds because defendant proffered—and the court accepted—a sufficient excuse for his nonappearance on October 28, 2016, (2) the trial court was required to vacate the forfeiture when defendant appeared in court on November 1, 2016, and (3) equitable considerations warrant vacatur of the forfeiture.
I. Jurisdiction to Forfeit the Bond
"[E]xcept for capital crimes when the facts are evident or the presumption great," a criminal defendant has the right to be "released on bail by sufficient sureties." (Cal. Const., art. I, § 28, subd. (f)(3).) At least for now, the most common mechanism for obtaining release is a bail bond, which is "'"a contract between [a] surety and the government whereby the surety acts as a guarantor of [a criminal] defendant's appearance in court under the risk of forfeiture of the bond."'" (People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 42 (Financial Casualty).)
The bail bond system has been repealed—including all of the statutes referred to in this opinion—by Senate Bill 10. (Sen. Bill No. 10, approved by Governor, Aug. 28, 2018 (2018 Reg. Sess.) ch. 244.) However, Senate Bill 10 qualified for the November 3, 2020 ballot and will not take effect until it is approved by the majority of the voters. (See https://www.sos.ca.gov/elections/ballot-measures/qualified-ballot-measures; https://oag.ca.gov/system/files/initiatives/pdfs/18-0009%20%28Referendum%20of%20SB%2010%29.pdf [proposed referendum].)
Because the law generally abhors a forfeiture (People v. National Automobile & Casualty Ins. Co. (2004) 121 Cal.App.4th 1441, 1448 (National Automobile)), the statutory procedures regulating the forfeiture of bail bonds are "'"'subject to precise and strict construction'"' [citation]" (People v. The North River Ins. Co. (2019) 37 Cal.App.5th 784, 792 (North River); People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 582, 586). What is more, the provisions regarding forfeiture of a bond are jurisdictional; if they are not followed, the court loses subject matter jurisdiction over the bond and may not enter summary judgment on it. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907 (United Bonding); National Automobile, supra, 121 Cal.App.4th at p. 1448.)
Where, as here, a defendant "fails to appear" at one of the statutorily enumerated proceedings or when his "presence in court is [otherwise] lawfully required," a trial court has two options: (1) if the defendant's failure to appear is "without sufficient excuse," the court may "declare" the bond "forfeited" (§ 1305, subd. (a)(1)), or (2) if "the court has reason to believe that sufficient excuse may exist for the failure to appear," the court may "continue the case" for a "reasonable" "period" "to enable the defendant to appear without ordering a forfeiture" of the bond (§ 1305.1). (People v. Financial Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 377.) Between the two options, forfeiture is the default option. (Ibid. ["Forfeiture is the general rule."]; Financial Casualty, supra, 2 Cal.5th at p. 42 ["When the surety . . . fail[s] to secure the defendant's appearance, the bond generally must be enforced."]; North River, supra, 37 Cal.App.5th at p. 796 ["'[A] defendant's failure to appear without explanation is presumptively without sufficient excuse.'"].)
When a court exercises the first option of forfeiting the bail bond there are "two jurisdictional prerequisites [to the validity of that forfeiture]—specifically, [(1)] the defendant's failure to appear at an enumerated proceeding or on another occasion as 'lawfully required,' and [(2)] the lack of a sufficient excuse for the defendant's nonappearance." (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 710; Financial Casualty, supra, 2 Cal.5th at p. 42; National Automobile, supra, 121 Cal.App.4th at p. 1447.) Because it is undisputed that defendant did not appear at the October 28, 2016 hearing and that he was statutorily required to do so, whether the trial court acted within its jurisdiction in this case turns solely on whether there was a "sufficient excuse . . . for the [defendant's] nonappearance." Whether an excuse is "sufficient" is adjudged on a "case-by-case basis" (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 952 (Ranger Ins. Co.); People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 923 (Amwest)), and we review a trial court's determination that an excuse is not sufficient for an abuse of discretion (United Bonding, supra, 5 Cal.3d at p. 906; Ranger Ins. Co., at p. 952; People v. Frontier Pac. Ins. Co. (2000) 83 Cal.App.4th 1289, 1293).
The trial court did not abuse its discretion in concluding that defendant's proffered excuse for nonappearance was not "sufficient." Although courts may choose to accept a defense attorney's representation regarding why a defendant is not present in court (North River, supra, 37 Cal.App.5th at p. 797; People v. Am. Bankers Ins. Co. (1989) 215 Cal.App.3d 1363, 1367; see also Ranger Ins. Co., supra, 108 Cal.App.4th at pp. 952-953 [cataloguing various excuses found to be "sufficient"]; Amwest, supra, 56 Cal.App.4th 923-924 [same]), courts are not required to do so (People v. International Fidelity Ins. Co. (2007) 151 Cal.App.4th 1056, 1061 ["While it is true that courts often give a nonappearing defendant the benefit of the doubt when presented with the defendant's attorney's representation for why an appearance has not been made, the fact remains that such a decision is a matter for the court's discretion."). A court does not abuse its discretion in ruling that a defendant has not presented a sufficient excuse when his counsel reports that the defendant had a heart attack. (Id. at pp. 1059-1061.) Consequently, the trial court in this case did not abuse its discretion in not accepting as a sufficient excuse defense counsel's representation that defendant's flight was cancelled. This is especially true when the cancellation would not have resulted in a nonappearance if defendant's original flight plans had not already cut it so close. (E.g., Lyons v. Superior Court of Los Angeles County (1955) 43 Cal.2d 755, 758 [attorney's absence from court not excused due to a "personal matter reasonably within his control"], italics added.)
The surety offers two arguments against this conclusion.
First, the surety contends that it does not matter whether the trial court could have rejected his excuse as insufficient because the court actually accepted it as valid. The record is to the contrary. Had the trial court found defendant's excuse to be valid, it would have continued the hearing without ordering a forfeiture. (§ 1305.1) But the court did no such thing. Instead, it ordered the bonds forfeited, which is the order a court gives when it finds the nonappearance not to be supported by a sufficient excuse. (§ 1305.) "Whe[re], as here, a trial court does not continue the matter, but instead forfeits bail," a reviewing court must "presume regular performance of duty" and "support [the trial] court's lawful exercise of jurisdiction." (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 718 (Allegheny).)
Second, the surety alternatively asserts that the trial court abused its discretion because it mistakenly believed that it had no discretion to find defendant's proffered excuse to be sufficient. To be sure, "an abuse of discretion occurs where the trial court was not 'aware of its discretion.'" (People v. Carmony (2004) 33 Cal.4th 367, 378.) But a trial court is "presumed to have regularly performed its official duty and acted in the lawful exercise of its jurisdiction" (Allegheny, supra, 41 Cal.4th at p. 718), and the surety has not rebutted that presumption here. As proof that the trial court misunderstood the scope of its discretion, the surety points to the following statements by the court: "I have to forfeit the bond today" and "at this point I've got to forfeit the bond when the guy doesn't show up. I can't hold that [bond]." Neither of the statements overcomes the presumption that the trial court properly understood that it had the discretion to accept or reject defense counsel's proffered excuse because neither statement speaks directly to the court's evaluation of the defendant's proffered excuse. What is more, the court in making these statements was discussing whether it could declare a forfeiture and "hold" it; as the trial court properly determined, no such procedure exists. Instead, and as the trial court properly—albeit implicitly—ruled, it was required "to forfeit the bond" once it rejected defendant's excuse. The underlying premise of the surety's argument is that a trial court must make an express ruling on the sufficiency or insufficiency of a defendant's excuse, but the law is to the contrary. (Allegheny, supra, 41 Cal.4th at p. 718.)
In light of our analysis, we have no occasion to reach the surety's further attacks on the trial court's alternate rationales for denying the motion to set aside or on the consequences of concluding that there was a sufficient excuse.
II. Defendant's "Appearance" on November 1, 2016
A court is required to vacate a prior forfeiture of a bail bond and to exonerate that bond if the defendant "appears . . . in court within 180 days of the date of forfeiture." (§ 1305, subd. (c)(1); People v. Accredited Surety & Casualty Co. (2018) 26 Cal.App.5th 913, 918 (Accredited Surety).) Where, as here, the facts are undisputed, we independently review the trial court's determination that the defendant did not "appear" "in court." (Coito v. Superior Court (2012) 54 Cal.4th 480, 488 [issues of statutory construction reviewed independently]; Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148 [application of law to undisputed facts reviewed independently].)
Defendant did not appear in court on November 1, 2016. To appear in court, a defendant must "submit[] himself to the court's jurisdiction." (Accredited Surety, supra, 26 Cal.App.5th at pp. 919-920.) A defendant does so by making an appearance in court when his case is called, even if he absconds from the courtroom thereafter. (Ibid.) But it is not enough merely to be physically present in the courthouse because a defendant by merely being present does not submit himself to the court's jurisdiction. (People v. Ranger Ins. Co. (2005) 133 Cal.App.4th 1000, 1002 [defendant's physical presence "in the courthouse vestibule, hallway, restroom, or clerk's office is not an appearance in court"].) Because defendant's case was not called for hearing until after he fled, he was never at risk of being remanded into custody and had not submitted himself to the court's jurisdiction. (See People v. Indiana Lumbermens Mutual Ins. Co. (2011) 194 Cal.App.4th 45, 50-51 [discussing significance of a court calling a case under the bail bond statutes].) Until that time, defendant was merely present in the courtroom's gallery while the court had an off-the-record conversation with the lawyers in the case. On these facts, defendant never appeared in court.
III. Refusal to Exonerate Bond on "Equitable Grounds"
We lack jurisdiction to entertain the surety's challenge to the forfeiture on equitable grounds. The surety raised its equity-based challenge in its motion to vacate the forfeiture, and the trial court rejected that challenge in its order denying that motion to vacate. To the extent that this order was separately appealable, it is not before us now because the surety did not seek to appeal it. (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216 [when "an injured party . . . could have appealed" an order, its "fail[ure] to do so" precludes raising it in a subsequent appeal].) And to the extent this order was not separately appealable, the surety did not list that order in its notices of appeal in these cases. Those notices specify that the surety is appealing solely from the trial court's subsequent order denying the motion to set aside the summary judgment. Where, as here, an appellant specifies the order from which it is appealing, orders not specified are not part of the appeal. (Roth v. Parker (1997) 57 Cal.App.4th 542, 551; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239; Morton v. Wagner (2007) 156 Cal.App.4th 963, 967-968.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P.J.
CHAVEZ /s/_________, J.
WILLHITE
Associate Justice of the Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.