Opinion
G044782 Super. Ct. No. 09CF1747
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. SAFETY NATIONAL CASUALTY COMPANY, Defendant and Appellant.
Charles E. Mullis for Defendant and Appellant. Nicholas S. Christos, County Counsel and Nicole M. Walsh, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Erick L. Larsh, Judge. Affirmed.
Charles E. Mullis for Defendant and Appellant.
Nicholas S. Christos, County Counsel and Nicole M. Walsh, Deputy County Counsel, for Plaintiff and Respondent.
In mid-July 2009, Orange County prosecutors filed a criminal complaint against Desaray Monique Simmsdavis based on an arrest warrant issued by a Clark County Nevada court. A felony arraignment was scheduled for August 5, 2009. Apparently Simmsdavis had been arrested prior to August 5, because, on August 4, Safety National Casualty Company filed a bail bond for $50,000 allowing her release.
On August 5, Simmsdavis did not appear at the August 5 felony arraignment, though her mother did. Simmsdavis was represented by the public defender's office. The deputy public defender told the court that Simmsdavis had been "bailed out by her mother, who's present in court." The public defender went on to say that Simmsdavis "is in Nevada right now with an attorney there trying to resolve the matter." Accordingly, the public defender asked for a month continuance "so we can get all the paperwork and everything from Nevada." The trial judge granted the request. He continued the matter to September 15. He said, "We will hold a bench warrant for $50,000 to ensure the appearance of the defendant in this case, and that will be held until 9/15 for continued arraignment." The minute order generated from the hearing stated that "Defendant is in State of Nevada handling fugitive matter."
Simmsdavis did not appear on September 15. The court ordered the bail bond forfeited. Notice was sent on September 17. More than a year later, in December 2010, the court denied a motion by Safety National to vacate the forfeiture predicated on the assertion that Simmsdavis had been arrested in Michigan on the Nevada warrant, hence the court was required to exonerate the bond. (See Pen. Code § 1305, subd. (c)(3) [if, "outside the county where the case is located" defendant is "arrested in the underlying case" exoneration is mandatory]; all statutory references in this opinion are to that Code.) There was a dispute over whether Simmsdavis really had been arrested in Michigan, and the court ultimately determined that the proof offered by Safety National was insufficient to establish that arrest. In the wake of the denial of the motion, summary judgment declaring Safety National's bond forfeited was entered January 6, 2011.
Safety National has timely appealed from the summary judgment declaring its bail bond forfeit, but its appeal does not challenge the trial court's decision on its motion to vacate forfeiture. Rather, Safety National now asserts that because the trial court did not declare the bond forfeited back on August 5, 2009, the court lost jurisdiction to enter an order of forfeiture on September 15, 2009.
Back in the early 1970's, the topic of precisely when an order of forfeiture must be entered was explored in detail by our Supreme Court in People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898 (United Bonding). The case was a gloss on language in section 1305 which then read: "If, without sufficient excuse, the defendant neglects to appear . . . the court must . . . direct . . . the undertaking of bail . . . be declared forfeited." (Id. at p. 903, fn. 4, italics omitted.) There, defendant had failed to appear on the first day of trial when he was required to do so. No excuse was offered for his absence. Months later, in the midst of trial of his codefendants, the court ordered the defendant's bail forfeited. (Id. at pp. 902-903.) The Supreme Court held that because the trial court had not declared bail forfeited the first time that the defendant had not appeared without excuse, the trial court lost jurisdiction to declare a forfeiture later. The court pointed out the "sound reasons" behind the rule. Sureties needed to know early on when to start looking for the defendant: "If a surety is to be afforded the protections provided by these provisions he must be advised at an early date of the fact of the forfeiture in order that he may institute procedures to locate and compel the appearance of the bailee." (Id. at p. 906.)
But the United Bonding court also had something to say about the words "without sufficient excuse" as they appeared (and still appear) in section 1305. If there is a "rational basis" to believe that the defendant did indeed have a "sufficient excuse" for nonappearance, then the failure to order an "immediate forfeiture" could be "justified." (United Bonding, supra, 5 Cal.3d at pp. 906-907.) Whether there was a sufficient excuse is to be tested by an abuse of discretion standard. (Id. at p. 907.)
Years later, in 1993, the Legislature would "embrace[] the Supreme Court's observations" in United Bonding by enacting section 1305.1. (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 951, fn. 6 (Ranger).) Section 1305.1 provides that if the defendant fails to appear for, among other things, an arraignment, "but the court has reason to believe that sufficient excuse may exist for failure to appear, the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail." In Ranger, for example, the defendant's prior history of always showing up for proceedings, including "usually" being early, was held a sufficient basis for the trial court not to declare a forfeiture when the defendant did not appear when his case was finally called. (Ranger, supra, 108 Cal.App.4th at pp. 948-953.)
Like Ranger, section 1305.1 fits the facts of the case before us. On August 5, 2009, the trial court easily had a rational basis to conclude that Simmsdavis had a sufficient excuse for not appearing, namely that Simmsdavis was in Nevada attending to the very matter that had precipitated her arrest in California in the first place. Safety National did not mention section 1305.1 in its opening brief, and has not filed a reply brief.
The judgment is affirmed. Respondent is to recover its costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
O'LEARY, J.