Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SJ000942, Luis A. Lavin, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Appellant International Fidelity Insurance Company appeals from the superior court’s order denying its motion to vacate a bond forfeiture. We affirm.
BACKGROUND
In June 2006, appellant posted a bail bond for defendant John Eder Catano in the sum of $170,000. Catano was charged in a felony complaint with 12 counts, including unlawful use of personal identity, theft, and forgery. He appeared in court on the date initially set for his arraignment, July 20, 2006. The court continued the arraignment on the complaint to August 10, 2006, and ordered Catano to appear. On August 10, 2006, however, Catano failed to appear. At 3:10 p.m., the court, in the person of Commissioner Harold J. Mulville, noted in open court, on the record, that Catano had failed to appear without good cause. Commissioner Mulville ordered the bond forfeited and issued a no-bail hold. The same day, Judge Laura Priver issued a no bail bench warrant. The next day, August 11, notice of bond forfeiture was mailed to appellant.
On September 11, 2007, on application of the court clerk, the court entered summary judgment against appellant on the bond. On October 12, 2007, appellant moved to vacate the summary judgment, discharge the forfeiture, and exonerate the bail. In support of the motion, appellant argued that only a judge, not a court commissioner, can declare a bail forfeiture under Penal Code section 1305, subdivision (a), and that a commissioner has no authority to perform that specific judicial function. Therefore, according to appellant, the bond forfeiture and summary judgment on the bond were invalid. The County of Los Angeles opposed the motion, citing People v. Surety Ins. Co. (1975) 48 Cal.App.3d 123 (Surety Ins. I)and People v. Surety Ins. Co. (1971) 18 Cal.App.3d Supp. 1 (Surety Ins. II), both of which held that a court commissioner has the power to declare a bail forfeiture. At a hearing on January 3, 2008, the trial court denied the motion. Appellant filed a timely notice of appeal.
DISCUSSION
Reprising the argument it made in the trial court, appellant contends that a court commissioner has no authority to declare a bail forfeiture, and that, therefore, the trial court erred in denying its motion to vacate the forfeiture. We disagree.
In relevant part, Penal Code section 1305 (hereafter section 1305), subdivision (a), provides that when a defendant fails to appear at arraignment, “[a] court shall in open court declare forfeited the undertaking of bail . . . if, without sufficient excuse, a defendant fails to appear.” The statutory reference requiring action by a “court . . . in open court” means that the declaration of forfeiture is not a mere ministerial act to be performed by a court clerk, but rather a judicial act to be performed by a judge. (See People v. Frontier Pacific Ins. Co. (2000) 83 Cal.App.4th 1289, 1294-1295 [Pen. Code, § 1306, subd. (a), authorizing summary judgment on the bond by “the court which has declared the forfeiture,” requires at a minimum that summary judgment be signed by a judge].) But the fact that the declaration of forfeiture is a judicial act does not mean that it cannot be done by a commissioner.
As held in Surety Ins. I and II, both supra, declaring bail forfeited is in the nature of an ex parte order, because the court acts on its own motion without having provided notice to the defendant or the surety. (Surety Ins. II, supra, 48 Cal.App.3d at pp. 126-127; Surety Ins. I, supra, 18 Cal.App.3d at p. Supp. 4.) Code of Civil Procedure section 259 (hereafter section 259), subdivision (a), provides in relevant part that “[s]ubject to the supervision of the court, every court commissioner shall have power to . . . [¶] [h]ear and determine ex parte motions for orders . . . in the superior court for which the court commissioner is appointed.” Construing a predecessor to this provision (former section 259a), which authorized commissioners in counties with a population of more than 900,000 to hear and determine ex parte motions, the courts in Surety Ins. I, 18 Cal.App.3d at page Supp. 4, and Surety Ins. II, supra, 48 Cal.App.3d 123,held that such authority to hear and determine ex parte matters encompassed the authority to declare bail forfeitures.
Code of Civil Procedure section 259, subdivision (a), provides in full: “Subject to the supervision of the court, every court commissioner shall have power to do all of the following:
Appellant contends that Surety Ins. I and II are poorly reasoned. First, appellant contends that section 259, subdivision (a), requires that the commissioner’s power be “[s]ubject to the supervision of the court.” Appellant fails to explain, however, how this language affects the result. That the court retains ultimate supervisory authority over a commissioner does not deprive the commissioner of the power to hear and determine ex parte matters.
Second, appellant contends that the full language of section 259, subdivision (a), “limits [the commissioner’s] authority to a particular class of motions, which are for orders, alternative writs and writs of habeas corpus.” According to appellant, a declaration of bail forfeiture “is not a motion, ex parte or otherwise.” Rather, section 1305, subdivision (a), is simply a direction to the court to forfeit bail if the defendant fails to appear.
Since 1971, however, when Surety Ins. I was decided – reiterated in 1975 by Surety Ins. II -- a bail forfeiture has been deemed an ex parte motion within the power of a court commissioner to hear and determine. Although the Legislature has amended section 1305 since then, it has failed to pass any amendment rejecting the holdings of Surety Ins. I and II. “The Legislature is presumed to have knowledge of existing judicial decisions when it enacts and amends legislation. When the Legislature amends a statute that has been the subject of judicial construction, changing it only in part, the presumption is that the Legislature intended to leave the law unchanged in the aspects not amended.” (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 642-643.) The Legislature’s failure to amend section 1305 to deprive commissioners of the power to declare bail forfeitures is “particularly significant,” because it constitutes an “implicit endorsement” of the judicial interpretation granting that power. (Flannery, supra, 61 Cal.App.4th at pp. 642, 643.) Thus, we find no reason to vary from the reasoning of Surety Ins. I and Surety Ins. II.
DISPOSITION
The order denying the motion to vacate the bond forfeiture is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.
“(a) Hear and determine ex parte motions for orders and alternative writs and writs of habeas corpus in the superior court for which the court commissioner is appointed.”