Opinion
E051597 Super.Ct.No. INC10003851
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. ACCREDITED SURETY & CASUALTY COMPANY, Defendant and Appellant.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant. Pamela J. Walls, County Counsel, and Patricia Munroe, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the Superior Court of Riverside County. Thomas N. Douglass, and John G. Evans, Judges.† Reversed.
Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
† Judge Douglass denied Accredited Surety & Casualty Company's motion to vacate forfeiture and exonerate bail. Judge Evans denied Accredited Surety & Casualty Company's motion to vacate the prior order of April 23, 2010, and judgment and reconsider the prior order.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Patricia Munroe, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Accredited Surety & Casualty Company (the surety) posted a $25,000 bail bond for the release of Yanira Elizabeth Garcia (Garcia), a defendant facing criminal charges. On appeal, the surety asserts that because the trial court failed to timely declare the bail forfeiture upon Garcia's first failure to appear, the trial court lacked jurisdiction to order the bail forfeiture when she failed to appear at a subsequent hearing and to enter summary judgment with respect to forfeiture of the bond. We agree.
BACKGROUND
The facts underlying Garcia's criminal charges are not relevant to the determination of the issue on appeal.
On April 23, 2008, the surety's $25,000 bail bond, posted for the release of Garcia, was filed with the superior court in Riverside. Garcia appeared with counsel for a jury trial on March 9, 2009, at which time Garcia successfully moved to continue the matter until April, 17, 2009, and waived the time for trial to April 27, 2009. The court ordered Garcia to return on any and all future hearing dates. Between April 2008 and April 2009, Garcia appeared in court 12 times, as ordered.
We take judicial notice of the superior court file in case No. INF06324, People v. Yanira Elizabeth Garcia, and the register of actions for that case.
On Friday, April 17, 2009, both Garcia and her counsel failed to appear. The court permitted a special appearance by substitute counsel on Garcia's behalf. The substitute attorney, Ms. Friedrichs, informed the court that Garcia's attorney of record, Mr. DeFrank, was detained on a matter in Joshua Tree. Ms. Friedrichs reported that Mr. DeFrank had told her, "about 15 minutes ago," that he had received a telephone call the night before, from either Garcia or a family member, "explaining that [Garcia] will be in El Salvador." Ms. Friedrichs reported that Mr. DeFrank had said that "he will be more than willing to come in and explain the situation on Monday." Ms. Friedrichs had no further information concerning the reason for Garcia's failure to appear. The court continued the matter for a trial readiness conference on the following Monday, April 20, 2009, to allow Mr. DeFrank to provide whatever proof he had regarding Garcia's absence and the reasons therefor, and found good cause not to forfeit the bail bond before that hearing.
On April 20, 2009, Mr. DeFrank appeared but Garcia did not. As far as the record on appeal shows, Mr. DeFrank was unable to provide any explanation for his client's failure to appear. The court granted Mr. DeFrank's motion to be relieved as counsel of record, and issued a bench warrant in the amount of $50,000 for Garcia. In response to an inquiry about bond forfeiture, the court indicated that it had been unclear as to Garcia's whereabouts and reason for absence at the prior April 17, 2009, hearing, and had opted not to take any action at that time. It then ordered bail forfeited.
At the hearing, Mr. DeFrank referred to the declaration he filed in support of his motion to be relieved. The motion and the declaration are not contained in the record on appeal. Consequently, we do not know whether he offered any explanation for Garcia's absence. He did not offer any such explanation orally at the hearing.
On April 20 and 24, 2009, the trial court mailed a notice of forfeiture of bail and an amended notice of forfeiture of bond, respectively, to the bail agent and the surety. On October 26, 2009, the court granted the surety's motion to extend the time to file its motion to vacate the forfeiture, giving the surety until April 26, 2010, to return Garcia to custody and avoid forfeiture.
The record on appeal does not contain a waiver pursuant to Penal Code section 977 permitting Garcia to appear solely through counsel at the April 17 hearing. Section 977 requires a written waiver. (Pen. Code, § 977, subd. (b)(2).)
On April 7, 2010, Sanchez Bail Bonds, on behalf of the surety, filed a motion to vacate the forfeiture and exonerate the bond. On April 23, 2010, the trial court heard the motion and denied it. On April 29, 2010, the court entered summary judgment against the surety in the amount of $25,000, with interest costs of an additional $355, and issued notice of entry of summary judgment on May 4, 2010. The clerk certified the mailing of the notice of entry of judgment on May 4, 2010.
On May 17, 2010, the surety filed a motion to set aside summary judgment and reconsider the motion to vacate forfeiture and exonerate bail. The court issued a written order denying the motion on July 13, 2010, and filed it the following day. The court also awarded county counsel $739.40 in attorney's fees and costs, to be recovered out of the forfeited bail money.
On August 9, 2010, the surety filed its appeal from the orders of April 23, 2010, and July 13, 2010.
As we discuss below, the bond was exonerated by operation of law when the trial court failed to declare a forfeiture on April 17, 2010. Consequently, the trial court no longer had jurisdiction over the bond, and the summary judgment subsequently entered was void. (People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 582, 586.) A void judgment is subject to collateral attack at any time. (Ibid.)
DISCUSSION
THE BOND WAS EXONERATED BY OPERATION OF LAW ON APRIL 17,
2010
Penal Code section 1305, subdivision (a) provides, in pertinent part: "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 any of the following: [¶] (1) Arraignment. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required. . . ."
All further statutory citations refer to the Penal Code.
The law traditionally disfavors forfeitures. (County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62.) Consequently, statutes imposing forfeitures are to be strictly construed to avoid the harsh results of a forfeiture. (Ibid.; People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 307.) However, if a defendant fails to appear in court on one of the enumerated occasions, the court must declare a forfeiture, unless "the court has reason to believe that sufficient excuse may exist for the failure to appear, . . ." (§ 1305.1.) If the court has reason to believe that a sufficient excuse may exist, it may continue the case for a reasonable period to enable the defendant to appear without ordering forfeiture of the bond. (Ibid.) On the other hand, if the court has no information that a sufficient excuse may exist so as to justify a continuance pursuant to section 1305.1, the court must declare a forfeiture. If the court fails to do so, it loses jurisdiction and the bond is exonerated by operation of law. The court does not have jurisdiction to declare a forfeiture later. (People v. Indiana Lumbermens Mutual Ins. Co. (2011) 194 Cal.App.4th 45, 49 [Fourth Dist., Div. Two].)
Our Supreme Court has acknowledged that the question of what constitutes a sufficient excuse generally rests within the sound discretion of the trial court, while holding that a defendant's failure to appear without explanation is presumptively without sufficient excuse. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907; People v. Ranger Ins. Co. (2006) 143 Cal.App.4th 1304, 1309.) The issue here, however, is not whether the court properly exercised its discretion and determined that Garcia's absence was excusable. Rather, the issue is whether the trial court had the discretion to continue the matter for a reasonable time to determine whether a sufficient excuse existed. (People v. Indiana Lumbermens Mutual Ins. Co., supra, 194 Cal.App.4th at p. 49; § 1305.1.) In the absence of some explanation, even a tentative one, proffered for the defendant's failure to appear, the trial court does not have the discretion to continue the hearing in order to afford the defendant the opportunity to provide a sufficient excuse for his or her absence. Here, counsel was not able to provide any information that would rationally support the conclusion that there might be a sufficient excuse for Garcia's nonappearance. She had no information that Garcia was going to El Salvador for any reason which might constitute a sufficient excuse for her nonappearance, and her statement that Garcia's attorney of record would be "more than happy" to come in the following court day and "explain the situation" also did not convey a basis for concluding that the explanation might include information sufficient to excuse Garcia's failure to appear. Consequently, the trial court had no basis for exercising its discretion under section 1305.1, and it had no authority other than to follow the dictates of section 1305, subdivision (a), i.e., to declare the bond forfeited.
In People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, substitute counsel's statement that the defendant was not present but "'there may be an emergency [defendant] attended to,'" was considered sufficient explanation to justify a continuance under section 1305.1 in order to allow counsel of record to provide evidence that there was a sufficient excuse for the defendant's absence. (Id. at pp. 918, 925-926.) Here, there was no representation that there even might be an emergency or other situation which might constitute a sufficient excuse for Garcia's nonappearance, just a bald statement that Garcia was in El Salvador or might be going to El Salvador with no explanation as to her reasons for leaving the country. She might have been going to attend to a family emergency, or she might have been going on vacation—or she might have decided to skip out on her trial.
At oral argument, it was suggested that the trial court should have declared forfeiture first, and then allowed either defense counsel or the surety to appear at a later date to either produce Garcia or provide a basis for vacating the forfeiture. However, no case stands for the proposition that a superior court should "declare forfeiture first and ask questions later." Here, the court had a clear duty to declare the forfeiture. This would have afforded the surety the opportunity to produce Garcia or produce evidence supporting a motion to vacate the forfeiture. (See § 1305, subds. (c)-(i).) It was also suggested at oral argument that a trial court is not authorized to continue a hearing at which a defendant has failed to appear unless there is "evidence" to support a finding of good cause. Again, no published cases support this premise. In any event, we are not requiring that the court have evidence sufficient to support a finding of good cause to order a continuance pursuant to section 1305.1. Rather, we hold that the court must have sufficient information to rationally support the conclusion that proof of a sufficient excuse might be forthcoming. There was no such information, and the trial court's only option was to order the bond forfeited. Because it failed to do so, it lost jurisdiction over the bond and the bond was exonerated by operation of law. (People v. Indiana Lumbermens Mutual Ins. Co., supra, 194 Cal.App.4th at p. 49.)
DISPOSITION
The judgment forfeiting the bond is reversed, and the cause is remanded to the trial court with directions to exonerate the bond.
Accredited Surety & Casualty Company is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster J. I concur: Richli J. RAMIREZ, P.J., Dissenting.
I respectfully dissent.
Today my colleagues hold that a trial court is not authorized to continue a hearing at which a defendant has failed to appear unless a court has "sufficient information to rationally support the conclusion that proof of a sufficient excuse might be forthcoming." (Maj. opn., p. 8.) This is contrary to the terms of Penal Code section 1305.1 and defeats the purpose of the statute which authorizes the continuance for the very purpose of obtaining such information to rationally support the conclusion that the defendant's failure to appear was excused.
BACKGROUND
Between April 23, 2008, and March 9, 2009, defendant appeared at at least 12 hearings as ordered, while on bail posted by the surety. On March 9, 2009, defendant appeared with counsel who requested a continuance to April 17, 2009, and waived time for trial to April 27, 2009. On April 17, 2009, a Friday, neither defendant nor her counsel appeared. Defendant's counsel was in another branch court on another matter. A substitute attorney appeared at defendant's hearing, informing the court of the scheduling conflict regarding the attorney of record. Substitute counsel also related information that had been received by the attorney of record indicating defendant was in El Salvador.
The trial court continued the matter for two days, to the following Monday, April 20, 2009, to allow the defendant's attorney of record to provide whatever proof he had regarding the reasons for defendant's absence, and found good cause not to forfeit the bail bond. On the following Monday, the defendant failed to appear again, so the court issued a bench warrant and ordered the bail forfeited.
I adopt the facts as set forth on pages two through four of the majority opinion for the balance of the history of this case.
DISCUSSION
A failure to appear without explanation is presumptively without sufficient excuse. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907; People v. Ranger Ins. Co. (2006) 143 Cal.App.4th 1304, 1309.) Thus, where no reason whatsoever is offered for a failure to appear, it is error to fail to order a forfeiture of bail on the date of the defendant's first nonappearance. In such situations, the court loses jurisdiction to declare a forfeiture at a later date. (People v. Surety Ins. Co. (1984) 160 Cal.App.3d 963, 969.) However, where the trial court "has reason to believe a sufficient excuse may exist," it may continue a hearing without ordering forfeiture or issuing a bench warrant. (Pen. Code, § 1305.1; People v. Harco National Ins. Co. (2005) 135 Cal.App.4th 931, 934; People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 951.)
The determination is a matter within the trial court's discretion. (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 952.) On appeal, the trial court's ruling is subject to the deferential abuse of discretion standard and will not be disturbed unless a clear abuse of that discretion appears in the record. (People v. Ranger Ins. Co. (2005) 135 Cal.App.4th 820, 823.)
The theory behind Penal Code section 1305.1 is that ""'[i]f bail forfeiture is required immediately upon the first nonappearance of a defendant, no matter how valid his reason for nonappearance be, such defendant would be subjected not only to having his bail forfeited but the additional penalty of possibly being required to pay another premium for its reinstatement."'" (People v. Amwest Sur. Ins. Co. (1997) 56 Cal.App.4th 915, 921-922.) "If a trial court, on a first nonappearance, suspects that some good excuse exists, the public interest - which prefers the appearance of a defendant rather than a monetary penalty - is best served by encouraging a bondsman to increase its own efforts to locate the defendant and produce him in court in order to avoid a forfeiture and not to induce the bondsman to feel that further effort by him would be materially unproductive.[]" (County of Los Angeles v. Sur. Ins. Co. (1985) 165 Cal.App.3d 948, 950 [italics added].)
Penal Code section 1305.1 does not, by its terms, require the presentation of information or evidence to support a trial court's "reason to believe" that sufficient excuse may exist to justify a continuance to allow counsel to investigate the existence of an excuse. What constitutes a "reason to believe" is best determined by the trial court, and we should not substitute our judgment for that of the trial court. The majority's holding that there must be a "sufficient information to rationally support the conclusion that proof of a sufficient excuse might be forthcoming" requires the establishment of a sufficient excuse for nonappearance before a court can even continue a hearing to investigate the reasons for the failure to appear. This puts the cart before the horse.
I read Penal Code section 1305.1 differently. The statute refers to "reason to believe" and not to "sufficient information." Where an explanation for the defendant's nonappearance has been presented, the court has discretion to permit counsel to investigate the reasons for the nonappearance before determining whether bail should be forfeited. (People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th at p. 923.) In most situations involving a Penal Code section 1305, subdivision (b) determination, the only reasons before the trial court are the evidence or representations furnished by defendant's counsel. (People v. Ranger Ins. Co., supra, 135 Cal.App.4th at p. 824; People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 952; People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 19.) "'"The cases demonstrate that the courts have cooperated with defense counsels' requests and have liberally relied on their representations."'" (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 952, quoting People v. National Automobile & Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 306.)
A court's own experience with a defendant's past behavior over a several month period provides a "rational basis" for believing there might be a sufficient excuse for the defendant's absence. (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 953.) Each case presents its own unique set of circumstances, so the issue of whether the showing of the court's "reason to believe" is sufficient is decided on a case-by-case basis, where the determination is a matter within the trial court's discretion. (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 952.)
In Amwest, supra, a sufficient "reason to believe" was found to justify the continuance where substitute defense counsel volunteered that "there may be an emergency," despite the lack of any information whatsoever to support such a statement. (People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th at pp. 918, 925-926.) The reviewing court held the continuance was proper and that the trial court did not lose jurisdiction to declare forfeiture at the later hearing. The majority draws a distinction between that case and the present case by speculating that the defendant might have been going to attend to a family emergency, or she might have been going on vacation-or she might have decided to skip out on her trial. (Maj. Opn., p. 7, fn. 7.) The majority's speculation fails to take into account that the defendant had made multiple appearances for an extended period of time.
In People v. Ranger Ins. Co., defense counsel had not communicated with the defendant and did not provide any direct evidence to explain or justify the defendant's absence at the first nonappearance. Because the defendant had not missed any court appearances in the past, the continuance was held to be proper because, "the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance to justify continuing a hearing without declaring a bail forfeiture." (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 953.)
In that case, the reviewing court concluded that the trial court's own experience with the defendant's past behavior over a several month period provided a "rational basis" for believing there might be a sufficient excuse for the defendant's absence. (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 953.) The court rejected the surety's argument that the court lacked jurisdiction to declare bail forfeited when the defendant failed to appear on the date of the continued hearing. "To accept Ranger's argument would require ignoring section 1305.1 and instead require mandating a declaration of forfeiture with the defendant's first nonappearance in every case, even when the defendant had the most valid excuse for his absence." (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 954.)
The majority's decision in this case has adopted the position rejected by People v. Ranger Ins. Co., supra. The defendant had made numerous court appearances over many months, and had relayed information that she was in El Salvador at the time of her first nonappearance. Under the reasoning of People v. Ranger Ins. Co, supra, 108 Cal.App.4th 945, the court's own experience with the defendant's past behavior provided a rational basis for believing there might be a sufficient excuse for her absence. (See also People v. Ranger Ins. Co, supra, 135 Cal.App.4th at pp. 824-825 [the defendant had not previously failed to appear as ordered, and because defense counsel assured the court that the defendant would appear for the preliminary hearing, the court had a rational basis to believe the defendant may have had a sufficient excuse for the nonappearance, and thus had jurisdiction to declare a bail forfeiture when the defendant failed to appear at the later hearing].)
The brief continuance of the hearing in the present case, over a weekend from Friday to Monday, to investigate the circumstances of the nonappearance of a defendant who has made numerous appearances over the course of a lengthy prosecution, should not cause any loss of jurisdiction by the trial court to forfeit bail at a later date. (People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th at p. 924.) To require additional information showing that defendant's nonappearance was excused at the initial nonappearance would obviate the purpose of Penal Code section 1305.1, by requiring a court to declare a forfeiture on the first nonappearance in every case, even when a defendant has the most valid excuse for his absence. (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 954.)
In my view, given the deference with which we are required to review such judgments (People v. Amer. Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726), the court was authorized to continue the hearing to allow counsel to investigate the reasons for the failure to appear, and jurisdiction was not lost. At the later hearing, where no sufficient excuse was presented, the court had jurisdiction to declare the forfeiture. To do otherwise is to adopt a policy of "forfeit bail first, ask questions later." I would affirm the summary judgment. I therefore respectfully disagree with the majority.
Ramirez P.J.