Opinion
G056813
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN SURETY COMPANY, Defendant and Appellant.
Law Offices of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Leon J. Page, County Counsel, and Suzanne E. Shoai, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF2758) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas A. Glazier, Judge. Affirmed. Law Offices of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Leon J. Page, County Counsel, and Suzanne E. Shoai, Deputy County Counsel for Plaintiff and Respondent.
Defendant American Surety Company (American Surety) acting through its agent Alvarado Bail Bonds (Alvarado) posted a bond of $35,000 for Everett Arnold Walker. Walker failed to appear at a subsequent court date, the bond was ordered forfeited, and the trial court later entered summary judgment against American Surety.
American Surety now argues the summary judgment should be set aside, and the bail forfeiture vacated, because the trial court did not consider Walker's ability to pay when setting bail. American Surety relies on In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278 (Humphrey), which held due process requires a court to consider a defendant's ability to pay when determining a bail amount. While this appeal was pending, the Third Appellate District decided People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891 (Accredited), which held a trial court's failure to comply with Humphrey when setting bail did not invalidate the bail bond contract. American contends Accredited was decided incorrectly and should not be followed in this case. We disagree and affirm the summary judgment.
FACTS
In November 2016, Walker was charged with possession of ammunition by a prohibited person. In January 2017, Walker appeared in court and his bail was set at $25,000. Two weeks later, Alvarado, acting as an agent for American Surety, posted a $25,000 bond and Walker was released from custody on bail.
After bailing out, Walker appeared in court and asked to continue his arraignment so he could hire private counsel. The court continued the arraignment, but Walker failed to appear at the next hearing date. At that time, the court ordered the $25,000 bond forfeited and issued an arrest warrant.
A few weeks later, Walker was arrested on the warrant. The next day he appeared in court, the public defender was appointed to represent him, he was arraigned and a pretrial was set. The court also exonerated the $25,000 bond and set bail at $35,000, without stating any reasons for the increase.
Walker appeared in custody at the pretrial with a retained attorney. The case was continued a few weeks and the bail remained at $35,000. Eleven days later, Alvarado, acting as an agent of American Surety, posted a $35,000 bond. Walker was again released on bail and he appeared for his next two court dates, but failed to appear for a third, so the court ordered the $35,000 bond forfeited.
In July 2018, American Surety filed a motion to vacate the forfeiture and exonerate the $35,000 bond. The motion was denied on July 19. On July 20, the court granted summary judgment in the amount of $35,000 against American Surety.
DISCUSSION
American Surety argues the trial court failed to consider Walker's ability to pay when setting his bail and, as a result, the bail contract was void and unenforceable based on Humphrey. American Surety acknowledges Accredited rejected this argument, but contends Accredited was wrongly decided. We are not persuaded.
County counsel argues American Surety does not have standing to assert Walker's constitutional rights. We assume without deciding it does have standing. --------
In Humphrey, the Court of Appeal held due process required a trial court to consider a defendant's ability to pay, and other factors, when determining whether to set bail. (Humphrey, supra, 19 Cal.App. 5th at p. 1041.) The court concluded such consideration was constitutionally required to ensure the defendant "not be imprisoned solely due to poverty and that rigorous procedural safeguards are necessary to assure the accuracy of determinations that an arrestee is dangerous and that detention is required due to the absence of less restrictive alternatives sufficient to protect the public." (Ibid.)
In Accredited, a case which is indistinguishable from this case and directly on point, the Court of Appeal held failure to consider a defendant's ability to pay when setting bail did not invalidate a bail contract. Like American Surety, the defendant in Accredited argued "the bond should not be forfeited because the procedures used to set the bail amount were defective." (Accredited, supra, 34 Cal.App.5th at p. 898.)
The Court of Appeal disagreed holding, '"[d]efects and irregularities, if any, in the proceedings preliminary to the taking of bail are considered as waived by the surety when it assumes its obligations as such at the time of the execution of the bond.' [Citations.]" (Accredited, supra, 34 Cal.App.5th at p. 898.) Further, "noncompliance with the procedural requirements for setting bail 'have no legal effect on the forfeiture of bail upon defendant's failure to appear for sentencing.' [Citation]." (Ibid.)
American Surety argues Accredited was incorrectly decided and contends other cases have "distinguished between minor procedural irregularities and invalid court orders that affect the substantive rights of the parties." In support American Surety string cites eight cases without any reasoned analysis or argument. None of these cases are analogous to this case, and none causes us to question Accredited.
For example, in City and County of San Francisco v. Hartnett (1905) 1 Cal.App. 652 the defendant's bail amount was set by a warrant and bond clerk. The appellate court ruled the bond was void because the bail process outlined in the Penal Code specifically required the bail amount to be set by a court or magistrate. (Id. at p. 654). But in this case, bail was set by the court as required by the statute.
People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588 (International Fidelity) is equally inapt. There the defendant's initial bail was set at $35,000, and a bond in that amount was posted by Bankers Insurance Company. The prosecution later informed the court the defendant had outstanding warrants. (Id. at p. 591.) The court responded by remanding the defendant into custody and increasing his bail to $100,000, but allowing the previously posted $35,000 bond to remain. (Ibid.) The defendant then posted a $65,000 bond with International Fidelity. (Ibid.) The defendant failed to appear at a later court appearance, both bonds were forfeited, and a $100,000 summary judgment was later entered against International Fidelity. (Ibid.) International Fidelity filed a motion to set aside the summary judgment, the motion was denied, and International Fidelity appealed. (Ibid.)
The Court of Appeal reversed, observing that under Penal Code section 1305, subdivision (c)(1), the $35,000 bond was exonerated as a matter of law when the defendant was remanded into custody. (International Fidelity, supra, 204 Cal.App.4th at p. 594.) As a result of that exoneration, the trial court had unlawfully applied the $35,000 bond to the new $100,000 bail. (Ibid.) And, without applying the $35,000 "it was legally impossible for the [$65,000 bond] to provide a total of $100,000 bail." (Ibid.)
The Court of Appeal next analyzed the consequences of misapplying the $35,000 bond to the $100,000 bail amount. (International Fidelity, supra, 204 Cal.App.4th at p. 595.) The court reasoned, "The contractual nature of the relationship between the government and the surety leads to the conclusion that the bail order is the offer, and the posting of a bond is the acceptance of that offer." (Ibid.) The court concluded the bail agreement between International Fidelity and the trial court consisted of International Fidelity agreeing to post the $65,000 bond in exchange for two forms of consideration: (1) the release of the defendant from custody; and (2) the application of the $35,000 bond. (Ibid.) Because the $35,000 bond was exonerated when the defendant was remanded into custody, International Fidelity "did not receive the benefit of the additional $35,000 of bail being in place" and the bail contract was therefore void. (Ibid.)
But in this case, unlike in International Fidelity, the bail contract was not void, because American Surety received the full benefit of its bargain when it posted the $35,000 bond and Walker was released from custody. Plus, any alleged defect in Walker's bail amount was procedural and, thus, forfeited by American Surety when it posted the $35,000 bond. (Accredited, supra, 34 Cal.App.5th at p. 898.)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.