Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC334868
Duffy, J.
Appellant American Contractors Indemnity Company, as surety on a $25,000 bail bond given to secure the appearance of Michael Salinas, appeals from the summary judgment entered against it on the bond after Salinas failed to appear and the bond was forfeited. American raises three claims of error, including a dispositive claim that on a prior occasion, the bond was exonerated when Salinas also failed to appear but the court did not declare a forfeiture as it was required to do under Penal Code section 1305, resulting in a loss of the court’s jurisdiction to later declare a forfeiture and enter summary judgment. Respondent People concede this point and we reverse.
Further statutory references are to the Penal Code unless otherwise indicated.
Respondent did not file a brief, submitting instead a letter brief in which it made the concession but did not address any other issues.
STATEMENT OF THE CASE
I. Background
The facts here are not disputed. On August 9, 2005, Alice Cortez, as bail agent posted American Contractors Indemnity Company bail bond number A30-2061865 in the amount of $25,000 to secure Salinas’s appearance in court on August 11, 2005, for preliminary hearing in connection with a single count alleging violation of Health and Safety Code section 11378, possession of dangerous drugs for sale, and enhancements. On November 1, 2005, Salinas entered a no contest plea and admitted the enhancements and the matter was continued to December 16, 2005, for probation and sentencing and a hearing on Salinas’s Romero motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On December 16, 2005, Salinas failed to appear in court. The judge announced that “[b]ail is forfeited” and set new bail at $30,000. The court confirmed twice more during the proceeding that the bail bond was forfeited and set the case for hearing on February 23, 2006. But after a pause in the recorded proceedings at the end of the hearing, the court said, “The previous orders are vacated” and it again set February 23, 2006, for the continued hearing on Salinas’s Romero motion.
The clerk’s minutes at the hearing show that the box for bail forfeiture had been checked but then crossed off.
On February 23, 2006, Salinas again failed to appear. The clerk’s minutes do not reflect any reason or excuse for the nonappearance. But they do reflect that the court did not declare bail forfeited. The matter was continued several more times with Salinas appearing in court on June 1, 2006, June 29, 2006, and July 13, 2006; when the matter was again continued to August 2, 2006. On that day, Salinas did not appear and the court declared the bond forfeited. The clerk sent notice of bail forfeiture to American and the bail agent on August 3, 2006, under section 1305.
The record does not include a reporter’s transcript of the hearing.
The bail forfeiture declaration is not an actual forfeiture. It is instead the initial step in forfeiture proceedings. (People v. Surety Ins. Co. (1978) 82 Cal.App.3d 229, 236-237.) Following the bail forfeiture declaration order, the surety is given notice of the defendant’s failure to appear. (§ 1305, subd. (b).) This event begins the statutory 180-day appearance period before the forfeiture will become final under section 1305 unless the defendant is surrendered to custody. In the case of such surrender, the court must vacate the bail forfeiture declaration order. (§ 1305, subd. (c).) But if the defendant fails to appear without sufficient excuse within the appearance period, or the surety fails to demonstrate within this period other circumstances requiring the court to vacate forfeiture, the court must within 90 days after expiration of the appearance period enter summary judgment against the surety or the bond is exonerated. (§ 1306, subds. (a) & (c); People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658.)
Just before the expiration of the appearance period, American moved to extend it under section 1305.4 and the court granted the request to extend until May 24, 2007. On May 24, 2007, another motion to extend time was filed under section 1305.4. The motion included a declaration of the investigator attempting to apprehend Salinas that outlined the investigator’s efforts and told of several near misses as well as his belief that Salinas’s arrest was imminent as the investigator was hot on his trail. At the hearing, the court denied the motion for a further extension of the appearance period. Summary judgment of forfeiture against American on the bond was entered on June 20, 2007, with notice of entry of judgment served that same day.
American timely appealed from both the order denying its motion to extend the appearance period and from the consent judgment.
DISCUSSION
I. Appealability
A judgment entered on the terms of a bond contract is a consent judgment, which is not generally appealable. (People v. American Contractors Indemnity Co, supra, 33 Cal..4th at pp. 663-664.) But such a judgment is appealable when not entered according to the consent in the bond, which American argues occurred here by its contention that the court failed to follow mandatory statutory procedures. (Ibid.; People v. Wilshire Ins. Co. (1975) 46 Cal.App.3d 216, 219-220.) And where the judgment is void because it was entered without the court’s jurisdiction to do so, it is subject to collateral attack at any time. (People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 551-553 [failure to declare forfeiture in open court as required by statute resulted in exoneration and loss of court’s jurisdiction in fundamental sense rendering later summary judgment void, as opposed to voidable, and subject to collateral attack at any time], citing People v. American Contractors Indemnity Co., supra, 33 Cal.4th 653.) Entry of a summary judgment based on a void bond forfeiture is a jurisdictional defect that may be raised for the first time on appeal. (People v. Safety National Casualty Co. (2007) 150 Cal.App.4th 11, 17.)
II. Issue on Appeal and Standard of Review
American raises three claims of error. They are that (1) the trial court lost jurisdiction to later enter summary judgment when it failed to serve statutory notice of forfeiture upon the first-declared forfeiture on December 16, 2005; (2) the trial court lost jurisdiction to later declare a forfeiture when it did not do so on February 23, 2006, upon Salinas’s unexcused non-appearance; and (3) the trial court abused its discretion in denying American’s second request to extend the appearance period under section 1305.4. The People concede the second issue, which is dispositive. We are thus spared the need to address the first and third issues.
Where the evidence before the reviewing court is not in dispute, the issue is one of law, in this case statutory construction of those provisions governing forfeiture of the undertaking of bail, sections 1305-1308, to which we apply independent review. (People v. Frontier Pacific Ins. Co. (1998) 63 Cal.App.4th 889, 893.)
III. The Summary Judgment is Void, the Court Having Previously Lost Jurisdiction Resulting in Exoneration of the Bond
A bail bond is in the nature of a contract between the government and the surety through which the surety guarantees that the defendant will appear under risk of forfeiture of the bond. (People v. Amwest Surety Ins. Co. (1991) 229 Cal.App.3d 351, 356.) The scope of the surety’s risk is defined by the terms of the bond agreement and applicable statutes. (People v. North Beach Bonding Co. (1974)36 Cal.App.3d 663, 668.) As appellate courts have noted, “[t]he forfeiture or exoneration of bail is entirely a statutory procedure, and forfeiture proceedings are governed entirely by the special statutes [sections 1305-1309] applicable thereto.” (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552.) It has been said that the procedures set forth in these provisions are “jurisdictional” and must be strictly followed or the court acts without or in excess of its jurisdiction. (Ibid.; County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 16; People v. Ranger Ins. Co. (1999) 76 Cal.App.4th 326, 328-329.)
“ ‘[W]hen a statute requires a court to exercise its jurisdiction in a particular manner, to follow a particular procedure, or to act subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.’ [Citation.] ‘ “The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus, Penal Code sections [1305 and 1306] dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture.’ ” (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1492.) And revenue to the state via bail forfeiture should not be a consideration in a bail controversy. (People v. Wilcox (1960) 53 Cal.2d 651, 656; People v. North Beach Bonding Co., supra, 36 Cal.App.3d at p. 675.)
Section 1305, subdivision (a), provides that 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” when required to do so. We have previously observed that under section 977, subdivision (b)(1), a defendant is required to appear at a sentencing hearing, which is what the February 23, 2006 hearing at which Salinas failed to appear was denominated to be. (People v. Ranger Ins. Co., supra, 66 Cal.App.4th at p. 1552.) Where the record is silent as to any reason or excuse as to a defendant’s absence, a reviewing court must conclude that the nonappearance was without sufficient excuse. (People v. Frontier Pacific Ins. Co., supra, 63 Cal.App.4th at p. 894, citing People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907; People v. Allegheny Casualty Co, supra, 41 Cal.4th at pp. 716-719.) Accordingly, “ ‘the court’s failure to declare a forfeiture [when a defendant fails to appear] without sufficient excuse, either [because] no excuse is offered or [because] the finding of excuse constitutes an abuse of discretion, deprives the court of jurisdiction to later declare a forfeiture’ [Citation.]” and results in exoneration of the bond. (People v. Frontier Pacific Ins. Co., supra, 63 Cal.App.4th at p. 894.)
But see People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 706-707, 714-717 , in which the Supreme Court construed the “open court” requirement of section 1305, subdivision (a), and held that the declaration of forfeiture need not appear in a reporter’s transcript or in the clerk’s minutes as it may be presumed on a silent record that the trial court regularly performed an official duty under Evidence Code sections 664 and 666. But in that case, that a forfeiture had been declared in open court was not in issue and there was nothing in the record to suggest that the court had not done so. The question was only whether the “open court” requirement mandated a reversal of summary judgment entered under section 1306 for loss of the court’s jurisdiction where the undisputed declaration of forfeiture was not reflected in the appellate record.
Here, the minute order of February 23, 2006, indicates that Salinas failed to appear on that date. There is nothing in the record to indicate that the trial court found good cause for the nonappearance. Thus, we must conclude that the nonappearance was without sufficient excuse, which required the court to declare a forfeiture of the bond in open court and serve notice to the surety and the bail agent, neither of which appears to have happened. As a consequence, the bond was exonerated and the court was without jurisdiction to later declare a forfeiture, as it did here on August 2, 2006, and enter the summary judgment. The failure to declare a forfeiture when required by statute to do so exonerates the bond and deprives the court of jurisdiction over it. (People v. Amwest Surety Ins. Co., supra, 125 Cal.App.4th at pp. 550, 552-554.) “Because the court did not have fundamental jurisdiction when it entered the summary judgment, the judgment was necessarily void . . . .” (Id. at p. 550.)
DISPOSITION
The judgment is reversed. The trial court is directed to vacate the forfeiture of the bond and to exonerate it.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.