Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. IC870214 & CD191586, George W. Clark and Stephanie Sontag, Judges.
NARES, J.
In the criminal proceeding in this matter, the court ordered that a $50,000 bail bond be forfeited when the defendant, Maurice Stewart, failed to appear at his preliminary hearing. The insurer that issued the bond, Lincoln General Insurance Company (Lincoln) moved to set aside the forfeiture, arguing the court lost jurisdiction to declare a forfeiture when it did not order the bond forfeited when Stewart previously failed to appear at his trial readiness conference. The court denied the motion, finding the court had good cause to not declare the bond forfeited at the trial readiness conference.
On appeal Lincoln asserts that the bond forfeiture should be set aside because there was no good cause not to declare the bond forfeited when Stewart first did not appear at the trial readiness conference, and the court was therefore without jurisdiction to declare a forfeiture when he later failed to appear at the preliminary hearing.
We conclude that there was insufficient evidence of good cause for the court to excuse Stewart's nonappearance at the trial readiness conference. Accordingly, the court lost jurisdiction to later declare a forfeiture at the preliminary hearing and it must be set aside. We therefore reverse the court's order denying Lincoln's motion to set aside the bond forfeiture.
FACTUAL AND PROCEDUIRAL BACKGROUND
A. Stewart's Failure to Appear
On June 17, 2005, Lincoln issued a $50,000 bond for Stewart.
On June 24, 2005, Stewart failed to appear at the trial readiness conference in his criminal case. The court and counsel addressed Stewart's nonappearance:
The Honorable George W. Clarke.
"The Bailiff: FTA on number 25, Stewart.
"Mr. Silva: Bruce Silva for the People.
"Mr. Maizlish: Greg Maizlish, Deputy Public Defender. [¶] May the court inquire?
"The Court: Is Maurice Stewart present in court? Hearing no response
"Mr. Maizlish: Mr. Stewart is not answering up. I have had telephone contact for several days . . . of this week with him. I cannot account for his absence this morning. I would ask the court to consider issuing and holding a bench warrant to allow me the opportunity to secure his appearance.
"The Court: Mr. Silva?
"Mr. Silva: We ask the warrant go out. I don't think it's very likely he's going to show up.
"The Court: We discussed the potential in chambers, did we not?
"Mr. Maizlish: We did. And I indicated to the court that I had had telephone contact with him at least two or three days out of this week. And my intention was to ask the court to issue and hold the bench warrant based on that contact.
"The Court: Well, I will issue and hold it to the prelim[inary hearing] date, which is Tuesday.
"Mr. Maizlish: Thank you.
"The Court: Bench warrant in the amount of $50,000. Order it held until Tuesday―the day of the preliminary hearing.
"Mr. Maizlish: $50,000?
"The Court: Yes. And I won't take any action on the . . . bond on this at this time.
"Mr. Maizlish: Thank you." (Italics added.)
Stewart did not appear at the preliminary hearing, and the court ordered his bail forfeited at that time.
B. Motion to Set Aside Forfeiture
In July 2005 the court mailed Lincoln a notice the bail had been forfeited. Stewart was not produced within the statutory time, and the court entered summary judgment on the bail bond.
In September 2006 Lincoln filed a motion to set aside the summary judgment, to vacate the forfeiture, and exonerate the bond. Lincoln argued the court lost jurisdiction to declare the bond forfeited when it failed to declare it forfeited when Stewart failed to appear at the trial readiness conference without excuse.
The court denied the motion. In doing so, the court noted that it was "really a close call," and stated it "couldn't find any other case where the justification for failing to appear to forfeit the bond was so slim." Nevertheless, the court denied Lincoln's motion, finding the attorney's representation he had been in contact with his client was a sufficient excuse for the nonappearance to allow the court to not declare the bond forfeited at that time.
DISCUSSION
I. STANDARD OF REVIEW
The question of whether to set aside an order of forfeiture and to exonerate a bail bond " 'is entirely within the discretion of the trial court,' " and the trial court's decision will " 'not be disturbed on appeal unless a patent abuse appears on the record.' " (County of Los Angeles v. Noble Ins. Co. (2000) 84 Cal.App.4th 939, 944.) Further, " ' "unless a clear case of abuse is shown and unless there has been a miscarriage of justice," ' " the reviewing court does " ' "not substitute its opinion and thereby divest the trial court of its discretionary power." ' " (Id. at pp. 944-945.) The appellant bears the burden of demonstrating that "a miscarriage of justice" occurred. (Id. at p. 945.)
II. APPLICABLE AUTHORITY
Penal Code section 1305 provides in part: "(a) 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. [¶] (5) To surrender himself or herself in execution of the judgment after appeal."
All further statutory references are to the Penal Code.
However, section 1305.1 provides: "If the defendant fails to appear for arraignment, trial, judgment, or upon any other occasion when his or her appearance is lawfully required, but the court has reason to believe that sufficient excuse may exist for the 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 or issuing a bench warrant. [¶] If, after the court has made the order, the defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant's arrest may be ordered issued."
Bail forfeiture statutes are jurisdictional and, if not strictly followed, the court loses jurisdiction to later declare a forfeiture of the bond. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 921(Amwest).) The underlying purpose of the bail system is to "insure the attendance of the accused" and application of the bail statutes should involve "no element of revenue to the state nor punishment of the surety." (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) Bail statutes are strictly construed in favor of the surety to avoid the harsh results of a forfeiture. (People v. Ranger Ins. Co. (2000) 77 Cal.App.4th 813, 816.)
Thus, compliance with sections 1305 and 1305.1 dictates whether the court retained jurisdiction in this matter. If a sufficient excuse did not exist for the court not to declare a forfeiture when Stewart did not appear at the trial readiness conference, the bail forfeiture statutes were not complied with, the court lost jurisdiction, and the later-declared bond forfeiture was void. (Amwest, supra, 56 Cal.App.4th at p. 921.)
A sufficient excuse will be found where the court has " ' "some rational basis" for belief at the time of defendant's nonappearance that sufficient excuse may exist.' " (Amwest, supra, 56 Cal.App.4th at p. 923.) In determining what showing constitutes a rational basis for such belief, "a case-by-case analysis is always performed." (Ibid.)
Where the record is silent, the nonappearance is without sufficient excuse. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907 (United Bonding).) For example, in United Bonding, a defendant on bail failed to appear and no explanation was offered suggesting there was any excuse for the nonappearance. Despite this fact, the trial court continued the matter for four months, at which point a forfeiture was declared. (Id. at pp. 901-904.) The surety unsuccessfully sought to vacate the forfeiture before the trial court and Court of Appeal. The California Supreme Court reversed, directing that the forfeiture be vacated. In doing so, our high court held that the failure of a defendant on bail to appear before the court is presumptively without sufficient excuse. (Id. at p. 907.) Further, "the burden of rebutting such presumption rests with the defendant's representatives or those who are interested in avoiding a forfeiture." (Ibid.)
In People v. Surety Ins. Co. (1984) 160 Cal.App.3d 963, defense counsel could provide no excuse to the court to explain the defendant's absence. Rather, defense counsel merely told the court, "If the court would hold [the bench warrant] until [Tuesday], I will endeavor to have him brought in." (Id. at p. 967.)
Alternatively, where defense counsel makes representations regarding reasons for the defendant's nonappearance, the court liberally relies on them because they are generally the only evidence offered on the matter. (Amwest, supra, 56 Cal.App.4th at p. 922.) Where a defendant does not appear and defense counsel states his or her concern that something has happened, sufficient excuse exists even if defense counsel has not communicated with the defendant or provided any direct evidence to explain or justify the defendant's absence. (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 953 (Ranger).) "[T]he 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. Instead, the statute requires the court only have 'reason to believe that sufficient excuse may exist for the failure to appear.' " (Ibid., fn. omitted.)
In Amwest, this court concluded there was ample reason for the trial court to believe sufficient excuse may have existed for the defendant's failure to appear where defense counsel stated his belief that " 'there may be an emergency' " and the defendant would be available the next morning. (Amwest, supra, 56 Cal.App.4th at p. 925.) Under these facts, we held there was a rational basis for the court's belief that sufficient excuse existed at the time of the nonappearance. (Id. at p. 923.)
III. ANALYSIS
The court abused its discretion in finding that there was good cause to continue the matter and not declare a forfeiture of the bond. Defense counsel appearing at the trial readiness conference offered no excuse for Stewart's failure to appear. In fact he stated affirmatively, "I cannot account for his absence this morning," but nevertheless requested that the court hold the "bench warrant to allow me to secure his appearance." Defense counsel's stated hope he could secure Stewart's attendance did not provide a rational basis to believe an excuse existed for his nonappearance.
Further, this was not a case where the defendant had a previous track record of voluntary appearances from which the court or counsel could suspect that his nonappearance was an aberration. (See Ranger, supra, 108 Cal.App.4th at p. 953.) The case was one week old, and his only prior appearance was at his arraignment while he was still in custody.
The court, in finding good cause, relied upon the fact counsel had been in contact with Stewart. This bare fact did not provide a sufficient excuse to not declare a forfeiture of the bond. Defense counsel did not inform the court as to the nature of the contacts or that something about their substance indicated Stewart had an excuse for failing to appear. There was no evidence presented from which a rational trier of fact could find " ' "some rational basis" for belief at the time of [Stewart's] nonappearance that sufficient excuse may exist.' " (Amwest, supra, 56 Cal.App.4th at p. 923.) Accordingly the court lost jurisdiction when it failed to declare a forfeiture when Stewart failed to appear, the bond was exonerated by operation of law, and the summary judgment entered by the court on the bond was void and should have been set aside. (People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 553-554.)
DISPOSITION
The order denying Lincoln's motion to set aside forfeiture of its $50,000 bail bond is reversed, and the trial court is directed to vacate the forfeiture and exonerate the bond.
WE CONCUR: BENKE, Acting P. J., AARON, J.