Opinion
D075399
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. NORTH RIVER INSURANCE, CO., Defendant and Appellant, BAD BOYS BAIL BONDS, Real Party in Interest and Appellant.
Jefferson T. Stamp for Defendant and Appellant North River Insurance, Co. Jefferson T. Stamp for Real Party in Interest and Appellant Bad Boys Bail Bonds. Thomas E. Montgomery, County Counsel, Jennifer M. Stone, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2018-00031434-CU-EN-CTL) APPEAL from a postjudgment order of the Superior Court of San Diego County, David Rubin, Lorne Alksne, Timothy Walsh, Frederick Maguire, Judges. Affirmed. Jefferson T. Stamp for Defendant and Appellant North River Insurance, Co. Jefferson T. Stamp for Real Party in Interest and Appellant Bad Boys Bail Bonds. Thomas E. Montgomery, County Counsel, Jennifer M. Stone, Deputy County Counsel, for Plaintiff and Respondent.
Defendant North River Insurance Co. (Surety) appeals from the denial of its motion to vacate an order of summary judgment forfeiting bail that was posted by Surety's agent, Bad Boys Bail Bonds (Bail Agent), on behalf of criminal defendant Manuel Uribe (Uribe).
BACKGROUND
Uribe was charged in 2016 with two felonies: unlawful use of personal information of another (Pen. Code, § 530.5, subd. (a)) and burglary (§ 459). He had eight strike prior convictions. (§§ 667, subds. (b)-(i), 1170.12, 668.) On December 9, 2016, the People requested bail in the amount of $75,000 because Uribe had previously been sentenced to prison for more than 17 years. Uribe did not object to the bail request and waived bail review. The court set bail at $75,000.
Further statutory references are to the Penal Code unless otherwise designated.
Bail Agent posted a bond of $75,000 on behalf of Uribe. Uribe failed to appear and bail was forfeited on February 2, 2017, but it was reinstated when a retained attorney appeared on Uribe's behalf five days later. Bail was forfeited again, however, when Uribe failed to appear on March 3, 2017. The court mailed a notice of forfeiture on March 21, 2017, to Surety and Bail Agent. The notice triggered a 180-day "appearance" period, plus five days for mailing, for Surety to ensure Uribe's presence in court. (§ 1305, subd. (b)-(c).)
Bail Agent filed a motion to extend the appearance period by another 180 days. The court granted the motion, extending the appearance period until April 16, 2018. (§ 1305.4.) After that period expired, Surety moved to toll the time for forfeiture on the bond. The court denied the motion to toll time.
The court entered summary judgment on the bond forfeiture on June 25, 2018, and notice of entry was filed and served two days later. Surety moved to set aside the judgment, vacate forfeiture and exonerate the bond. The court denied Surety's motion to set aside the summary judgment on December 31, 2018. Surety filed a timely notice of appeal.
DISCUSSION
A. Statutory Framework for Bond Forfeiture Proceedings
" 'The statutory scheme governing bail forfeitures is found in . . . section 1305 et seq. These provisions must be carefully followed by the trial court, or its acts will be considered without or in excess of its jurisdiction. [Citation.]' [Citation.] Where the bail statutes ' " 'require[ ] a court to exercise its jurisdiction in a particular manner, to follow a particular procedure, or to perform subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.' " ' [Citations.] Because of the harsh results of a forfeiture and the jurisdictional nature of statutory compliance, appellate courts carefully review the record to ensure strict statutory compliance. [Citation.]" (People v. United States Fire Insurance Co. (2015) 242 Cal.App.4th 991, 998-999.)
Section 1305, subdivision (a) requires the trial court to declare a forfeiture of bail if a defendant fails to appear at a specified court proceeding without a satisfactory excuse. The clerk must mail notice of forfeiture to the surety and the bail agent for bonds greater than $400. Adding in five days for mailing, the surety then has 185 days—the appearance period—to bring the defendant to court. (§ 1305, subds. (b)-(c); People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658 (American Contractors).) Upon a showing of good cause, the surety may seek an extension of a maximum of 180 additional days. (§ 1305.4.) If the defendant is brought to court during the appearance period, the forfeiture must be vacated and the bond exonerated. (§ 1305, subd. (c)(1); People v. Tingcungco (2015) 237 Cal.App.4th 249, 253.)
If the surety does not produce the defendant within the appearance period, the court has 90 days after the appearance period expires within which to enter summary judgment against the surety. (§ 1306, subds. (a), (c); American Contractors, supra, 238 Cal.App.4th at p. 1044.) The summary judgment against the surety should be for the amount of the bond plus costs. (§ 1306, subd. (a).)
Summary judgment in this context is a consent judgment entered pursuant to consent given in the bond at issue. (American Contractors, supra, 238 Cal.App.4th at p. 1047; People v. Wilshire Insurance Co. (1975) 46 Cal.App.3d 216, 219.) The bond here warranted, "If the forfeiture of this bond be ordered by the Court, judgment may be summarily made and entered forthwith against the said [Surety] for the amount of its undertaking herein as provided by Sections 1305 and 1306 of the Penal Code." Thus, because the surety consents to judgment pursuant to the governing statutes, "[t]he only issue in a challenge to the summary judgment is whether it was entered . . . [in] compliance with Penal Code sections 1305 and 1306." (American Contractors, at p. 1047.)
Bond forfeiture issues are ordinarily reviewed for an abuse of discretion. (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.) However, "[w]hen the facts are undisputed and only legal issues are involved, appellate courts conduct an independent review." (Ibid.)
B. Failure to Comply With Rights as Set Forth in Humphrey
Surety raised two contentions in its motion to vacate the judgment and on appeal here: (1) the bail bond and its subsequent forfeiture were void ab initio because the trial court did not comply with due process and equal protection requirements set forth in In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278 (Humphrey); and (2) the order of summary judgment was void because it was not entered by the same judge who declared the forfeiture of bail when Uribe failed to appear in court. We reject both these contentions, as explained below.
The First District Court of Appeal issued an opinion in 2018 in which it concluded that a defendant has due process and equal protection rights to an ability-to-pay hearing when seeking bail. (Humphrey, supra, 19 Cal.App.5th at p. 1026.) The defendant in Humphrey was in pretrial custody and bail had been set at $600,000. (Id. at pp. 1016-1017.) His liberty was restrained because he did not have the financial ability to pay the amount of bail, giving rise to his constitutional claim. (Id. at p. 1015.) The court determined that in the process of setting bail, the trial court was required to make findings about the defendant's financial ability to pay bail and to consider less restrictive nonfinancial conditions of release that would be sufficient to protect the victim and the community. (Id. at p. 1026.) If a defendant's rights were violated by setting bail in an amount that he was not able to pay, the remedy was a new hearing in which the trial court considered the defendant's ability to pay and less restrictive alternatives that would sufficiently protect the public and the victim. (Id. at p. 1048.) Humphrey has persuasive but no binding effect while the Supreme Court is reviewing the case.
"Pending review and filing of the Supreme Court's opinion, . . . a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only." (Cal. Rules of Court, rule 8.1115(e)(1).)
Two cases have recently rejected the same or similar argument made by other sureties, that the alleged Humphrey constitutional errors in setting bail voided the separate contract between the surety and the government to guarantee the appearance of the defendant in court or risk forfeiture of its bond. (People v. North River (2020) 48 Cal.App.5th 226 (North River I); People v. Accredited Surety & Casualty Co., Inc. (2019) 34 Cal.App.5th 891, 895-896 (Accredited Surety).) These courts have concluded that the contract between the surety and the government is collateral to, but independent from, the bail agreement between the court and the criminal defendant, and any error in setting bail makes the bail contract voidable by the criminal defendant but not void. These arguments are bolstered by the Humphrey court's conclusion that the remedy for any constitutional error was to hold another bail hearing in which the court examined the defendant's ability to pay and alternative remedies that would protect the public and guarantee the defendant's appearance.
We agree with the reasoning of these cases, but we decline to add further analysis of Surety's argument because there was no Humphrey error in this case. (See North River I, supra, 261 Cal.Rptr.3d at p. 424.) Uribe's constitutional rights were not violated because his liberty was not unconstitutionally restrained. He was able to post bail and is now free from custody, even though the court did not assess his ability to pay. "[W]e may reasonably infer his ability to post bail from the fact that he did." (Ibid.) Even if there were a gap of a few days between the setting of bail and Uribe's posting of it, that was caused by the mechanics of obtaining a bail bond, not by Uribe's inability to pay. "[D]efendant did post bail. For this reason, the issues regarding the propriety of requiring bail as a condition of release raised in . . . Humphrey . . . are not presented." (In re Webb (2019) 7 Cal.5th 270, 274; North River I, at p. 424.) Humphrey error did not occur and Humphrey did not render the judgment against Surety void.
C. Summary Judgment Procedure
Surety contends that the summary judgment order is void because it was entered by a judge different from the judge who declared forfeiture of the bail. We conclude that neither the law nor the statute require that summary judgment be ordered by the same judge who declared forfeiture, for the reasons explained below.
Judge Timothy Walsh declared bail to be forfeited when Uribe failed to appear as ordered on March 3, 2017. After receiving one 180-day extension on the appearance period of 180 days, for a total period of about a year, Judge Lorna Alksne entered summary judgment on the forfeiture.
1. No Due Process Violation
Surety contends that the statutory language, that "the court which has declared the forfeiture shall enter a summary judgment" (§ 1306, subd. (a), italics added), means that the judge who declared the forfeiture must be the one to enter summary judgment, but offers no authority for this proposition. One of the cases on which he relies states that the summary judgment must be ordered by a judicial officer, not by the clerk of the court. (People v. Frontier Insurance Co. (2000) 83 Cal.App.4th 1289, 1295.) The statute requires that "the court . . . shall enter a summary judgment." (§ 1306, subd. (a).) The summary judgment order in Frontier was signed by a clerk of the court, not by a judge. (Frontier, at p. 1294.) The statute clearly requires the order be executed by a judicial officer. Being outside the bounds of the statute, the judgment was "void for lack of execution by a judge." (Ibid.) The case does not involve or discuss the claim that the summary judgment must be ordered by the same judge, and its statement that the judgment was "void for lack of execution by a judge" (ibid., italic added) suggests that any judge can order summary judgment, not only the judge who declared forfeiture.
Surety cites cases for the unremarkable proposition that "court" and "judge" are often synonymous or interchangeable, and that "is generally to be determined by the character of the act rather than by such designation." (Newby v. Bacon (1922) 58 Cal.App. 337, 339; Mabee v. Nurseryland Garden Centers, Inc. (1979) 88 Cal.App.3d 420, 424, superseded by statute on another ground, as stated in Santisas v. Goodin (1998) 17 Cal.4th 599, 629.) The court in Newby interpreted a statute that said a bond must be approved by "the county judge" to mean any judge of the county court. (Newby, at pp. 338-339.) In Mabee, the court interpreted a contract clause, that attorney fees were to be "set by the court" meant that the fees were to be determined at a court trial, not by the jury. (Mabee, at pp. 423-424.) The Mabee court did not discuss or rule whether the attorney fees had to be set by the same judge who heard the trial. (Ibid.) The character of the act of summary judgment in bond forfeiture proceedings—a truly summary procedure with no notice and no hearing--supports the conclusion that the identity of the judge ordering judgment need not be the same judge who declared forfeiture six months or a year previously.
Surety also points to cases that hold that a party is entitled to have a decision on the facts rendered by the judge or jury who heard those facts. (European Beverages v. Superior Court (1996) 43 Cal.App.4th 1211, 1214.) European Beverages provided two alternatives to this general rule, intertwined here. First, when the original judge who heard the evidence is not available, a successor judge can render a decision after hearing all the evidence previously presented. The successor judge can then rule on the entire case, even on issues previously decided by the first judge, because an interlocutory ruling can be changed up until entry of the final order. (Ibid.) Second, parties can agree to a different procedure for handling a case between them. (Ibid.) Here, Surety has consented by the terms of its bond to the statutory procedures set forth in sections 1305 et seq. Surety's right to due process is protected in both cases because after notice, it has a lengthy period of 180 to 360 days in which to present further evidence of sufficient excuse to vacate the declaration of forfeiture, or, alternately and preferably, Surety can produce the absconded defendant to continue the criminal proceedings against him.
As noted above, summary judgment of forfeiture is a consent procedure that adequately protects the rights of the surety. (§ 1306; American Contractors, supra, 238 Cal.App.4th at p. 1047.) There is no notice or hearing under section 1306 before entry of summary judgment on the forfeiture, nor a requirement that the summary judgment order be signed by the original judge who declares forfeiture. The procedure for summary judgment of the bond forfeiture is unusual in requiring no notice or hearing before entry of judgment. This procedure has passed constitutional muster, however, because before being liable for a monetary judgment, sureties have notice and an ample opportunity to object and be heard during the mandatory appearance period of 180 days from declaration of forfeiture to entry of judgment. Surety has the opportunity to vacate the forfeiture within the appearance period by presenting the defendant or otherwise showing the court good cause not to execute the forfeiture.
The statute requires prompt and timely notice to the surety and to the bail agent of forfeiture after the nonappearance of the defendant for whom bond has been posted. (§ 1305, subds. (b)-(c).) The declaration of forfeiture mandated by section 1305 is not a true forfeiture but merely the initial step in proceedings to forfeit the bond and render judgment against the surety. (People v. Surety Insurance (1978) 82 Cal.App.3d 229, 236-237 (Surety Insurance).) The surety has no financial liability at that point. Thus, contrary to Surety's contention, Code of Civil Procedure section 635 is not applicable because the declaration of forfeiture is not a substantive order but only an initial step in the process. The statutory notice and opportunity to be heard during the lengthy appearance period satisfy constitutional claims to due process of law. (Surety Insurance, at pp. 236-237; County of Los Angeles v. Amwest Surety, Inc. (1983) 147 Cal.App.3d 961, 967.)
Code of Civil Procedure section 635 states: "In all cases where the decision of the court has been entered in its minutes, and when the judge who heard or tried the case is unavailable, the formal judgment or order conforming to the minutes may be signed by the presiding judge of the court or by a judge designated by the presiding judge."
We understand that Surety argues a different error in process: that the judge entering summary judgment cannot fairly determine whether there was "sufficient excuse" for the defendant not to appear. The determination of sufficient excuse to prevent declaration of forfeiture lies with the judge who declares forfeiture upon nonappearance. The defendant or his attorney had the opportunity at the time of forfeiture to show sufficient excuse for the failure to appear at the time of declaration of forfeiture, or even within a reasonable time thereafter. Here, for example, bail was forfeited on February 2, 2017, when Uribe failed to appear. A retained attorney appeared on his behalf on February 7, 2017, and had bail reinstated.
A court declares forfeiture "if, without sufficient excuse, a defendant fails to appear . . . ." (§ 1305, subd. (a), italics added.)
Section 1306 authorizes the court to enter a judgment against the bondsman only after the 180-day period specified in section 1305 has passed and the forfeiture has not been set aside. Surety could petition the court to vacate the forfeiture in the interim if it found sufficient excuse for the defendant's failure to appear. Surety had 180 days—extended to 360 days—during which it had the right to a hearing on the propriety of entry of judgment against it. (See Surety Insurance, supra, 82 Cal.App.3d at pp. 238-239.) There is no deprivation of due process when the opponent has notice and a lengthy period of time in which to request a hearing. (Id. at p. 239.) Alternately, and preferably, surety could return the defendant to court during the 180- or 360-day period following the notice to appear, thus avoiding forfeiture of its bond. The court in Surety Insurance compared the bond forfeiture procedure to the due process procedure given to public employees before negative employment action: the employee must be given notice and an opportunity to be heard before the negative action becomes effective. (Id. at pp. 239-240, citing Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215.) The Surety Insurance court explained: "Before the actual forfeiture of the bond, the surety is given notice of the 'proposed action' (by declaration of forfeiture). The 'right to respond' is provided by an opportunity within 180 days to move to vacate the declaration of forfeiture. Such motion results in a full evidentiary hearing before a judgment is rendered on the bond. There is no denial of due process in this procedure." (Surety Insurance, at p. 240.)
Surety Insurance did not address the claim here, that the summary judgment must be decided by the same judge who declared the forfeiture, but its reasoning is applicable. The 180-day appearance period gives Surety ample time to advise the summary judgment judge with any pertinent information regarding the defendant's failure to appear and any excuse, therefore. Even without consent to the procedure, a successor judge can make a ruling after reviewing or hearing the evidence anew. (European Beverage, supra, 43 Cal.App.4th at p. 1214.)
Further, it is the events after declaration of forfeiture that determine whether summary judgment is appropriate. Summary judgment of forfeiture depended not on whether Uribe had sufficient excuse not to appear in court, but on whether Surety was able to produce Uribe during that appearance period. Surety had a right to a hearing at any time during the appearance period if it had reasons why the bond should not be forfeited. Moreover, Surety's argument is entirely speculative as it has never provided any sufficient excuse for Uribe's failure to appear as ordered. Entry of summary judgment by a judge different from the judge who declared forfeiture did not render the judgment void, and in any event any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
2. Section 1306 Does Not Require the Order of Summary Judgment to be Entered by Judge Who Declared Forfeiture
Surety also contends that the statutory language of section 1306 should be interpreted to require the order of summary judgment be entered by the same judge who declared forfeiture. Again, we disagree.
We start with the established rules for statutory interpretation. "Our primary task in construing a statute is to determine the Legislature's intent. [Citation]. Where possible, 'we follow the Legislature's intent, as exhibited by the plain meaning of the actual words of the law . . . .' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733; Boys & Girls Club of Petaluma v. Walsh (2008) 169 Cal.App.4th 1049, 1057 ["[t]he first step in statutory construction ' "is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning" ' "].) " ' " 'If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to [extrinsic] indicia of the intent of the Legislature . . . .' " [Citation.]' [Citations.]" (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 419.)
The clear language of section 1306, subdivision (a), refers to the court, not to a particular judge. The Legislature knows how to specify that the same judge perform an act when that is its intent. As pointed out by Surety, when the legislature has intended that an action be taken by the same judge, it has said so in clear language. (See § 1170.18(l) ["If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge . . . ."]; Code Civ. Proc., § 635 ["when the judge who heard or tried the case is unavailable"]; see also Code Civ. Proc., § 1008, subd. (a) [motion for reconsideration to be made to "the same judge or court"].) Surety understands these provisions to mean that the Legislature always means "judge" in the context of a subsequent action, but we conclude, to the contrary, that the legislature would have added similar language to section 1306, subdivision (a), if its intention was to require the same judge who declared forfeiture to enter summary judgment. Nothing in the plain language of the statute supports Surety's interpretation of the statute.
Further, before 2013, the statute provided, "the court which has declared the forfeiture, regardless of the amount of the bail, shall enter a summary judgment." (Fmr. § 1306, subd. (a).) The 2012 amendment deleted the words "regardless of the amount of bail." (Stats. 2012, ch. 470 (A.B. 1529 (2011-2012 Reg. Sess.)) § 50.) The Law Revision Commission Comment on the 2012 amendment explains that "before unification [of superior and municipal courts], it was necessary to make clear that a municipal court was authorized to enter summary judgment on a bail forfeiture even though the amount of bail exceeded the jurisdictional limit of the municipal court." (Cal. Law Revision Com. com., West's Ann. Pen. Code, foll. § 1306.) We give the Law Revision Commission comments "substantial weight." (See HLC Properties, Ltd. v. Superior Court (2005) 35 Cal.4th 54, 62.) The comments indicate the purpose of requiring the same court to enter the summary judgment was to prevent transfer of the summary judgment to the superior court from the municipal court due to the amount of bail. This historical context explains why the same court, but not the same judge, must enter the judgment.
In sum, we find no support for Surety's contention that section 1306 should be interpreted to require the same judge to declare forfeiture and to later order summary judgment, nor is the summary judgment void because it was ordered by a different judge from the judge who declared forfeiture.
DISPOSITION
The order and judgment are affirmed. Costs to respondent.
BENKE, Acting P. J. WE CONCUR: AARON, J. DATO, J.