Opinion
NOT TO BE PUBLISHED
Santa Clara County, Super. Ct. No. CC583257
Duffy, J.
Defendant Ranger Insurance Company (Ranger), as surety on a $60,000 bail bond, challenges the trial court’s refusal to vacate forfeiture and exonerate the bond, which was given to secure the court appearance of Skip Myers. Myers had been arrested on charges of burglary in violation of Penal Code section 459 and conspiracy to commit burglary in violation of section 182 when the bond was posted. The initial felony complaint, filed three days later, did not charge the conspiracy violation, only the burglary. The complaint was later amended, without notice to Ranger, to add a prior strike allegation under sections 667, subdivisions (b) through (i), and 1170.12—armed robbery. Myers thereafter failed to appear in court and the bond was forfeited.
Further unspecified statutory references are to the Penal Code.
Ranger contends that the bond was exonerated as a consequence of the complaint’s amendment. This resulted, it argues, because the amendment unilaterally and materially increased Ranger’s risk on the bond without the notice required under section 1303. We conclude that section 1303, which on pain of exoneration requires notice to the surety when a bond is transferred to a new complaint after dismissal of a prior one, does not apply to the circumstances of this case. Nor does section 1305, which concerns forfeiture of the bond and which also requires notice to the surety upon that event, which Ranger received here. We further conclude that the particular amendment to the complaint was encompassed within the terms of the bond and that it accordingly did not materially increase Ranger’s surety risk. Accordingly, we affirm.
BACKGROUND
On February 25, 2005, Myers was in custody, having been arrested for burglary (§ 459) and conspiracy to commit burglary (§ 182). On that date, Bad Boys Bail Bonds, as agent for Ranger, posted bail bond number R100-12310655 in the amount of $60,000 to secure Myers’s appearance on March 11, 2005 to answer those charges. Ranger specifically undertook that Myers “will appear [in court on that date] to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against [him] and as duly authorized amendments thereof, in whatever court may be filed and prosecuted, and will at all times hold [himself] amenable to the orders and process of the court, and if convicted, will appear for pronouncement of judgment or grant of probation, or if [he] fails to perform either of these conditions, that” Ranger will pay the sum on the bond to the State of California.
The bond references the complaint’s superior court case number, although that notation must have been placed on the bond after the complaint was filed three days later.
The bond further said that if “the forfeiture of this bond be ordered by the Court, judgment may be summarily made and entered forthwith against [Ranger] for the amount of its undertaking herein as provided by Sections 1305 and 1306 of the Penal Code.”
On February 28, 2005, a felony complaint was filed against Myers and a co-defendant. With respect to Myers, it charged the first-degree degree burglary violation only, omitting the original conspiracy charge. On March 11, 2005, the day of Myers’s arraignment at which he appeared, the complaint was amended to allege that Myers had suffered a prior felony conviction for armed robbery in the state of Illinois, a violent or serious felony under sections 667, subdivisions (b) through (i), and 1170.12. This was a prior strike under section 667.5, subdivision (c), for Myers, exposing him to punishment under the “Three Strikes” law. Although the complaint was so amended, the amount of bail was not increased.
There apparently had been discussion, of which Myers was aware, about the People charging the case against him as a “three striker, ” but that ultimately did not occur and only one prior strike was alleged.
On March 11, 2005, the matter was continued to March 25, 2005. On March 25, 2005, the matter was again continued to April 8, 2005, when Myers failed to appear. A bench warrant was then issued for his arrest and Ranger’s bail bond was declared forfeited, with statutory notice to Ranger under section 1305. Ranger moved under section 1305 to vacate the forfeiture and to exonerate the bond on the ground that the court had lost jurisdiction over the bond when the complaint was amended without notice to Ranger, thus materially and unilaterally increasing its surety risk. The trial court denied the motion by written order filed February 1, 2006. Summary judgment of forfeiture under section 1306 was entered on May 23, 2006. This appeal from the order denying vacation of forfeiture and exoneration of the bond followed.
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, as occurred here. (§ 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.)
The superior court first certified the appeal to its appellate division over Ranger’s objection based on the $60,000 amount of the bond, an amount that exceeds the superior court’s limited jurisdiction and its appellate division’s jurisdiction in civil cases. (Code Civ. Proc., §§ 77, 85, 86, 904.1, 904.2.) After briefing, the appellate division by written order then transferred the appeal to this court for further briefing and disposition. This confusion in appellate jurisdiction is as a result of trial court unification and the leftover statutory vestiges of the distinctions between the former municipal and superior courts and the appropriate appellate jurisdiction from each. Before unification, bond forfeiture ordered by the municipal court was appealed to the appellate department of the superior court and forfeiture ordered by the superior court was appealed to the court of appeal, regardless of the amount of the bond. (Former Cal. Const., art. VI, § 11; former Code Civ. Proc., §§ 77, subd. (g) [Stats. 1984, ch. 704, § 1], 904.1, & 904.2; Newman v. Superior Court of Los Angeles County (1967) 67 Cal.2d 620, 621-623 [amount of bail does not determine jurisdiction of appeal relating to bail forfeiture order].) This was true despite the civil nature of bail bond forfeiture proceedings. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657, citing People v. Wilcox (1960) 53 Cal.2d 651, 654.) After unification, a process that began in 1998, the proper appellate path of bail bond forfeiture proceedings—to the appellate division of the superior court or to the court of appeal and under what circumstances—seems unclear and is in need of legislative clarification.
DISCUSSION
I. Appealability and Standard of Review
An order granting or denying a motion to vacate the forfeiture of a bail bond and to declare an exoneration of the bond is appealable. (People v. Wilcox, supra, 53 Cal.2d at pp. 654-655.) Ordinarily, we review the order under an abuse of discretion standard of review, the trial court’s discretion subject to constraints imposed by the bail statutory scheme. (County of Orange v. Lexington Nat. Ins. Corp., supra, 140 Cal.App.4th at p. 1491.) “ ‘[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.” [¶] The standard of review, therefore, compels us to protect the surety, and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody, in order to obtain the corporate bond.’ [Citation.]” (Id. at p. 1492.) Revenue to the state via bail forfeiture should not be a consideration in a bail controversy. (People v. Wilcox, supra, at p. 656; People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675.)
Some courts have recognized that both the order on a motion to vacate the forfeiture and the ensuing judgment are appealable. (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1490, fn. 1 and cases cited there.) But the California Supreme Court has concluded that the judgment is not generally appealable because it is one entered by consent, by the terms of the bond contract. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at pp. 663-664.) Such a judgment is only appealable when it was not entered according to the consent in the bond. (Ibid.; People v. Wilshire Ins. Co. (1975) 46 Cal.App.3d 216, 219-220.) Where the judgment is void, however, because it was entered without the court’s jurisdiction to do so, it is subject to collateral attack at any time. (See fn. 4, ante.)
While respondent urges us to accordingly review for abuse of discretion, Ranger contends that the particular question at issue here—whether the amendment of the complaint without notice to Ranger materially increased its risk thus exonerating the bond—calls for de novo review as an issue of law. We need not decide which particular standard of review applies since we reach the same resolution of the issue presented under either standard.
II. Analysis
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., supra, 36 Cal.App.3d at p. 668.) And 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.)
Section 1305 specifically concerns the procedure applicable to forfeiture of bail bonds, which occurs when the defendant whose appearance in court is assured fails to appear. The section states in relevant part, “If the amount of the bond . . . exceeds four hundred dollars ($400), the clerk of the court shall, within 30 days of the forfeiture, mail notice of the forfeiture to the surety . . . .” (§ 1305, subd. (b).) Section 1305, subdivision (b), further expressly provides that the surety shall be released of all obligations under the bond—in other words, exonerated—if the clerk fails to mail the notice as required. (Ibid.) Proper notice under the statute is considered a jurisdictional prerequisite to a valid summary judgment of forfeiture under section 1306. (County of Los Angeles v. Ranger Ins. Co., supra, 70 Cal.App.4th at p. 16; People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1385.) Under section 1305, “[t]he purpose of notice is to alert ‘the surety when its bond is in danger of being forfeited, so it can choose to act one way or another.’ [Citation.] The statute places the burden of mailing notice of forfeiture on the only neutral party involved, the court itself. [Citation.]” (County of Orange v. Lexington Nat. Ins. Corp., supra, 140 Cal.App.4th at p. 1492.)
Section 1303 in contrast concerns exoneration of a bail bond in cases in which the complaint has been dismissed and charges refiled in a later proceeding. It provides: “If an action or proceeding against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal. If, within such period, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense. If an undertaking of bail is on file, the clerk of the court shall promptly mail notice to the surety on the bond and the bail agent who posted the bond whenever the bail is applied to a public offense pursuant to this section.”
Section 1303 was “apparently designed to save accused persons the expense of successive bail bond premiums when a later criminal prosecution was substituted for an earlier.” (People v. Resolute Ins. Co. (1975) 50 Cal.App.3d 433, 436 (Resolute).) “Notification of the surety is integral to the legislative plan. The transfer of bail to a new offense constitutes an ex parte change in the conditions of the bail contract. The notice of transfer supplies the surety an opportunity to reappraise his risks in the light of that change. The new prosecution might include a more serious charge, increasing the possibility that the defendant might skip bail. Notice of the transfer gives the surety an opportunity to surrender the accused and to secure his own exoneration. (See Pen. Code, § 1300.) The notice is an essential of fairness to the bondsman.” (Id. at p. 436.)
Notwithstanding that section 1305 provides for express exoneration where there is a failure of notice and section 1303 does not, these sections have been analogized such that under both, the lack of notice to the surety leads to the same result—exoneration of its obligation on the bond. (Resolute, supra, 50 Cal.App.3d at pp. 435-436.)
But here, we are not dealing with a case in which notice of forfeiture was not given as required under section 1305. Those cases holding that the bond is exonerated or released in the absence of statutory notice of forfeiture accordingly do not dictate that the bond in this case was exonerated by reason of the complaint’s amendment without notice to Ranger. (See, e.g., People v. Ranger Ins. Co., supra, 51 Cal.App.4th at pp. 1385-1386; County of Orange v. Lexington Nat. Ins. Corp., supra, 140 Cal.App.4th at pp. 1493-1497; People v. American Contractors Indemnity Co (2001) 91 Cal.App.4th 799, 808; People v. Wilshire Ins. Co., supra, 46 Cal.App.3d 216.)
Nor are we dealing with a dismissal of a complaint and the refiling of charges arising out of the same act or omission giving rise to the dismissed complaint and transfer of bail to the later proceeding as provided in section 1303. Those cases holding that the bond is exonerated where the surety was not provided statutory notice of the transferred bail likewise do not dictate the outcome here. (See. e.g., Resolute, supra, 50 Cal.App.3d at pp. 436-437 [dismissal of original complaint and transfer of bail to grand jury indictment on related charges without notice to surety resulted in exoneration]; People v. Surety Ins. Co. (1983) 139 Cal.App.3d 848, 854 [transfer of bail to new complaint charging same allegations as dismissed complaint without notice to surety exonerates the bond notwithstanding similarity of pleadings].)
Ranger nevertheless relies on cases construing section 1303 in this case because of the policy underscoring that section—fairness to the surety in that notice of the transferred bail, a unilateral change to the surety’s contract referencing a specific complaint, allows the surety to reassess its risk and surrender the defendant under section 1300 if it so chooses. (People v. Surety Insurance Company, supra, 139 Cal.App.3d at p. 854; Resolute, supra, 50 Cal.App.3d at p. 436.)
Underscoring this policy is the idea that a surety is entitled to notice of a unilateral change to its contract that materially increases its risk, even when the surety has not necessarily been prejudiced by the change. This policy, Ranger argues, applies here notwithstanding the absence of a statutory notice violation. Because the particular amendment to the complaint exposed defendant Myers to the Three Strikes law, which is designed to impose longer prison sentences where applicable, so the argument goes, the amendment materially increased the risk of Myers’s flight and the concomitant risk of forfeiture of the bail bond. Further, Ranger argues, the amendment was beyond the permissible terms of the bond itself, resulting in exoneration.
In advancing its cause, Ranger recognizes that there are no California cases holding that amendment of a complaint to add a sentence enhancement without notice to the surety results in exoneration of the bail bond. As persuasive authority, it cites two Colorado cases. (People v. Smith (Colo. 1982) 645 P.2d 864 (Smith); People v. Jones (Colo. 1994) 873 P.2d 36 (Jones).) These cases in essence hold that absent the surety’s consent, “a trial court’s actions which materially increase the risk that the surety contractually agreed to assume under the terms of the bail bond agreement operate to discharge the surety’s obligation on the bond, as a matter of law.” (Jones, supra, at p. 37.)
In Jones, which relies on Smith, the defendant was facing a minimum 24-year and one day sentence when the bond was posted on pending drug charges. The People, without notice to the surety, moved to file “habitual criminal” charges that carried a mandatory life sentence. (Jones, supra, 873 P.2d, at p. 37.) In reversing the trial court’s ruling refusing to exonerate the bond, the appellate court reasoned that the subsequent filing of the habitual criminal charges constituted a material increase in the risk on the bond as limited by that contractual undertaking. (Id. at pp. 37-38.) In Smith, without notice to the surety, the trial courthad applied the bond posted on a misdemeanor charge to an additional and subsequently filed felony charge carrying a mandatory prison sentence, materially increasing the particular risk that the surety had contractually undertaken. The court of appeal concluded there that this unilateral increase in risk without the surety’s consent discharged the surety’s obligation on the bond. (Smith, supra, 645 P.2d at pp. 865-866.)
While the courts in Smith and Jones did not discuss the particular terms of the bail bonds in those cases, the holdings in each case still rested on the idea that it is the bond contract which defines and limits the risk that the surety assumes. In Smith, the transferring of bail from the assumed risk of a misdemeanor charge to a felony charge in a different court carrying a mandatory prison sentence exceeded the terms of the defined risk, thus exonerating the bond. (Smith, supra, at pp. 865-866.) Likewise in Jones, the subsequent filing of habitual criminal charges carrying a life sentence increased the risk that the surety had contractually undertaken in that case. (Jones, supra, 873 P.2d at pp. 37-38.)
Consistently with the law in Colorado as determined in Smith and Jones, and as we have noted, in California, the surety’s risk is also defined and limited by the provisions of the bond itself, along with applicable statutes. (People v. North Beach Bonding Co., supra, 36 Cal.App.3d at p. 668.) Here, Ranger undertook that Myers would appear in court “to answer any charge in an accusatory pleading based upon the acts supporting the complaint filed against [him] and as duly authorized amendments thereof. . . .” (Italics added.) We conclude that even though the amendment of the complaint alleged a prior felony conviction of armed robbery in Illinois, this sentence enhancement is still “based upon the acts supporting the [initial] complaint . . . and as duly authorized amendments thereof . . . .” A prior felony conviction, by its nature, involves a different crime than the one for which a defendant is currently being charged. But the sentence enhancement is still attached to the current violation and does not stand on its own. Moreover, we presume that Myers’s prior felony conviction in Illinois was a matter of public record available to the surety at the time the bond was posted. A surety is charged with such public knowledge and cannot escape its obligations where the bond is posted before the filing of the complaint and the complaint ultimately alleges prior convictions. (See Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2007) Arrest and Bail Warrants, Summonses, Subpoenas, §§ 4.19-4.23, pp. 93-95 [even when bail is posted before the filing of the complaint, the bond agreement will carry over upon later arraignment if the court does not change the posted bail].) Under these circumstances, it is not unreasonable to view the risk of the prior-felony-conviction sentence enhancement as encompassed within the terms of the bond agreement.
We observe that section 1278, which addresses the substantial requirements of the form of the bail undertaking, does not require that the bond encompass amendments to the complaint. Its suggested form, in pertinent part, only requires the surety to undertake that the defendant “will appear and answer any charge in any accusatory pleading based upon the acts supporting the charge [i.e., the specified violation referred to previously in the form], in whatever court it may be prosecuted . . . .” (§1278, subd. (a).) Thus, by the form of its own bond, the terms of which exceed the scope of what is substantially required by section 1278, Ranger assumed the risk of duly authorized pleading amendments that are based on the acts alleged in an initial complaint.
Ranger nevertheless contends that its risk was unilaterally and materially increased by the sentence enhancement allegation here because Myers’s potential prison sentence exposure was thereby increased. It is true that initially Myers was exposed to a maximum sentence of seven years, four months. A violation of sections 459 and 460, subdivision (a)—first-degree burglary—is punishable by imprisonment for two, four, or six years. (§ 461.) Conspiracy to commit burglary carries the same punishment (§ 182, subd. (a)), but where a person is convicted of two or more felonies, section 1170.1, subdivision (a), limits the sentence on a subordinate consecutive term to one-third of the middle term—in this case one year, four months. Thus, the maximum sentence Myers would have faced if convicted of the two charges at issue when the bond was posted is seven years, four months. This is less than the 12-year maximum sentence to which he was exposed if convicted of first-degree burglary, with factors found to be in aggravation, with the prior strike enhancement as alleged in the first amended complaint—six years for the burglary, doubled for the prior felony conviction under section 667, subdivision (e)(1).
But we nevertheless conclude that in the absence of an applicable statute requiring notice to the surety and resulting in exoneration in the absence of it, it is simply the contractual language of the bond and not the comparable sentence exposure which defines and limits the surety’s risk. Here, as we have found, that language encompassed the particular pleading amendment. This distinguishes the Smith and Jones cases in which the additional charges were found to exceed the surety’s risk as measured by the provisions of the respective bonds.
Even addressing the comparable sentence exposure, in this case there was a delta of four years, eight months between the charges as originally bonded and as pleaded by the amendment to the complaint. In Jones, the defendant initially faced a 24-year sentence but was exposed to a mandatory life sentence as a result of the pleading amendment. (Jones, supra, 873 P.2d at p. 37.) In Smith, the defendant faced a mandatory prison sentence as a result of the complaint’s felony amendment whereas the initial charge was only a misdemeanor violation. (Smith, supra, 645 P.2d at p. 865.) It appears to us that these differences in the potential punishments in Smith and Jones before and after subsequent charges were filed are much more meaningful and significant, and therefore more material, than the difference in the potential sentences as faced by Myers here. “An alteration [to a bond] is material when it changes the nature of the contract by placing the bondsman in a substantially different position than he or she occupied before the change was made.” (State v. Vaughn (2000) 11 P.3d 211, 215, citing Restatement of Security § 128(b)(i); Stearns, Law of Suretyship § 6.3.) In this case, the trial court did not increase the bail as a result of the complaint’s sentence-enhancement amendment, even though that amendment increased (actually doubled) the potential length of Myers’s sentence from the initially pleaded single burglary charge, the bonded conspiracy charge never having been pursued by the People.
Ranger further contends that Myers may have been eligible for probation based on the original charges under section 461 whereas a prison sentence was mandatory as a result of the sentence enhancement allegation (§ 667, subd. (c)(4)) and that under the Three Strikes law, credits are limited, potentially ensuring that Myers would actually serve a longer sentence by receiving less good time credits. (§ 667, subd. (c)(5).) These factors, Ranger argues, also materially increased its risk on the bond, which, it contends, ought to have been measured by “the likelihood that an amendment will incline flight;” “the effect that an amendment will have in causing a defendant to take flight;” or “the risk of flight due to a defendant’s perception of a greater sentence that prejudices the surety.” But it is the bond itself and applicable statutes which define the surety’s risk. (People v. North Beach Bonding Co., supra, 36 Cal.App.3d at p. 668.) Moreover, such measures of the surety’s risk as contended by Ranger are not objectively grounded and would unduly involve speculation into a theoretical defendant’s subjective state of mind and the psychological effects of various factors on a particular defendant’s perceived inclination towards flight.
In sum, there was no statutory notice violation here that would compel exoneration of the bond as a matter of law. And the broad language of the bond itself encompassed the particular sentence-enhancement-allegation pleaded by the duly authorized amendment to the complaint. Accordingly, we reject Ranger’s contentions that the pleading amendment without notice to it exceeded the terms of the bond, thus materially increasing Ranger’s contractually assumed risk and resulting in exoneration.
DISPOSITION
The order denying Ranger’s motion to set aside the forfeiture of the bail bond and to determine that the bond was exonerated is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.
In the instant case, Ranger obtained extensions of the appearance period from the court under section 1305.4, thus delaying entry of the consent judgment of forfeiture until May 23, 2006. Although Ranger did not also appeal from the judgment, if, as Ranger argues, the court had lost jurisdiction to enter the judgment by a prior exoneration of the bond, the judgment could be challenged by 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], citing People v. American Contractors Indemnity Co., supra, 33 Cal.4th 653 .)