Opinion
Rehearing Denied June 1, 1971.
Hearing Granted June 30, 1971.
Opinion on pages 361 to 377 omitted
HEARING GRANTED
See 5 Cal.3d 898 for opinion that appeared on pages 361 to 366.
See 6 Cal.3d 164 for opinion that appeared on pages 367 to 377.
MacDonell, Bell & Sandberg, Sacramento, for appellants.
Richard W. Dickenson, County Counsel, Jerry Hall, Deputy County Counsel, Stockton, Joseph H. Baker. Dist, Atty., Stockton, for Respondent.
REGAN, Associate Justice.
The appellants, United Bonding and Victor J. Pimper, its agent (hereinafter designated United), appeal from an order of the Superior Court of the County of San Joaquin, denying its motion to set aside the forfeiture of bail which it posted in the criminal action, People v. Douglas McArthur Mock.
United executed a bail bond in behalf of defendant Mock for the amount of $5,000 to secure his release from custody. The bond indicated Mock was to appear in the Stockton Municipal Court on June 12, 1967. On June 29, 1967, Mock, along with six other codefendants, was indicated by the grand jury for assault with a deadly weapon (Pen.Code, § 245) and battery upon a police officer (Pen.Code, § 242).
On June 30, 1967, Mock, along with the other codefendants, appeared in the San Joaquin County Superior Court for arraignment. At that the matter was ordered continued to July 21, 1967, for pleas. The court minutes for the June 30, 1967, court appearance set forth, among other things, the following:
'The above case was regularly called for hearing. Defendant Tiedemann was present in custody of the Sheriff and all other defendants were present pursuant to their bail. A copy of the Grand Jury Indictment heretofore filed was furnished to each defendant.
'The Court appointed Robert Chargin, Public Defender, to represent defendants Gilbert, Talbot, Braddon-Walker and Mock.
'* * *
'Pursuant to motions by counsel for all defendants the above matter was ordered continued to July 21, 1967, at 9:30 a. m. for pleas.
[94 Cal.Rptr. 584]'The bail bondsman for defendants Gilbert, Talbot and Braddon Walker was present in Court and informed the Court that he will remain on the bail bonds of said defendants.
'The Public Defender informed the Court that the bail bondsman on defendant Mock will firm in writing that he will remain on the bail bond of said defendant.
'* * *
'Defendant Tiedemann was remanded to custody of the Sheriff and all other defendants were released on their present bail.'
Between the dates of June 30, 1967, and January 8, 1968, the date set for trial, the court entertained various defense motions, including requests for substitution of counsel.
On the date set for trial, January 8, 1968, Mock failed to appeal for trial. On this date, the public defender moved to be relieved as counsel for Mock. The motion was granted. The trial was then continued to April 16, 1968. At this same hearing on January 8, 1968, a bench warrant was issued for Mock's arrest.
The court minutes for January 8, 1968. set forth that Mock was not Present in the court and his counsel knew of no reason why he was not. The following colloquy then took place:
Mock failed to appear for trial in April. On May 14, 1968, the trial court gave notice of forfeiture and ordered forfeited the bail bond of Mock which had been set at $5,000. The minute order reads as follows:
'The defendant DOUGLAS Mc-ARTHUR MOCK having failed to appear in Court on January 8, 1968, as ordered by the Court, Bail is now ordered forfeited, pursuant to Section 1305 of the Penal Code of the State of California.'
This notice was mailed to United by the clerk on May 14, 1968.
On June 4, 1968, United filed its notice of motion and motion to set aside order of forfeiture of bail bond and request for order exonerating bail. This motion was opposed by the district attorney.
After this filing, the trial court on June 13, 1968, entered a nunc pro tunc order relating to the forfeiture of Mock's bail bond. This order reads in part, as follows:
'It is a fact that the defendant failed to appear on January 8 without sufficient excuse and the Court made such a finding in its oral pronouncements. However, this was not entered in the Minute Order which was subsequently made on May 14. The Court hereby directs the issuance of a nunc pro tunc order in connection with the forfeiture of bail and expressly makes the finding that the defendant failed to appear for his scheduled trial date and further that his failure to appear was without sufficient excuse and without any excuse. In view of these findings the Court again directs that the defendant's bail be ordered forfeited nunc pro tunc, as of May 14, 1968, for his failure to appear on a scheduled trial date on January 8, 1968, without sufficient excuse being offered to the Court for his non-appearance and said [94 Cal.Rptr. 585]bail is ordered forfeited pursuant to Section 1305 of the Penal Code of the State of California with directions to the Clerk to issue notice of the forfeited bail bond in accordance with said section of the Penal Code.'
Notice of the bail forfeiture pursuant to the nunc pro tunc order was mailed by the clerk to the surety and bail bondsman on June 13, 1968.
After several continuances, United's motion to set aside the forfeiture was denied on September 24, 1968. This appeal followed.
United contends that the provisions of section 1305 of the Penal Code are jurisdictional and thus the order of forfeiture is null and void. (People v. Black (1961) 55 Cal.2d 275, 277, 10 Cal.Rptr. 459, 358 P.2d 915; People v. United Bonding Ins. Co. (1969) 272 Cal.App.2d 441, 445, 77 Cal.Rptr. 310; People v. Stuyvesant Ins. Co. (1968) 261 Cal.App.2d 773, 783, 68 Cal.Rptr. 389.) This section reads, in pertinent part, as follows:
'1305. If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court is lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes and the undertaking of bail * * * shall thereupon be declared forfeited. * * *'
In view of the clear language of this section, the forfeiture procedure followed by the trial court violated the provisions set forth therein. Nonappearance of the accused occurred on January 8, 1968, and a bench warrant was issued for his arrest. Notwithstanding the mandatory directions of section 1305, no finding of nonappearance or declaration of bail forfeiture was made, none was entered in the minutes, and no notice was sent to the surety (see Pen.Code, §§ 979, 1305). In April 1968, Mock failed to appear for trial. Still, there was no compliance with section 1305. On May 14, 1968, four months after Mock's nonappearance, the court entered a finding and order of forfeiture. On June 13, 1968, the court attempted to give this order a retroactive effect by the device of nunc pro tunc.
With all respect to the trial judge, we cannot but infer that he overlooked timely compliance with section 1305. But what impact does his oversight have upon the bondsman? Penal Code, sections 1305 and 1306 set up a timetable, designed to give the bondsman an immediate opportunity for pursuit and recapture of the vanishing defendant. If the court gives the surety prompt notice of forfeiture, he can take off in hot pursuit of the departed one and, if he can return him within 180 days, he can have the forfeiture set aside.
In so concluding, we decline to follow the statement of the court in Los Angeles Co. v. Metropolitan C. Ins. Co., 135 Cal.App. 26, 28, 26 P.2d 699, 700, wherein the court comments that the statute 'places no limitation upon the time within which such forfeiture shall be entered.'
In the surety is unable to produce the accused, section 1306 takes over. It directs the entry of a summary judgment based upon the forfeiture. It declares that the failure of the court or prosecutor to have the summary judgment entered within 90 days after the first available date will cause exoneration of the surety.
In this case the court's failure to art obliterated the statutory timetable. In place of an opportunity to bring in the defendant within 180 days of his January nonappearance (in accordance with section 1305), the surety was given 180 days from the court's May 14 order. Instead of a summary judgment deadline of 270 days (180 plus 90), the county gets a deadline of 270 days, plus four months. (See Pen.Code, §§ 1305, 1306.)
[94 Cal.Rptr. 586]What is most striking that the failure to comply promptly with the statute deprived the surety of any chance for hot pursuit, leaving him a cold trail and a diminished opportunity to protect his bond. Here, the nunc pro tunc device is utilized as an instrument of injustice rather than fairness. The court's action, via the nunc pro tunc procedure, deprived United of a substantial right, i. e., timely notice.
The procedure established by section 1305 is mandatory; a judicial act which departs from that procedure exceeds the court's jurisdiction; the court's failure to act with the promptness required by the statute cannot be defeated by the device of a nunc pro tunc order. (People v. Black, supra, 55 Cal.2d at p. 277, 10 Cal.Rptr. 459, 358 P.2d 915; People v. United Bonding Ins. Co., supra, 272 Cal.App.2d at p. 445, 77 Cal.Rptr. 310). In our view the trial court's order of May 14 was a nullity. Therefore, the order is reversed and the court is directed to vacate the forfeiture.
FRIEDMAN, Acting P. J., and JANES, J., concur.
'THE COURT: Mr. Mock is the one defendant who is not present. I think perhaps there should be, when you can reach him and when we have appointed counsel, he should make a special appearance in Court so we could confirm this trial date with him and perhaps when we--we can work with you, Mr. Chargin, and Mr. Wells. Apparently he has been present before.
'MR. Wells [attorney for a codefendant]: I can't find Mr. Mock.
'THE COURT: You can's find him?
'MR. WELLS: No, sir. Mock, I can't find him.
'THE COURT: If any of the other defendants know of his whereabouts, if they will advise any of the attorneys so that we know how to reach him--or if you know, Mr. Baker?
'MR. BAKER [Deputy District Attorney]: I have some information that he's jumped bail somewhere else, your Honor. I'm not--I haven't verified that, though.
'THE COURT: I see. We may have a problem.'