PEOPLE v. SAFETY NATIONAL CASUALTY INSURANCE CO.

Respondent’s Petition for Review

Cal.May 20, 2014

$218712 B243773 (LASC No. LA066432) |SUPREME COURT FILED IN THE REME COLTHE SUP EME COURT MAY 90 2014 OF THE STATE OF CALIFORNIA mH Frank A. Metsuire Clerk yoo Deputy f CRO THE PEOPLE OF THE STATE OF CALIFORNIA, B.25(b) J Plaintiff-Respondent, SY e e e Vv. SAFETY NATIONAL CASUALTY INSURANCE COMPANY, Defendant-Appellant. After a Decision by the Court of Appeal Second Appellate District, Division Eight Case No. B243773 (LASC No. LA066432) PETITION FOR REVIEW OFFICE OF THE COUNTY COUNSEL RUBEN BAEZA,JR., Assistant County Counsel BRIANT. CHU,Principal Deputy County Counsel JOANNENIELSEN,Principal Deputy County Counsel State Bar No. 181698 648 Kenneth Hahn Hall of Administration 500 West Temple Street Los Angeles, California 90012-2713 Tel: (213) 974-1876 Fax: (213) 687-8822 Attorneys for People of the State of California, by the County of Los Angeles HOA.1063245.1 B243773 (LASC No. LA066432) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff-Respondent, Vv. SAFETY NATIONAL CASUALTY INSURANCE COMPANY, Defendant-Appellant. After a Decision by the Court of Appeal Second Appellate District, Division Eight Case No. B243773 (LASC No. LA066432) PETITION FOR REVIEW OFFICE OF THE COUNTY COUNSEL RUBEN BAEZA,JR., Assistant County Counsel BRIANT. CHU,Principal Deputy County Counsel JOANNENIELSEN,Principal Deputy County Counsel State Bar No. 181698 648 Kenneth Hahn Hall ofAdministration 500 West Temple Street Los Angeles, California 90012-2713 Tel: (213) 974-1876 Fax: (213) 687-8822 Attorneys for People of the State of California, by the County of Los Angeles HOA.1063245.1 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........ 0.00.00. 00 eee eee il L. QUESTION PRESENTED FOR REVIEW ............-220--- 1 I. INTRODUCTION ..... 0. 0.eee1 WT. GROUND FOR REVIEW ..........0. 0.0. cece eee 2 IV. PETITION FOR REHEARING.........0. 00.0.0... 2 ee eee eee 5 V. STATEMENT OF THE CASE.........0...0 00.00 e eee eee eee 6 VI. ARGUMENT...........bce nee eee eens 8 A. ESTABLISHED RULES OF STATUTORY CONSTRUCTION MAKE CLEAR THAT SECTION 977(B) APPLIES TO BAIL FORFEITURE PROCEEDINGS UNDER SECTION 1305 B. EXISTING CASE LAW INTERPRETING SECTIONS 977 AND 1305 DO NOT COMPEL THE RESULT REACHED IN THE OPINION; RATHER, THE CASES WOULD INDICATE THAT SECTION 977 DOES APPLY TO BAIL FORFEITURE PROCEEDINGS VII. CONCLUSION .... 2.002nee 27 HOA. 1063245. 1 i TABLE OF AUTHORITIES Page CASES Day v. City ofFontana (2001) 0.0...eee9, 10 25 Cal.4" 268 Inre Marriage ofHarris (2004) ......0 00.eceee 8 34 Cal.4"210 People v. American Bankers Insurance Co. (1990) ..... 18, 19, 20, 25, 26 225 Cal.App.3d 1378 People v. Classified Insurance Corp. (1985)........ 16, 17, 18, 19, 25, 26 164 Cal.App.3d 341 People v. Indiana Lumbermens Mutual Ins. Co. (2011)......... 4, 12, 13 194 Cal.App.4"" 45 People v. International Fidelity Ins. Co. (2012). 1... 0.0... eee 8 212 Cal.App.4" 1556 People v. Nat'l Automobile & Casualty Ins. Co. (2004)... 16, 20, 21, 22, 23 121 Cal.App.4" 1441 People v. National Automobile & Casualty Ins. Co. (1977) .........-. 16 77 Cal.App.3d Supp.7 People v. Ranger Insurance Co. (1998)... 0.06... cee eee 9, 13, 14, 24 66 Cal.App.4" 1549 People v. Ranger Insurance Co. (1992)... 0... cece eee 16 6 Cal.App.4" 1301 People v. Sacramento Bail Bonds (1989) ........0 0.06 e eee 15, 19, 26 210 Cal.App.3d 118 STATUTES Penal Code section 977... 0.0... 0cceneepassim Penal Code section 995.00... . 0...eeeee 17, 18, 20 HOA.1063245.1 il Penal Code section 1305 2.0.0... 0.eeepassim Civil Code section 3541 2.0.0.0... 000 ccceee 11 RULES OF COURT California Rules of Court, rule 4.112 ............. 11, 15, 19, 24, 25, 26 California Rules of Court, rule 8.500 ............. 0.000200 e eee eee 2 HOA. 1063245. iil I. QUESTION PRESENTED FOR REVIEW Penal Code §977(b) requires a defendant charged with a felony to be personally present at certain specified hearings andat all other proceedings unless he has executed a waiver. Penal Code §1305(a)(4) requires a court to forfeit bail if, without sufficient excuse, a defendantfails to appear when "the defendant's presence in court is lawfully required." If a defendant's presenceis required under §977(b), but the defendant is not present nor has he executed a waiver,is bail properly forfeited under §1305? In other words, does Penal Code §977(b) apply to bail forfeiture proceedings under §1305 when a felony defendant has not executed a waiverandis not present in court? Il. INTRODUCTION In this case, the defendant, who was charged with a felony and released on bail, was present in court whenhis pre-trial hearing was continued. The court stated the next date on the record in the defendant's presence. The court ordered "bail to stand." On that next date, the defendantdid not appear and the court forfeited bail. At the end of the extended appearanceperiod, the bail agent filed a motion to exonerate the bond arguing that the defendant was not lawfully required to appear on the date the court forfeited bail. The trial court denied the motion.! The application of P.C. §977 wasnotraised in thetrial court. HOA.1063245.1 -|- Followingthe trial court's denial of the motion to vacate forfeiture, the surety appealed. Division Eight of the Second Appellate District of the Court of Appeal reversedthetrial court; it found that §97T’ serves only to protect a defendant's due process rights and has no application to bail status — it found that §977(b) does not require a felony defendant's presence at an ordinary pretrial conference. (Opinion attached hereto as Exhibit 1.) II. GROUNDS FOR REVIEW California Rules of Court ("CRC"), Rule 8.500(b) states that the Supreme Court may order review of a Court of Appeal decision "[w]hen necessary to secure uniformity of decision or to settle an important question of law." (CRC, Rule 8.500(b)(1).) Review is necessary here for both reasons. First is the important question of law. Section 1305(a)’ requires that a court forfeit a defendant's bail upon his first unexcused non-appearance. Section 977(b)* requires that a felony defendant appear atall court * All unspecified statutory references are to the Penal Code. Section 1305, subdivision (a) states, in pertinent part: "A court shall in open court declare forfeited the undertaking of bail or the money or property deposited asbail 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 pronouncementofjudgment if the defendant's presence in court is lawfully required. (5) To surrender himself or herself in execution of the judgmentafter appeal." 4 Section 977, subdivision (b)(1) states, in pertinent part: "In all cases in which a felony is charged, the accused shall be present at the HOA.1063245.1 -2- proceedings unless he has signed a waiver permitting his appearance through counsel. The opinion in this case — holding that §977(b) did not command the defendant's appearance andthusthetrial court did not have jurisdiction to forfeit bail — ignores the plain statutory language of both §977 and §1305. By so doing, the opinion eviscerates the power of §977 to compel a felony defendant's appearanceatall his court proceedings, even when the defendant has not executed a waiver. In this case, the Court of Appeal made the unequivocal statement "that section 977 .. . has no bearing on a defendant's obligation to appearat certain trial court proceedings in order to maintain his status on bail." (Opinion, page 6.) The statement is remarkable because is expressly holds that the failure of a defendant to appear at any of the court proceedings described in §977 cannot be the basis for an order of bail forfeiture under §1305. The Opinion directly conflicts with the express wording of §§977 and 1305. Under §1305, bail must be forfeited when the defendant fails to (...continued) arraignment, at the time of plea, during the preliminary hearing, during those portions ofthe trial when evidenceis taken before thetrier offact, and at the time of the imposition of sentence. The accused shall be personally presentat all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiverof his or her right to be personally present." HOA.1063245.1 -3- appear withoutsufficient excuse at any hearing at which his presenceis lawfully required. Section 977 expressly requires a defendant to appearat all proceedings (not otherwise specified under paragraph (b)), if there is no written waiver executed in open court. In other words, the failure to appear at a §977 "other proceeding"is a basis for forfeiting a bail bond because the defendant has failed to appear at a hearing at which his presenceis lawfully required. Second is uniformity of decision. The Opinion conflicts with prior appellate cases which have applied the statutes together in their rulings. The Supreme Court's grant of review will resolve the conflict between precedentand this Opinion,and will have a significant effect on the bail industry's approachto its obligation to locate and return a criminal defendant to custody, and on the lower courts' enforcement ofthat obligation through the application of §§977 and 1305. The Opinionhereis in direct conflict with precedent. In People v. Indiana Lumbermens Mutual Insurance Co. (2011) 194 Cal.App.4” 45 (Pet. for Rev. denied June 22, 2011), the Fourth Appellate District held that a criminal defendant was required to appearat a preliminary hearing under §977. More importantly, and in direct conflict with the Opinion,the Indiana LumbermensCourt held that the defendant must be personally present during the preliminary hearing as required by §977(b); because such appearance waslawfully required, "an unexcusedfailure to appear HOA.1063245.1 -4- during the preliminary hearing requiresthetrial court to declare bail forfeited." (/d. at 49.) Here, the Opinion's holding that §977 has no bearing on the defendant's obligation to appear under §1305 is antithetical to existing case law. The bail statutes establish the rules which must be followed in order to avoid the harsh results of forfeiture. The bail statues serve as the blueprint by which bail sureties ensure the appearanceoftheir client- defendants at required court hearings. The Supreme Court must resolve this conflict between appellate courts as to the rule of law which the lower courts and bail sureties must follow to ensure the appearance by defendants. Where,as here, there disagreement as to whether §977(b) appliesto bail forfeiture proceedings which hasled to opposite results, the Supreme Court is compelled to exerciseits duty as the final arbiter of statutory construction and interpretation. IV. PETITION FOR REHEARING The People filed a Petition for Rehearing on April 24, 2014. On May9, 2014, the Court of Appeal issued an Order Modifying Opinion and DenyingPetition for Rehearing.’ (Order attached hereto as Exhibit 2.) There was no changein the judgment. The caption erroneously reads "Ordering Modifying Opinion and Denying Petition for Rehearing." HOA.1063245.1 -5- V. STATEMENT OF THE CASE Defendant/Appellant Safety National Casualty Corporation ("Safety National" or "the surety"), posted bond for criminal defendant Elshaddai MachabeusBent("Bent"). (CT 11.) Bent appeared as required several times, including his preliminary hearing, at which time he washeld to answer, and his case and bond weretransferred for felony arraignment. (CT 13-15.) After his felony arraignment, Bent appeared for a pre-trial on April 5, 2011, at which his attorney requested a continuance; the court granted the continuance and — in Bent's presence — the pre-trial/trial-setting was continued to April 29, 2011. (CT 16-17.) Bent did not appear on April 29, 2011. (CT 23.) Counsel represented that her office had been in contact with Bent sincethelast hearing, but had not been able to reach him the previous eveningor that morning. (CT 23.) The court forfeited bail, and the clerk mailed notice of the forfeiture to Safety National and to its agent. (CT 17, 27.) Monthslater, the court granted a motion to extend the appearance period for 180 days. (CT 18.)° During this extended period, Safety ° The docket refers to this motion as a "motionto toll time for investigator to apprehendandreturn to jurisdiction." (CT 17.) Further, the docket states that the motion was pursuant to Penal Code §1305.4, and was granted for 180 days. (CT 18.) It thus appears this was a standard motion to extend the appearanceperiod (not a motionto fo//). Moreover, Appellant referred to this motion as one for an extension of time (CT3,line 4); however, this motion is not included in the record. The Opinion (page 2), HOA.1063245.1 -6- National filed a motion to vacate forfeiture. (CT 4.) The motion argued that the trial court "was without jurisdiction to forfeit bail” when Bent failed to appear for his pretrial. (CT 3.) Thetrial court believed that Bent had been required to appear on April 29" — although §977(b) wasnot one of the reasons stated on the record — and thus denied the surety's motion to vacate. (RT 2-4.) Safety National appealed the denial of its motion to vacate forfeiture. (CT 29.) On appeal, Safety National again argued that Bent's appearance was not required, and the People argued it was. After submission of the Opening, Responding, and Reply Briefs, the Court of Appeal issued an order requesting letter briefs. (Order attached hereto as Exhibit 3.) The Order did not request the parties to further consider the application of §977, which had been addressedin all earlier briefing. Following oral argument, the Court of Appeal found that Bent's appearance had not been required;it reversed the trial court and directed a new order granting the motion to vacate forfeiture. / / (...continued) repeats the error of the docket, stating that time was tolled, when actually the appearance period was extended. The People raised this in their Petition for Rehearing, but the Court of Appeal did not modify that portion of the Opinion. HOA.1063245.1 -7- VI. ARGUMENT A. ESTABLISHED RULES OF STATUTORY CONSTRUCTION MAKE CLEAR THAT SECTION 977(B) APPLIES TO BAIL FORFEITURE PROCEEDINGS UNDER SECTION 1305 "[A]n order denying a motion to vacate a bail forfeitureis normally reviewed for abuse of discretion. [Citations.] On the other hand,to the extent that the evidence before the reviewing court is undisputed and the dispositive issue is one of statutory construction, we apply an independent review standard. [Citation.]." (People v. International Fidelity Ins. Co. (2012) 212 Cal.App.4" 1556, 1561.) The fundamental purpose ofstatutory construction is to ascertain the intent of the lawmakersso as to effectuate the purpose ofthe law. (In re Marriage ofHarris (2004) 34 Cal.4th 210, 221.) HOA. 1063245.1 Webegin by examining the statutory language, giving the wordstheir usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning ofthe language governs. [Citation.] If, however, the statutory terms are ambiguous, then we mayresort to extrinsic sources, including the ostensible objects to be achieved andthe legislative history. [Citation.] In such circumstances, we' "select the construction that comports most closely with the apparentintent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.[Citation.] (Day v. City ofFontana (2001) 25 Cal.4th 268, 272.) The legal question focuses on the interplay between §977 and §1305. Section 977 is a general law designed to protect a defendant's right to be present at his trial and. other proceedings. [Citation.] Section 1305 is clearly a specific or special statute designed to govern the procedure to be followed whenbail is to be forfeited. Whenthere is a conflict between a general and special law,the special law must control. [Citation.] (People v. Ranger Ins. Co. (1998) 66 Cal.App.4" 1549, 1553-1554.) Here, there is no conflict: Section 1305(a)(4)'s "any other occasion" language encompasses the mandate of §977(b) that a felony defendant — in the absence of a waiver — must be personally present at all hearings. In this case, Bent was presentat the April 5, 2011 pretrial conference, andthetrial court ordered the matter continued to April 29 with the understanding, by Bent and counsel, that the trial would be held within 45 days of that date. (Opinion, at p. 2.) The Opinion characterizes the subsequent April 29 hearing, at which Bent failed to appear without sufficient excuse, as "an ordinary pretrial conference." (Opinion,at p. 7.) Such a characterization indisputably places the April 29 hearing within the category of "all other proceedings"(i.e., other than arraignment, time. of plea, preliminary hearing, during trial when evidenceis presented, and sentencing). Thus, whetherthis category of "all other proceedings”falls within §1305, subdivision (a)(4) as one at which Bent was "lawfully HOA.1063245 1 -9- required" to appear, is an issue of statutory construction, requiring independent review by the Supreme Court. The People contended that the April 29 hearing falls within the ambit of "all other proceedings" at which Bent was required to appear absent a written waiver. However, the Opinionstates: This contention has been considered and rejected by our appellate courts. The rationale behindtheir rulings is that section 977 is designed to protect a felony defendant's due processright to be presentatalltrial proceedings and has no bearing on a defendant's obligation to appearat certain trial court proceedings in order to maintain his status on bail. (Opinion,at p. 6.) What is so explicitly held by the Court of Appeal is that §977 "has no bearing on a defendant's obligation to appearat certain trial court proceedingsin order to maintain his status on bail." This blanket statement excludesall application of §977 to bail forfeiture proceedings under §1305. Whetherthere is an ambiguity in §977's provision that the defendant shall be present "at all other proceedings" should be left to rules of statutory construction. "We begin by examiningthe statutory language, giving the words their usual and ordinary meaning.[Citation.] If there is no ambiguity, then we presume the lawmakers meant whatthey said, and the plain meaning of the language governs. [Citation.]" (Day v. City ofFontana (2001) 25 Cal.4th 268, 272.) Further, an "interpretation which gives effect HOA. 1063245.1 -10- is preferred to one that makes void." (Civil Code §3541.) Here, the Opinion's interpretation makes void the "any other hearing” language of §1305(a)(4) as well as the "shall be personally present" language of §977(b). There is no reason for the Opinion to have reached such an interpretation, and its explanation that it was compelled by previous case law addressing §977 is, as shown below, unsupported. B. EXISTING CASE LAW INTERPRETING SECTIONS977 AND 1305 DO NOT COMPEL THE RESULT REACHEDIN THE OPINION; RATHER, THE CASES WOULD INDICATE THAT SECTION 977 DOES APPLY TO BAIL FORFEITURE PROCEEDINGS The Opinion's analysis in this particular case conflicts with previously published decisional authority. The dispositive underlying question is whether §977, subdivision (b), which requires the defendant charged with a felony to be present "atall other proceedings"(unless a written waiver ofpersonal presence is executed in open court), is applicable to bail bond proceedings under §1305, subdivision (a), which requiresbail forfeiture where the defendantfails to appear on "[a]ny other occasion ... if the defendant's presencein court is lawfully required." If it applies, as the People contend, then the issues of whetherthe "bail to stand"orderis equivalentto an orderto appear, and whetherthe pretrial conference on April 29, 2011, was a readiness conference under CRC Rule 4.112 become moot. HOA. 1063245.1 -[1- Previous cases are in conflict with the Opinion. In Jndiana Lumbermens, supra, 194 Cal.App.4"" 45, a defendant charged with a felony wasreleased on bail and appeared for arraignment. At the arraignment, the defendant executed a waiver under §977, subdivision (b) and waived time for his preliminary hearing. He did not personally appearat the subsequent six settlement conferencesor at the hearings on motions to continue the preliminary hearing, but did appear through counsel. The defendant thereafter personally appeared at the preliminary hearing andall other hearings leading upto thetrial except thetrial readiness trial. After changinghis plea to guilty, the defendant did not appear for sentencing and his bail was ordered forfeited. Ud., at 47-48.) On appeal to the Fourth Appellate District from the order denying the surety's motion to set aside the forfeiture, the surety contended that the trial court Jost jurisdiction over the bond whenit failed to order the bail forfeited when the defendant failed to appear in court on the date originally set for the preliminary hearing. The Fourth Appellate District preliminarily stated: Section 977 allows a felony defendant to waive his or her personal presence at some hearings, appearing instead solely through his or her attorney. However, even if a section 977 waiveris filed, the defendant must be personally present during the preliminary hearing. (§ 977, subd. (b).) Because the defendant's presenceis lawfully required, an unexcusedfailure to appear during the HOA.1063245.1 -12- preliminary hearing requiresthe trial court to declare the bail bond forfeited. (§ 1305, subd. (a)(4).) (Indiana Lumbermens, supra, 194 Cal.App.4" at p. 49, (fn. omitted).) The appellate court's holding makesclear that a defendantis required to personally appear at the preliminary hearing, which isonethat is lawfully required under §977, subdivision (b). This holding explicitly states thatall categories of appearances within §977, subdivision (b) are appearances which are lawfully required. If the defendantfails to appear at a lawfully required hearing, then the unexcusedfailure to appear at a required hearing is groundsto forfeit bail. Significantly, the trial court's denial of the surety's motion was affirmed. The Fourth Appellate District held that a motion to continue the preliminary hearing was not the sameas the preliminary hearing itself and, since the preliminary hearing was neveractually held on the date that it was first set, the trial court retained jurisdiction over the bail bondto later order it forfeited. (Indiana Lumbermens, supra, 194 Cal.App.4™ at 49-50.) The appellate court's holding is distinguishable from the present case based on the undisputed fact that Bent did not execute a written waiver under §977, subdivision (b). What is most important, however, is the Fourth Appellate District's consideration of §977 to §1305. Earlier, in People v. Ranger Ins. Co., supra, 66 Cal.App.4" 1549, a case in the Sixth Appellate District, a defendant charged with a felony was HOA.1063245.1 -13- released on bail and appeared at the arraignment. At the arraignment, he executed a waiver under §977, which specifically excluded its application to the "Pretrial or Trial Date." On the date set for trial, the defendant failed to appearat the mastertrial calendaring hearing, but the trial was put on standby, and the court did not forfeit bail. Two dayslater, the defense attorney movedto continuethetrial, although the defendant was not present and there was nothing in the record which reflected that he was given notice of the motion hearing. Nevertheless, thetrial court ordered bail forfeited. Ud., at 1551.) On appeal from the order granting the surety' motionto set aside the forfeiture, the issue was whetherthe trial court lost jurisdiction over the bond whenit failed to order bail forfeited at the mastertrial calendaring hearing. Underlying the appellate opinion wasthe interplay between §997 and §1305. The People contendedthat the defendant's written waiver excused him from appearing. However, the waiver "by its own termsit did not apply to the trial date. Trial includes the day on whichtheparties are called to try their case." Ud., 1554.) While Ranger holds that the provisions of §1305 applied to justify setting aside forfeiture, it is significant that it also held that the provisions of 8977 appliedto bail forfeiture proceedings. That is, the terms of the §977 waiver applied to support the appellate court ruling. If it were not relevant to any issue in that case, the Sixth Appellate District could have simply held that §977 had no HOA. 1063245.1 -14- application to bail forfeiture proceedingsat all, rather than go through the analysis of whether there existed any conflict between the twostatutes. Still earlier is People v. Sacramento Bail Bonds (1989) 210 Cal.App.3d 118. There, the defendantfailed to appear at a readiness | conference even though he waspresentat the prior hearing whenit wasset, although he wasnot expressly ordered to appear. The surety contended that the defendant's appearance wasnot one at which he was "lawfully required" to be present. (/d., at 120.) The Third Appellate District held that the advisement to the defendant in open court of the date and timeofthe readiness conference, together with the operation of CRC rule 227.6, clearly made defendant's presence at the trial status conference "lawfully required" within the meaning of subdivision (a) of §1305. (/d., at 121y What makes Sacramento Bail Bonds significant in the present context is its application ofother law to the bail forfeiture proceeding. "Since defendant did not otherwise execute a waiverofhis presence pursuant to section 977 [omitted reference], his presence was required at the trial status conference pursuant to rule 227.6." (/d., at 121.) 7 Ata readiness conference, "the defendant mustbe presentin court." (CRC rule 4.112, subd. (a)(3).) HOA. 1063245.1 -15- The bottom line in examining these cases is that other appellate districts have applied the provisions of §977 when ruling on bail forfeiture proceedings. Yet here, the Opinion does the opposite. The Opinion cites People v. Classified Insurance Corp. (1985) 164 Cal.App.3d 341, 344-346, People v. National Automobile & Casualty Ins. Co. (2004) 121 Cal.App.4th 1441, 1449-1450 (hereinafter, National Automobile (2004)), People v. National Automobile & Cas. Ins. Co. (1977) 77 Cal.App.3d Supp. 7, 9, and (accord) People v. Ranger Ins. Co. (1992) 6 Cal.App.4th 1301, 1304. Notably, the Opinion, while identifying a key and distinguishing factual elementin this case, does not discuss howit squares with the holdings of the cited cases which, if considered, would lead to a different result to this case. That key factual elementis that Bent had actual notice, in open court, of the April 29, 2011 hearing date. Without a consideration ofhow this element plays into the analysis of whether §997 applies to §1305 bail proceedings, the Opinion stands alone in its analysis. In Classified, a case in the Fifth Appellate District, the defendant was charged with felonies and failed to appear at a hearing for a §995 motion. While in custody,the trial court set dates for a trial confirmation hearing andtrial. Before the trial confirmation hearing washeld, defense HOA.1063245.1 -16- counselfiled a motion to set aside the information under §995° andset a hearing date without giving the defendant actual notice of the hearing date. At that hearing, the defendant did not appear and the bail bond was ordered forfeited. On appeal from the order denying the surety's motionto set aside the forfeiture, the People urged that, because the defendantdid not execute a written waiverofhis right to be personally present, he was required to appearat the hearing under §977, subdivision (b). (Classified, supra, at 345.) The order wasreversed. Classified recognized "that section 977 is designed to implement a defendant's due processrights. [Citation.]" (Ud., at 345, quoting People v. North Beach Bonding Co.(1974) 36 Cal.App.3d 663, 669.) Classified also Stated that: The construction urged by [the People] would permit [the defendant's] trial counsel to place [the defendant] in default without notice of the motion or date of appearance. Such a construction would clearly be inconsistent with the purpose of section 977 as abovestated. Absent an order or other actual notification from the court that [the defendant's] appearance wasrequired at a given date and time, the failure of [the defendant] to appear cannot be groundsfor forfeiture of bail under section 1305. 8 A hearingto aside a criminal informationor indictment under §995is referred to, hereinafter, as a "section 995 motion." HOA.1063245.1 -17- (id., at p. 346.) Quite clearly, Classified focused on the fact that there was no evidencein the record that the defendant had any knowledgethat a §995 motion hearing wasto be held and, therefore, the defendant's due process rights would have been violated if the hearing wasoneat which his presence was lawfully required under §977 and §1305, subdivision (a)(4). In contrast, a different result follows where a defendant has notice of a hearing, notwithstanding the absence of any express orderthat heis required to be present. If a defendanthas notice of a hearing in his felony case, then certainly the due process concernsin Classified are nullified. Absentthe due process and notice concerns of Classified, the defendant's appearance, in the absence of a written waiver to be personally present, is "lawfully required" under §997, subdivision (b) and §1305, subdivision (a)(4). This contrasting hypothetical, one which the Opinion does not address, was considered by the same Fifth Appellate District in People v. American Bankers Ins. Co. (1990) 225 Cal.App.3d 1378. There, the defendant and her attorney were presentin the trial court when it ordered hearing dates set for a §995 motion,a trial confirmation hearing, andtrial. Notably, "[t]he court did not expressly order [the defendant] to be present on any of the above mentioned dates." (Jd. at 1380.) The defendant failed to appearat the hearing for the §995 motion and the subsequenttrial confirmation hearing, aka "readiness conference" pursuant to Rule 227.6 HOA.1063245.1 -18- (renumberedas rule 4.112), and the bail bond wasforfeited. (/bid.) Appealing the order denying its motion to set aside the forfeiture, and based on the rationale in Classified, the surety argued that the defendant's presencein court was not lawfully required within the meaning of §1305. The Fifth Appellate District, this time, affirmed. First, the American Bankers Court observed that in Classified, "[t]he record did not reflect that the defendant had notice of this hearing." (Jd. at 1381.) Second,it discussed People v. Sacramento Bail Bonds, supra, 210 Cal.App.3d 118. Significantly, the Fifth Appellate District perceived a dispute in how to interpret Classified’s belief that there must be an order or other actual notification commanding the defendant's appearance on a date and time certain. As the Sacramento Bail Bonds Court observed: Classified Ins.'s dictum is at odds with the established rule permitting forfeiture of an appeal bond. Although section 1305 governs such a forfeiture, it is well recognized a forfeiture is appropriate where a defendant fails to surrender himself following an appeal even though the defendant has received no court order stating the time or place of his surrender. (Sacramento Bail Bonds, supra, 210 Cal.App. 3d at 122.) Whether Classified's rationale was dictum or precedent, American Bankers madett clear: [T]he context of the statement must be considered. .. . First, Classified did not involve an appearance date mandatedbya rule of court. Second, Classified primarily was concerned HOA.1063245. 1 -19- with the unfairness of allowing bail to be forfeited when the defendant had no notice of the date on which the hearing wasto be held. The concerns addressed in Classified simply are not present in the instant case. The defendant and her attorney were present in court when the date wasset for trial confirmation. As in Sacramento, the notification of the date combined with the operation of rule 227.6, rendered the defendant's presenceat the trial confirmation "lawfully required" within the meaningof section 1305, subdivision(a). (American Bankers, supra, 225 Cal.App.3d at p. 1382.) The Opinion does not consider the context of Bent's situation, wherein he had actual notice of the April 29 continuedpre-trial. The Opinion also cites National Automobile (2004), a case which does not hold that §977 does not have general application to bail bond proceedings. Instead, National Automobile (2004)held that §977 did not apply to the particular facts of that case because the defendanthad no knowledgeofthe court hearing at which the surety contended the trial court should have ordered forfeiture. There, the trial court held a hearing on demurrer and a §995 motion, which it then continued to October 19, 2001 and ordered the defendant to return to court on that date. On October 13, 2001, however,the trial judge held a hearing with only counsel present because, as the appellate court stated, the defendant had not been ordered to appear onthat date. Atthat hearing, thetrial judge ordered the October 19, HOA.1063245.1 . -20- 2001 hearing continued to October 26, 2001. (National Automobile (2004), supra, 121 Cal.App.4th at 1444.) Consistent with the trial court's earlier October 13, 2001 order, neither defense counsel nor the defendant appeared on October 19, 2001. Subsequently, the trial judge, with the prosecutor present, stated on the record on October 19, 2001 (the date on which the defendant had been ordered on October 13, 2001 to return to court), that the defendant wasnot present andthat the bail was ordered forfeited, but action wasstayed on the forfeiture until the October 26 hearing. (/d., at 1445, and fn. 5.) At the October 26, 2001 hearing, the defendant appeared on the motions that had been continued from October 19, 2001. Thetrial judge set aside the forfeiture. After the defendant was convicted, he failed to appear at his sentencing andthe bail was again ordered forfeited. (/d., at 1445- 1446.) In a motion to vacate forfeiture, the surety contendedthat thetrial court lost jurisdiction over the bond whenit failed to orderbail forfeited on October 19, 2001, the date on which the defendant was supposed to appear in court. The People contendedthatthe trial judge had earlier waived the defendant's required appearance for October 19, 2001. Thetrial court denied the surety's motion. (/d. at 1446-1447.) On appeal, the trial court's order was affirmed. The appellate court held that the October 19, 2001 hearing wasnot one at which the defendant's presence was "lawfully required" under §977 and, consequently, not one at which his appearance HOA.1063245.1 -2|- was "lawfully required" under §1305, subdivision (a)(4) for whichthetrial court would havelost jurisdiction over the bond. (/d., at 1449-1450.) Significantly, the appellate court observed that "[t]he absenceof a section 977 waiver does not convert all proceedings — specifically including a hearing on a section 995 motion to strike — into occasions at which a ‘defendant's presencein court is lawfully required’ for purposesof section 1305, subdivision (a)(4)." (/d., at 1449 (emphasis added).) The Court of Appealthereby impliedthat there are somesituations where,in the absence of a §977 written waiver, such a hearing is one where a defendant's presence is "lawfully required" for purposes of §1305, subdivision (a)(4). The rationale for National Automobile (2004)'s holding was based on the specific facts of the case and was nota generalrule that §977 bore no relation to §1305 proceedings. It specifically foundthat the actual hearing date was October 26, and not October 19, and thatthetrial court "acknowledged its understanding and expectation that the defendant would not appearat the October 19 hearing,it is indisputable that the defendant's appearance on that date wasnot ‘lawfully required undersection 1305, and the trial court's purported order on October 19 declaring the bond ‘forfeited! was void." (/d., at 1449.) In essence,the trial judge in National Automobile (2004) did not conduct a hearing for the demurrer and the §995 motion on October 19, 2001 becauseit had previously cancelled the hearingand continuedit to a HOA.1063245.1 -22- date at which the defendant did subsequently appear. "Thetrial judge was in errorin its apparent belief that the defendant's presence was requiredat the October 19 hearing" because he had cancelled the hearing. (/d., at 1449.) In a footnote, the Court of Appeal quoted Classified: "Absent an order or other actual notification from the court that [the defendant's] appearance wasrequired at a given date andtime,thefailure of [the defendant] to appear cannot be groundsfor forfeiture of bail under section 1305." (Ud., at 1450, fn. 10.) Thus, National Automobile (2004)also focused its rationale not on whether the defendant was ordered to appearat the subject hearing, but rather on whether the defendant had been provided notice, or had actual knowledge, of the hearing at which he wasrequired to lawfully appear. National Automobile (1977), supra, 77 Cal.App.3d Supp. 7, though cited at page 6 of the Opinion, did not have any discussion on the application of §977 to bail bond proceedings. There, the bail bond indicated that the defendant wasto appearin court on a certain date for no stated purpose. No hearing washeld on that date, although an appearance date was ordered by the court and conducted two dayslater. The defendant failed to appearat the hearing and bail was forfeited. (/d., at 8.) National Automobile (1977) simply held that a defendant is obligated to appear in court on dates ordered by the court "or as otherwise required by law," and not the date that appears solely on the bail bond. (/d., at 9.) HOA.1063245.1 -23- In Ranger, supra, 6 Cal.App.4th 1301, a defendant failed to appear at a narcotics case review ("NCR") calendar and then subsequentlyat trial, at which time bail was ordered forfeited. The surety contendedthat the NCRwasthe equivalent of a Rule 4.112 readiness conference at which the defendant's presence wasrequired and, because hefailed to appear, the trial court lost jurisdiction over the bond whenit failed to order bail forfeited at the NCR. (d., at 1303-1304.) The appellate court disagreed with the surety's characterization of the NCR as a readiness conference based on the declaration ofthe trial judge, which stated that an NCR is a "non- mandatory appearanceof a defendant"andis "time for optional discussion of resolution of cases." (/d., at 1304.) The appellate court affirmed the denial of the surety's motion to set aside the summary judgmenton the forfeited bond, emphasizing that an NCRis a supplementto, and not the equivalentof, a readiness conference, and a defendant is not required to appear at an NCR underanystatute or rule. (/d., at 1305.) The Opinion does not explain how Rangerapplies to this holding except to indicate that an NCRis not a readiness conference, which the People would readily concede based on the facts established by the declaration of the Rangertrial judge offered to show that it was a non- mandatory appearance. In contrast, this case involves a mandatory appearance under §977, subdivision (b). HOA.1063245.1 -24- The Opinion holds that §977, subdivision (b) does not qualify as a "provision, such as rule 4.112," for which a defendant's appearanceis mandated under §1305, subdivision (a)(4) even though its provisions clearly state that "[t]he accused shall be personally present at all other proceedings" unless a written waiver is executed in open court. The Opinion does not explain how it distinguishes §977 from Rule 4.112, except in terms of whether there are due process concerns as expressed in Classified. "Rules of Court have the force of law and are 'as binding on this court as procedural statutes unless they transcend legislative enactments or constitutional guarantees." (American Bankers, supra, 225 Cal.App.3d at 1381, fn. 2.) But the Fifth Appellate District allays such concerns by pointing out that the defendant must havenotice of the date and timeofthe hearing affecting his due process rights, and not that he must be expressly ordered to appearat the hearing. Regardless of whether the April 29, 2011 hearing was an "ordinary pretrial conference" or a Rule 4.112 conferenceis irrelevant, for both are appearances in a felony case which are encompassedas "all other proceedings" by §977(b) and mandate the presence of the defendant. What is clear and undisputed is that on April 5, 2011, Bent was present in court whenhe agreed to waivehis right to a speedytrial and wastold that the hearing was continued to April 29, 2011. The fact that Bent was informed on April 5, in open court, of the next hearing on April 29, 2011 "reflect{s] HOA.1063245.1 -25- that the defendant had notice of this hearing." (American Bankers, supra, 225 Cal.App.3d at 1381.) The concerns of Classified about due process are simply not present here where Bent andhis attorney were present when the hearing was continued. Thenotification of the April 29, 2011 hearing date, combined with §977, subdivision (b) that required Bent's presence"atall other proceedings," rendered his presence on April 29, 2011 "lawfully required" within the meaning of §1305, subdivision (a). Ud., at 1382; Sacramento Bail Bonds, supra, 210 Cal.App.3d at p. 121.) Here, §977 specifically mandates a defendant's presence, in felony cases, "at the arraignment, at the time ofplea, during the preliminary hearing, during those portionsofthe trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence." A defendant "shall be personally present at all other proceedings" unless he executes a written waiver in open court. There are five hearings at which the defendant must absolutely be present. At all other proceedings he must be present unless he waiveshis right to be at the hearings. The language of §977 is plain and unambiguous. Similarly, there is no ambiguity in Rule 4.112 that mandates a defendant's appearance at a readiness conference and which American Bankers, Sacramento Bail Bonds, and others so readily recognize. The Opinionis at odds with precedentand fails to recognize the distinguishing facts of the cases upon whichits holding relies to the facts in this case. HOA.1063245.1 -26- Vil. CONCLUSION Forall the foregoing reasons, Plaintiff/Respondent People ofthe State of California respectfully request the Supreme Court grant review of this matter to clarify the applicability §977(b) to bail bond forfeiture proceedings. DATED:May19, 2014 HOA.1063245.1 Respectfully submitted, JOHN F. KRATTLI County Counsel B —y AOANNE NIELSEN Principal Deputy County Counsel BRIAN T. CHU Principal Deputy County Counsel Attorneys for People of the State of California, by the County of Los Angeles -27- CERTIFICATE OF WORD COUNT PURSUANT TO RULE8.204(c) The text of this document consists of 7,280 words as counted by the Microsoft Office Word 2003 program used to generate this document. DATED:May 19, 2014 - Respectfully submitted, JOHN F. KRATTLI County Counsel lLArnl—~ _ZAOANNE NIELSEN nNDeputy County Counsel BRIAN T. CHU Principal Deputy County Counsel Attorneys for People of the State of California, by the County ofLos Angeles HOA.1063245.1 -28- EXHIBIT 1 Filed 4/9/14 CERTIFIED FOR PUBLICATION KLEWIS COURT OF APPEAL — SECONDDIST. FILED Apr 09, 2014 ' JOSEPHA. LANE,Clerk Deputy Clerk IN THE COURTOF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION EIGHT THE PEOPLE, Plaintiff and Respondent, Vv. ELSHADDAI MACHABEUSBENT, Defendant; SAFETY NATIONAL CASUALTY INSURANCECO., Appellant. B243773 (Los Angeles County Super. Ct. No. LA066432) APPEALfrom a judgmentofthe Superior Court of Los Angeles County. Martin L. Herscovitz, Judge. Reversed with directions. John Mark Rorabaugh for Appellant. No appearance by Respondent. Safety National Casualty Co. appeals from the trial court order forfeiting the bail bond it had posted for a criminal defendant. We reverse because the hearing where the defendantfailed to appear was not one at which his presence wasrequired and the defendant had not been ordered to appear. FACTS AND PROCEDURALHISTORY Elshaddai Machabeus Bent was charged with felony drunk driving in November 2010. Bail was set at $25,000, and the bail bond was executed by Safety National Casualty Co. through its agent, High Five Bail Bonds. Between November 2010 and April 5, 2011, Bent, who was represented by counsel, appearedat several hearings held before different judges or court commissioners. At the conclusion of some of those hearings, the trial court said, “bail will stand.” At some, it ordered Bent to appearat the next hearing. At others, it said both, and othersit said neither. At a March 1, 2011 hearing, the trial court asked defense counsel, “{w]hat’s your preference for pretrial?” Defense counselsaid early April and thetrial court said the “pretrial conference” would be held April 5, 2011. At the end of that hearing,the trial court did not say that bail would standor order Bent to appear on April 5. On April 5, 2011, Bent appeared before Judge Martin L. Herscovitz for thefirst time. Thetrial court said there had been settlement discussions and an agreement “to put the case over to May 2 with the understandingthat any trial would be within 45 days of that day.” Defense counsel said April 29 was a better date and the hearing was continued until then. After Bent agreed to waive his speedytrial rights the trial court said “bail will stand.” WhenBentdid not appearat the April 29 hearing, Judge Herscovitz declared Bent’s bail forfeited. Safety National then had 180 days in which to seek vacation of the forfeiture order in the event Bent was returned to custody. (Pen. Code, § 1305, subd. (c)(1).)! Safety National later sought a 180-day extensionof that period, 1 All further section references are to the Penal Code. 2 contending that good cause existed because oneofits skip tracers hoped to soon track Bent down. (§ 1305.4.) Judge Herscovitz granted that motion in November 2011, tolling Safety National’s time to have the forfeiture vacated to May 2, 2012. Two months later Safety National movedto vacate the forfeiture, contending that the trial court lacked jurisdiction because Bent had not been ordered to appearat the April 29 hearing, and becausethat hearing was not one where his presence was required by law. At the hearing on the motion to vacate, Safety National arguedthat the hearing set for April 29 was an ordinary pretrial conference where Bent’s presence wasnot required absent an order to appear, as opposed to a readiness conference, where his presence was required underrule 4.112 of the California Rules of Court.2 The trial court denied the motion for three reasons. First, it had extended the forfeiture vacation date based on Safety National’s representation that it needed moretime to track down Bent, andthe jurisdictional issue should have been raised then. Second,thetrial court believed thatits statement “bail will stand” was an order to appear. Third, in an apparent reference to rule 4.112,the trial court said that case law required Bent to appear absent anorderthat he do so unless he had no actual knowledge that his appearance wasrequired. DISCUSSION 1. Bail Was Wrongly Forfeited Because Bent Was Not Required to Be Present at the April 29 Hearing Thetrial court may declarebail forfeited if, without sufficient excuse, a defendant fails to appear for arraignment,trial, judgment, or any other proceeding before judgment is pronounced where his presenceis lawfully required. (§ 1305, subd. (a).) We review the trial court’s order forfeiting bail under the abuse of discretion standard. (Peoplev. Ranger Ins. Co. (2005) 135 Cal.App.4th 820, 823.) Forfeiture provisions such as section 2 All further rule referencesare to the California Rules of Court. 1305 are disfavored, however, and therefore it is strictly construed against a finding of forfeiture. (People v. National Automobile & Casualty Ins. Co. (2004) 121 Cal.App.4th 1441, 1448.) Because section 1305 is jurisdictional, a trial court’s order declaring a bail forfeit is void if the trial court did not strictly abide by its terms. (/bid.) Safety National contendsthetrial court erred because Bent had never been ordered to appearat the April 29 hearing and becausethe hearing was not one at whichhis presence was required by someprovision of law. Respondent contendsthat Bent was required to appear on April 29 for three reasons: (1) the trial court’s statement at the April 5 hearing that “bail will stand” was an order to appear on April 29; (2) the April 29 hearing was a readiness conference underrule 4.112, at which his presence wasrequired; and (3) because Bent was charged with a felony, section 977 required him to appearat all trial court proceedings. We take eachin turn. Respondentcites no authority for the proposition that the phrase “bail will stand” can reasonably be construed as an orderto appearat the next scheduled hearing, and we have found none. Instead, the phrase means no more than it says — that the defendant remains free on bail in the posted amount. Because “bail to stand”is a lawful order even if the defendant is not ordered to appear,“bail to stand” cannot be synonymous with “ordered to appear.” Furthermore, nothing in the record showsthatthe trial court used the phrase “bail will stand” in that manneror suggestedthat its use of that phrase was intended as an order to appear. As described in our FACTS AND PROCEDURALHISTORY,the various judges before whom Bent appeared sometimessaid bail will stand and did not include an order to appear, sometimes ordered him to appear and did not mention that bail would stand, or did both. Under these circumstances, we cannot construe Judge Herscovitz’s statement that bail would stand as a stand-in for an unambiguousorderto appearat the next hearing. As a result, we hold that Bent hadnotbeenorderedto appear on April 29.3 Underrule 4.112, the trial court “may hold a readiness conference in felony cases within 1 to 14 days before the date setfortrial.” If such a conferenceis ordered,alltrial counsel must appearandbe prepared to discuss the case and determine whetherit can be disposed of withouttrial, the prosecutor must have authority to dispose of the case, and the defendant mustbe present in court. (Rule 4.112(a)(1)-(3).) Our review of the record does not show that such a conference had been ordered. At the March 1 arraignment hearing before Judge Barry Taylor, the court asked counsel about their “preferencefor pretrial” and set the matter for a “pretrial conference” on April 5. The minute order for that date also refers to “a pretrial.” The minute order for the April 5 hearing before Judge Herscovitz states that the matter was “called for pretrial conf/trial setting.” Under “Custody Status,” the minute orderstates, “Bail to stand.’4 Judge Herscovitz noted that there had beensettlementtalks. Bent waivedhis speedy trial right, which otherwise required that trial begin on May2, and agreed that his case would beset for April 29, with the understanding that anytrial would be within 45 days of that date. The minute orderstates that the case was “continued to April 29, 2011 for pretrial conference as day 0 of 45.” 3 Weasked for and received supplemental briefing from the parties as to whether anything aboutthe use of “bail will stand”at earlier hearings would allow a finding that Bent understood that term to mean he was ordered to appear at the next hearing. Wealso asked for supplemental briefing on the trial court’s finding that the jurisdictional issue raised in the motion to vacate the forfeiture was waived becauseit had not been brought earlier. Respondent concedesthat the order wasjurisdictional and could not be waived. (County ofOrange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1492- 1493.) 4 The minute order for April 5 also states that Bent was ordered to appearat the next court date, but respondent does not contest Safety National’s assertion that the reporter’s transcript, which contains no such statement, controls. (People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 582, 586-587.) Nothing in this chain of events suggests that a rule 4.112 conference was contemplated. Such a hearing must be conducted,ifat all, within | to 14 days ofthe trial date. Notrial date wasset at the March 1 hearing, and the minute order for April 5 states that the matter was called for a pretrial conference and ‘rial setting. On April 5, the matter was continued to April 29 as 0 out of 45 onthetrial court’s calendar, again with no indication of an actualtrial date. As a result, the April 29 hearing could not have been a rule 4.112 readiness conference. Finally, section 977 provides: “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portionsof the trial when evidenceis taken before thetrier offact, and at the time of the imposition of sentence. The accused shall be personally presentat all other proceedings unlessheor she shall, with leave ofcourt, execute in open court, a written waiverof his or herright to be personally present, ...” (§ 977, subd. (b)(1).) Because Bent never executed such a written waiver, his presence was requiredat the April 29 hearing, respondent contends. This contention has been considered and rejected by our appellate courts. The rationale behindtheir rulings is that section 977 is designedto protect a felony defendant’s due process rightto be presentatall trial proceedings and has no bearing on a defendant’s obligation to appearat certain trial court proceedingsin order to maintainhis status on bail. (People v. National Automobile & Casualty Ins. Co., supra, 121 Cal.App.4th at pp. 1449-1450; People v. Classified Insurance Corp. (1985) 164 Cal.App.3d 341, 344-346; People v. National Automobile & Cas. Ins. Co. (1977) - 77 Cal.App.3d Supp.7, 9; accord People v. Ranger Ins. Co. (1992) 6 Cal.App.4th 1301, 1304 [narcotics case review is not a trial readiness conference].) Under these decisions, bail may be declared forfeited if a defendant fails to appear for arraignment, trial, or judgment, as specified in section 1305, subdivision (a)(1)-(3), or for a hearing where his presenceis lawfully required either by some provision, such asrule 4.112,or by a previous court order to appear. (People v. National Automobile & Casualty Ins. Co.at pp. 1449-1450; People v. Ranger Ins. Co. at p. 1304; People v. Classified Insurance Corp. at pp. 344-346; People v. National Automobile & Cas. Ins. Co. at p. 9.) Respondentattemptsto distinguish someofthese decisions because they involved a defendant’s failure to appear at a motion to suppress evidence undersection 995. We see nothing different about an ordinary pretrial conference (other than a rule 4.112 conference)that calls for a different result. No rule of law makes an appearance at such a conference mandatory and,absent a previoustrial court order to appearat such a hearing, a defendant’s failure to do so is not groundsfor declaring bail forfeited. DISPOSITION The order denying Safety National’s motion to vacate the forfeiture ofits bail bondis reversed andthetrial court is directed to enter a new order granting that motion. Appellant shall recover its costs on appeal. RUBIN, ACTINGP.J. WE CONCUR: FLIER,J. GRIMES,J. EXHIBIT2 Filed 5/9/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION EIGHT THE PEOPLE, Plaintiff and Respondent, v. ELSHADDAI MACHABEUSBENT, Defendant; SAFETY NATIONAL CASUALTY INSURANCECO., Appellant. B243773 (Los Angeles County Super. Ct. No. LA066432) ORDERING MODIFYING OPINION AND DENYING PETITION FOR REHEARING [There is no changein judgment] GOOD CAUSEappearing, the opinion filed April 9, 2014, in the above entitled matter is hereby modified as follows: 1. On page 2,lines 1-2, delete the phrase “forfeiting the bail bondit had posted”and replace it with “denying its motion to vacate the forfeiture of the bail bondit had posted”. 2. On page2, line 7 of DISCUSSION,delete the sentence that begins “At others, it said both,” and replaceit with a new sentence that reads: “At othersit said neither.” 3. On page4, line 2 from the bottom,delete “or did both” and replace it with “or did neither.” 4, On page 5, line 2, add a new sentenceafter the sentence that ends “on April 29” that reads as follows: “We therefore concludethatthe trial court abusedits discretion by declaring that bail was forfeited based on its previous statementthat bail would stand.” [end of modifications| No change in judgment. Appellant’s petition for rehearing is denied. RUBIN, ACTINGP.J. FLIER,J. GRIMES,J. _ EXHIBIT3 COURT OF APPEAL — SECOND DIST. FILED Nov 15, 2013 JOSEPH A. LANE, Clerk KLEWIS Deputy Clerk IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION EIGHT THE PEOPLE, B243773 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA066432) V. SAFETY NATIONAL CASUALTY ORDER COMPANY, Defendant and Appellant. The court orders that this matter, currently set for argument on November 21, 2013, be taken off calendar. Onits own motion, the court orders the record augmented to include reporter’s transcripts of the following proceedings taken by court reporter Kirsti Edmonds-West: in Department NW “R”of the Los Angeles Superior Court November2, 2010; November 16, 2010; December 15, 2010; January 20, 2011; February 15, 2011; and in Department NW “V”of the Los Angeles Superior Court on March 1, 2011. (Cal. Rules of Court, rule 8.155(1)(B).) Theclerk of this court is directed to communicate with the Los Angeles Superior Court to obtain the augmented record. The Los Angeles Superior Court shall cause counsel for appellant and respondentto be served with a copy of the augmented record whenit is filed with this court. The parties are to file supplemental letter briefs that address the following issues: (1) In light of the contents of the augmentedrecord, canit be said thatthe trial court’s statementthat “bail stands” at the April 5, 2011, hearing was in fact an orderfor defendant to appearat the next hearing? (2) Whenthetrial court denied Safety National’s motion to vacate the bond forfeiture, it did so in part because Safety National’s earlier motion to extend the 180-day period in whichto bring such a motion was based on Safety National’s stated intent to try to locate Bent and return him to custody. Thetrial court said that it did not grant the 180 day extension to permit Safety National to bring a motion arguing that the forfetture had not been properin the first instance. (See Reporter’s Transcript of Feb. 7, 2012, pp. 2-3.) The parties have not addressed this groundfor the trial court’s order, which implicates issues of waiver. Wasthis a proper independent ground for denying the motionto vacate the forfeiture? Aspart ofits discussion ofthis issue, the parties shall augmentthe record with copies of the extension motion,the reporter’s transcript of that hearing, and thetrial court’s order. The supplemental briefs shall be double-spaced. Appellant’s openingletter brief and respondent’s letter brief shall not exceed 10 pages. Anyreply brief shall not exceed five pages. Appellant’s openingbrief shall be filed with the court by fax or electronic delivery and served nolater 10 days after the augmentedrecordis filed. Respondent’s brief shall be filed by fax or electronic delivery and served nolater than 10 daysafter that. Any reply brief shall be filed by fax or electronic delivery and served nolater than five days after respondent’s briefis filed and served. The court’s fax number1s (213) 897-2430. The electronic delivery can be sent to 2d1.clerk8/@ jud.ca.gov. RUBIN,Acting P.J. RUBIN, ACTING P.J. > W w S o C 2 NS N D H A 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Case Nos.: B243773/LA066432/SJ3732 STATE OF CALIFORNIA, County of Los Angeles: Anna Pachecostates: I am employedin the County of Los Angeles,State of California, over the age of eighteen years andnot a party to the within action. My business address is 648 Kenneth Hahn Hall of Administration, 500 West Temple Street, Los Angeles, California 90012-2713. That on May 19, 2014, I served the attached: PETITION FOR REVIEW upon Interested Party(ies) by placing 01 the original I true copy thereof enclosed in a sealed envelope addressed El as follows LO) asstated on the attached mailinglist: John M. Rorabaugh,Esq. Office of the Clerk Attorneys at Law SUPREME COURT OF CALIFORNIA 801 Parkcenter Drive, Suite 205 350 McAllister Street Santa Ana, California 92705 San Francisco, California 9102 (8 copies) Clerk for the Hon. Martin L. Herscovitz Electronically Submitted to the SUPERIOR COURT OF CALIFORNIA CALIFORNIA COURT OF APPEAL 6230 Sylmar Avenue, Dept. NWR Second Appellate District, Division Eight, Van Nuys, California 91401 per Rule 8.70 (4 copies) [| By overnightdelivery. I enclosed the documentsin an envelope or package provided by an overnight delivery carrier and addressedto the persons onthe servicelist. I placed the envelope or package forcollection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 19, 2014, at Los Angeles, California. Anna Pacheco OL Type or Print Nameof Declarant ) Signature and,for personal service by a MessengerService, include the nameof the Messenger Service HOA.1009529.1