People v. Accredited Sur. & Cas. Co.

65 Cal.App.5th 122

279 Cal.Rptr.3d 799

The PEOPLE, Plaintiff and Respondent,

v.ACCREDITED SURETY & CASUALTY COMPANY, INC., Defendant and Appellant.

F080431

Court of Appeal, Fifth District, California.

Filed May 7, 2021

As Modified June 4, 2021

Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh, Santa Ana, for Defendant and Appellant.

Thomas E. Boze, County Counsel, and Robert J. Taro, Assistant County Counsel, for Plaintiff and Respondent.

OPINION

THE COURT^*

A surety appeals from an order denying its motion to set aside summary judgment, discharge the forfeiture, and exonerate bail. The surety contends the setting of the amount of bail was unconstitutional and the forfeiture of the full amount of bail was unconstitutional.

We conclude the statutory scheme under which the amount of the criminal defendant's bail was set and subsequently forfeited is not unconstitutional on its face. We further conclude the statutory scheme, as applied to the circumstances of this case, did not unconstitutionally impose an excessive fine or otherwise violate the constitutional rights of the criminal defendant or the surety.

As a separate and independent ground for our decision, we assume a constitutional violation occurred and address the consequences of the assumed violation. Other appellate courts have held that a constitutional violation in setting the amount of a criminal defendant's bail "does not void the underlying bail bond." ( People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891, 897, 246 Cal.Rptr.3d 663 ( Accredited ‘19 ); see People v. The North River Ins. Co. (2020) 48 Cal.App.5th 226, 233–235, 261 Cal.Rptr.3d 416 ( North River ‘20 ).) We join those decisions and conclude a violation of the criminal defendant's constitutional rights does not free the surety from its obligations under the bail bond.

We therefore affirm the summary judgment.

FACTS AND PROCEEDINGS

On April 25, 2018, Angel Adrian Quinonez was arrested for possession of a controlled substance for sale and transportation of a controlled substance. ( Health & Saf. Code, §§ 11351, 11352.) The controlled substance was heroin.

On April 26, 2018, Mark Garcia Bail Bonds, as an agent for Accredited Surety & Casualty Company, Inc. (collectively, Surety), signed and delivered bond number AD-00969579 in the amount of $50,000 for the release of Quinonez. The next morning, the superior court filed the bond and Quinonez was released. The bond listed the felony charges and the misdemeanor of driving without holding a valid driver's license in violation of Vehicle Code section 12500, subdivision (a). The complaint setting forth the felony and misdemeanor charges against Quinonez was filed on May 7, 2018.

The bond directed Quinonez to appear in court on May 25, 2018, at 1:30 p.m. The bond stated Surety undertook to have Quinonez appear in court on the date stated to answer the charges against him. The bond also provided: "If the forfeiture of this bond be ordered by the court, judgment may be summarily made and entered forthwith against [Surety] for the amount of its undertaking herein as provided by Sections 1305 and 1306 of the Penal Code."

On May 25, 2018, Quinonez did not appear at the arraignment hearing. The court declared the bond forfeited and a bench warrant was issued. Later in May, the clerk of the superior court mailed notice of the forfeiture to Surety.

In November 2018, Surety filed a motion to extend the appearance period pursuant to Penal Code ¹ section 1305.4. Respondent did not oppose the motion. In January 2019, the trial court granted the motion and extended the appearance period to May 28, 2019. Quinonez was not returned to custody on or before that date.

On August 1, 2019, less than 90 days after the expiration of the appearance period, summary judgment on the bond was filed and notice of the entry of judgment was mailed to Surety.

In September 2019, Surety filed a motion to set aside summary judgment, discharge the forfeiture, and exonerate bail. The motion asserted the trial court lacked jurisdiction to enter a summary judgment because the court's setting of bail in the amount of $50,000 was based on an unconstitutional, unenforceable order.

In October 2019, respondent filed an opposition to the motion to set aside, Surety filed a reply, and the trial court held a hearing. Near the end of the hearing, Judge Scott Steffen stated:

"I think that under the current legal construct there are a couple of situations.

"One is the defendant who comes to court has bail set at some amount is not given a hearing as to the appropriate amount of bail. That is one situation.

"Here we have a situation where the defendant could have waited until he went to court and sought a bail review hearing; otherwise, he availed himself of a duly-adopted bail schedule as provided under [ section] 1269b(a). I think under that situation the posting of bail was appropriate. I think the bond that guaranteed his return was appropriately posted.

"And I think as far as the early out under [ section] 1269b, I think that's not affected by the Humphrey's^[2] decision, which is up on review at this point anyway."

In response to the court's statement that the criminal defendant could have waited for his court hearing and asked for a bail review, counsel for Surety acknowledged that the court could have kept the defendant in custody longer but "I have not found many judges that go beyond the bail schedule, but maybe that will change." Judge Steffen responded by stating:

"Well, we do it routinely when we are asked. And I can't speak for other judges, but I think I know what they would say, and that is we look at each case individually. And we look at the defendant's ability to pay as one of those things. We also look at the interest of the public and their safety, and the likelihood that the person is going to show up, the likelihood that he is going to re-offend. [¶] That's what I look at. And when asked, I do that on an individual basis."

The court denied the motion to set aside the summary judgment and filed a written order to that effect later that day. Surety filed a timely appeal.

In October 2020, after Surety filed an appellant's opening brief, this court sent the parties a letter directing that the respondent's brief and appellant's reply brief address specific issues relating to (1) the allocation of the burden of proof regarding the existence or nonexistence of a constitutional violation in setting bail and (2) the distinction between a facial challenge and an as-applied challenge to section 1269b's early-out method of obtaining a defendant's release from custody.

DISCUSSION

Our published opinions addressing the forfeiture or exoneration of a bail bond often include a general overview of the contractual nature of bail bonds, the statutory scheme governing the forfeiture of bail and related proceedings ( §§ 1305 – 1308 ), the principles applied when construing the bail statutes, and the standards of appellate review. (E.g., People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 999–1000, 195 Cal.Rptr.3d 660 [statutory framework]; People v. Accredited Surety Casualty Co . (2014) 230 Cal.App.4th 548, 555–557, 178 Cal.Rptr.3d 809.) Such an overview need not be repeated here. (See Cal. Const., art. VI, § 14 [appellate decisions "shall be in writing with reasons stated"].)

I. CONSTITUTIONAL VIOLATION

A. Surety's Contentions

Surety acknowledges section 1306 allows courts to enter a consent judgment on the bail bond, subject to a surety's right to file a motion under section 1305 to cure the breach or challenge that judgment where the consent is exceeded. Surety also acknowledges this statutory process was found constitutional in People v. Surety Ins. Co. (1978) 82 Cal.App.3d 229, 147 Cal.Rptr. 65. However, Surety argues that case "did not consider the constitutionality of [the] sum-certain nature of the consent judgment." Here, Surety raises that issue and challenges the sum-certain aspect of the consent judgment entered on the forfeited bail bond.

Surety's argument asserts (1) the consent judgment entered on a bail bond operates as a forfeiture or penalty, (2) the amount of any penalty imposed by the state government is subject to the Excessive Fines Clause contained in the Eighth Amendment and applied to the states through the Fourteenth Amendment, (3) under those constitutional provisions, the government bears the burden of proving the amount forfeited is not excessive, and (4) a constitutional violation occurred in this case because no proceeding was conducted where the government carried this burden. (See Timbs v. Indiana (2019) ––– U.S. ––––, 139 S.Ct. 682, 687, 203 L.Ed.2d 11 [Excessive Fines Clause is incorporated by the Due Process Clause of the Fourteenth Amendment].) To establish a penalty is not excessive, Surety contends the government must prove the amount of the forfeiture passes a proportionality test and then provide the criminal defendant or his innocent indemnitors with an opportunity to demonstrate an inability to pay the amount of the forfeiture.

Surety, recognizing its argument proposes significant modifications of the bail scheme established by the Legislature, contends this court has the responsibility of saving that scheme by imposing an additional procedural requirement to assure the forfeitures are constitutional. Surety also recognizes acceptance of its arguments would cause the bail bond contracts to be rewritten and refers to the principles of law governing the enforcement of a contractual liquidated damages clause. Under California contract law, a liquidated damages provision is valid if (1) fixing the amount of actual damages is impracticable or extremely difficult, and (2) the amount selected represents a reasonable endeavor to estimate fair compensation for the loss sustained. ( Cellphone Termination Fee Cases (2011) 193 Cal.App.4th 298, 322, 122 Cal.Rptr.3d 726 ; see Civ. Code, § 1671 [validity of contract liquidating the...