People v. Am. Sur. Co.

THE PEOPLE, Plaintiff and Respondent, v. AMERICAN SURETY COMPANY, Defendant and Appellant.

A156382

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

March 23, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Napa County Super. Ct. No. CR184874)

American Surety Company (American Surety) appeals from an order denying its motion to vacate a bail forfeiture and to exonerate a bail bond, and from summary judgment subsequently entered against it. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2017, defendant Federico Audelo was charged with drug offenses in Napa County case number CR184119.¹ The trial court set bail at $150,000. At a hearing in November, he waived his preliminary hearing and the court scheduled the next hearing for December 8, for arraignment on the information and a settlement conference. The court ordered defendant toappear at the next scheduled hearing (December 8). Defendant was represented in this case by an attorney named Flinn. For ease of reference, we will hereafter refer to this case as "Case 1."

In the meantime, in early October 2017, defendant was charged with drug and firearm related offenses in Napa County case number CR184874, from which this appeal arises. The trial court again set bail at $150,000. At a hearing in November, the court scheduled a pre-preliminary hearing for December 7, and a preliminary hearing for December 8, and ordered defendant to appear at the next scheduled hearing (December 7).² Defendant was represented in this case (hereafter, "Case 2") by an attorney named Pharr.

In mid-November 2017, American Surety, through its agent Act Fast Bail Bonds, posted bond for defendant's release in Case 1 (bond no. AS150-101246) and in Case 2 (bond no. AS150-101237). Both bonds indicated defendant was to appear on December 7, 2017, at 8:30 a.m. in Department E.

On December 7, 2017, Case 2 was called, but not Case 1, and defendant failed to appear. Defense attorney Pharr appeared and said he did not know where defendant was. The deputy district attorney asserted defendant had two cases, and he had not seen defendant's attorney in Case 1 (Flinn) that morning. The trial court responded that it only had Case 2 before it, and asked if defendant might be in a different department of the courthouse. The deputy district attorney then stated: "Prelim had been waived on that one, your Honor. [¶] . . . [¶] My mistake." After the deputy district attorney asked for a warrant, the clerk informed the court that defendant's arraignment in Case 1 was scheduled for the next day. The court solicited the parties'thoughts about issuing but holding the requested warrant until the next day, and both parties agreed with that course of action.

The minute order for the December 7, 2017 hearing in Case 2 indicates the trial court issued a bench warrant and set bail at $250,000, withheld service of the warrant until the next day, and ordered defendant to appear the next day at 8:30 a.m. While the reporter's transcript of the hearing contained no discussion of the bail bonds, the minute order for the hearing in Case 2 stated "[d]efendant shall remain at liberty on bail previously posted."

The next day (December 8), defendant failed to appear in either of his cases, at which point the trial court issued the warrant and ordered bail in both cases forfeited. The court mailed notice of the forfeitures to American Surety and Act Fast Bail Bonds on December 15, 2017.

On July 2, 2018, the trial court granted American Surety's unopposed motion in both cases to extend the forfeiture to December 28, 2018 pursuant to Penal Code section 1305.4.³

On December 27, 2018, American Surety filed motions to vacate the forfeitures and exonerate the bonds in both cases. County counsel for Napa County (the County) opposed these motions. On December 28, 2018, while the motions were still pending, the trial court entered summary judgment in favor of the People on the bond in Case 1. The court ultimately denied American Surety's motions to vacate the forfeitures and exonerate the bonds on January 17, 2019.

On January 22, 2019, the trial court filed an order entering summary judgment in favor of the People on the bond in Case 2. On January 31, 2019, the court issued an amended summary judgment in favor of the People on the bond in Case 2 indicating the judgment was "nunc pro tunc to 1/18/19." Thecourt also issued an amended summary judgment in favor of the People on the bond in Case 1 indicating the judgment was "nunc pro tunc to 12/28/19."⁴ In the instant matter, American Surety appeals from the court's order denying its motion in Case 2 to vacate the forfeiture and exonerate the bond, and the summary judgment subsequently entered in Case 2.

DISCUSSION

American Surety contends the trial court lost jurisdiction to declare forfeiture of the bond in Case 2 and to enter summary judgment when it failed to order bail immediately forfeited on December 7, 2017 pursuant to section 1305. There is no disagreement amongst the parties that defendant was lawfully required to appear on that date, but the parties do dispute whether the record of the December 7 hearing discloses an excuse for defendant's nonappearance such that the court could postpone declaring forfeiture pursuant to section 1305.1. American Surety argues the record discloses no sufficient excuse as required by section 1305.1. For the reasons set out below, we disagree.

A. Standard of Review

"Generally, we review an order resolving a motion to vacate a bond forfeiture under an abuse of discretion standard," but " '[w]here, as here, the facts are uncontested, and the issue concerns a pure question of law, we review the decision de novo.' " (County of Yolo v. American Surety Co. (2019) 43 Cal.App.5th 520, 524.)

B. Legal Principles

"Sections 1305 through 1309 govern the forfeiture of bail bonds. Because the law disfavors forfeitures, including the forfeiture of bail, these statutory provisions must be strictly construed in favor of the surety to avoid the harsh results of forfeiture." (People v. Frontier Pac. Ins. Co. (1998) 63 Cal.App.4th 889, 894.)

Section 1305 provides that a court must declare a bail bond forfeited when a defendant, without sufficient excuse, fails to appear on an occasion when his or her presence in court is lawfully required. (§ 1305, subd. (a)(1)(D), italics added.) Generally, "[i]f the court fails to declare a forfeiture at the time of the defendant's unexcused absence, it is without jurisdiction to do so later." (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 710.) Further, if a court fails to declare a forfeiture as required by section 1305, it loses jurisdiction over the bond and a subsequent summary judgment is rendered void and subject to collateral attack any time. (People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 550.)

Section 1305.1, however, provides an exception: "[when] the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant." Application of this exception appears to serve the long tradition in the law that forfeitures are disfavored, and also to promote other policy interests, such as avoiding the imposition of additional penalties on defendants or on family members who help secure a defendant's release. (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 950-951.)

In determining whether there was sufficient excuse for nonappearance under section 1305.1, we may review the entire record of the hearing wheredefendant failed to appear—i.e., the minutes and the reporter's transcript of the hearing. (People v. Frontier Pac. Ins. Co., supra, 63 Cal.App.4th at p. 895.) Because a failure to appear is presumed to be without excuse, the record must disclose some rational basis for the trial court to believe that a sufficient excuse may exist for the nonappearance. (People v. The North River Ins. Co. (2019) 37 Cal.App.5th 784, 796.) That said, an actual and valid excuse need not be conclusively demonstrated; all that is required is the trial court have " 'reason to believe that sufficient excuse may exist for the failure to appear.' " (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 953.) The excuse need not be expressly set out in the minutes (People v. Frontier Pac. Ins. Co., at p. 895), and a finding of sufficient excuse may be implied (see, e.g., People v. Ranger Ins. Co., at p. 953). There are no rigid rules concerning what will support a rational basis for such a belief, and the analysis must be done case-by-case. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 923.)

For instance, in People v. Surety Ins. Co. (1984) 160 Cal.App.3d 963, defense counsel represented that he would endeavor to bring the defendant in but did not offer any other information. Finding nothing that implied a justification for the defendant's nonappearance, the Court of Appeal held this was insufficient to support the trial court's continuance under former section 1305, subdivision (b) (now § 1305.1). (160 Cal.App.3d at p. 969.)

Similarly, in People v. The North River Ins. Co., supra, 37 Cal.App.5th 784, the defendant did not appear at a hearing and instead, defense counsel said she was appearing on behalf of the nonappearing defendant and asked that the defendant's appearance be excused. (37 Cal.App.5th at p. 789.) The trial court did not declare the bond forfeited at that hearing, but ordered a forfeiture at a later date. (Id. at pp. 789-790.) The Court of Appealconcluded the trial court lost...