People v. Bankers Ins. Co. CA4/2 ( 2016 )

Filed 2/11/16 P. v. Bankers Ins. Co. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058681
v. (Super.Ct.No. CIVDS1300294)
BANKERS INSURANCE CO., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
E. Alan Nunez and John M. Rorabaugh for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and John R. Tubbs II, Deputy County Counsel,
for Plaintiff and Respondent.
The court entered summary judgment on a bail bond forfeiture against defendant
and appellant Bankers Insurance Co. (Surety). Surety filed a motion to set aside the
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summary judgment. The court denied the motion. On appeal, Surety contends the court
lacked jurisdiction to declare forfeiture of the bond and that the notice of forfeiture
violated its rights of due process. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The People charged defendant Roberto Avila with felony possession of marijuana
for sale (count 1; Health & Saf. Code, § 11359), felony possession of an assault weapon
(count 2; Pen. Code, § 12280, subd. (b))1, felony sale of marijuana or hashish (count 3;
Health & Saf. Code, § 11360, subd. (a)), and felony possession of a firearm by a person
previously convicted of a narcotics offense (count 4; former § 12021, subd. (a)(1)). On
December 29, 2011, defendant executed a $200,000 bail bond paying a $20,000 premium
with Surety and licensed bail agent Michael Bogdanovich Bail Bonds in the instant case.
Defendant personally appeared with his attorney at hearings on January 6,
February 21, March 16, and April 20, 2012. At the April 20, 2012, appearance defense
counsel requested the matter continued to May 30, 2012, for a “dispo reset date.”
Defendant agreed to the continuance. The court did not expressly order defendant’s
appearance at the continued hearing; however, the minute order of the hearing indicates
defendant was ordered to appear at that hearing.
At the May 30, 2012, hearing, defense counsel stated “We were in contact with
him yesterday. We conveyed the offer to him. And we were expecting to see him in this
1 All further statutory references are to the Penal Code unless otherwise indicated.
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Court. Unfortunately, we’ve had no contact with him today.” The court responded “All
right. Very well. It’s about 9:50 in the morning. Based on the defendant’s failure to
appear, forfeit the bond. Issue bench warrant $400,000.”
On May 31, 2012, a deputy clerk of the court issued a notice of forfeiture of
defendant’s bail bond to both Surety and the bail agent at the addresses appearing on the
bail bond. The notice contained the case number, defendant’s name, the date the court
entered forfeiture of the bail bond, the bond number, and the bond amount. The notice
read, “Please take notice that the surety bond posted by you in behalf of the named
defendant had been ordered forfeited by the court pursuant to Penal Code Section 1305.
Your contractual obligation to pay this bond will become absolute on the 181st day
following the date of mailing of this notice unless the court shall sooner order the
forfeiture set aside and the bond reinstated. If payment is not received, summary
judgment will be requested pursuant to Penal Code section 1306 upon the expiration of
the time allowed by law. [¶] The 180th day is: 12/03/12[.]”
On December 4, 2012, the bail agent filed a motion to extend the time in which
Surety would be obligated to pay the bond on the basis that the bail agent had been
diligent in his efforts to locate defendant. The bail agent noted defendant’s failure to
appear at the hearing on May 30, 2012, resulted in the court’s order forfeiting defendant’s
bond and the issuance of a warrant for his arrest. The bail agent declared he had received
notice of the forfeiture on June 7, 2012.
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The bail agent was confident he could surrender defendant if given a 180-day
extension. The bail investigator, and others, had expended 400 man hours searching for
defendant; a reward for defendant’s whereabouts had been offered. The bail agent had
spoken with defendant’s family, a member of which said “she is aware that he is on the
run from law enforcement.”
At a hearing on January 4, 2013, on the motion for extension, no appearance was
made on behalf of Surety or the bail agent. Counsel for the county noted the last day to
file had been December 3, 2012: the 180th day after the issuance of notice of forfeiture
was November 27, 2012; adding five additional days for mailing, the deadline landed on
Sunday, December 2, 2012, which automatically extended the deadline to Monday,
December 3, 2012. The motion for an extension of time had not been filed until
December 4, 2012. The court denied the motion as untimely.
On January 9, 2013, the county filed a petition for summary judgment on the bail
bond forfeiture. The court signed and entered the order that day.
On February 14, 2013, Surety filed a motion to set aside the summary judgment.
Surety contended the court had no jurisdiction to enter the forfeiture in the first instance.
Regardless, Surety noted “On December 3, 2012[,] at approximately 4:30[,] the bail agent
arrived at the court to file a motion to extend time. The clerk’s office was closed. The
bail agent believed he had another five days to file the motion so he returned the next day
and filed the extension motion December 4, 2012.”
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The bail agent declared, “On December 3, 2012[,] at 4:30 p.m.[,] I arrived at the
San Bernardino Superior Court located in San Bernardino, California. The Court was
closed when I arrived. The security guard said the door is locked and I explained I was
there to file a motion with the clerk. He didn’t open [the] door and said to return the next
day.” Surety contended the clerk had erred in informing it that the 180-day deadline for
filing a motion regarding the forfeiture fell on December 3, 2012, because it was mislead
into believing it had an additional five days due to the mailing of the forfeiture notice.
The county filed opposition. At the hearing on the motion on March 22, 2013,
defendant was still not present. The parties stipulated the clerk enters a code for
“defendant is ordered to appear” when entering minutes whenever a defendant is present
and the clerk hears the judge inform the defendant of the next hearing date. After
argument, the court took the matter under submission.
On April 3, 2013, the court issued a written decision in which it found “the notice
of forfeiture was timely and properly mailed to the Surety, and properly notified Surety
of the applicable time requirements.” “Surety was aware of the appropriate deadline to
file their pleadings but failed to file their motion to extend the 180 day period within the
original 180 day time frame.” “As this was a felony case and the matter was set for a
hearing to either resolve the case or set it for trial[,] defendant’s presence was legally
required on May 30. Defendant was present with counsel when this date was set, and the
court minutes indicate defendant was ordered to appear on that date. This was confirmed
by Defendant’s counsel who told the court ‘we were expecting to see him in this court
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[today]’ on the May 30 date.” The court denied Surety’s motion to set aside summary
judgment on the bail bond forfeiture.
DISCUSSION
A. Jurisdiction.
Surety contends the court had no jurisdiction to declare a forfeiture of the bail
bond on May 30, 2012. We disagree.
“If a criminal defendant who is out of custody on a bail bond does not appear at a
required hearing or trial, the court may order the bail bond company to forfeit the bond.
(§ 1305[, subd.] (a).) To effectuate this forfeiture, the trial court must strictly comply
with certain statutory requirements. [Citation.] Bail forfeiture statutes are jurisdictional
and, if not strictly followed, the court loses jurisdiction to later declare a forfeiture of the
bond. [Citations.] Because of the ‘“‘“harsh results”’”’ of a forfeiture, ‘technical
violations’ of the bail statutes are not tolerated and will defeat the court’s jurisdiction to
order a forfeiture. [Citations.] Additionally, the statutory requirements ‘“are considered
inviolable and do not depend on whether or not a party has suffered prejudice.”’
[Citations.] [¶] We apply an abuse of discretion standard in evaluating a trial court’s
denial of a motion to vacate bail forfeiture. [Citation.] However, because trial courts
exercise a limited statutory discretion in ordering bail forfeitures and the issues are
jurisdictional, we are required to carefully review the record to ensure strict statutory
compliance. [Citations.]” (People v. Bankers Ins. Co. (2009) 171 Cal.App.4th 1529,
1532-1533.)
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“Whenever a defendant fails to appear in court on one of the occasions
enumerated in section 1305, the court must declare a forfeiture, unless ‘the court has
reason to believe that sufficient excuse may exist for the failure to appear. . . .’
(§ 1305.1.) If the court has reason to believe that a sufficient excuse may exist, it may
continue the case for a reasonable period to enable the defendant to appear without
ordering forfeiture of the bond. [Citation.] If the court has no information that a
sufficient excuse may exist so as to justify a continuance pursuant to section 1305.1, the
court must declare a forfeiture. If the court fails to do so, it loses jurisdiction and the
bond is exonerated by operation of law. [Citations.]” (People v. Indiana Lumbermens
Mutual Ins. Co. (2011) 194 Cal.App.4th 45, 48 [Fourth Dist., Div. Two].) A defendant is
required to appear at the arraignment, trial, judgment, and “[a]ny other occasion prior to
the pronouncement of judgment if the defendant’s presence in court is lawfully required.”
§ 1305, subd. (a)(1)-(4).)
“Without an order to appear, [a] court lack[s] jurisdiction to forfeit bail for failure
to appear . . . . [Citation.]” (People v. American Surety Ins. Co. (2009) 178 Cal.App.4th
1437, 1440.) “[F]or purposes of section 1305, a defendant’s presence at an ‘other
proceeding[]’ under section 977(b)(l) constitutes a ‘lawfully required’ appearance for
which his or her unexcused absence may justify the forfeiture of bail.” (People v. Safety
National Casualty Corp. (2016) ___ Cal.4th ___, 2016 Cal. LEXIS 466, 8.)
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“[I]f the record is arguably ambiguous as to whether [the defendant’s] personal
presence was required at all hearings, we must resolve the ambiguity against the surety.”
(People v. Indiana Lumbermens Mutual Ins. Co., supra, 194 Cal.App.4th at p. 52.)
“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 portions of
the trial when evidence is taken before the trier of fact, and at the time of the imposition
of sentence. The accused shall be personally present at all other proceedings unless he or
she shall, with leave of court, execute in open court, a written waiver of his or her right to
be personally present . . . .” (§ 977, subd. (b)(1), italics added.) “[W]hen a defendant has
posted bail, both the defendant and the surety have assumed the responsibility and
obligation to ensure his or her presence at all requisite court proceedings, such as those
covered by section 977(b)(1).” (People v. Safety National Casualty Corp., supra, ___
Cal.4th at p. ___, 2016 Cal. LEXIS 466, 9.) “[S]ection 977 may require a defendant’s
presence at a specific court proceeding, even if the Constitution would allow the
proceeding to continue in his or her absence. [Citation.]” (Ibid.)
Here, on December 28, 2011, defendant, while in custody, personally waived his
presence at the immediate hearing via two-way “electronic audio system”; thus, although
defendant waived his presence at that hearing, he did not waive his presence to all future
proceedings in writing in open court. Defendant was physically present during the next
four proceedings held on January 6, February 21, March 16, and April 20, 2012. Nothing
in the minutes of those proceedings or in the record reveal defendant personally waived,
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in any manner, let alone in writing in open court, his presence at the following hearing or
any other hearing. In fact, the minute order of April 20, 2012, expressly reflects
defendant was ordered to appear at the next hearing on May 30, 2012. Defense counsel
indicated the continuance to May 30, 2012, was requested because “We are trying to look
at the offer from the People and, hopefully, we’ll have it resolved by then.”
Defendant failed to appear at that hearing despite his counsel’s own
acknowledgment defendant was expected to be present. Defendant’s failure to appear at
a hearing in a felony case at which his presence had not been waived, at which he had
been ordered to appear, at which his presence was expected, and at which possible
resolution of the case was expected to be discussed gave the court jurisdiction to order
forfeiture of his bond. (§ 977, subd. (b)(1); People v. Safety National Casualty Corp.,
supra, ___ Cal.App.4th at p. ___, 2016 Cal. LEXIS 466, 9 [The defendant’s failure to
appear at pretrial hearing scheduled in open court without the execution of a written
waiver of his right to be present constituted a basis to forfeit his bail pursuant to section
1305.]; Cal. Rules of Court, rule 4.122(a)(3) [Defendant’s presence required at readiness
conferences in felony cases.]; People v. Sacramento Bail Bonds (1989) 210 Cal.App.3d
118, 121 [No express order of the trial court is required to make mandatory a defendant’s
appearance at a hearing which, although not denominated a “readiness conference,” was
when the parties were expected to “‘be prepared to discuss the case and determine
whether the case [could] be disposed of without trial.’”], quoting former rule 227.6 [now
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rule 4.122].) Thus, the court acted within its discretion in ordering forfeiture of
defendant’s bond.
B. Notification.
Surety contends it was deprived of due process because the notice of forfeiture
issued by the clerk mislead it to believe it had an additional five days after the 180th day,
listed in the notice as December 3, 2012, in which to file the motion for an extension.
Thus, Surety maintains the motion to extend time was timely filed. We disagree.
The notification requirements of section 1305 are satisfied if the bail agent
received actual notice of the forfeiture despite a clerk’s technical statutory
noncompliance. (American Contractors Indemnity Co. v. County of Orange (2005) 130
Cal.App.4th 579, 584.) “The bail agent, surety or other interested party is allowed a five-
day extension beyond the 180-day time period specified in the statute to move the court
to set aside the forfeiture and exonerate bail. [Citation.]” (People v. Souza (1984) 156
Cal.App.3d 834, 838.)
An “‘elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections. [Citations.] The notice must be of such a
nature as reasonably to convey the required information . . . . [para.] The means
employed must be such as one desirous of actually informing the absentee might
reasonably adopt to accomplish it.’ [Citation.]” (People v. Swink (1984) 150 Cal.App.3d
101076, 1080 [Section 1305 notice constitutionally deficient because it did not inform
layman of the statutory procedure to set aside forfeiture or the time period in which to do
so].)
Any extension of the 185-day period exceeds the court’s jurisdiction. (People v.
National Automobile & Casualty Ins. Co. (2000) 82 Cal.App.4th 120, 126-127 [Fourth
Dist., Div. Two].) “Since the 180-day period prescribed by section 1305 is jurisdictional,
a court is powerless to vacate a forfeiture unless a motion for relief from forfeiture is
made within that time frame.” (People v. American Bankers Ins. Co. (1991) 227
Cal.App.3d 1289, 1297 [Fourth Dist., Div. Two], overruled on another ground in
National Automobile, at p. 126 [Trial court’s act in excess of its jurisdiction cannot be
equated with a lack of subject matter jurisdiction.]; accord People v. Lexington National
Ins. Co. (2007) 158 Cal.App.4th 370, 373-375.)
While a failure to notify a lay person of the process for garnering relief from
forfeiture and the time limits for seeking it is violative of the statute, “[m]ere reference to
the code section may suffice for professional sureties who routinely work with the section
and are presumably familiar with it. [Citation.]” (Minor v. Municipal Court (1990) 219
Cal.App.3d 1541, 1550; accord People v. Accredited Surety & Casualty Co., Inc. (2013)
220 Cal.App.4th 1137, 1141-1145 [Strict technical compliance with section 1305
notification requirement that it recite the statutory provisions under which it was issued
and under which relief from forfeiture might be obtained not constitutionally required
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where notice is sent to licensed insurer and professional surety which routinely works
with section 1305].)
Here, the clerk of the court issued a notice of forfeiture of defendant’s bail bond to
both Surety and the bail agent at the addresses appearing on the bail bond. The notice
contained the case number, defendant’s name, the date the court entered forfeiture of the
bail bond, the bond number, and the bond amount. The notice informed Surety of the
statute under which the bail had been forfeited and the statute under which forfeiture
could be set aside and the bond reinstated. The notice indicated Surety had 180 days
from the date of forfeiture to take remedial action.
The bail agent acknowledged defendant’s failure to appear at the hearing on May
30, 2012, which resulted in the court forfeiting defendant’s bond. The bail agent declared
he had received notice of the forfeiture on June 7, 2012. Surety, a licensed and
professional surety which routinely works within the framework of section 1305 in
issuing and enforcing bail bonds, received adequate notice of the forfeiture of defendant’s
bond reasonably calculated to inform it of the method for setting aside the forfeiture
despite any apparent error in the clerk’s inclusion of the five-day mailing period in the
deadline listed in the notice of forfeiture. (People v. Accredited Surety & Casualty Co.,
Inc., supra, 220 Cal.App.4th at pp. 1141-1145 [Licensed insurer and professional surety
which routinely worked within the framework of section 1305 in issuing and enforcing
bail bonds not deprived of due process where forfeiture notice failed to cite statutory
provisions under which forfeiture was being declared, failed to cite statutory provisions
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under which relief from forfeiture might be obtained, and failed to state the time limits
for seeking such relief.].) Indeed, Surety and the bail agent’s statements that it had
attempted to have the extension filed on the day of the deadline were strong indicators
they were aware December 3, 2012, was the final day on which it could be filed. The
court acted within its discretion in denying Surety’s motion to set aside summary
judgment on the forfeiture.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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