People v. International Fidelity Insurance Co. ( 2018 )

Filed 2/8/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A145993
v.
INTERNATIONAL FIDELITY (San Mateo County
INSURANCE COMPANY, Super. Ct. No. CIV533582)
Defendant and Appellant.
When a convicted defendant who had been released on bail failed to appear for
sentencing, the trial court ordered bail forfeited and entered a summary judgment against
the surety, International Fidelity Insurance Company. The surety appeals from the denial
of its motion to discharge the order of forfeiture, set aside the summary judgment and
exonerate bail, arguing that county counsel lacked standing to object to the surety’s
request for tolling of the time period to secure the defendant’s appearance, the trial court
should be authorized to toll that period in the circumstances presented by this case, and
the court lacked jurisdiction to declare the forfeiture of bail prior to the time the
defendant had been ordered to appear. Although we disagree with the first two of these
arguments, the third requires us to reverse the judgment.
STATEMENT OF THE CASE AND FACTS
On November 19, 2013, Horacio Carlos Teran (defendant) was found guilty of
three counts of lewd or lascivious acts against a child under the age of 14 years (Pen.
Code, § 288, subd. (a)).1 The defendant was remanded to custody with bail increased to
1
All further statutory references will be to the Penal Code unless otherwise
indicated.
1
$300,000, the matter was continued to 10:00 a.m. on January 24, 2014, for sentencing,
and the defendant was ordered to appear “on that date.” On November 22, 2013, Metro
One Bail Bonds, Inc. (Metro One), as agent for International Fidelity Insurance Company
(International Fidelity), posted a bail bond in the amount of $300,000. The bail bond face
sheet and jail receipt state the date and time for the defendant’s appearance as 10:00 a.m.
on January 24, 2014.
On January 21, 2014, the court re-set the sentencing hearing for 9:00 a.m. on
January 24, 2014.
On January 24, 2014, when the hearing began at 9:18 a.m., attorney Mike
Armstrong requested permission to substitute in for the defendant’s attorney of record,
Patrick Clancy. The defendant was not present. The prosecutor asked the court to order
a no-bail warrant and when the court asked where the defendant was, Armstrong said he
did not know. Armstrong explained that after being convicted, the defendant asked him
to replace Clancy for sentencing and Armstrong agreed, but before he could have the
substitution of attorney prepared for the defendant to sign, the defendant “disappeared.”2
He further stated that the defendant’s wife had reported him as a missing person in
December, and that on the date scheduled for the defendant’s probation hearing,
Armstrong had called the probation officer and said he had no idea where the defendant
was. Armstrong told the court he understood the prosecutor’s request and submitted.
The court ordered bail forfeited and no bail set, and denied the substitution motion. On
February 10, 2014, a bench warrant issued and notice of the order forfeiting bail was filed
and mailed to International Fidelity and Metro One. The notice informed the surety that
it had 185 days to seek relief from forfeiture in accordance with sections 1305 and 1306.
On August 7, 2014, the court granted Metro One’s motion to extend the time for
relief from forfeiture until February 10, 2015.3
2
Armstrong had represented the defendant in an initial trial that resulted in a hung
jury, after which Clancy handled the retrial.
3
The motion is not included in the record on appeal and the trial court’s register of
actions refers to both a motion to extend time and a motion to toll time. We presume the
2
On February 9, 2015, International Fidelity filed the motion to toll time at issue in
the present appeal. International Fidelity stated that it had tracked the defendant to
Mexico and provided information from its investigation to law enforcement authorities;
that extradition was being pursued; that it was requesting tolling of the statutory deadline
to produce the defendant “in order to continue its efforts to monitor the defendant’s
location while law enforcement authorities continue their extradition efforts”; and that the
district attorney’s office had indicated it would agree to tolling. The motion was opposed
by county counsel on the ground that International Fidelity had not met all the
requirements of the governing statute, section 1305, subdivision (h). That statute allows
the prosecutor and bail agent, in “cases arising under subdivision (g),” to agree to toll the
time period within which the surety can obtain discharge of the bail forfeiture and
exoneration of the bond because additional time is needed “to return the defendant to the
jurisdiction of the court.” Subdivision (g) provides for exoneration of a bail bond where
a defendant who is outside the jurisdiction of the court and not in custody is “temporarily
detained by the bail agent” and positively identified by a local law enforcement officer
and the prosecutor elects not to seek extradition. County counsel argued that
International Fidelity had not shown compliance with the requirements of subdivision (g),
and therefore subdivision (h) did not apply.
At a hearing on April 23, 2015, the deputy district attorney stated that she wanted
the defendant found and that her office was willing to work on extradition, but that this
was “not [her] area of the law,” she did not research the issue because it was “between
County Counsel and the bail company” and she deferred to county counsel on the legal
issues. The prosecutor told the court she had worked with the Department of Justice on
the paperwork for an Unlawful Flight to Avoid Prosecution (UFAP) warrant, was still
extension was sought and granted under section 1305.4, which allows the trial court to
order the initial 180-day period (plus five days for mailed notice of forfeiture) extended
to a time “not exceeding 180 days from its order” on a showing of good cause.
3
sorting through additional extradition paperwork she had been given, and had not made
“any formal agreement” with the bail agency.
The trial court denied the motion to toll time on the ground that section 1305,
subdivision (h), did not apply. On April 29, the court filed its order granting summary
judgment against International Fidelity and in favor of the People of the State of
California in the amount of $300,000, pursuant to section 1306.
International Fidelity filed a motion to set aside the summary judgment, vacate
forfeiture and exonerate bail, on the grounds that the court lacked jurisdiction to declare a
forfeiture before 10:00 a.m. on January 24, 2014, the time the defendant had been ordered
to appear, and that the summary judgment was entered prematurely. The motion was
opposed by county counsel and denied after a hearing on August 7, 2015.
International Fidelity filed a timely notice of appeal on August 14, 2015.
DISCUSSION
“The forfeiture of bail and related proceedings are a matter of statutory procedure
governed by sections 1305 through 1308.” (People v. Safety National Casualty Corp.
(2016) 62 Cal. 4th 703, 709 (Safety National).) “When a person for whom a bail bond has
been posted fails without sufficient excuse to appear as required, the trial court must
declare a forfeiture of the bond. (Pen. Code, § 1305, subd. (a).) The surety that posted
the bond then has a statutory ‘appearance’ period in which either to produce the accused
in court and have the forfeiture set aside, or to demonstrate other circumstances requiring
the court to vacate the forfeiture. If the forfeiture is not set aside by the end of the
appearance period, the court is required to enter summary judgment against the surety.
(§ 1306, subd. (a).)” (People v. American Contractors Indemnity Co. (2004) 33 Cal. 4th
653, 657, fn. omitted.)
“ ‘ “Certain fixed legal principles guide us in the construction of bail statutes. The
law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail.
[Citation.] Thus, [the bail forfeiture statutes] must be strictly construed in favor of the
surety to avoid the harsh results of a forfeiture. [Citation.]” ’ (People v. Ranger Ins. Co.
(2000) 77 Cal. App. 4th 813, 816. . . .) ‘The standard of review, therefore, compels us to
4
protect the surety, and more importantly the individual citizens who pledge to the surety
their property on behalf of persons seeking release from custody, in order to obtain the
corporate bond.’ (County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal. App. 3d 58,
62.)” (People v. American Contractors Indemnity Co. (2015) 238 Cal. App. 4th 1041,
1044.) “The provisions of section 1305 ‘must be strictly followed or the court acts
without or in excess of its jurisdiction. [Citation.]’ (People v. American Bankers Ins. Co.
[(1992)] 4 Cal.App.4th [348,] 354.) ‘The burden is upon the bonding company seeking
to set aside the forfeiture to establish by competent evidence that its case falls within the
four corners of these statutory requirements.’ (Ibid.; accord, County of Los Angeles v.
Fairmont Specialty Group (2008) 164 Cal. App. 4th 1018, 1027.)” (People v. Fairmont
Specialty Group (2009) 173 Cal. App. 4th 146, 152.)
“ ‘The object of bail and its forfeiture is to insure the attendance of the accused
and his obedience to the orders and judgment of the court.’ (People v. Wilcox (1960) 53
Cal. 2d 651, 656–657.) ‘While bail bond proceedings occur in connection with criminal
prosecutions, they are independent from and collateral to the prosecutions and are civil in
nature.’ (People v. American Contractors Indemnity Co.[, supra,] 33 Cal.4th [at p.] 657.)
In that regard, the bail bond itself is a ‘ “contract between the surety and the government
whereby the surety acts as a guarantor of the defendant’s appearance in court under the
risk of forfeiture of the bond.” ’ (Ibid.) When a defendant who posts bail fails to appear
at a scheduled hearing, the forfeiture of bail implicates not just the defendant’s required
presence, but constitutes a ‘breach of this contract’ between the surety and the
government. (Id. at pp. 657–658.) Ultimately, if the defendant's nonappearance is
without sufficient excuse, it is the surety who ‘must suffer the consequences.’ (People v.
Allen (1994) 28 Cal. App. 4th 575, 580.)” (Safety National, supra, 62 Cal.4th at p. 709.)
I.
International Fidelity’s motion to toll the appearance period was brought under
section 1305, subdivision (h). That statute provides: “In cases arising under subdivision
(g), if the bail agent and the prosecuting agency agree that additional time is needed to
return the defendant to the jurisdiction of the court, and the prosecuting agency agrees to
5
the tolling of the 180-day period, the court may, on the basis of the agreement, toll the
180-day period within which to vacate the forfeiture. The court may order tolling for up
to the length of time agreed upon by the parties.” (Italics added.) Here, it was county
counsel, not the district attorney, who objected to the request for tolling. International
Fidelity argues county counsel had no standing to do so because it was not the
“prosecuting agency” within the meaning of section 1305.
Pursuant to Government Code section 27642, “[w]henever the board of
supervisors appoints a county counsel pursuant to this chapter, he shall discharge all the
duties vested by law in the district attorney other than those of a public prosecutor.”
(Italics added.) Under Government Code section 26521, “[t]he district attorney shall
defend all suits brought against the state in his or her county or against his or her county
wherever brought, and prosecute all recognizances forfeited in the courts of record and,
except as provided in Sections 1305 and 1306 of the Penal Code, prosecute all actions for
the recovery of debts, fines, penalties, and forfeitures accruing to the state or his or her
county.” (Italics added.)
County of San Bernardino v. Ranger Ins. Company (1995) 34 Cal. App. 4th 1140
(Ranger), held that county counsel, rather than the district attorney, was the proper
counsel to represent the county with respect to a surety’s appeal from the trial court’s
denial of a motion to set aside a summary judgment on a forfeiture and exonerate the
bond. The non-appearing defendant had been arrested by the surety’s agents after notice
of bail forfeiture was sent to the parties, after which he had entered a guilty plea and been
sentenced. Ranger held that county counsel was the proper attorney with regard to the
appeal because the underlying criminal prosecution had concluded and “[t]he sole
remaining proceedings were the summary judgment—seeking civil collection of the
forfeited bail—and Ranger’s motion to set aside the summary judgment and exonerate
bail.” (Id. at p. 1145.)
Ranger distinguished People v. Hadley (1967) 257 Cal. App. Supp. 2d 871
(Hadley), which had held the district attorney was the proper attorney to represent the
People where bail was forfeited by the defendant’s failure to appear and the prosecution
6
remained pending. Ranger quoted Hadley’s explanation: “ ‘Section 26521 of the
Government Code provides that the district attorney shall prosecute all actions regarding
fines, penalties and forfeitures. Section 2762[4] of the same code provides that the county
counsel shall discharge all duties of the district attorney except those of public
prosecution. It seems clear that the existence of bail and its influence to ensure the
presence of the defendant is inextricably a part of the prosecution process, and thus
becomes the concern of the district attorney. . . . When, however, the state or the county
require legal representation for the collection of an obligation created by a bail bond,
such a proceeding is wholly unrelated to the prosecution procedure and should be
accomplished by the county counsel’s office.’ ([Hadley, at pp.] 878-879, italics added.)
‘It seems, therefore, the practical and rational concept that the district attorney should be
charged with all matters relating to bail up to the point where a civil suit is to be
instituted.’ (Id. at p. Supp. 879, italics added.)” (Ranger, supra, 34 Cal.App.4th at
p. 1145.) Ranger concluded that county counsel was the proper attorney for the county
“as the underlying prosecution was concluded and, even according to Hadley, the
proceedings had ceased to be prosecutorial in nature but were solely civil proceedings to
recover the forfeited bail.” (Id. at p. 1146.)
The Ranger court also noted that its conclusion was supported by statutory
amendments since Hadley was decided. (Ranger, supra, 34 Cal.App.4th at p. 1145.)
Government Code section 26521 had been amended in 1990 to provide that the district
attorney was to prosecute forfeited recognizances “except as provided in Section 1305
and 1306 of the Penal Code”; section 1305, which had previously required notice of
motions regarding discharge of a forfeiture to “the district attorney” had been amended to
require notice to “the district attorney, other prosecuting attorney or county counsel, as
4
The citation to Government Code “2762” is apparently an error. No Government
Code section 2762 exists or existed when Ranger and Hadley were decided, but the
provision described appears in Government Code section 27642.
7
the case may be”;5 and section 1306 had been amended to identify county counsel as one
of the entities directed to enforce a summary judgment of forfeiture.6 (Ranger, at
pp. 1145-1146; Stats. 1990, ch. 1073, §§ 2, 3.) Those 1990 amendments were in effect at
the time of the trial court proceedings in Ranger.
According to legislative analyses, the purpose of the 1990 amendment of section
1305 to add explicit reference to “county counsel” was to “assure that counties are
represented in bail forfeiture proceedings,” and the bill would, among other things,
“[p]rovide that county counsel must also be given notice and opportunity to represent the
state in opposition to motions to vacate the forfeiture of bail.”7 (Com. Off. Of Sen. Floor
5
As amended in 1990, “section 1305 provided that, ‘[u]nless waived by the
district attorney, other prosecuting attorney, or county counsel, as the case may be, no
order discharging the forfeiture of the undertaking or deposit shall be made without
notice by the bail to the district attorney, prosecuting attorney, or county counsel, as
specified by the board of supervisors after consultation with the county counsel and the
district attorney, who may request a hearing within 10 days after receipt of the notice.
The notice may be given by the surety insurer, its bail agent, the surety, or the depositor
of money . . . . The court shall then set the date, time, and place of hearing and give
notice to the district attorney, prosecuting attorney, and county counsel and to the bail.
The district attorney, prosecuting attorney, or county counsel, as the case may be, shall
recover the costs incurred in successfully opposing a motion to discharge the forfeiture
. . . from the forfeited bail money.’ (Stats. 1990, ch. 1073, § 2, italics added.)” (Ranger,
supra, 34 Cal.App.4th at p. 1146.)
6
Prior to the 1990 amendment, section 1306 directed the district attorney “or civil
legal adviser of the board of supervisors” to enforce a judgment of forfeiture. (See Stats.
1987, ch. 1303, § 2.) The 1990 amendments replaced “civil legal advisor of the board of
supervisors” with “county counsel.” (Stats. 1990, ch. 1073, § 3.)” (Ranger, supra, 34
Cal.App.4th at p. 1146.)
7
This analysis explained that “the fundamental problem is that there is no
representation for the state on motions to vacate bail forfeitures” because “in the majority
of counties . . . staff shortages make it impossible to respond to these motions. The direct
result is that motions are frequently granted because no relevant evidence has been
presented in opposition to the motion. . . . As a further direct result, it is estimated that
most counties and their cities lose between $250,000 to $500,000 each year in monies
that would otherwise go to their general funds.” (Com. Off. Of Sen. Floor Analyses, 3d
reading analysis of Assem. Bill No. 3914 (1989-1990 Reg. Sess.) as amended Aug. 10,
1990, p. 3.)
8
Analyses, 3d reading analysis of Assem. Bill No. 3914 (1989-1990 Reg. Sess.) as
amended Aug. 10, 1990, p. 2.) The Report of the Assembly Committee on Public Safety,
New Statutes Affecting the Criminal Law (1990 Gen. and Extra. Sess.) at page 34, stated
that the new bill “allows a board of supervisors to decide whether the DA, prosecuting
attorney, or county counsel shall be given notice by the bail and represent the state in
opposition to motions to vacate the forfeiture of bail.” (Assem. Com. on Public Safety,
Concurrence in Sen. Amends. to Assem. Bill No. 3914 (1989-1990 Reg. Sess.) as
amended Aug. 10, 1990, p. 1.)
As appellant emphasizes, the current version of section 1305 does not refer
expressly to “county counsel.” In 1993, section 1305 was repealed and a new section
1305 adopted. (Stats. 1993, ch. 524, §§ 1, 2.) Where the statute had previously referred
to notice to “the district attorney, prosecuting attorney, or county counsel,” the statute
adopted in 1993 referred to notice “to the applicable prosecuting agency.” (Id., § 2.) The
current bail statutes refer to “county counsel” only in section 1305.3, providing for
recovery of costs and attorney fees incurred in opposing a motion to vacate forfeiture and
in collecting on a judgment of forfeiture, and section 1306, subdivision (e), concerning
enforcement of judgments against a surety. International Fidelity takes this change to
mean that county counsel is no longer entitled to notice of bail forfeiture proceedings and
may not participate in such proceedings until after any motions to vacate forfeiture or
extend the appearance period have been determined and the judgment has become final.
In other words, International Fidelity maintains that county counsel may properly act to
enforce a final judgment but may not defend a forfeiture against sureties’ attempts to
discharge it or vacate the ensuing judgment.8
We find this interpretation untenable. While we agree with International Fidelity
that county counsel is not the “prosecuting agency” within the meaning of the bail
8
The judgment becomes final 60 days after the clerk mails notice of entry of
judgment. (People v. American Contractors Indemnity Co., supra, 238 Cal.App.4th at
p. 1047.)
9
statutes, those statutes nevertheless contemplate that counsel will represent the People in
forfeiture proceedings in at least some cases.
As International Fidelity maintains, the bail statutes require notice of hearings on
motions to extend or toll the 180-day appearance period, or to vacate a forfeiture, only to
the “prosecuting agency.” (§§ 1305, subds. (f), (g), (k), 1305.4, 1305.6.) We agree with
International Fidelity that the term “prosecuting agency” must have a consistent meaning
throughout the bail statutes. We further agree that the intended meaning of the term is
the agency prosecuting the defendant in the underlying criminal case. This is apparent
from the way the term is used in the statutes. Section 1305, subdivisions (f) and (g),
provide for exoneration of the bond where the defendant is outside the court’s jurisdiction
“and the prosecuting agency elects not to seek extradition”; clearly the “prosecuting
agency” must be the agency prosecuting the underlying criminal case, as only that agency
could make decisions on whether to pursue extradition. Other provisions referring to the
“prosecuting agency” similarly address situations in which the underlying criminal
prosecution will be affected: Subdivision (h) of section 1305 allows for tolling of the
180-day period upon agreement between the bail agency and the “prosecuting agency”;
subdivision (k) requires notice to the “prosecuting agency” as a condition precedent to
granting a motion under subdivisions (f), (g) or (j) (which permits extension of the time
for hearing motions filed within the 180-day period); section 1305.4 requires notice to the
“prosecuting agency” as a condition precedent to granting a motion to extend the 180-day
appearance period; and section 1305.6 requires notice to the “prosecuting agency” before
a hearing on a motion to vacate forfeiture when a defendant appears after the end of the
180-day period. By contrast, where “prosecuting agency” appears in a provision that
does not implicate the underlying criminal prosecution, it is to describe one of several
agencies: The “district attorney, county counsel, or applicable prosecuting agency” is
entitled to recover costs and attorney fees incurred in successfully opposing a motion to
vacate a forfeiture and in collecting on a judgment. (§ 1305.3.) The statutes thus treat
“prosecuting agency” and “county counsel” as separate entities.
10
But the bail statutes clearly contemplate a potential role for county counsel in
litigation concerning bail forfeiture. First, nothing in the legislative history of the 1993
repeal and reenactment of section 1305 indicates an intent to eliminate the role of county
counsel in forfeiture proceedings, which had been expressly included in the statute only
three years earlier. The bill was described as primarily aimed at clarifying the provisions
of section 1305 because the statute had been amended many times, resulting in
“conflicting interpretations of some provisions and confusion on the part of many who
must implement it.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 734
(1993-1994 Reg. Sess.) as amended April 29, 1993; Sen. Floor Analysis of Assem. Bill.
No. 734 (1993-1994 Reg. Sess.) Aug. 18, 1993 [“bill generally recasts the provisions
relating to forfeiture of bail in a more readable form”].) The analyses referred to a few
areas of substantive change, none of which indicated any change in county counsel’s
involvement in the forfeiture process.9
Second, section 1305.3 provides that the “district attorney, county counsel, or
applicable prosecuting agency, as the case may be, shall recover, out of the forfeited bail
money, the costs and attorney’s fees incurred in successfully opposing a motion to vacate
the forfeiture and in collecting on the summary judgment prior to the division of the
forfeited bail money between the cities and counties in accordance with
Section 1463.001.” (Italics added.) As first enacted in 1993, section 1305.3 provided
that the “applicable prosecuting agency shall recover, out of the forfeited bail money, the
costs incurred in successfully opposing a motion to vacate the forfeiture prior to the
9
The “main substantive portion” of the bill was described as “extend[ing] the time
during which a surety may appear in court with a motion to vacate the forfeiture.”
(Assem. Com. on Public Safety Analysis of Assem. Bill No. 734 (1993-1994 Reg. Sess.)
as amended Apr. 29, 1993.) A subsequent analysis referred to other substantive changes,
including raising the threshold dollar amount at which notice of forfeiture must be
provided, and stated, “the purpose of this measure is to clarify the convoluted prose of
existing law pertaining to bail forfeitures, to make adjustments in notice requirements and
appearance deadlines in the interests of fairness and efficiency, and to provide bail
sureties with the opportunity to avoid forfeiture in vehicle violation cases.” (Sen. Com.
on Judiciary Analysis of Assem. Bill No. 734 (1993-1994 Reg. Sess.).)
11
division of the forfeited bail money between the cities and counties in accordance with
Section 1463.” The statute was amended in 1994 to add the references in the current
statute to “district attorney” and “county counsel,” as well as to “collecting on the
summary judgment.” (Stats. 1994, ch. 170, § 1.) As described in a report for the
Assembly Committee on Public Safety, the “purpose of this bill [was] to clarify that the
county counsel can recover funds expended in collecting forfeited bail money.” (Assem.
Com. on Public Safety Rep. on Rep. on Sen. Bill No. 1649 (1993-1994 Reg. Sess.) as
amended April 19, 1994.) The need for clarification was described as having been
recognized when a county which tasked county counsel, rather than the district attorney,
with handling motions to vacate forfeiture found it was unable to recover costs because
county counsel is not considered a “prosecuting attorney.” (Ibid.)10
The language of section 1305.3 and its legislative history demonstrate the
Legislature’s recognition that counties may choose to designate county counsel as the
agency to litigate matters arising after a trial court has declared a forfeiture of bail,
including motions to vacate the forfeiture. In such cases, county counsel would properly
appear in the trial court proceeding despite the fact that, as here, the criminal proceeding
had not yet concluded because the defendant has not been returned to court. In this
regard, we take judicial notice of San Mateo County Ordinance 2.14.050, which provides:
10
The report described the “need” for the bill as follows: “Need. Last year AB
734 (Johnson, ch. 524) added Penal Code section 1305.3, which provides that ‘the
applicable prosecuting attorney’ shall recover the cost of successfully opposing a motion
to vacate forfeiture. Thus the bail money recovered is first used to pay the prosecuting
agency’s costs, and the remainder is distributed as provided for by statute. Prior to
enactment of AB 734, the costs were recovered only after disbursement of the moneys.
[¶] The sponsor of this bill, Napa County, has found that they cannot recover costs
pursuant to this section because the County Counsel is responsible for filing the motions
to vacate forfeiture, and the County Counsel is not considered to be a “prosecuting
attorney.” This bill will allow Napa County, and any other county which uses the Office
of the County Counsel to file these motions, to recover their costs in the same manner as
counties who use the Office of the District Attorney to file the motions.” (Assem. Com.
on Public Safety Rep. on Rep. on Sen. Bill No. 1649 (1993-1994 Reg. Sess.) as amended
Apr. 19, 1994.)
12
“Pursuant to Penal Code section 1305, the County Counsel is hereby designated as the
County officer upon whom notice in any matter related to bail forfeiture must be served.”
(San Mateo County Code of Ordinances (Supp. No. 29, 1-17) tit. 2, art. 2.1, ch. 2.14.)
International Fidelity maintains that section 1305.3 does not grant county counsel
“separate standing to respond to motions to vacate but merely allows the District
Attorney or County Counsel to recover costs, not attorney fees, out of forfeited bail
monies.” People v. United States Fire Ins. Co. (2012) 210 Cal. App. 4th 1423, 1426,
which is cited in support of this proposition, upheld the trial court’s denial of a motion for
attorney fees because section 1305.3 at that time provided only for recovery of “costs.”
The statute was subsequently amended to expressly permit recovery of “costs and
attorney’s fees.” (Stats. 2016, ch. 378, § 1.) Of particular significance here, United
States Fire Ins. Co., at page 1425, described the People as having been represented by
county counsel in the proceedings that resulted in forfeiture of bail. The case thus
undermines the surety’s point, as it affirmed trial court orders granting county counsel its
costs in successfully obtaining bail forfeitures. International Fidelity does not attempt to
explain why section 1305.3 would provide for county counsel to recover costs and
attorney fees “incurred in successfully opposing a motion to vacate the forfeiture” if
county counsel lacks standing to oppose a motion to vacate forfeiture.
In the present case, both the district attorney and county counsel were present at
the hearing on International Fidelity’s motion to toll time. County counsel’s presence
was consistent with the San Mateo County ordinance designating county counsel as the
agency to receive notice in bail forfeiture proceedings, as well as with the state bail
statutes, and we are aware of nothing in the statutes that would preclude both agencies
appearing.
International Fidelity’s complaint is that the trial court agreed with an objection
made by county counsel that International Fidelity believes would not have been made by
the district attorney. Section 1305, subdivision (h), upon which the surety’s motion was
based, provides for tolling of the 180-day period where the prosecuting agency and bail
agent agree that additional time is needed for extradition of a defendant who has been
13
located in another jurisdiction; among the conditions for application of the statute, the
prosecutor must have elected to pursue extradition and agreed to tolling. (See § 1305,
subds. (g) & (h).) International Fidelity argues that here, county counsel objected to its
motion despite the district attorney having elected to extradite the defendant and agreed
with the surety’s request to toll the appearance period—in effect, that county counsel’s
objection interfered with tolling that the prosecutor wanted to allow. This is not entirely
accurate: While the prosecutor stated that she wanted the defendant to be found and that
her office was “willing to work on extradition,” she expressly deferred to county counsel
on the applicability of the statutes, stating, “[t]his is not my area of the law, and I did not
research it knowing that this was an issue for—between County Counsel and the bail
agency.”11 County counsel did not undermine the prosecutor’s position; the prosecutor
chose to defer to county counsel’s knowledge of the applicable law, and told the court she
had no formal agreement with the bail agent on tolling. Moreover, as will also be
explained in the next section of this opinion, the trial court was correct in concluding that
the statutes International Fidelity relied upon did not apply. Regardless of which attorney
raised the objection, the court would have erred if it had granted the surety’s motion.
II.
As we have said, the tolling provision of section 1305, subdivision (h), applies in
circumstances “arising under” subdivision (g): “In cases arising under subdivision (g), if
the bail agent and the prosecuting agency agree that additional time is needed to return
the defendant to the jurisdiction of the court, and the prosecuting agency agrees to the
tolling of the 180-day period, the court may, on the basis of the agreement, toll the 180-
11
At the hearing, when International Fidelity argued that the policy of section
1305, subdivision (h), was to allow time for the bail agent to continue its efforts if the
district attorney wanted it to do so, and that “as the [district attorney] has spoken they
would like the bail agent to continue on those . . . efforts,” the court commented that this
sounded “very speculative” and “it doesn’t sound like you’ve had a meeting of the minds
with the prosecutor.”
14
day period within which to vacate the forfeiture. The court may order tolling for up to
the length of time agreed upon by the parties.” (§ 1305, subd. (h).)
Subdivision (g) of section 1305, provides: “(g) In all cases of forfeiture where a
defendant is not in custody and is beyond the jurisdiction of the state, is temporarily
detained, by the bail agent, in the presence of a local law enforcement officer of the
jurisdiction in which the defendant is located, and is positively identified by that law
enforcement officer as the wanted defendant in an affidavit signed under penalty of
perjury, and the prosecuting agency elects not to seek extradition after being informed of
the location of the defendant, the court shall vacate the forfeiture and exonerate the bond
on terms that are just and do not exceed the terms imposed in similar situations with
respect to other forms of pretrial release.”
The trial court found section 1305, subdivision (h), did not apply because the case
did not “arise under subdivision (g).” Assuming the correctness of International
Fidelity’s representations that the defendant was “not in custody” and was “beyond the
jurisdiction of the state” (in Mexico) the remaining conditions stated in subdivision (g)
were not met: There was no showing that the defendant was “temporarily detained, by
the bail agent, in the presence of a local law enforcement officer of the jurisdiction in
which [he was] located,” that he had been “positively identified by that law enforcement
officer as the wanted defendant in an affidavit signed under penalty of perjury” or that the
“prosecuting agency” had “elect[ed] not to seek extradition after being informed of the
location of the defendant.” (§ 1305, subd. (g).)
International Fidelity argues that the trial court “should be authorized” to toll time
under section 1305, subdivision (h), where a prosecutor elects to extradite the defendant
and agrees to the tolling but waives the statutory requirement of a section 1305,
subdivision (g), affidavit. As the quoted phrasing suggests, this argument seeks an
interpretation of the relevant statutes that goes beyond their literal meaning.
International Fidelity urges that the “precise requirements” of subdivision (g) of
section 1305, which are prerequisites to the exoneration of bail authorized by subdivision
(g), do not apply in the present case because subdivision (h) does not provide for
15
exoneration of bail, only for tolling of the time period “to allow the bail agent and
prosecuting agency to expend more resources to aid in the extradition of the defendant.”
The surety points out that subdivision (h) applies only when a prosecutor elects to seek
extradition of the defendant, which necessarily makes inapplicable the requirement of
subdivision (g) that the prosecutor has elected not to pursue extradition. According to
International Fidelity, the “precise requirements” of subdivision (h) were left vague “to
allow for the discretion of the prosecutor to be the primary factor in allowing a bail agent
additional time to return a defendant to court.” It is argued that situations “arising under
subdivision (g)”—and therefore subject to tolling under section (h)—include ones “where
‘a defendant is not in custody and is beyond the jurisdiction of the state’ and a tolling of
time is needed in order for an international extradition to take place,” even if the other
requirements of subdivision (g) have not been satisfied.
This reading of subdivision (h) as predicated upon only the first two conditions
stated in subdivision (g)—the defendant is not in custody and is beyond the jurisdiction
of the state—is not supported by the legislative history. That history instead indicates
that the tolling provision was intended to address the situation where all the conditions
stated in subdivision (g) have been met except the prosecutor’s election not to extradite—
the out-of-custody and out-of-jurisdiction defendant has been temporarily detained by the
bail agent in the presence of a local law enforcement officer and positively identified by
that law enforcement officer as the wanted defendant in an affidavit signed under penalty
of perjury—but the often complicated process of extradition requires additional time.
The prosecutor’s election not to seek extradition, of course, is the reason subdivision (g)
authorizes exoneration of bail: The surety has fulfilled its obligations by providing the
prosecutor with proof of the defendant’s location and cannot physically return the
defendant to court without the prosecutor seeking extradition. Subdivision (h) does not
directly provide for exoneration of bail; it is expressly aimed at returning the defendant to
court, allowing additional time for this return to be accomplished in cases where the
circumstances of subdivision (g) exist—a defendant has been located outside the
jurisdiction, is not in custody, has been temporarily detained by the bail agent and
16
positively identified by a local law enforcement officer, and the prosecutor has been
informed of the defendant’s location—and the prosecutor elects to pursue extradition so
as to bring the defendant before the California court.
Subdivision (g) was added to section 1305 in 1995 (Stats. 1995, ch. 434, § 1) to
eliminate the anomaly that resulted from the fact that bail could be exonerated under
section 1305, subdivision (f), if the California prosecutor elected not to seek extradition
of a defendant who was taken into custody in another jurisdiction, but no exoneration of
bail was available for a defendant who fled California and was not taken into custody in
the foreign jurisdiction. (County of Los Angeles v. American Contractors Indemnity Co.
(2007) 152 Cal. App. 4th 661, 664-665.) “Bail agents had little incentive to hunt for these
bail-jumpers” because, without assurance that bail will be exonerated once the bail agent
has located the defendant, “ ‘it is not economically feasible for [the agent] to invest the
considerable funds necessary to locate these fugitives.’ ” (Id. at p. 665, quoting Assem.
Com. on Public Safety, Rep. on Sen. Bill No. 1245 (1995–1996 Reg. Sess.) as amended
June 19, 1995, p. 3.)
Subdivision (h) was added to section 1305 in 2012. (Stats. 2012, ch. 129, § 1.) Its
legislative history shows that it was intended to address a problem that could arise in the
circumstances addressed by subdivision (g) if a defendant was located in a foreign
jurisdiction late in the appearance period. As discussed in legislative committee reports,
if the prosecutor sought to extradite a defendant found in a foreign jurisdiction late in the
180-day appearance period, with insufficient time remaining to complete the extradition
process, bail would not be exonerated despite the bail agent having located the defendant.
A Senate Public Safety Committee analysis stated that “[a]ccording to the author . . . [a]
problem arises where the prosecutor declines to make a decision about extradition in a
timely fashion. Often, a good portion of the 180-day period is spent locating the fugitive.
Once the fugitive is located and the prosecutor is notified, the prosecutor sometimes fails
to decide about extradition with the 180-period. Because bail agents run the risk of
forfeiture, current law creates a disincentive to track down a fugitive near the end of the
180-day period, as there is no practical way for the agent to exonerate the bond prior to
17
the deadline. As a result, agents are reluctant to expend the resources necessary to locate
fugitives.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 989 (2011-2012 Reg.
Sess.) as amended May 1, 2012, p. 2.)
A statement by Two Jinn, Inc., doing business under the name of Aladdin Bail
Bonds in support of the bill elaborates the point: “ ‘The bill will further the principal
purpose of Penal Code section 1305 by promoting the location and return of fugitives
from justice. Under the current law, if the 180-day clock is drawing to a close, bail
agents may be unwilling to risk the expense of traveling to foreign jurisdictions to
attempt to locate a fugitive, even if they have a strong probability of locating him. This is
because while they may locate the fugitive within the 180-day window, they know that
the extradition process is unlikely to be completed prior to the time at which they must
forfeit the bond. In a perverse way, the longer a fugitive can elude authorities, the greater
the chance he will escape entirely, because there is an economic disincentive for bail
agents to attempt to recapture him. SB 989 will change this to accomplish the original
purpose—encourage bail agents to spend every last moment of the 180-day window
attempting to locate fugitives.’ ” (Assem. Com. on Public Safety, Rep. on Sen. Bill No.
989 (2011-2012 Reg. Sess.) as amended May 17, 2012, p. 4.) According to this
statement of support, “ ‘[t]his modest bill would allow the court to postpone the forfeiture
of bail bonds in cases where additional time is necessary to extradite defendants from
foreign jurisdictions.’ ” (Ibid.)12 The bill’s author similarly stated, “ ‘This bill simply
12
The statement of support emphasized that the prosecutor would retain control
over whether forfeiture should be postponed to allow time for extradition from a foreign
jurisdiction: “Importantly, the forfeiture could be postponed only when the local
prosecutor agrees to a postponement. The bill gives district attorneys complete control
over whether any postponements will be granted. The bill also adds a notice requirement
so that prosecutors will be informed of any motions brought by bail agents relating to
bond exoneration.’ ” (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 989 (2011-
2012 Reg. Sess.) as amended May 17, 2012, p. 4.) This prosecutorial control was critical
to the California District Attorneys Association, which initially opposed the legislation
but later stated that it would remove its opposition if the bill clarified that a prosecutor’s
decision on extension of the appearance period was final and not appealable by the bail
agent. (Assem. Com. on Pub. Safety Report on Sen. Bill No. 989 (2011-2012 Reg. Sess.)
18
allows both parties to come to an agreement if more time is needed to return a fugitive to
custody.’ ” (Id. at p. 3.)
As summarized in the Legislative Counsel’s Digest, “Existing law requires the
court to vacate the forfeiture and exonerate the bond, as specified, if the defendant is not
in custody, is beyond the jurisdiction of the state, is temporarily detained and positively
identified, as specified, and the prosecuting agency selects not to seek extradition after
being informed of the defendant’s location. [¶] This bill would authorize a court, under
the circumstance described above, to toll the 180–day period within which to vacate the
forfeiture for the length of time agreed upon by the parties if the bail agent and the
prosecuting agency agree that additional time is needed to return the defendant to the
jurisdiction of the court, and the prosecuting agency agrees to the tolling of the 180–day
period.” (Legis. Counsel’s Dig., Sen. Bill No. 989 (2011-2012 Sess.), italics added.)
This history reflects a legislative intention to encourage bail agents to search
diligently for fugitive defendants throughout the 180-day period by providing a
mechanism for extending the period where necessary to complete the extradition process.
There is no suggestion in the legislative history that the Legislature intended to create an
exception to the time limits set by the bail statutes simply to allow bail agents additional
time to search for missing defendants.13
as amended May 17, 2012, pp. 4-5.) “This association has historically raised concerns
about providing bail agents with additional time to avoid the forfeiture of bail given the
extensive consideration already provided by current law. That said, if this bill is
amended to clarify that a prosecutor’s decision relative to whether the 180-day period
should be extended is (1) final and (2) not appealable by the bail agent, we would remove
our opposition.” (Ibid.)
13
The provision applicable where a surety seeks additional time to investigate a
defendant’s whereabouts is section 1305.4: “Notwithstanding Section 1305, the surety
insurer, the bail agent, the surety, or the depositor may file a motion, based upon good
cause, for an order extending the 180-day period provided in that section. The motion
shall include a declaration or affidavit that states the reasons showing good cause to
extend that period. The court, upon a hearing and a showing of good cause, may order
the period extended to a time not exceeding 180 days from its order. A motion may be
filed and calendared as provided in subdivision (j) of Section 1305. In addition to any
19
People v. Tingcungco (2015) 237 Cal. App. 4th 249 (Tingcungco), is instructive. In
that case, as here, bail was forfeited when the defendant failed to appear in court as
ordered, the appearance period was extended, and at the end of the extended period the
surety moved to toll the appearance period under section 1305, subdivision (h). The
surety had notified the district attorney’s office three days before the end of the
appearance period that the defendant had been located in Mexico and asked it to decide
whether to begin extradition proceedings. (Tingcungco, at p. 252.) Its motion sought to
toll the appearance period while the prosecutor decided whether to pursue extradition.
(Id. at p. 252.) The trial court denied the motion; on appeal, the surety argued that it had
complied with all its obligations under section 1305, subdivision (g), and its right to
exoneration “should not be frustrated by matters solely within the prosecutor’s control—
the decision whether to extradite.” (Tingcungco, at p. 256.)
The Tingcungco court rejected the surety’s arguments based on the legislative
history of subdivisions (g) and (h) of section 1305. In a prior case, People v. Seneca Ins.
Co. (2010) 189 Cal. App. 4th 1075, the surety had notified the prosecutor eight months
before the end of the appearance period that the defendant had been located in a foreign
country and the prosecutor said she would seek extradition but did not initiate the process
before the end of the period. (Tingcungco, supra, 237 Cal.App.4th at p. 254.) The trial
court denied a motion to either exonerate bail or toll the period to allow the prosecutor to
pursue extradition, and Seneca affirmed. (Tingcungco, at p. 254.) In apparent response
to Seneca, a bill was introduced to amend section 1305, subdivision (g), to provide for
exoneration in cases where the prosecutor failed to make a decision on extradition within
a reasonable time “ ‘after receipt of the [notification] affidavit,’ ” for tolling pending the
prosecutor’s decision, and, if the prosecutor proceeds with extradition, for tolling until
other notice required by law, the moving party shall give the prosecuting agency a written
notice at least 10 court days before a hearing held pursuant to this section as a condition
precedent to granting the motion.”
20
completion of the process.14 (Tingcungco, at p. 255.) A bill analysis stated that
according to its author, “the bill was needed ‘ “where the prosecutor declines to make a
decision about extradition in a timely fashion.” ’ (Sen. Com. on Public Safety, Analysis
of Sen. Bill No. 989 (2011-2012 Reg. Sess.) Apr. 24, 2012, p. 5.)” The bill was
amended, however, to eliminate the provisions regarding delay in the prosecutor’s
decision on extradition and replace them with the substance of what is now subdivision
(h) of section 1305, which allows the trial court to extend the period where necessary to
allow time to accomplish extradition of a defendant only after a decision to extradite has
been made. (Tingcungco, at pp. 255-257.)
Given this legislative history, Tingcongco held that subdivision (h) of section 1305
“allows tolling only after the prosecutor has decided to extradite but needs more time to
do so.” (Tingcungco, supra, 237 Cal.App.4th at p. 258.) It seems apparent that if the
Legislature chose not to permit tolling of the appearance period to allow a prosecutor
time to decide whether to seek extradition where the surety had done all it could to
perform its obligations by locating the defendant, detaining him or her and having him or
her identified as described in subdivision (g) of section 1305, it did not intend to permit
tolling where the surety had yet to complete even the preliminary steps of locating,
detaining and obtaining positive identification of the defendant.
14
As introduced, subdivision (g) of section 1305 would have included the
following: “If the prosecuting agency or the United States Attorney fails to make an
extradition decision within a reasonable period of time after receipt of the affidavit the
bond shall be exonerated. The court shall order the tolling of the 180-day period
provided in this section pending the prosecuting agency’s or the United States Attorney’s
extradition decision. If the prosecuting agency or the United States Attorney proceeds
with the extradition, and upon motion by the surety or bail agent, the court shall order the
tolling of the 180-day period provided in this section from the date on which the surety or
bail agent delivered the affidavit to the prosecuting agency or the United States Attorney
until such time as the bond is exonerated or the extradition process is completed.” (Sen.
Bill No. 989 (2011-2012 Reg. Sess.) as introduced Feb. 1, 2012.) This provision was
deleted in the May 1, 2012, draft of the bill. (Sen. Bill No. 989 (2011-2012 Reg. Sess.)
as amended May 1, 2012.)
21
International Fidelity urges that a court has plenary power to “continue
monitoring” a case in which it has granted a motion to toll time. It cites People v. United
Bonding Insurance Co. (1970) 12 Cal. App. 3d 349, 352 (United Bonding), in which the
surety had located the defendant in a specified town in Mexico and brought him to the
United States border with the local police chief, but a magistrate refused to allow the
defendant to enter the United States because of Mexican authorities’ orders restricting the
defendant to the area of the town. The trial court denied the surety’s motion to set aside
the bail forfeiture, believing relief was available only if the defendant was in actual
physical custody in Mexico. (Id. at p. 352.) Reversing and remanding for further
proceedings, United Bonding held that it was sufficient to prove the defendant was
“restrained by civil authorities” and this restraint prevented him from appearing as
ordered. (Id. at pp. 352-353.) Noting that two years had passed since the alleged
detention in Mexico, United Bonding directed the trial court to determine the defendant’s
status and render judgment accordingly, with the surety’s liability suspended pending the
trial court’s determination. (Id. at p. 355.)
International Fidelity relies on a portion of the United Bonding opinion in which
the court observed that “relief from bail forfeiture, when the restriction is by confinement
of a defendant in a sister state or foreign nation, does not excuse or exonerate bail. The
liability of the surety is merely suspended during the detention by the civil authorities in
that state or country. There is ample time and authority when the foreign detention ends
to invoke the penalty in the event of defendant’s voluntary failure to appear. The trial
court has plenary power to impose conditions upon the surety to submit proof of the
continued inability of defendant to appear because of his detention or to suffer the penalty
of bail forfeiture. Thus, the liability of the insured is merely postponed. [Citation.]
When the circumstances in the future no longer justify a failure to appear on the grounds
presently asserted, the surety would then be required to either produce the defendant or to
suffer the penalty of forfeiture of the bail.” (United Bonding, supra, 12 Cal.App.3d. at
pp. 354–355.)
22
International Fidelity’s reliance upon United Bonding is misplaced. In that case,
the surety had located the defendant and attempted to bring him back to the United States,
but was prevented from doing so because the defendant had been detained by Mexican
authorities. That situation fell directly within a provision of section 1305 that, at the
time, required the court to discharge a forfeiture “upon such terms as may be just” if the
defendant was “physically unable . . . by reason of detention by civil or military
authorities, to appear in court” during the appearance period . . . .15 (§ 1305.) What
International Fidelity refers to as “monitoring” was, in effect, a suspension of the surety’s
liability during the period in which the defendant’s detention prevented him from
appearing in court. That situation is entirely different from that International Fidelity
posits in the present case, which is a tolling of the appearance period to allow further
investigation in an attempt to locate a defendant whose specific whereabouts in Mexico
are apparently unknown.
III.
International Fidelity’s final contention is that the trial court lacked jurisdiction to
declare a forfeiture before 10:00 a.m. on January 24, its order purporting to do shortly
after court convened at 9:18 a.m. was void, and, therefore, the summary judgment must
be set aside and bail exonerated.
15
The statute as quoted in United Bonding provided, “ ‘If within 180 days after
such entry [of bail forfeiture] . . . it be made to appear to the satisfaction of the court that
the defendant is dead or is physically unable, by reason of illness or insanity, or by reason
of detention by civil or military authorities, to appear in court at any time during said 180
days . . . .” (United Bonding, supra, 12 Cal.3d at p. 353.) Under the present version of
section 1305, the relevant provision would be subdivision (e)(1)(A): “In the case of a
temporary disability, the court shall order the tolling of the 180-day period provided in
this section during the period of temporary disability, provided that it appears to the
satisfaction of the court that the following conditions are met:
“(A) The defendant is temporarily disabled by reason of . . . detention by military
or civil authorities.
“(B) Based upon the temporary disability, the defendant is unable to appear in
court during the remainder of the 180-day period. . . .”
23
As set forth above, the defendant had been ordered to appear for sentencing on
January 24, 2014, with the hearing set for 10:00 a.m. On January 21, the court vacated
the 10:00 a.m. hearing and reset the matter for an hour earlier, 9:00 a.m. on January 24.
On January 24, court convened at 9:18 a.m., with defense counsel16 and the prosecutor
present; the defendant was not present. The entry for January 24 in the court’s register of
actions states, “The probation report [and] sentencing needs to be reset as Judge Novak
(Department 13) is unavailable today.” The prosecutor advised the court that Judge
Novak, the trial judge, had set bail at $300,000, the defendant had posted bail, and, as the
defendant had failed to appear, the People requested a no bail warrant. Defense counsel
told the court that the defendant’s wife had reported him as a missing person and that on
the date scheduled for the defendant’s probation interview, counsel had informed the
probation officer that he did not know where the defendant was and did not expect him to
appear. Counsel stated that he understood the prosecutor’s request and was submitting
because “I don’t see that the court has much choice.”
International Fidelity’s argument is built on the strict construction applied to the
requirements of the bail statutes. “ ‘Bail forfeiture statutes are jurisdictional and, if not
strictly followed, the court loses jurisdiction to later declare a forfeiture of the bond.
(People v. Ranger Ins. Co. (1998) 66 Cal. App. 4th 1549, 1552; People v. Amwest Surety
Ins. Co. (1997) 56 Cal. App. 4th 915, 921.) 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. (People v. National Automobile & Casualty Ins.
Co. (2002) 98 Cal. App. 4th 277, 287, 290 (National Automobile); see People v. American
Contractors Indemnity Co. (2001) 91 Cal. App. 4th 799, 805–810; People v. Frontier
Pacific Ins. Co. (2000) 83 Cal. App. 4th 1289, 1294; People v. Surety Ins. Co. (1985) 165
16
As earlier described, attorney Armstrong sought to substitute in as the
defendant’s attorney of record for sentencing in place of the attorney who had tried the
case. After discussion of the bail situation, the court denied the substitution request,
stating, “Right now the defendant has absconded and there’s a no bail warrant for him
and we’ll worry about who the lawyer is when we finally see him.”
24
Cal. App. 3d 22, 28–30.) Additionally, the statutory requirements ‘ “are considered
inviolable and do not depend on whether or not a party has suffered prejudice.” ’
(National Automobile, supra, 98 Cal.App.4th at p. 291, fn. 33; People v. American
Contractors Indemnity Co., . . . at p. 810.)” (People v. Bankers Ins. Co. (2009) 171
Cal. App. 4th 1529, 1532.)
At the same time, “[w]ords used will be given the meaning that ‘ “reason and
justice require . . . , rather than a literal meaning which would lead to an unjust and
absurd consequence.” ’ (People v. American Bankers Ins. Co. (1991) 227 Cal. App. 3d
1289, 1295, overruled on another ground in People v. National Automobile & Casualty
Ins. Co. (2000) 82 Cal. App. 4th 120.) Courts do not ‘ “blindly follow the literal meaning
of every word if to do so would frustrate the legislative purpose.” ’ (People v. Ranger
Ins. Co. [(1996) 51 Cal. App. 4th 1379,] 1384, italics omitted.) The provisions of section
1305 in particular must be accorded ‘a reasonable, commonsense construction in line
with [their] apparent purpose, in order to advance wise legislative policy and avoid
absurdity.’ (People v. Ranger Ins. Co. (1992) 9 Cal. App. 4th 1302, 1307, 343.)” (County
of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal. App. 4th 146, 153.)
International Fidelity stresses that a forfeiture cannot be declared before the time
as well as the date for which his or her appearance was required. Under section 1305,
subdivision (a), “ ‘A court shall in open court declare forfeited the undertaking of bail or
the money or property deposited as bail 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 pronouncement of judgment if the defendant's
presence in court is lawfully required. [¶] (5) To surrender himself or herself in
execution of the judgment after appeal.’ (Italics added.)” (Safety National, supra, 62
Cal.4th at pp. 709-710.) “For purposes of section 1305[, subdivision] (a), a defendant's
presence may be deemed ‘lawfully required’ when a specific court order commands his
or her appearance at a date and time certain (see People v. Classified Ins. Corp. (1985)
164 Cal. App. 3d 341, 344 [(Classified Insurance)]; cf. People v. Sacramento Bail Bonds
(1989) 210 Cal. App. 3d 118, 122), or when a defendant has actual notice of a mandatory
25
appearance—even without a court order—because he or she was present when the date
and time of the appearance was set (see People v. American Bankers Ins. Co. (1990) 225
Cal. App. 3d 1378, 1383). (See People v. Ranger Ins. Co. (1992) 6 Cal. App. 4th 1301,
1304.)” (Safety National, at p. 710.)
International Fidelity views the present case as “substantially similar” to People v.
North Beach Bonding Co. (1974) 36 Cal. App. 3d 663 (North Beach Bonding),
disapproved by Safety National, supra, 62 Cal. 4th 703, regarding application of section
977).17 The defendant in North Beach Bonding was granted a stay of execution of
sentence and ordered to surrender himself to the sheriff at 5:00 p.m. on March 24, 1972.
(North Beach Bonding, at p. 667.) At 3:30 p.m. on March 24, defense counsel, without
the defendant, presented the court with an application for a stay of execution of sentence,
17
It was argued in North Beach Bonding that the defendant was required to be at a
hearing prior to the time he was originally ordered to appear by virtue of section 977,
subdivision (b), which enumerates certain stages of the proceedings at which a defendant
must be present, then states that the defendant must be present at all others absent a
written waiver, executed in open court by leave of the court, approved by defense counsel
and filed with the court. The North Beach Bonding court intimated that section 977 is not
relevant to bail forfeiture because it was “designed to implement the defendant’s due
process right to be present at his trial and other hearings.” (North Beach Bonding, supra,
36 Cal.App.3d at p. 669.)
The California Supreme Court disapproved North Beach Bonding and another
case, Classified Insurance, supra, 164 Cal. App. 3d 341, “to the extent they rejected
outright section 977(b)(1)’s application to section 1305’s bail forfeiture proceedings.”
(Safety National, supra, 62 Cal.4th at p. 716, fn. 5.) Safety National noted that section
977 may require the defendant’s presence at proceedings for which the constitution
would not, and that “in the bail bond context, a defendant’s required presence serves
another purpose beyond guaranteeing the right to be present: ‘[T]he broad definition of
bail implies its purpose to be that of a tool to assure the ability of society to protect itself
by lawfully conducted criminal prosecution.’ (People v. Semecal [(1968)] 264
Cal.App.2d [Supp. 985,] 992.) In other words, construed together section 977(b)(1) and
section 1305 ‘are not only compatible with the constitutional guarantee of due process,
but also constitute an appropriate legislative design to assure the orderly administration of
the judicial process.’ (Semecal, at pp. Supp. 989–990.)” (Safety National, at pp. 715–
716.)
26
which was denied. The defendant failed to surrender himself, and three days later the
court filed an order stating that his bail was forfeited. (Id. at pp. 667-668.)
One of the surety’s arguments18 was that the trial court lacked jurisdiction to
declare a forfeiture when the defendant did not appear as ordered at 5:00 p.m. because it
failed to declare a forfeiture when he failed to appear at 3:30 p.m. (North Beach
Bonding, supra, 36 Cal.App.3d at p. 669.) This argument was based on the principle that
“the court’s failure to declare a forfeiture upon a nonappearance without sufficient excuse
. . . deprives the court of jurisdiction to later declare a forfeiture.” (People v. United
Bonding Ins. Co. (1971) 5 Cal. 3d 898, 907; Safety National, supra, 62 Cal.4th at p. 710
[if a court “fails to declare a forfeiture at the time of the defendant’s unexcused absence,
it is without jurisdiction to do so later”].) It was contended in North Beach Bonding that
the defendant was required to be at the 3:30 hearing under the authority of section 977.19
Rejecting the argument, the North Beach Bonding court stated, “It is absurd to contend
that an attorney by appearing without his client an hour and one-half before the latter was
directed to appear could place his client in default. The remedy, if the appearance of the
defendant was necessary, was to refuse to entertain the motions without the presence of
the defendant.” (North Beach Bonding, at p. 669.)20
18
The primary issue in the case was the surety’s argument that its obligations were
fully performed when the defendant appeared for pronouncement of judgment and did not
extend to ensuring the defendant’s surrender after the court stayed execution of sentence.
The court agreed and reversed the trial court’s order denying the surety’s motion to set
aside the forfeiture and exonerate bail. (North Beach Bonding, supra, 36 Cal.App.3d at
pp. 670-675.)
19
See footnote 14, ante.
20
North Beach Bonding differs from the present case in that the 3:30 p.m.
appearance by defense counsel was not for a scheduled hearing at which the defendant
had been ordered to appear but rather on a motion to stay or continue the time at which he
had been instructed to surrender. As has been noted in other circumstances, “The
purpose of bail is to ensure the defendant’s appearance at hearings which are set. (People
v. Surety Ins. Co. (1978) 77 Cal. App. 3d 533, 537.) If a hearing is not set, a defendant
cannot fail to appear for purposes of bond forfeiture.” (People v. Ranger Ins. Co., supra,
6 Cal.App.4th at p. 1306.)
27
Other cases demonstrate the same point, that a forfeiture cannot be declared prior
to the time a defendant was ordered to appear. In People v. Resolute Insurance Co.
(1968) 259 Cal. App. 2d 633 (disapproved on other grounds in People v. United Bonding
Ins. Co., supra, 5 Cal.3d at p. 908), three days before the date the defendant had been
ordered to appear and without notice to the defendant or the surety, the court issued a
bench warrant and declared bail forfeited on the prosecutor’s representation that the
defendant was in custody in Canada. (Resolute Insurance Co., at p. 635.) The forfeiture
order was held void because trial court lacked jurisdiction to declare the forfeiture on
March 30, as the defendant “on March 30 had not neglected to appear for a trial which
was set for April 2.” (Id. at p. 636.) In Classified Insurance, supra, 164 Cal. App. 3d 341,
the defendant was released on bail pending trial set for May 2, 1983. The court declared
forfeiture at a hearing in March on a defense motion to set aside the information, when
defense counsel said he had lost contact with the defendant. (Id. at p. 343.) The
forfeiture order was held to be void because the defendant was not required to appear at
the March hearing. (Id. at p. 347.) In People v. American Contractors Indemnity Co.,
supra, 91 Cal. App. 4th 799, although premature forfeiture was not an issue on the appeal,
the case background demonstrates the People, the trial court and the Court of Appeal all
recognized that a forfeiter declared prior to the date on which the defendant had been
ordered to appear was void. The trial court had erroneously declared forfeiture in March,
a month before the scheduled hearing at which the defendant was ordered to appear,
when the prosecutor moved to revoke bail due to suspicion that the defendant had fled the
country, and the court mailed notice to the surety of the period in which it could seek to
set aside the forfeiture. (Id. at p. 802.) The court later granted the surety’s motion to
vacate this forfeiture, recognizing that the defendant had not been ordered to be present
on that date. (Ibid.; see People v. Ranger Ins. Co., supra, 6 Cal.App.4th at pp. 1303,
1305-1306 [affirming forfeiture declared on defendant’s failure to appear for trial; failure
to declare forfeiture at earlier case review hearing did not preclude subsequent forfeiture
because defendant not required to be present at earlier hearing].)
28
In the present case, the defendant was ordered to appear at 10:00 a.m. on January
24, and the forfeiture was declared shortly after 9:18 a.m. Respondent’s assertion that the
time disparity did not matter because the court ordered the defendant to appear on that
date is not persuasive. The record reflects that appellant was in court on November 19,
2013, when the question of his release on bail pending sentencing was discussed and the
sentencing hearing was set. After a brief discussion between counsel and the court about
the date for sentencing, the court stated: “January 24 at 10:00 a.m. I will be doing a
different assignment which will have me occupied at 9:00 a.m. I don’t need you folks
sitting around for an hour while I do those other matters. [¶] January 24 at 10:00 a.m.
[¶] [Defendant], you are ordered to return on that date.”
Respondent maintains that the court “was not having a conversation with
defendant” and “did not order the defendant to return at 10:00 a.m. on January 24, 2014”
but only “to return on that date” This view is unreasonable. The court clearly did not
intend the defendant to appear in court prior to 10:00 a.m.: It expressly stated that it was
setting the hearing for 10:00 a.m. because the court would be occupied with other matters
prior to that time. The sentencing hearing was set for a specific time and January 24, and
that is when the defendant was ordered to return to court.
Moreover, what is at issue in the present case is not the consequences to the
defendant of his failure to appear as ordered but the consequences to appellant. As
explained above, appellant entered into a contract with the government as guarantor of
the defendant’s appearance. (Safety National, supra, 62 Cal.4th at p. 709.) The
defendant’s failure to appear “constitutes a ‘breach of the contract,’ ” which requires
appellant to pay the $300,000 bond. (Ibid., quoting People v. American Contractors
Indemnity Co., supra, 33 Cal.4th at pp. 657-658.) “The scope of a surety’s contractual
obligation under the appeal bond is defined by applicable statutory law and language of
the bond itself.” (People v. Allen (1994) 28 Cal. App. 4th 575, 581.) Here, the bail bond
face sheet and jail receipt state the date and time for the defendant’s appearance as 10:00
a.m. on January 24, 2014, confirming that appellant’s contractual obligation was to
ensure the defendant appear in court on January 24, 2014, at 10:00 a.m.
29
Contrary to respondent’s suggestion, it is of no moment that that the defendant’s
attorney did not assure the court that the defendant would appear at 10:00 a.m. The
“jurisdictional prerequisites” to a court declaring a forfeiture of bail are “the defendant’s
failure to appear at an enumerated proceeding or on another occasion as ‘lawfully
required,’ and the lack of a sufficient excuse for the defendant’s nonappearance.” (Safety
National, supra, 62 Cal.4th at pp. 709-710.) Respondent cites cases standing for the
proposition that the court has discretion to not declare forfeiture immediately upon a
defendant’s failure to appear as required where it appears the failure to appear may be
excusable. (People v. United Bonding Ins. Co., supra, 5 Cal.3d at pp. 905-906; People v.
American Bankers Ins. Co. (1989) 215 Cal. App. 3d 1363 1368-1369; People v. National
Automobile & Cas. Co. (1969) 276 Cal. App. 2d 480, 483-484.) Conversely, as previously
indicated, when a defendant fails to appear as required “without sufficient excuse,”
forfeiture must be timely declared. (United Bonding Ins. Co., at p. 906.) These cases
effectuate the directive of section 1305 that a court declare a forfeiture if a defendant fails
to appear as lawfully required “without sufficient excuse.” Nothing in the case, however,
suggests that the court may declare a forfeiture prior to the time the defendant is required
to appear—even where, as here, it appears certain the defendant will not appear at the
designated time and counsel does not represent that the defendant will in fact appear that
time.
The problem in this case (and the main difference between this case and those
cited by the parties) is that the hearing at which the defendant was ordered to appear was
unilaterally moved earlier by the court. Counsel were obviously informed of the change
in some manner, as both the prosecutor and the attorney seeking to substitute in as
defense counsel were present at 9:00 a.m. To our knowledge, the record contains no
information about how the changed schedule was communicated and whether any
attempt was made to provide notice to the defendant personally. Given the defense
attorney’s representation to the court that he had no idea where the defendant was, it is
unlikely the attorney would have been able to inform the defendant of the change. And
there is no indication in the record that appellant, as guarantor of defendant’s appearance,
30
had any reason to know the hearing would be held an hour earlier than the time stated on
the bail bond.
Respondent’s frustration in the case is not unwarranted. The time of the hearing
was changed by the court and it appears to have been obvious to all present that the
defendant would not be appearing. Had the court waited the 42 minutes until 10:00 a.m.,
when the defendant was legally required to appear, before declaring the forfeiture, there
would have been no question that the forfeiture was valid. Instead, by virtue of the
court’s error in proceeding as it did, appellant will avoid liability on the bond despite
having failed to locate the defendant and return him to court during the period of more
than a year between the declaration of forfeiture on January 24, 2014, and the trial court’s
April 23, 2015 denial of the surety’s motion for tolling and subsequent entry of summary
judgment.
Nevertheless, respondent’s argument that waiting until 10:00 a.m. before declaring
the forfeiture would have been “the epitome of an idle act,” while understandable, is
untenable. Respondent cites People v. American Bankers Ins. Co., supra, 225
Cal.App.3d at page 1383, in arguing that appellant’s contention that the trial court lacked
jurisdiction to order a forfeiture before 10:00 a.m. on January 24, 2014, is “specious” and
“exalts form over substance.” American Bankers Ins. Co. “rejected as unreasonable” an
argument that the trial court lost jurisdiction to forfeit bail when it failed to do so upon
the defendant’s failure to appear on the date set for a section 995 hearing that predated
the trial confirmation hearing at which forfeiture was declared. Because it would be
“untenable to construe section 1305 as requiring a defendant’s presence at a nonexistent
hearing,” the court stated, the jurisdictional argument “exalts form over substance.”
(American Bankers Ins. Co., at p. 1383.)
Unlike the argument in People v. American Bankers Ins. Co., which attempted to
apply a technically correct rule—that a court cannot later order forfeiture after failing to
do so upon the defendant’s failure to appear as required on an earlier date (People v.
United Bonding Ins. Co., supra, 5 Cal.3d at p. 907; Safety National, supra, 62 Cal.4th at
p. 710)—in an unreasonable manner, respondent here is really making a prejudice
31
argument that there was no harm in the court forfeiting bail at 9:18 a.m. because it was
clear the defendant would not appear as ordered at 10:00 a.m. Appealing as that
argument may be on the facts of this case, it cannot prevail. As we have said, the bail
forfeiture statutes are jurisdictional, and prejudice, or lack thereof, is not a relevant
consideration. The defendant was not legally obligated to appear in court before 10:00
a.m. on January 24, 2014, and appellant was not legally bound to ensure his presence
before that time. The forfeiture declared at 9:18 on January 24, 2014, was invalid.
Consequently, the summary judgment must be reversed and the bond exonerated.
DISPOSITION
The judgment is reversed. The forfeiture is vacated and the bail bond is
exonerated.
32
_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. International Fidelity Insurance Company (A145993)
33
Trial Judge: Hon. Leland Davis III
Trial Court: San Mateo County Superior Court
Counsel for Appellant: Law Office of John M. Rorabaugh
John M. Rorabaugh
Robert Tomlin White
Counsel for Respondent: Office of County Counsel
Peter K. Finck, Deputy County Counsel
34