People v. American Contractors Indemnity Co. CA4/3 ( 2015 )

Filed 3/6/15 P. v. American Contractors Indemnity Co. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G050713
v. (Super. Ct. No. CIVMS1300022)
AMERICAN CONTRACTORS OPINION
INDEMNITY COMPANY,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of San Bernardino County,
Frank Gafkowski, Jr. (Retired judge of the former L.A. Mun. Ct., assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with
directions.
E. Alan Nunez for Defendant and Appellant.
Jean-Rene Basle, County Counsel and John R. Tubbs II, Deputy County
Counsel for Plaintiff and Respondent.
This is a bail bond exoneration case. American Contractors Indemnity
Company (ACIC) contends summary judgment on a bail bond forfeiture should be
reversed and the bond exonerated for two reasons: (1) the criminal defendant Laneka
Hawkins was not required by Penal Code section 1305, subdivision (a)1 to appear on the
date the court declared forfeiture; and (2) the court lost jurisdiction over the matter when
it did not meet its statutory obligations and therefore the bond must be exonerated. We
agree with both contentions. We reverse the order denying the motion to vacate the
forfeiture order. On remand, we direct the trial court to vacate the forfeiture of the bond
and vacate the summary judgment entered in favor of the County of San Bernardino (the
County) and exonerate the bond.
I
On June 27, 2011, ACIC posted a bail bond to guarantee the appearance of
Hawkins in a criminal case after her release. She was charged with battery against a
cohabitant. (§ 243, subd. (e)(1).) The trial court ordered Hawkins to appear in court on
August 22, 2011. Hawkins appeared as promised, and she was arraigned. The court
continued the case to September 23, 2011, and ordered Hawkins to appear. On that day,
defense counsel appeared on Hawkins’s behalf pursuant to section 977 [misdemeanor
defendant entitled to appear through counsel]. On defense counsel’s motion, the pretrial
hearing was continued to December 2, 2011.
At the December 2 hearing, defense counsel appeared without Hawkins. In
the court’s minute order, it was noted defense counsel stated there had been no contact
with Hawkins. The court announced the bail bond was forfeited. On December 6 the
court clerk timely mailed the notice of forfeiture.
Several months later, on June 22, 2012, the trial court granted ACIC’s
motion to extend the forfeiture period by 180 days. On December 5, 2012, ACIC filed a
1 All further statutory references are to the Penal Code.
2
motion to vacate the forfeiture and exonerate the bail bond. The County filed a partial
opposition to the motion; it conceded “that ‘as a matter of law there was no valid basis
for declaring forfeiture, i.e., [Hawkins] was not lawfully required to appear at the
December 2, 2011 pre-trial hearing.’” However, it opposed ACIC’s request to exonerate
the bail bond.
On January 4, 2012, the court denied the motion to vacate the forfeiture and
entered summary judgment on the forfeited bail bond. ACIC appeals this judgment. We
found no further information in the record in this appeal concerning the status of
Hawkins’s criminal case.
II
In this case, the facts are undisputed. Thus, only legal issues are involved.
Accordingly, we will conduct an independent review. (People v. International Fidelity
Ins. Co. (2012) 204 Cal.App.4th 588, 592.) As will be explained in more detail below,
the sole legal issue to be decided is whether a bail bond must be exonerated after the trial
court’s improper order forfeiting the bond is reversed on appeal.
In People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653,
657-658 (American Contractors), the Supreme Court summarized the nature of bail bond
proceedings. “While bail bond proceedings occur in connection with criminal
prosecutions, they are independent from and collateral to the prosecutions and are civil in
nature. [Citation.] ‘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.’ ( . . . See Stack v.
Boyle (1951) 342 U.S. 1, 5 . . . [‘Like the ancient practice of securing the oaths of
responsible persons to stand as sureties for the accused, the modern practice of requiring
a bail bond or the deposit of a sum of money subject to forfeiture serves as additional
assurance of the presence of an accused’].) ‘In matters of this kind there should be no
element of revenue to the state nor punishment of the surety.’ [Citation.] Nevertheless,
the ‘bail bond is a contract between the surety and the government whereby the surety
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acts as a guarantor of the defendant’s appearance in court under the risk of forfeiture of
the bond.’ [Citation.] Thus, when there is a breach of this contract, the bond should be
enforced. [Citation.]”
The relevant statutory scheme is as follows: “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. (§ 1305, subd. (a).) The 185 days after the
date the clerk of the court mails a notice of forfeiture (180 days plus five days for
mailing) to the appropriate parties is known as the appearance period. (§ 1305,
subd. (b).) During this time, the surety on the bond is entitled to move to have the
forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in
court by the accused. (§ 1305, subd. (c)(1).) The trial court may also toll the appearance
period under certain circumstances, or extend the period by no more than 180 days from
the date the trial court orders the extension, provided that the surety files its motion
before the original 185-day appearance period expires and demonstrates good cause for
the extension. (§§ 1305, subds. (e), (i), 1305.4.) [¶] After the appearance period expires,
the trial court has 90 days to enter summary judgment on the bond. (§ 1306, subds. (a),
(c).) If summary judgment is not entered within the statutory 90-day period, the bond is
exonerated. (§ 1306, subd. (c).)” (American Contractors, supra, 33 Cal.4th at p. 658,
fns. omitted.)
We find instructive People v. International Fidelity Insurance Co. (2012)
212 Cal.App.4th 1556, 1558 (International Fidelity). In that case International Fidelity
Insurance Company (the surety) “issued bail bonds upon two misdemeanor arrests, first
of Saul Contreras and later of his alias, Javier Escobar. In separate proceedings the trial
court learned that defense counsel had lost contact with the defendant, and on each
occasion it ordered the bond forfeited.” (Id. at p. 1558.) The surety moved to vacate the
forfeiture on the ground Contreras’s presence had not been “lawfully required” under
section 1305 because section 977 permits counsel to appear on behalf of a defendant
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charged with a misdemeanor. (International Fidelity, supra, 212 Cal.App.4th at pp.
1559-1560.) Alternatively, the surety maintained the bail bond should have been
forfeited the first time defendant failed to appear and the trial court lost jurisdiction to do
so thereafter. (Id. at p. 1560.)
The appellate court concluded that because counsel had appeared on his
client’s behalf as permitted by section 977, defendant had not been lawfully required to
appear at the pretrial conferences under section 1305 and, therefore, the trial court had no
authority to order the bail bond forfeited. (International Fidelity, supra, 212 Cal.App.4th
at p. 1562.) It reasoned, “‘The forfeiture or exoneration of bail is entirely a statutory
procedure, and forfeiture proceedings are governed entirely by the special statutes
applicable thereto. [Citation.] . . .’ [Citation.] Because the law disfavors forfeitures, the
bail statutes must be construed strictly to avoid forfeiture, and the procedures set forth
therein must be ‘“precisely followed or the court loses jurisdiction and its actions are
void.’” [Citations.]” (Id. at p. 1561, italics added.)
The court concluded, “[S]ubdivision (a) of section 977 permitted Contreras
to be represented in the pretrial misdemeanor proceedings by his attorney, no showing
was made that counsel was doing so without Contreras’s authorization, and no specific
court order commanded Contreras to be personally present at either of the . . . hearings.
The bail forfeiture orders cannot stand.” (International Fidelity, supra, 212 Cal.App.4th
at p. 1564.) In its disposition, the court in International Fidelity stated, “The order
denying appellant’s motion is reversed. The trial court is directed to vacate the forfeiture
of the bonds and exonerate them, and to vacate the . . . judgments [entered for the county
on the two bonds]. Appellant is entitled to its costs on appeal.” (Id. at p. 1564, italics
added.) Simply stated, the court held the improper forfeiture orders were void and it
directed exoneration of the bonds.
The case before us is remarkably similar to International Fidelity. The trial
court lacked jurisdiction to forfeit the bail bond based on Hawkins’s failure to appear at
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the December 2, 2011, pre-trial hearing. A court can order forfeiture of a bail bond only
when defendant fails to appear for arraignment, trial, judgment, execution of judgment,
“or when his presence is otherwise lawfully required.” (§ 1305.) Hawkins’s presence
was not lawfully required at the pre-trial hearing because there was no specific court
order commanding her presence and section 997 authorized counsel to appear on her
behalf. The bail bond forfeiture order cannot stand. (International Fidelity, supra,
212 Cal.App.4th at p. 1562.) On appeal, the parties agree with this conclusion and
maintain this court should reverse the order denying the motion to vacate the forfeiture
order, direct the trial court to vacate the forfeiture of the bond, and vacate the summary
judgment entered in favor of the County.
A. What About the Remedy of Exoneration?
What we must decide in this appeal is whether the bond must be
exonerated, as was the case in International Fidelity, or whether the trial court retained
jurisdiction over the bail bond and it is automatically reinstated (as urged by the County).
The County recognizes exoneration was the remedy stated in the dispositions of
International Fidelity, supra, 212 Cal.App.4th at page 1562 and People v. Classified Ins.
Corp. (1985) 164 Cal.App.3d 341, 347 (Classified) [trial court directed to vacate
forfeiture and exonerate bail bond because defendant’s presence at section 995 hearing
was not “lawfully required” and court’s forfeiture order a “nullity”]. The County asserts
that although exoneration was listed in the dispositions of these opinions, the remedy was
not discussed or analyzed in either case. It invites this court to analyze the issue in more
depth. The County maintains the issue should turn on whether we deem the trial court’s
order void or voidable. It bases this argument on its reading of the Supreme Court’s
decision in American Contractors, supra, 33 Cal.4th 653, as holding a voidable order will
not result in a fundamental loss of jurisdiction requiring exoneration of the bail bond. It
also cites to People v. National Automobile & Casualty Ins. Co. (2004) 121 Cal.App.4th
1441 (National), as supporting its argument the court retained jurisdiction despite
6
violating the statute and the bond must be reinstated. As we will explain, the County’s
reliance on both of these cases is misplaced.
i. The Supreme Court’s American Contractors Opinion
In American Contractors, supra, 33 Cal.4th 653, defendant failed to appear
and the trial court ordered the bail bond forfeited. Section 1306 expressly gives the
surety an “appearance” period of 180 days (plus five days for mailing) to bring the
accused to court or demonstrate there are other circumstances requiring the court to
vacate the forfeiture. If the forfeiture is not vacated within the appearance period, the
court is required to enter summary judgment against the surety within 90 days. (§ 1306,
subd. (a).) The trial court in American Contractors, entered summary judgment
prematurely on the 185th day rather than the 186th day after the notice of forfeiture.
(American Contractors, supra, 33 Cal.4th at p. 659.) The surety did not appeal the
judgment. Several months later, the surety filed a motion to set aside the summary
judgment, discharge the forfeiture, and exonerate the bail bond arguing the summary
judgment was void. (Ibid.) The trial court denied the motion and the court of appeal
affirmed this ruling, concluding that because the summary judgment was merely
voidable, not void, the ruling could not be collaterally attacked. (Id. at p. 660.)
Our Supreme Court agreed, holding, “[T]he premature summary judgment
entered here was voidable, and not void. Thus, while it was subject to correction by
appeal or a timely motion to vacate the judgment, there is no basis under the
circumstances of this case to set it aside by collateral attack once it was final. In
particular, here we need not rely on estoppel principles, but simply on the rule that
collateral attack on a voidable but final judgment is not available absent unusual
circumstances, not present here, that precluded earlier challenge of the judgment. We
therefore affirm the judgment of the Court of Appeal.” (American Contractors, supra,33 Cal.4th at p. 657.)
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Nowhere in the opinion did the court hold the remedy of exoneration is
dependent on the determination of whether a court’s order is deemed void or voidable.
Indeed, because the court refused to review the forfeiture order challenged by a collateral
attack, there was no reason for it to consider the available remedies. The court’s holding
was limited to whether ACIC waited too long to challenge the judgment.
We recognize the Supreme Court made a limited reference to the statutory
provisions mandating exoneration and that perhaps this is what the County found
enlightening. (American Contractors, supra, 33 Cal.4th at p. 661.) However, we
conclude the court’s discussion of these statutory mandates is inapplicable to the case
before us. In American Contractors, the court simply distinguished statutory provisions
mandating exoneration from other procedural rules found in sections 1305 and 1306.
(Ibid.) It held technical violations of the latter type of procedural rules are not subject to
collateral attack. (Ibid.)
Specifically, the court defined the two possible types of jurisdictional errors
as follows: “When a court lacks jurisdiction in a fundamental sense, an ensuing
judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’
[Citation.] [¶] However, ‘in its ordinary usage the phrase “lack of jurisdiction” is not
limited to these fundamental situations.’ [Citation.] It may also “be applied to a case
where, though the court has jurisdiction over the subject matter and the parties in the
fundamental sense, it has no “jurisdiction” (or power) to act except in a particular
manner, or to give certain kinds of relief, or to act without the occurrence of certain
procedural prerequisites.’ [Citation.] . . . When a court has fundamental jurisdiction, but
acts in excess of its jurisdiction, its act or judgment is merely voidable. [Citations.]”
(American Contractors, supra, 33 Cal.4th at pp. 660-661.)
Next, the court in American Contractors reviewed the language of sections
1305 and 1306 and noted there were circumstances mentioned in the statute releasing the
surety of all obligations or exonerating the bond, such as when after the court or clerk
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fails to perform in a specific manner. (American Contractors, supra, 33 Cal.4th at p.
661.) It determined there was no similar statutory provision relating to circumstance of a
premature summary judgment ruling. “That the court may have failed to follow the
procedural requirements to enter judgment properly did not affect the court’s statutory
control and jurisdiction over the bond. Indeed, ACIC concedes the court had subject
matter jurisdiction at the time it prematurely entered summary judgment.” (Id. at p. 662.)
Thus, the court’s holding is limited to the issue of whether a voidable error is subject to
collateral attack. Our Supreme Court did not decide fundamental jurisdictional errors
(void orders) require exoneration but non-fundamental jurisdictional errors (voidable
orders) do not.
ii. The National Case
The County asserts National, supra, 121 Cal.App.4th 1441, held a “bond
should not be exonerated following a void order of forfeiture for defendant failing to
appear at a hearing he was not lawfully required to attend.” Contrary to the County’s
contention, the case is not at all analogous to ours.
In National, the felony defendant was ordered to appear at a hearing on his
section 995 motion. (National, supra, 121 Cal.App.4th at p. 1444.) Three days before
the hearing, the trial court granted the district attorney’s request for a continuance but
believed the original hearing date should be preserved to avoid losing jurisdiction. (Ibid.)
The court stated it understood defendant would not be appearing on the original hearing
date and it planned to order forfeiture of the bond but hold the warrant. (Ibid.) At the
original hearing date, neither party appeared and the court ordered the bond forfeited,
however, the court clerk did not send notice of the forfeiture. At the continued hearing
date, the court recalled the warrant and set aside the forfeiture. (Id. at p. 1445.)
Defendant subsequently made all appearances, until sentencing. When he failed to
appear, the trial court ordered the bail bond forfeited and issued a warrant. This time the
clerk timely sent the notice of forfeiture. (Id. at p. 1446.)
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On appeal from the denial of the surety’s motion to vacate the forfeiture,
the surety argued the bail bond had been exonerated long ago when the trial court failed
to give proper notice of the first forfeiture order. (National, supra, 121 Cal.App.4th at
pp. 1448-1449.) Under the plain terms of the statute, failure to give proper notice
mandates exoneration. (§ 1305, subd. (b).) The appellate court disagreed “for the simple
reason” defendant’s appearance on that hearing date was not “‘lawfully required’ under
section 1305.” (National, supra, 121 Cal.App.4th at p. 1449.) It concluded the trial court
had been operating under the mistaken belief section 977 made defendant’s presence
lawfully required on the hearing date originally set. Moreover, it determined that because
defendant had a sufficient excuse for failing to appear, the bail bond did not need to be
forfeited on that date. (National, supra, 121 Cal.App.4th at pp. 1449-1450.) “Because
the defendant’s appearance on that date was not required, any order forfeiting bail was
void, and there was consequently no actual forfeiture or necessity for providing the surety
with section 1305, subdivision (b) notice.” (Id. at p. 1451.)
The National case holds exoneration was not required because there was no
actual forfeiture or need for forfeiture. Because defendant was not required to appear at
the continued hearing, the trial court was not statutorily required to order forfeiture or
follow the rules regarding sending notice of forfeiture. There was no merit to the surety’s
argument the bond should have been be exonerated at the beginning of the case after the
court failed to give notice. It would have been erroneous for the court to have sent notice
of a void order of forfeiture. (See International Fidelity, supra, 212 Cal.App.4th at
p. 1562.) The National court explained that because defendant’s appearance was not
required and notice was not given, the court retained jurisdiction over the bail bond.
Contrary to the County’s contention, the National case does not support the theory a trial
court retains jurisdiction after being reversed on appeal for both entering and giving
notice of a void forfeiture order.
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iii. The Statutory Scheme
To answer the question of whether exoneration is appropriate in the case
before us, we look to the plain language provided in the statutory scheme. “‘When
interpreting a statute our primary task is to determine the Legislature’s intent. [Citation.]
In doing so we turn first to the statutory language, since the words the Legislature chose
are the best indicators of its intent.’ [Citation.] ‘Words used in a statute . . . should be
given the meaning they bear in ordinary use. [Citations.] If the language is clear and
unambiguous there is no need for construction, nor is it necessary to resort to indicia of
the intent of the Legislature . . . .’ [Citation.]” (People v. Accredited Surety & Casualty
Co. (2004) 132 Cal.App.4th 1134, 1143.)
Several provisions of the statutory scheme expressly provide for
exoneration of bail bonds in the event there is less than precise compliance with the
statutory mandates resulting in void orders. (People v. National Auto. & Casualty Ins.
Co. (2002) 98 Cal.App.4th 277, 288 (National Auto).) For example, section 1305,
subdivision (b), mandates the court clerk to mail a notice of forfeiture to certain entities
and provides several deadlines. The statute specifies if the court fails to mail notice to
the correct entities within the time frames specified “the surety or depositor shall be
released of all obligations under the bond . . . .” (National Auto, supra, 98 Cal.App.4th at
p. 288; see, e.g., People v. American Contractors Indemnity Co. (2001) 91 Cal.App.4th
799 [notice of forfeiture not mailed within statutory 30 days after forfeiture]; People v.
American Contractors Indemnity Co. (1999) 76 Cal.App.4th 1408 [Legislature amended
§ 980, subd. (b), to provide for exoneration of bond if clerk’s failure to enter bench
warrant into system prevented fugitive from being arrested or taken into custody]; People
v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379 [notice of forfeiture mailed to wrong bail
bondsman did not require exoneration of bond because correct bail bondsman received
actual notice within required statutory 30-day period].)
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Another example is found in section 1306, which provides that after a bond
is forfeited, the court may enter summary judgment against the each bondsman named in
the bond within a certain time frame. Subdivision (c) of section 1306 provides, “If,
because of the failure of any court to promptly perform the duties enjoined upon it
pursuant to this section, summary judgment is not entered within 90 days after the date
upon which it may first be entered, the right to do so expires and the bail is exonerated.”
(Italics added; see People v. Topa Ins. Co. (1995) 32 Cal.App.4th 296, 301 [where last
day to enter summary judgment was August 10, summary judgment entered September
27 was in excess of jurisdiction requiring exoneration of bond].)
ACIC cites to cases, and we found others, holding that a technical violation
of other provisions of the statutory scheme also warrants exoneration, even in the absence
of express language directing exoneration of the bail bond for these violations. (See e.g.,
National Auto, supra, 98 Cal.App.4th 277.) A trial court having subject matter
jurisdiction may act in excess of its jurisdiction when it fails to follow procedural
requirements. Although such actions are voidable, rather than void, there are several
cases holding exoneration is the appropriate remedy. (Id. at pp. 287-288.) Thus, contrary
to the County’s contention on appeal, exoneration can be the remedy for both void and
voidable orders.
For example, in National Auto, supra, 98 Cal.App.4th at page 282, the trial
court failed to make an on-the-record pronouncement of a bail bond forfeiture as required
by statute and the appellate court ordered the forfeiture vacated and bond exonerated.
Section 1305 provides, “A court shall in open court declare” a bond forfeited if defendant
fails to appear without sufficient excuse. The provision does not contain express
language directing exoneration for the court’s failure to expressly make a declaration in
open court. Nevertheless, the court determined this procedural error was jurisdictional
and warranted exoneration of the bail bond. (National Auto, supra, 98 Cal.App.4th at p.
283.)
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In the National Auto case the county argued the bond should not be
exonerated because the court “substantially complied with the statutory requirement by
clarifying its intended ruling in its minute order for the day.” (National Auto, supra,
98 Cal.App.4th at p. 282.) The appellate court rejected this argument. It reasoned, “Prior
to its amendment in 1998, . . . section 1305, subdivision (a)[,] required a declaration of
bail forfeiture but did not specify any particular method for doing so. . . . [¶] In 1998 the
Legislature amended this section to clarify the procedure for declaring a forfeiture by
expressly requiring a court to declare a bail forfeiture in open court. Section 1305,
subdivision (a) now provides ‘A court shall in open court declare forfeited the
undertaking of bail . . . if, without sufficient excuse, a defendant fails to appear for [a
scheduled court appearance].’” (Id. at pp. 282-283, fn. omitted.)
The court explained, “The plain language of the amended statute indicates
in order for bail to be forfeited a trial court must (1) make a declaration of forfeiture
stating ‘bail is forfeited’ (2) on the record while court is in session. The Legislature’s use
of the word ‘shall’ signifies this dual requirement is mandatory. [¶] Legislative history
of the amendment makes clear any other conclusion would frustrate the Legislature’s
purpose in imposing the ‘open court’ requirement of providing sureties and their agents
prompt notice of a defendant’s nonappearance so they can take immediate steps to
apprehend the fugitive.” (National Auto, supra, 98 Cal.App.4th at p. 283, fn. omitted.)
Unlike the opinions in International Fidelity, supra, 212 Cal.App.4th at
page 1562, and Classified, supra, 164 Cal.App.3d 341, the National Auto court discussed
at length whether exoneration should be the remedy, as a matter of law, for a trial court’s
failure to declare the bail bond forfeited in open court as required by the statute.
(National Auto, supra, 98 Cal.App.4th at pp. 287-291.) The court reasoned, “In
reviewing the applicable bail statute we are mindful of the general rules governing the
interpretation of bail bond statutes: ‘“‘The law traditionally disfavors forfeitures and this
disfavor extends to forfeiture of bail. . . . Thus, . . . sections 1305 and 1306 dealing with
13
forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh
results of a forfeiture.’ [¶] The standard of review, therefore, compels us to 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.” . . . Sections 1305 and 1306 are said to be “jurisdictional prescriptions.”
. . . “Failure to follow the jurisdictional prescriptions in sections 1305 and 1306 renders a
summary judgment on the bail bond void. . . .”’” (Id. at pp. 287-288, fn. omitted.)
The court rejected the county’s argument “the statutory requirement of
declaring bail forfeited in open court [was] not jurisdictional because in amending section
1305, subdivision (a) the Legislature did not expressly state failure to declare forfeiture in
open court resulted in exoneration of the bail.” (National Auto, supra, 98 Cal.App.4th at
pp. 287-288.) After discussing the statutory provisions that expressly mandate
exoneration (as we discussed earlier in this opinion) the National Auto court focused on
several cases holding “technical violations of other provisions of the bail statutes [were
also] jurisdiction-defeating errors even in the absence of express language directing
exoneration of bail for these violations.” (National Auto, supra, 98 Cal.App.4th at
p. 288, fn. omitted.)
In support of this ruling, the National Auto court cited People v. United
Bonding Ins. Co. (1971) 5 Cal.3d 898 (United Bonding) as “[a]n example of this latter
type of technical violation” and found it to be “closely analogous to the type of omission
which occurred in” the case before it. (National Auto, supra, 98 Cal.App.4th at p. 288.)
It noted that in addition to requiring an on-the-record pronouncement, section 1305,
subdivision (a), states there can be forfeiture only in the event defendant fails to appear
for a scheduled court appearance “without sufficient excuse.” The National Auto court
noted, “The statute has no provision specifying bail is exonerated in the event the trial
court fails to articulate a ‘sufficient excuse’ on the record when declining or neglecting to
declare a forfeiture due to the defendant’s nonappearance. Nevertheless, case law holds
14
the requirement of stating reasons on the record in this circumstance is jurisdictional and
the court loses jurisdiction to later declare a forfeiture in the event of a defendant’s
subsequent nonappearance.” (National Auto, supra, 98 Cal.App.4th at p. 288, citing
United Bonding, supra, 5 Cal.3d at pp. 906-907.) “[A] court’s failure to declare a
forfeiture upon a nonappearance without sufficient excuse, either where no excuse is
offered or where the finding of an excuse constitutes an abuse of discretion, deprives the
court of jurisdiction to later declare a forfeiture.” (United Bonding, supra, 5 Cal.3d at
p. 907.)
The National Auto court also found People v. Frontier Pacific Ins. Co.
(1998) 63 Cal.App.4th 889 (Frontier), instructive. “In that case, ‘sufficient excuse’ for
the defendant’s nonappearance was apparently discussed in chambers. However, the trial
court failed to articulate its findings of sufficient excuse on the record. Nothing in either
the reporter’s transcript or the minutes supplied any evidence of sufficient excuse for the
defendant’s failure to appear. The appellate court found the court’s failure to make a
record deprived the court of jurisdiction to declare a forfeiture at a later date, despite its
probable initial finding of sufficient excuse.” (National Auto, supra, 98 Cal.App.4th at
pp. 289-290.)
The National Auto court concluded, “The reasoning of these decisions
finding technical violations of section 1305 jurisdiction defeating error is equally
applicable here. Similar to the situation in Frontier, the facts before the trial court in this
case justified a declaration of forfeiture. However, as in Frontier, the trial court
neglected to state its intention on the record, which deprived the court of jurisdiction to
later declare a forfeiture. Also, similar to the situation in United Bonding, the intended
action of the trial court was invalid because it failed to make the necessary findings on
the record. The failure to make the required findings on the record in those cases is
indistinguishable from the court’s failure in the present case to declare the bail forfeited
‘in open court’ as compelled by the statutory language. Accordingly, the result should be
15
the same as well. As directed by our Supreme Court “‘where a statute requires a court to
exercise its jurisdiction in a particular manner, follow a particular procedure, or subject to
certain limitations, an act beyond those limits is in excess of its jurisdiction. . . .’”
(National Auto, supra, 98 Cal.App.4th at p. 290, fn. omitted.)
We find this reasoning persuasive and applicable here. Section 1305,
subdivision (a), not only requires an on-the-record statement and findings of sufficient
excuse. It also expressly limits the court’s authority to enter forfeiture to five specific
reasons, i.e., failure to appear at arraignment, trial, etc. (Ibid.) In the case before us, the
trial court declared forfeiture in open court for reasons not permitted by the statute. It
matters not whether this was a fundamental or non-fundamental jurisdictional error. The
court’s failure to follow the procedures was clearly an act in excess of its jurisdiction,
depriving the court of jurisdiction to later declare a forfeiture. Accordingly, in addition to
reversing the court’s order, we remand with directions to exonerate the bond.
III
We reverse the order denying the motion to vacate the forfeiture order. On
remand, we direct the trial court to vacate the forfeiture of the bond, vacate the summary
judgment entered in favor of the County and exonerate the bond. Appellant is entitled to
its costs on appeal.
O’LEARY, P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
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