People v. Amer. Contractors Indemnity Co. ( 2014 )

Filed 5/30/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A138310
v.
AMERICAN CONTRACTORS (Sonoma County
INDEMNITY COMPANY et al., Super. Ct. No. SCR-611964)
Defendants and Appellants.
INTRODUCTION
American Contractors Indemnity Company and El Primo Bail Bonds (the “bond
companies”) appeal from an order denying relief from a bail forfeiture and the summary
judgment that ensued. The bond companies advance two arguments—first, the superior
court’s notice of forfeiture was deficient because it failed to explain the “underlying
statutory scheme” to obtain a discharge of forfeiture, and second, the requirements for
forfeiture were not met because the trial court did not expressly order defendant to appear
at the hearing at which he failed to appear. We reject both assertions, and affirm. In
rejecting the second, we are called on to decide an issue as to which there has been some
disagreement among the courts of appeal—whether Penal Code section 977, subdivision
(b)(1), requiring felony defendants to personally appear absent a written waiver of
appearance, supplies the legal compulsion to make a defendant’s presence in court
“lawfully required” under the bail forfeiture statute, Penal Code section 1305, subdivision
(a)(4).1 We conclude section 977 suffices in this regard.
1
All further references are to the Penal Code unless otherwise indicated.
1
BACKGROUND
A $30,000 bail bond was posted in January 2012 to secure the appearance of
defendant Jose Abraham Maldonado, who was charged with felony transportation or sale
of marijuana (Health & Saf. Code, § 11360, subd. (a)).
Maldonado appeared for a settlement conference on February 21. At defense
counsel’s request, and after confirming with Maldonado that he continued to waive time,
the trial court continued the conference to March 2. The court did not, however,
expressly order Maldonado to appear. When Maldonado failed to appear on March 2, the
court ordered bail forfeited and issued a warrant.
On March 5, the clerk issued and served the bond companies with a “Notice of
Bail Forfeiture.” This notice stated: “Please be advised that Bail Bond #A302124405 in
the amount of $30000 which was posted by you on behalf of the above defendant has
been ordered forfeited by the Court for failure to appear on March 2, 2012.”
Six months later, on September 12, the trial court entered summary judgment
pursuant to the forfeiture. The clerk served the bond companies with file endorsed copies
of both the “Summary Judgment” and “Notice of Entry of Judgment.”
American Contractors moved to set aside the summary judgment and to discharge
the forfeiture and exonerate the bond. It asserted the notice of forfeiture was legally
deficient in that it did not “inform the recipient of the underlying statutory procedural
scheme to obtain a discharge of forfeiture.” Several weeks later, American filed a
supplemental memorandum of points and authorities asserting the trial court improperly
declared bail forfeited at the March 2 hearing because it had not expressly ordered
Maldonado to appear at the hearing. Specifically, American contended Maldonado had
not failed to appear at a hearing at which his presence was “lawfully required” as
required by the bail forfeiture statute, section 1305, subdivision (a)(4). The People filed
opposition, and the trial court denied American’s motion by minute order on March 6,
2013.
2
DISCUSSION
Sufficiency of Notice of Forfeiture
The bond companies continue to maintain the clerk’s notice of forfeiture was
legally deficient, citing People v. Swink (1984) 150 Cal. App. 3d 1076 [198 Cal. Rptr. 290]
(Swink) and Minor v. Municipal Court (1990) 219 Cal. App. 3d 1541 [268 Cal. Rptr. 919]
(Minor). We disagree for the reasons set forth in the recent opinion by Division Three of
this appellate district in People v. Accredited Surety & Casualty Co., Inc. (2013)
220 Cal. App. 4th 1137 [163 Cal. Rptr. 3d 722] (Accredited Surety).
In Accredited Surety, the surety maintained as the bond companies do here, that
the notice of forfeiture sent by the court was constitutionally inadequate under Swink and
Minor because it: (1) failed to cite the statutory provisions under which the forfeiture
was being declared, (2) failed to cite what relief from forfeiture was available to the
company, and (3) failed to state the time limits for seeking relief from the forfeiture.
(Accredited Surety, supra, 220 Cal.App.4th at pp. 1141–1142.)
Accredited Surety did not take issue with Swink or Minor, which held similar
notices insufficient, or with Memphis Light, Gas & Water Div. v. Craft (1978) 436 U.S. 1
[56 L. Ed. 2d 30, 98 S. Ct. 1554], on which those cases relied. Rather, the Court of Appeal
pointed out all three cases turned on the fact the forfeiture notices in those cases were
sent to laypersons, not to business entities engaged in the bail bond business. “These
cases, on which [Accredited] Surety relies, all involved the sufficiency of notice to
laypersons, who presumably were unaware of the statutory procedures for obtaining
relief. These same cases recognize that the ultimate question in determining whether a
given notice satisfies due process is whether, under the particular circumstances, the
notice is reasonably calculated to inform the recipient of the process by which the
recipient may challenge the governmental action in question.” (Accredited Surety, supra,
220 Cal.App.4th at pp. 1143–1144.)
Accredited Surety, in contrast, was a licensed insurer and professional surety
which routinely worked within the framework of section 1305 in issuing and enforcing
bail bonds. Accordingly, the court concluded Swink and Minor provided no basis to
3
deem the forfeiture notice sent to it deficient. (Accredited Surety, supra, 220 Cal.App.4th
at pp. 1144–1145.)
We agree with Accredited Surety’s analysis and conclude, for the same reasons,
that Swink and Minor provide no assistance to the bond companies here.
Jurisdiction to Declare Forfeiture
Even though Maldonado appeared at the February 21 settlement conference and
knew his case was continued to March 2 for a further settlement conference, the bond
companies also continue to assert the trial court had no authority to declare bail forfeited
when Maldonado failed to appear on March 2 because the court had not, on February 21,
expressly ordered him to appear at the continued hearing. The People do not dispute
Maldonado was not expressly ordered to appear on March 2, but maintain he was
required to appear on that date under section 977, subdivision (b)(1), since he had not
executed a written waiver of appearance.2 The bond companies rejoin that section 977
merely secures a defendant’s due process right to appear and does not provide the legal
compulsion necessary to make a felony defendant’s presence in court “lawfully required”
for purposes of bail forfeiture under section 1305, subdivision (a)(4).
Surprisingly, given that the personal appearance provisions of section 977 have
been on the books in some version since the late 1800’s, there is some uncertainty as to
whether these provisions make a felony defendant’s presence in court “lawfully required”
for purposes of bail forfeiture under section 1305. Thus, both the bond companies and
the People have been able to cite to cases supporting their respective views of
section 977. We conclude the cases cited by the bond companies, although correctly
decided given their facts, took an unsupported and incorrect view of section 977. Indeed,
2
Section 977, subdivision (b)(1), provides in pertinent part: “In all cases in
which a felony is charged, the accused shall be present at the arraignment, at the time of
plea, during the preliminary hearing, during those portions of the trial when evidence is
taken before the trier of fact, and at the time of the imposition of sentence. The accused
shall be personally present at all other proceedings unless he or she shall, with leave of
court, execute in open court, a written waiver of his or her right to be personally present,
as provided by paragraph (2) . . . .” (§ 977, subd. (b)(1).)
4
as we discuss, these cases wholly overlooked numerous earlier bail forfeiture cases that
consistently referred to the appearance provisions of section 977 in analyzing the
propriety of bail forfeiture. Furthermore, nearly all bail forfeiture cases decided after the
cases on which the bond companies rely, have either questioned those cases, or simply
ignored them and assumed section 977’s appearance provisions are relevant to bond
forfeiture.
The general principles applicable to bail forfeiture are well established. “The
forfeiture or exoneration of bail is entirely a statutory procedure, and forfeiture
proceedings are governed entirely by the special statutes applicable thereto.” (People v.
Ranger Ins. Co. (1998) 66 Cal. App. 4th 1549, 1552 [78 Cal. Rptr. 2d 763]; accord, People
v. International Fidelity Ins. Co. (2012) 212 Cal. App. 4th 1556, 1561 [152 Cal. Rptr. 3d
52] (International Fidelity).) “Because the law disfavors forfeitures,” the bail statutes
must also “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.” ’ ”
(International Fidelity, supra, 212 Cal. App. 4th at p. 1561, quoting People v. Topa Ins.
Co. (1995) 32 Cal. App. 4th 296, 300 [38 Cal. Rptr. 2d 167].)
While an order denying a motion to vacate a bail forfeiture “is normally reviewed
for abuse of discretion,” where the relevant facts are “undisputed and the dispositive issue
is one of statutory construction, we apply an independent review standard.”
(International Fidelity, supra, 212 Cal. App. 4th at p. 1561; accord, People v. Frontier
Pacific Ins. Co. (1998) 63 Cal. App. 4th 889, 893 [74 Cal. Rptr. 2d 316].)
Section 1305 specifies when and how bail is forfeited, stating in pertinent part:
“(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. . . .” (§ 1305, subd.(a).) When any of the enumerated circumstances
triggering forfeiture occur, a court must declare bail forfeited and do so in open court.
5
(People v. United Bonding Ins. Co. (1971) 5 Cal. 3d 898, 906–907 [98 Cal. Rptr. 57,
489 P.2d 1385]; People v. Bankers Ins. Co. (2010) 182 Cal. App. 4th 582, 586
[105 Cal. Rptr. 3d 844].) Otherwise, “[f]ailure to declare forfeiture when the
circumstances call for it divests a court of jurisdiction to do so at a later hearing on the
case.” (International Fidelity, supra, 212 Cal.App.4th at p. 1560, fn. 1; accord, People v.
United Bonding Ins. Co., supra, Cal.3d at p. 907 [“the court’s failure to declare a
forfeiture upon a nonappearance without sufficient excuse . . . deprives the court of
jurisdiction to later declare a forfeiture”].)
In support of their view that the appearance requirements of section 977,
subdivision (b)(1), did not make Maldonado’s presence in court “lawfully required”
under section 1305, subdivision (a)(4), the bond companies cite People v. North Beach
Bonding Co. (1974) 36 Cal. App. 3d 663 [111 Cal. Rptr. 757] (North Beach) and People v.
Classified Insurance Corp. (1985) 164 Cal. App. 3d 341 [210 Cal. Rptr. 162] (Classified),
which relied on North Beach.
In North Beach, the defendant failed to appear at a hearing initiated and scheduled
by defense counsel. Specifically, defense counsel appeared late on a Friday afternoon,
without his client, seeking a stay of execution of judgment and an order shortening time
to hear a motion for bail pending appeal. (North Beach, supra, 36 Cal.App.3d at
pp. 667–668.) The court did not, at that time, declare bail forfeited. Rather, it ordered
bail forfeited the following Monday, when the defendant failed to surrender himself. (Id.
at pp. 667–669.) In seeking reversal of the order denying relief from forfeiture, the bond
company asserted, among other things, that under section 977 the defendant was required
to appear at the Friday afternoon hearing, the trial court was therefore required to order
bail forfeited at that time, and having failed to do so, the court lacked jurisdiction to order
bail forfeited the following Monday when the defendant failed to surrender. The
appellate court declared this assertion had “no merit.” (Id. at p. 668.)
Section 977, stated the North Beach court, was “designed to implement the
defendant’s due process right to be present at his trial and other proceedings.” (North
Beach, supra, 36 Cal.App.3d at p. 669) Utilizing the statute to create an obligation to
6
appear for bail forfeiture purposes would lead to an “absurd” result, with bail forfeited
simply because defense counsel made a last minute attempt to stave off execution. (Ibid.)
The court’s only citation in support of this analysis was a “see” citation to People v.
Williams (1970) 10 Cal. App. 3d 745, 751–752 [89 Cal. Rptr. 364] (Williams). (North
Beach, at p. 669.) Williams was not a bail forfeiture case, but an appeal from a battery
conviction wherein the defendant asserted, among other things, that his due process rights
had been violated when he was not brought to court for the last day of the preliminary
hearing proceedings, at which time no testimony was taken, but he was bound over for
trial. (Williams, at pp. 749–750.) The Williams court concluded that even if the
defendant’s right to be present had been compromised, he failed to demonstrate any
prejudice. (Id. at pp. 751–752 [“He makes no suggestion why or how his physical
presence in the courtroom would affect the ruling.”].) Despite rejecting the bond
company’s section 977 argument, however, the North Beach court agreed with other
arguments advanced by the company and reversed the order denying exoneration of the
bond. (North Beach, at p. 668.)
In Classified, the second case relied on by the bond companies, the defendant was
present in court when pre-trial and trial dates were set (Classified, supra, 164 Cal.App.3d
at p. 343), but failed to appear at an intervening hearing set by defense counsel for a
section 995 motion. Counsel had apparently lost contact with his client and thus was not
able to notify him of the motion date. (Ibid.) The trial court declared bail forfeited, and
the surety appealed from the denial of its motion to vacate the forfeiture and ensuing
summary judgment. (Id. at pp. 343–344.) Contrary to the position the bond company
had advanced in North Beach, the surety in Classified maintained the defendant’s
presence at the hearing scheduled by his attorney was not “lawfully required” and
therefore the trial court had erroneously ordered bail forfeited. (Classified, at p. 344
[“[a]ppellant contends that before a court can forfeit bail a defendant’s appearance must
be required by a specific court order commanding his appearance at a date and time
certain”].) Rather, it was the People who now invoked section 977, arguing that since the
defendant had not executed a written waiver, his presence was “lawfully required” at the
7
hearing set for his section 995 motion and his failure to appear “triggered the application
of section 1305 requiring forfeiture of bail.” (Classified, at p. 345.)
Citing to North Beach, the Classified court rejected the People’s argument as
“untenable.” (Classified, supra, 164 Cal.App.3d at pp. 345–346.) “As in the North
Beach case, respondent’s construction of section 1305, by reference to section 977,
would lead to an absurd result here. The construction urged by respondent would permit
[defendant’s] trial counsel to place [defendant] in default without notice of the motion or
date of appearance. Such a construction would clearly be inconsistent with the purpose
of section 977 [to protect the defendant’s right to appear] . . . . Such a construction would
also be inconsistent with the well-settled principle that the law traditionally disfavors
forfeitures and statutes imposing them are to be strictly construed in favor of the surety.”
(Id. at p. 346.) In addition, since “respondent’s construction of section 1305 would
permit the forfeiture of bail in a situation where the defendant does not even have notice
of the court date requiring his appearance, such a construction [might] well render
section 1305 unconstitutional as violative of the due process right of notice.” (Ibid.)
The Classified court thus concluded that, “[a]bsent an order or other actual
notification from the court that [defendant’s] appearance was required at a given date and
time, the failure of [defendant] to appear cannot be grounds for forfeiture of bail under
section 1305.” (Classified, supra, 164 Cal.App.3d at p. 346) There having been no such
order or other notification, the court held the order forfeiting bail was “void” and a
“nullity,” and the summary judgment, “erroneous.” (Id. at pp. 346–347.)
Undeterred, the People advance here the same argument based on section 977 that
met such resounding rebuke in Classified. The People rely on two more recent cases,
People v. Sacramento Bail Bonds (1989) 210 Cal. App. 3d 118 [258 Cal. Rptr. 130]
(Sacramento Bail), and International Fidelity, supra, 212 Cal.App.4th at p. 1556.
Sacramento Bail does not, however, support the People’s position as to the import
of section 977. In that case, the defendant was present when dates were set for a “trial
status conference” and the “trial,” but he was not expressly ordered to appear at the status
conference. (Sacramento Bail, supra, 210 Cal.App.3d at p. 120.) When he failed to
8
appear, the trial court ordered bail forfeited and issued a warrant. (Ibid.) The bond
company appealed the denial of its motion to vacate, arguing that since the defendant had
not been ordered to appear at the status conference, his presence was not “lawfully
required” under section 1305, subdivision (a)(4), and forfeiture was improper.
(Sacramento Bail, at p. 120.) The appellate court disagreed.
While observing the bond company “correctly note[d] a bail bond may be forfeited
only if the provisions of section 1305 are satisfied” (Sacramento Bail, supra,
210 Cal.App.3d at p. 120), the Sacramento Bail court concluded the defendant was
“lawfully required” to appear by then California Rules of Court, rule 227.6 (now rule
4.112), requiring defendants to appear at the “readiness conference.” While called a
“trial status conference,” the conference in question was, in substance, a readiness
conference. (Sacramento Bail, supra, 210 Cal.App.3d at p. 121.) Accordingly, the court
held that under the rules of court, the defendant was lawfully required to appear. (Ibid.;
accord, People v. American Bankers Ins. Co. (1990) 225 Cal. App. 3d 1378, 1380–1381
[276 Cal. Rptr. 210] [also holding the defendant was “lawfully required” by rules of court
to appear at the pretrial conference and bail was properly forfeited when he failed to
appear].)
Sacramento Bail distinguished Classified on the ground no rule of court or
comparable statute was in play—in Classified, “no rule of law required the defendant’s
presence at the hearing at which he was absent.” (Sacramento Bail, supra,
210 Cal.App.3d at p. 121.) Moreover, in distinguishing Classified, the Sacramento Bail
court agreed with Classified’s view that section 977 did not satisfy section 1305,
subdivision (a)(4)’s, requirement that the defendant’s presence in court be “lawfully
required.” “The Court of Appeal [in Classified] correctly noted section 997 did not
require that defendant be present at the section 995 hearing.” (Sacramento Bail, supra, at
p. 121, italics added, fn. omitted.) Indeed, the Sacramento Bail court specifically noted
that, like the defendant in Classified, the defendant in the case before it also had not
executed a written waiver of appearance. (Sacramento Bail, at p. 121 & fn. 3.) Thus, the
defendant in Sacramento Bail was subject to the required appearance provisions of
9
section 977, and there was no need for the court to turn to the rules of court if it thought
those provisions sufficed to make the defendant’s presence at the trial status conference
“lawfully required” under section 1305, subdivision (a)(4).
The Sacramento Bail court disagreed with Classified, however, to the extent it
“suggest[ed] in dictum” that before a court can order bail forfeited, “ ‘a defendant’s
appearance must [always] be required by a specific court order commanding his
appearance at a date and time certain.’ ” (Sacramento Bail, supra, 210 Cal.App.3d at
p. 122.) The court was aware of “no other case” that had “construed section 1305 to
require categorically such an order of the court.” (Ibid.) Rather, courts had stated
section 1305 was “satisfied ‘. . . when a defendant fails to appear on a date ordered by the
court (or otherwise required by law, such as to surrender for judgment . . . .).” (Ibid.,
quoting People v. National Auto. & Cas. Ins. Co. (1977) 77 Cal. App. Supp. 3d 7, 9
[143 Cal. Rptr. 540].)
In short, while Sacramento Bail supports the People’s assertion that an express
order to appear is not required under section 1305, subdivision (a)(4), the case does not
support the People’s assertion that section 977 provides the legal compulsion necessary to
make a defendant’s presence “lawfully required” for purposes of forfeiting bail under
section 1305. To the contrary, Sacramento Bail suggests section 977 does not provide
such legal ballast.
The second case on which the People rely, however, International Fidelity, turns
out to be one of the most recent cases in a venerable line of cases that have looked to
section 977 to determine whether a defendant’s presence was “lawfully required” for
purposes of bail forfeiture under section 1305. International Fidelity dealt with a
defendant’s failure to appear at hearings in two misdemeanor cases. Defense counsel
appeared, however, and stated he was appearing on his client’s behalf. Counsel also
candidly admitted he had lost contact with his client, and the third time the defendant
failed to appear, at pretrial conferences in the cases, the court ordered bail forfeited.
(International Fidelity, supra, 212 Cal.App.4th at p. 1559.) The surety moved to vacate
the forfeiture on the ground the defendant’s presence had not been “lawfully required”
10
under section 1305 because section 977 permits counsel to appear on behalf of a
defendant charged with a misdemeanor. (International Fidelity, at pp. 1559–1560.) The
surety alternatively asserted that, if that was not the case, then bail should have been
forfeited the first time the defendant failed to appear and the trial court lost jurisdiction to
do so thereafter. (Id. at p. 1560.)
The International Fidelity court commenced its analysis by stating: “The bail
statutes at issue in this case are Penal Code sections 977 and 1305.” (International
Fidelity, supra, 212 Cal.App.4th at p. 1561.) The court then focused on section 977,
pointing out counsel can appear for a misdemeanor defendant at a pretrial conference,
and a defendant need appear personally only if so ordered by the court. (Ibid.) The court
readily concluded that since counsel had appeared on his client’s behalf as permitted by
section 977, the defendant had not been lawfully required to appear at the pretrial
conferences under section 1305 and the trial court therefore had no authority to order bail
forfeited. (Id. at p. 1562.)
International Fidelity cited to People v. American Bankers Ins. Co. (1987)
191 Cal. App. 3d 742 [236 Cal. Rptr. 501] (American Bankers), which also involved bail
forfeitures in two misdemeanor cases. The American Bankers court also focused on the
provisions of section 977 allowing a misdemeanor defendant to appear through counsel.
The court concluded that “if an attorney appears on behalf of the defendant at a
misdemeanor trial and represents that he or she is authorized to proceed in the
defendant’s absence, the court does not have the authority declare a forfeiture of bail
under section 1043, subdivision (e) [pertaining specifically to bail forfeiture for failure to
appear at a misdemeanor trial].” (American Bankers, at p. 747.) As for other required
misdemeanor appearances, “section 1305 governs.” (Ibid.) That section, explained the
American Bankers court, mandates forfeiture if, “ ‘without sufficient excuse,’ ” a
defendant fails to appear at the proceedings set forth in the statute. But, “[s]ince the
[misdemeanor] defendant may appear through counsel under section 977, subdivision (a),
he or she will have a sufficient excuse for not appearing so long as counsel appears and is
authorized to proceed in the defendant’s absence.” (Ibid.) Nevertheless, American
11
Bankers upheld the bail forfeitures at issue because the record contained no indication
counsel for either defendant told the trial court they were authorized to appear for their
clients and to proceed in their absence. (Id. at pp. 748–749.)
International Fidelity distinguished Sacramento Bail on the ground the defendant
in that case had been charged with a felony. (International Fidelity, supra,
212 Cal.App.4th at p. 1563.) “[C]onsequently,” said the International Fidelity court,
“there was no statutory authorization for his attorney to appear in his absence; on the
contrary, subdivision (b) of section 977 compelled his personal attendance, unless he
executed a written waiver of his presence, with leave of the court.” (Id. at pp. 1563–
1564.) Because he “had not signed such a waiver, and a rule of court required his
presence at the readiness conference,” the defendant had been “lawfully required” to be
present at the conference under section 1305, and bail was properly forfeited when he
failed to appear. (Id. at p. 1564.)
Thus, International Fidelity (and American Bankers) support the People’s
assertion that section 977 is relevant to a bail forfeiture analysis. In fact, International
Fidelity’s discussion of Sacramento Bail suggests the International Fidelity court would
have concluded the felony appearance provisions of section 977, subdivision (b)(1),
alone, sufficed to make the defendant’s presence in court “lawfully required” under
section 1305, subdivision (a)(4).
In People v. Jimenez (1995) 38 Cal. App. 4th 795, 800, footnote 8 [45 Cal. Rptr. 2d
466] (Jimenez), the appellate court made an even more explicit observation in this regard,
stating it “would be inclined to agree” that the felony defendant’s presence after
remittitur “was required under section 977.” The court pointed out that even if the statute
was “adopted to protect the defendant’s due process rights, it nonetheless mandates his or
her presence.” (Ibid.) The Jimenez court further observed “[t]here is no danger the
section would be used unfairly against a defendant who was ignorant of the court date
because section 1305 only allows bail forfeiture if the defendant fails to appear ‘without
sufficient excuse,’ and section 1320.5 only allows for [independent criminal] culpability
if the defendant fails to appear with the specific intent to evade the court’s process.”
12
(Ibid.) However, because the appellate court concluded the defendant’s presence after
remittitur was required under another statute, it did “not decide whether section 977
mandated his presence as well.” (Ibid.)
In People v. Ranger Ins. Co. (1998) 66 Cal. App. 4th 1549 [78 Cal. Rptr. 2d 763]
(Ranger ), the Court of Appeal simply assumed without discussion that section 977
compels the appearance of a felony defendant for bail forfeiture purposes, and addressed
the issue of whether section 977 or section 1305 controlled the propriety of forfeiture
when the defendant failed to appear on the date set for trial and, specifically, at the master
trial calendar hearing. (Ranger, at pp. 1552–1554, emphasis omitted.) The defendant
had executed a section 977 waiver of appearance, but it did not apply to “any pretrial or
trial date.” (Ranger, at p. 1551.) Although present when the trial court granted a
continuance of the trial date, the defendant failed to appear on the new date in the master
trial department. (Ibid.) The court did not, however, forfeit bail at that time, but did so
two days later, when the defendant again failed to appear on a motion to continue the trial
made by defense counsel. (Ibid.) The surety successfully moved to set aside the
forfeiture on the ground the trial court was required to forfeit bail at the defendant’s first
failure to appear and lost jurisdiction to do so two days later. The People appealed,
asserting the section 977 waiver excused the defendant’s appearance at the master trial
calendar hearing. (Ranger, at pp. 1551–1552.)
The Court of Appeal affirmed the order vacating the forfeiture. The court did not,
however, reject the applicability of section 977, but rather, compared its language to that
of section 1305. Section 977, subdivision (b)(1), requires a felony defendant with an
appearance waiver in place to appear only for those portions of the trial at “which
evidence is taken,” whereas section 1305 more broadly requires forfeiture when a
defendant fails to appear “for trial.” (Ranger, supra, 66 Cal.App.4th at p. 1553.)
Discerning a “conflict” between the two statutes as to the specific circumstances at hand,
the Ranger court held section 1305 controlled, since with respect to bail forfeiture, it is
the more “specific or special statute.” (Ranger, at pp. 1553–1554.) The court further
concluded appearing “for trial” under section 1305, subdivision (a)(2), embraced
13
appearing on the scheduled trial date for the master trial calendar hearing. (Ranger, at
p. 1553.) Since no excuse, let alone a sufficient excuse, had been offered for the
defendant’s failure to appear, the Court of Appeal held the trial court was required to
declare bail forfeited at that time and, having failed to do so, lost jurisdiction to declare
bail forfeited a week later when the defendant again failed to appear. (Id. at pp. 1554–
1555.)
In People v. Indiana Lumbermens Mutual Ins. Co. (2011) 194 Cal. App. 4th 45, 49
[123 Cal. Rptr. 3d 184] (Indiana Lumbermens), the Court of Appeal similarly referred to
section 977 in its bail forfeiture analysis without any question as to the statute’s
application. The defendant in that case had executed a section 977 waiver of appearance
and thereafter did not appear on a series of settlement conference dates and continued
dates for his preliminary hearing. (Indiana Lumbermens, at pp. 47–48.) He did appear,
however, on the date the preliminary hearing was held, and also appeared on all
subsequent dates, except for one readiness conference. Despite this track record, the
defendant did not appear for sentencing after a change of plea, and the trial court ordered
bail forfeited and issued a warrant. (Id. at p. 48.) The surety unsuccessfully moved to set
aside the forfeiture on the ground the trial court should have declared bail forfeited the
first time the defendant failed to appear and, thus, lost jurisdiction to do so when he failed
to appear for sentencing. (Ibid.) The Court of Appeal affirmed. (Id. at p. 52.)
The Indiana Lumbermens court commenced its bail forfeiture analysis with an
examination of section 977, subdivision (b)(1). (Indiana Lumbermens, supra,
194 Cal.App.4th at p. 49.) The court observed: “Section 977 allows a felony defendant
to waive his or her personal presence at some hearings, appearing instead solely through
his or her attorney. However, even if a section 977 waiver is filed, the defendant must be
personally present during the preliminary hearing. (§ 977, subd. (b).) Because the
defendant’s presence is lawfully required, an unexcused failure to appear during the
preliminary hearing requires the trial court to declare the bail bond forfeited. (§ 1305,
subd. (a)(4).)” (Ibid., fn. omitted.) Careful examination of the record showed, however,
the case “was never called for the preliminary hearing” until the hearing actually took
14
place, at which time the defendant was present. (Id. at pp. 49–50.) And “[b]ecause
neither section 977 nor section 1305 requires a defendant’s presence for a hearing on a
motion for a continuance, the section 977 waiver precluded a finding that [the
defendant’s] absence was unexcused.” (Id. at p. 50.) The Indiana Lumbermens court
distinguished Ranger on the ground that case had, in fact, been called “for trial” under
section 1305. (Indiana Lumbermens, at pp. 50–51.) In Indiana Lumbermens, in contrast,
the case was not, in fact, called “for” the preliminary hearing until the date on which the
hearing was held and at which time the defendant appeared. (Id. at p. 51.)
In sum, for the past two decades, the courts of appeal have either expressly
suggested, or assumed without question, that section 977’s personal appearance
requirements are directly relevant to bail forfeiture under section 1305, subdivision
(a)(4).3 Our research discloses the same can be said of bail forfeiture cases pre-dating
North Beach.
3
The only case decided during this time frame that we have found that has paid
any heed to North Beach’s reasoning is People v. National Automobile & Casualty Ins.
Co. (2004) 121 Cal. App. 4th 1441 [18 Cal. Rptr. 3d 357]. In that case, the felony
defendant was ordered to appear at a hearing on his section 995 motion. Three days
before the hearing, defense counsel appeared at a hearing set by the prosecution to
continue the motion. The trial court granted the motion, but also maintained the original
hearing date, with the understanding the defendant would not appear and the court would
order bail forfeited but hold the warrant. The defendant subsequently made all
appearances, until sentencing. When he failed to appear, the trial court ordered bail
forfeited and issued a warrant. On appeal from the denial of its motion to vacate the
forfeiture, the surety asserted the bond had been exonerated long ago when the trial court
failed to give notice of the original forfeiture. (Id. at pp. 1448–1449.) The Court of
Appeal disagreed “for the simple reason” the defendant’s appearance on the maintained
hearing date was not “ ‘lawfully required’ under section 1305.” (Id. at p. 1449.) The
court first reasoned the trial court had been laboring under the “apparent belief” section
977 made the defendant’s presence “lawfully required” on the hearing date originally set
for the section 995 motion. Not so, said the court, citing Classified (which, as we have
discussed, relied on North Beach). (People v. National Automobile, at p. 1449.) But
even if that was not the case, the appellate court further concluded the trial court had
effectively determined the defendant had a “sufficient excuse” for failing to appear. (Id.
at p. 1450.)
15
For example, in People v. Budd (1881) 57 Cal. 349 (Budd), the Supreme Court
reversed a bail forfeiture judgment because the misdemeanor defendant was not required
to appear at trial under the provisions of several Penal Code statutes, including
section 977.4 Given these “provisions of the Penal Code,” it was “clear” to the justices’
“minds that the defendant was not required to be personally present at the trial.” (Id. at
p. 351.) The court also cited to People v. Ebner (1863) 23 Cal. 158, 160 (Ebner), in
which it had reached the same conclusion with respect to a misdemeanor defendant under
“substantially the same” provisions of section 259 of the earlier Criminal Practice Act.
(Budd, supra, 57 Cal. at pp. 351–352.) It thus appears to have been all but self-evident to
the Supreme Court a century ago that the appearance provisions of the Penal Code,
including section 977, are relevant to bail forfeiture.
Thereafter, the courts of appeal regularly invoked the Supreme Court’s analyses in
Budd and Ebner. (E.g., People v. Ross (1963) 221 Cal. App. 2d 443, 445–446
[34 Cal. Rptr. 505] (Ross) [following Ebner and Budd, and affirming order vacating bail
forfeiture because non-appearing misdemeanor defendant was entitled to appear through
counsel under Penal Code appearance provisions]; People v. Aymar (1929) 98 Cal. App.
1, 3–4 [276 P. 595] [concluding Penal Code appearance provisions, including
sections 977 and 1043, applied only to misdemeanor cases brought in the superior courts,
not in the inferior justice or police courts; thus, distinguishing Ebner and Budd and
holding bail was properly forfeited when misdemeanor defendant failed to personally
appear for trial in an inferior court5]; Carroll v. Police Court of the City and County of
San Francisco (1924) 66 Cal. App. 66, 67–68 [225 P. 35] [following Ebner and Budd, but
4
At that time section 977 stated in relevant part: “ ‘[I]f the indictment is for
felony, the defendant must be present; but if for misdemeanor, he may appear upon the
arraignment by counsel.’ ” (Budd, supra, 57 Cal. at p. 350.) Then section 1043 stated in
relevant part: “ ‘If the indictment is for felony, the defendant must be personally present
at the trial; but if for a misdemeanor, the trial may be had in the absence of the defendant
. . . .’ ” (Id. at p. 351)
5
As the Ross court observed, these Penal Code appearance provisions were
subsequently amended to make them applicable to both the superior and inferior courts.
(Ross, supra, 221 Cal.App.2d at p. 446.)
16
concluding bail for misdemeanor defendant was properly forfeited because, unlike the
defendants in those cases, he had been expressly ordered by the court to appear at trial
and thus under the Penal Code appearance statutes was required to appear].)
In County of Los Angeles v. Luscher (1922) 58 Cal. App. 632 [209 P. 899], the
Court of Appeal considered the forfeiture of a felony defendant’s bail. The surety
maintained the complaint to recover on the bond was insufficient because it failed to
allege the defendant “was ever notified of the time and place of . . . trial.” (Id. at p. 633.)
The appellate court first pointed out the complaint alleged the defendant had appeared for
arraignment and entered a plea, and at that time a trial date had been set. (Ibid.) The
court next explained: “Section 977 of the Penal Code provides that one under a felony
charge must be personally present in court at the time of his arraignment. Therefore the
allegation that [the defendant] was arraigned is equivalent to an allegation that he was
present at the time the arraignment occurred. As the cause was ‘then and there set down’
for trial on a given date, he had direct notice of the fact.” (Ibid.)
In light of the cases we have discussed—both those decided prior to North Beach
and those decided in recent decades—we can only conclude North Beach’s holding that
section 977 merely secures a defendant’s due process right to be present during criminal
proceedings and, thus, is irrelevant to bail forfeiture, does not withstand analysis. That
some of these cases dealt with misdemeanor defendants, rather than felony defendants, is
a distinction without legal significance. The fundamental question is whether the
appearance provisions of section 977, which apply to both felony and misdemeanor
defendants, are relevant to whether a defendant has failed to appear for bail forfeiture
purposes. The early cases leave absolutely no doubt the answer to this question is
“yes”—the appearance provisions of the Penal Code, including those of section 977, are
directly relevant to whether a defendant is required to personally appear and subject to
bail forfeiture when he or she fails to do so. Furthermore, there is no sound reason why
there should be a lack of congruence in utilizing section 977 in the bail forfeiture context.
For more than a century, the courts have unhesitatingly relied on section 977 to conclude
misdemeanor defendants appearing through counsel do not fail to appear under
17
section 1305, subdivision (a)(4). Why, then, should section 977 not also apply to the
reverse scenario, so to speak—where a felony defendant has not executed a written
waiver of appearance and thus cannot appear by counsel, but must personally appear. We
can think of no reason, nor discern any from the cases.
As Jimenez observed, section 977’s appearance requirements will not result in the
forfeiture of bail of a felony defendant who is legitimately ignorant of a court date, since
section 1305 allows forfeiture only when the defendant fails to appear “without sufficient
excuse.” (§ 1305, sub. (a).) Yet, it was this exact concern that lead to North Beach and
Classified’s rejection of section 977—hearings initiated by defense counsel of which the
defendant was not apprised. (E.g., Classified, supra,164 Cal.App.3d at p. 346 [rejecting
People’s section 977 argument because it would permit defense counsel to place his or
her client “in default without notice of the motion or date of appearance”]; see also
People v. American Bankers Ins. Co., supra, 225 Cal.App.3d at p. 1382 [distinguishing
Classified on grounds it “primarily was concerned with the unfairness of allowing bail to
be forfeited when the defendant had no notice of the date on which the hearing was to be
held”] .) However, rather than concluding section 977’s appearance requirements have
no place in the felony bail forfeiture analysis, as did North Beach (and its progeny,
Classified and Sacramento Bail), we agree with Jimenez that the better view is that
“absurd” forfeitures are avoided by section 1305’s limiting language that bail can be
forfeited only when a defendant fails to appear “without sufficient excuse.” (§ 1305,
subd. (a).)
Having concluded section 977, subdivision (b)(1), can supply the legal compulsion
to make a felony defendant’s appearance “lawfully required” for bail forfeiture purposes
under section 1305, subdivision (a)(4), we further conclude the trial court properly
ordered bail forfeited in this case. Maldonado was present at the settlement conference
on February 21, and thus knew of the continued hearing date on March 2. Since he had
not executed a written waiver of appearance, he was required under section 977,
subdivision (b)(1), to appear on March 2. No excuse, let alone a sufficient excuse, was
18
given for his absence on that date, and the trial court therefore properly ordered bail
forfeited under section 1305, subdivision (a)(4), when he failed to appear.
DISPOSITION
The order denying the motion to set aside the bail forfeiture and summary
judgment entered on the forfeiture are affirmed.
_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
A138310, People v. American Contractors Indemnity Co.
19
Trial Judge: Honorable Jamie E. Thistlethwaite
Trial Court: Sonoma County Superior Court
Bruce D. Goldstein, County Counsel, Joshua A. Myers, Deputy County Counsel for the
Plaintiff and Respondent.
E. Alan Nunez for Defendants and Appellants.
20