People v. Accredited Surety and Casualty Co. CA1/2 ( 2022 )

Filed 6/24/22 P. v. Accredited Surety and Casualty Co. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A162988
v.
ACCREDITED SURETY AND (Sonoma County Super. Ct.
CASUALTY COMPANY, INC., No. SCR6807701)
Real Party In Interest and
Appellant.
Defendant Ronald Mazzaferro was charged with several counts of
misdemeanor violating a court order to prevent domestic violence and
evading a peace officer in two separate cases, and appellant Accredited
Surety and Casualty Company, Inc. (the surety) posted a $100,000 bond that
was transferred from one case to the other when the two were consolidated.
After defendant failed to appear on November 6, 2019, the trial court ordered
bail forfeited and later denied the surety’s motion to vacate the forfeiture.
The surety contends that bail was exonerated by failure to provide notice of
the transfer and that the trial court lost jurisdiction to declare bail forfeited
when it did not do so on three dates when defendant did not appear prior to
November 6, 2019. We affirm.
1
BACKGROUND
On May 3, 2016, in Sonoma County Superior Court Case No. SCR-
680697, defendant was charged with two misdemeanors: violating a court
order to prevent domestic violence (Pen. Code, § 273.6, subd. (a))1 and
evading a peace officer (Veh. Code, § 2800.1, subd. (a)), both on April 30,
2016. In Sonoma County Superior Court Case No. SCR-680770-1, also filed
on May 3, defendant was charged with three more counts of violating a court
order to prevent domestic violence (§ 273.6, subd. (a)) on March 22, April 21,
and April 25, and with another count of evading a peace officer (Veh. Code,
§ 2800.1, subd. (a) ) on April 28. The record does not contain the complaint in
either case, but the trial court later described the section 273.6 charges as
alleging that defendant “violat[ed] an Elder Protection order obtained by his
elderly mother.”
On May 5, defendant was released from custody when the surety,
through its agent Romelli Bail Bonds, posted bond number AF-00863510 in
Case No. SCR-680697 in the amount of $100,000. The trial court set a
readiness conference in Case No. SCR-680697 for May 24.
On May 24, defendant was present in court. The trial court granted
the prosecution’s oral motion to consolidate Case No. SCR680697 into Case
No. SCR-680770-1. The trial court also ordered that “Bail bond #AF00863510
in the amount of $100,000 [be] transferred into this case from SCR-680697.”
There is no indication in the record that notice of this transfer was ever given
to the surety.
1 Further undesignated statutory references are to the Penal Code.
2
Over the next two years, numerous hearings took place, including
approximately twenty hearings where defendant personally appeared. In
2021, the trial court would later observe: “[T]his case has had an
extraordinarily long history for a misdemeanor. It has been set for trial
repeatedly. The case has been intensely litigated by defendant throughout
its history. Defendant has filed at least three non-statutory motions to
dismiss; more than one demurrer, more than one discovery motion, he filed at
least on[e] Petition for Habeas Corpus, and filed at least one Writ Petition.”
On July 5, 2018, defendant was not present in court but appeared
through counsel pursuant to section 977.2 According to the minutes, the
prosecution requested a warrant for defendant’s non-appearance, the trial
court denied the request, and defense counsel then objected to requiring
defendant’s personal appearance. The matter was continued until August 31,
and the court ordered defendant to be present on that date.
On August 31, defendant was not present. There is no transcript of the
hearing in the record, but the minutes from that date provide that defense
counsel appeared and “has been directed to have his client present at the
next court hearing,” which was set for November 9.
On November 9, defendant was present.
On November 12, the minutes provide: “People request Defendant
ordered to be present Counsel objects to defendant being present Court does
not order defendant present.”
On February 6, 2019, defendant was not present, and the trial court
ordered that he be “personally present at all readiness and trial dates.”
2 “In all cases in which the accused is charged with a misdemeanor
only, they may appear by counsel only, except as provided in paragraphs
(2) and (3).” (§ 977, subd. (a)(1).)
3
Defendant personally appeared at some six hearings over the following
eight months.
On Thursday, October 24, defendant was present, and the trial court
set the following dates for pretrial, jury selection, and trial: October 28, 29,
30, and 31, and November 4, 5, 6, 7 and 12.
As the trial court would later explain:
“When court recessed on October 24, 2019, the next scheduled trial date
was Monday, October 28, 2020[3]. What became known as the Kincaid fire
started on Sunday, October 27, 2020 and the Sonoma County Superior Court
was closed the following week. (See, Transcript of Electronic Recording of
proceedings on November 4, 2019, p. 1:23-27; the court closure is discussed in
the transcript. The closure was also confirmed by General Order Re:
Implementation of Emergency Relief Authorized Pursuant to Government
Code Section 68115 by Chair of Judicial Council, filed October 29, 2019,
Sonoma County Superior Court, deeming Monday, October 28 through
Friday, November 1, 2019 to be court holidays, pursuant to Government Code
section 68115(a)(1)).”
The trial court notified counsel for the parties that trial would resume
on Monday, November 4. Defendant was not present on that date. Defense
counsel told the trial court: “I represent Ronald Mazzaferro, but he is not
present, and I don’t know where he is, Your Honor.” He went on: “I have
tried to call Mr. Mazzaferro, and his voice—it went straight to voicemail. I’ve
left him a text message without any response. [¶] The last time I met with
Mr. Mazzaferro was Friday, October 25th, at my office, and we were awaiting
for—I guess to see what happened with the fires, et cetera, or you know, we—
3 The references to 2020 appear to be mistakes in the trial court’s order,
as the rest of the order makes clear that the Kincaid fire took place in 2019.
4
we—it was—the court was cancelled due to the fires.” Defense counsel had
forwarded the court’s message indicating that trial would resume on
November 4 to defendant’s email, but did not receive any response. The trial
court issued and stayed a bench warrant until the next day at 1:30 p.m., in
order to “give you 24 hours to get your client in here.”
The next day, November 5, defendant was again not present. Defense
counsel indicated that he had called, emailed, and sent a text message to
defendant, but had not received any response. The trial court then noted: “It
appears he may have been downstairs just a bit ago and filed this document.
It’s another document in the case with no name put at the top. [¶] . . . [¶] It
was signed on October 25th. It was filed today. There’s no bate stamp
indicating it was left at an earlier time.” The trial court again issued a bench
warrant in the amount of $10,000, “but I will allow Mr. Mazzaferro to be cited
to appear tomorrow afternoon at 1:30.” The trial court also suggested it was
considering making a finding that the defendant had voluntarily absented
himself from trial such that it could proceed in his absence: “Again, it
appears to me based on a very strong inference that Mr. Mazzaferro is the
one who filed this document. So that would mean he’s coming to court and
simply deciding not to come to trial.”
On November 6, defendant was again not present. The trial court
found that the defendant had voluntarily absented himself from trial and
ordered bail forfeited.
On December 3, the surety filed a motion to vacate the forfeiture and
exonerate bail. The surety argued that the bond was exonerated under
section 1303 when the court failed to mail notice to the surety that it had
transferred bail from case No. SCR-680697 to case No. SCR-680770-1, and
that the court lost jurisdiction to declare bail forfeited when it failed to
5
declare a forfeiture when defendant did not appear on August 31, 2018,
November 4, 2019, and November 5, 2019.
On January 7, 2021, the prosecution filed a “non-opposition” to the
motion, and on January 13, the court requested supplemental briefing “on the
propriety of the court continuing the hearings on August 31, 2018,
November 4, 2019, and November 5, 2019.”
On June 2, the trial court issued a 10-page written order denying the
motion. With respect to the transfer of the bond, the trial court found the
changes authorized by the bond language because “[t]he action with which
[case No. SCR-680697] was consolidated alleged additional violations of . . .
section 273.6(a) based on defendant’s alleged failure to comply with the terms
of the same protective order obtained by his elderly mother.”
With respect to the August 31 failure to appear, the trial court found:
“The record adequately discloses the contention over whether
defendant should be forced to appear—at a non-trial, non-essential hearing—
because the prosecution wanted the court to order the defendant to show up.
When the defendant failed to appear and his attorney picked up the
argument about the defendant’s right to appear through counsel in
misdemeanor cases where he had left off at the prior hearing, the court
informed defense counsel that the defendant had to come to court at the next
hearing [on November 9, 2018]; which he did.”
And with respect to defendant’s failure to appear on November 4 and 5,
2019: “The uncertainties created by the Kincaid Fire combined with
defendant’s long history of appearing in court either in person or through
counsel, was a sufficient basis to excuse defendant’s non-appearance on
November 4, 2019,” and “[t]he extraordinary circumstance of the Kincade
fire, the court closure, and defendant’s multi-year history of making his court
6
appearances was a sufficient basis to excuse defendant’s non-appearance on
November 5, 2019 and to continue the matter for one more day.”
Summary judgment was subsequently entered against the surety, from
which the surety appeals.
DISCUSSION
The Bond Is Not Exonerated For Failure to Comply with the
Notice Provisions of Section 1303
Standard of Review and Applicable Law
Generally, we review an order resolving a motion to vacate a bond
forfeiture under an abuse of discretion standard, “subject to constraints
imposed by the bail statutory scheme.” (County of Orange v. Lexington Nat.
Ins. Corp. (2006) 140 Cal.App.4th 1488, 1491–1492.) “As the Supreme Court
has noted, however, ‘[t]he abuse of discretion standard is not a unified
standard; the deference it calls for varies according to the aspect of a trial
court’s ruling under review. The trial court’s findings of fact are reviewed for
substantial evidence, its conclusions of law are reviewed de novo, and its
application of the law to the facts is reversible only if arbitrary and
capricious.’ ” (County of Los Angeles v. Fairmont Specialty Group (2009)
173 Cal.App.4th 538, 543.) “[W]here, as here, the facts are uncontested, and
the issue concerns a pure question of law, we review the decision de novo.”
(People v. Accredited Surety & Casualty Co. (2018) 26 Cal.App.5th 913, 917;
People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 919 (Amwest).)
The surety argues that it is entitled to exoneration of the bond under
section 1303, which provides as follows:
“If an action or proceeding against a defendant who has been admitted
to bail is dismissed, the bail shall not be exonerated until a period of 15 days
has elapsed since the entry of the order of dismissal. If, within such period,
7
the defendant is arrested and charged with a public offense arising out of the
same act or omission upon which the action or proceeding was based, the bail
shall be applied to the public offense. If an undertaking of bail is on file, the
clerk of the court shall promptly mail notice to the surety on the bond and the
bail agent who posted the bond whenever the bail is applied to a public
offense pursuant to this section.”
Analysis
The surety relies on cases holding that “section 1303 requires the
called-for notice of transfer of the bail without regard to similarity of the
pleadings or the parties,” and “[t]he surety need not show prejudice”—
instead, “failure of the court to give notice to the surety within 15 days of the
transfer of the bail to the new complaint exonerates the undertaking.”
(People v. Surety Ins. Co. (1983) 139 Cal.App.3d 848, 854; see People v.
Resolute Ins. Co. (1975) 50 Cal.App.3d 433, 436–437.) As noted, there is no
indication in the record that any notice of the transfer of bail was given to the
surety.
But section 1303 is inapplicable, because that section applies only “[i]f
an action or proceeding against a defendant who has been admitted to bail is
dismissed.” The complaint in Case No. SCR-680697 was not dismissed—
instead, Case No. SCR-680697 was consolidated into Case No. SCR-680770-1.
(See People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 7 [section 1303 does
not apply where new complaint filed after the bond posted; instead it applies
only “when the bail bond posted on one action is transferred to new charges
filed soon after the first action is dismissed”]; People v. International Fidelity
Ins. Co. (2010) 185 Cal.App.4th 1391, 1398–1400 [section 1303 does not apply
to amended information based on the same originally pleaded facts].)
8
In addition, the charges in case No. SCR-680770-1 are encompassed by
the language of the bond itself, which provides that the surety “hereby
undertakes that the above-named defendant will appear in the above-named
court on the date above set forth to answer any charge in any accusatory
pleading based upon the acts supporting the complaint filed against him/her
or in duly authorized amendments thereof, in whatever court it may be filed
and prosecuted.” Thus, the surety undertook to guarantee defendant’s
appearance in SCR-680770-1 if the complaint in that action was “based upon
the acts supporting the complaint filed against him” in SCR-680697, “or in
duly authorized amendments thereof.”
As noted, the record does not contain the complaints, or any description
of the facts underlying the charges, in either SCR-680697 or SCR-680770-1.4
However, both cases involve violations of section 273.6, subdivision (a) in a
similar time frame—March and April of 2016. And according to the trial
court’s order, “[t]he action [No. SCR-680770-1] with which [No. SCR-680697]
was consolidated alleged additional violations of Penal Code section 273.6(a)
based on defendant’s alleged failure to comply with the terms of the same
protective order obtained by his elderly mother.” Under these circumstances,
the allegations in No. SCR-680770-1 arise from the same course of conduct as
those in No. SCR-680697, and the bond covers both. (See People v. Indiana
Lumberman’s Mutual Insurance Company (2012) 202 Cal.App.4th 1541,
4 Neither party’s brief contains any description of the facts underlying
the complaints against defendant, but the surety does not dispute the trial
court’s characterization of those facts. And to the extent the record is silent,
it must be construed against the surety’s argument of error. (See Jameson v.
Desta (2018) 5 Cal.5th 594, 609 [“ ‘Consequently, [the appellant] has the
burden of providing an adequate record. [Citation.] Failure to provide an
adequate record on an issue requires that the issue be resolved against [the
appellant]’ ”].)
9
1549–1550 [finding consolidation covered by identical bond language where
two complaints were “based upon the same course of conduct”]; People v.
International Fidelity Ins. Co., supra, 185 Cal.App.4th at pp. 1397–1398
[finding identical bond language covers “charges or enhancements [that] arise
out of the same facts that were alleged in the original complaint”]; People v.
Bankers Ins. Co., supra, 181 Cal.App.4th at pp. 6–8 [similar].)
The Trial Court Did Not Abuse Its Discretion in Finding
Sufficient Excuse on August 31, 2018, and November 4 and 5, 2018
Applicable Law
Under section 1305, subdivision (a)(1), “[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
occasion where his or her presence in court is “lawfully required.” However,
section 1305.1—added in 1993, and restating in substance former section
1305, subdivision (b)—provides: “If the defendant fails to appear for
arraignment, trial, judgment, or upon any other occasion when his or her
appearance is lawfully required, but the court has reason to believe that
sufficient excuse may exist for the failure to appear, the court may continue
the case for a period it deems reasonable to enable the defendant to appear
without ordering a forfeiture of bail or issuing a bench warrant.”
In considering a previous version of the statute that provided that the
court must declare bail forfeited “ ‘if, without sufficient excuse, the defendant
neglects to appear’ ” when lawfully required, our Supreme Court explained
that “[t]he failure to so declare an immediate forfeiture upon the
nonappearance of a defendant bailee can be justified only where there is some
rational basis for a belief at the time of his nonappearance that there exists a
sufficient excuse therefor,” and “[w]hat constitutes a sufficient excuse
10
generally rests within the sound discretion of the trial judge . . . .” (People v.
United Bonding Ins. Co. (1971) 5 Cal.3d 898, pp. 903, fn.4, 906–907 (United
Bonding).)
Courts have since applied this same reasoning to the “reason to believe
that sufficient excuse may exist” language now contained in section 1305.1:
“The Supreme Court’s language and reasoning on this issue in United
Bonding appear equally applicable to an interpretation of the language added
to the statute in 1969, as it would be impossible for a trial court, in the
exercise of sound judicial discretion, to have ‘reason to believe that sufficient
excuse may exist’ for a nonappearance if there were not some basis in fact for
such a conclusion. (§ 1305, subd. (b) [now § 1305.1].) There could be no good
faith ‘belief’ to support a delay in ordering forfeiture that was not grounded in
‘some rational basis.’ ” (People v. Surety Ins. Co. (1985) 165 Cal.App.3d 22,
27, quoting United Bonding, supra, 5 Cal.3d at p. 906; see Amwest, supra,
56 Cal.App.4th at p. 923.)
Importantly, “the test is not whether it has been conclusively
demonstrated a defendant had an actual and valid excuse for his
nonappearance to justify continuing a hearing without declaring a bail
forfeiture.” (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 953
(Ranger).) Section 1305.1 “requires the court [to] only have ‘reason to believe
that sufficient excuse may exist for the failure to appear.’ ” (Ranger, at
p. 953, fn. omitted, quoting § 1305.1.)
The factual basis for the sufficient excuse finding must appear
somewhere in the trial court record—in the minutes or in the reporter’s
transcript. (See People v. The North River Ins. Co. (2019) 37 Cal.App.5th 784,
797 (North River); Amwest, supra, 56 Cal.App.4th at p. 922; People v. Frontier
Pacific Ins. Co. (1998) 63 Cal.App.4th 889, 895–896.)
11
“The law traditionally disfavors forfeitures and this disfavor extends to
forfeiture of bail. (People v. United Bonding Ins. Co.[, supra,] 5 Cal.3d [at
p.] 906.) Thus, sections 1305 and 1306 must be strictly construed in favor of
the surety to avoid the harsh results of a forfeiture. [Citation.]” (People v.
Surety Ins. Co., supra, 165 Cal.App.3d at p. 26.) This is in part because “the
public interest . . . prefers the appearance of a defendant rather than a
monetary penalty.” (County of Los Angeles v. Surety Ins. Co. (1985)
165 Cal.App.3d 948, 950.)
“Where a statute such as section 1305, subdivision (b) [now section
1305.1], requires a court to exercise its jurisdiction in a particular manner, to
follow a particular procedure, or to perform subject to certain limitations, an
act beyond those limits is in excess of its jurisdiction. [Citations.]” (People v.
Surety Ins. Co., supra, 165 Cal.App.3d at p. 26.) Thus “[i]f the court fails to
declare a forfeiture at the time of the defendant’s unexcused absence, it is
without jurisdiction to do so later.” (People v. Safety National Casualty Corp.
(2016) 62 Cal.4th 703, 710 (Safety National).)
We review a trial court’s finding of sufficient excuse for abuse of
discretion. (See United Bonding, supra, 5 Cal.3d at pp. 906–907 [“What
constitutes a sufficient excuse generally rests within the sound discretion of
the trial judge”]; Ranger, supra, 108 Cal.App.4th at p. 952 [“The
determination whether an excuse is sufficient is a matter within the trial
court’s discretion”]; People v. Bankers Ins. Co. (2020) 57 Cal.App.5th 418,
425–426 [reviewing finding of sufficient excuse for abuse of discretion];
People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 127, 135
[same].)5
5The surety argues that because the facts are undisputed, we are faced
with a pure question of law that we review de novo. (See County of Los
Angeles v. Financial Casualty & Surety, Inc. (2018) 5 Cal.5th 309, 314.) But
12
“In most situations involving a section 1305, subdivision (b) [now
section 1305.1] determination the only reasons before the trial court are the
evidence or representations furnished by defendant’s counsel. The cases
demonstrate that the courts have cooperated with defense counsels’ requests
and have liberally relied on their representations.” (People v. Nat’l Auto. &
Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 306.)
By way of example, sufficient excuse has been found where defense
counsel represented that defendant’s mother was dying of cancer (People v.
Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 17, 19–20); in a situation where
“there may be an emergency [defendant] attended to, and he may be . . .
available tomorrow morning” (Amwest, supra, 56 Cal.App.4th at pp. 925–
926); where defense counsel’s “client had told him that he had gone to
Stockton for medical treatment due to severe internal bleeding” (People v.
Sur. Ins. Co. (1976) 55 Cal.App.3d 197, 199); and where defense counsel
stated “there’s a possibility [defendant] might be in the San Francisco area”
because “[t]here’s also another action pending in San Francisco” (People v.
Wilshire Ins. Co. (1975) 53 Cal.App.3d 256, 258). Even vague representations
by counsel have been found sufficient—i.e., where defendant had never
previously failed to appear and defense counsel was “concerned something
has happened.” (See Ranger, supra, 108 Cal.App.4th at p. 953.)
August 31, 2018
The surety does not discuss the trial court’s reasons for finding
sufficient excuse may have existed on August 31, 2018, simply asserting that
the first case cited by the surety does not involve appeal from a trial court’s
finding of sufficient excuse under section 1305.1. (See People v. Am. Bankers
Ins. Co. (1992) 4 Cal.App.4th 348, 350–351.) The second case does not
involve bond forfeiture at all. (See Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711–712.) We will follow the authorities cited in the text and
conclude that the better view is that our review is for abuse of discretion.
13
“[t]here is no indication in the minutes of any excuse, factual or otherwise, for
the failure to appear.” We disagree.
The minutes for July 5, 2018 provide: “People request a warrant for
Defendant’s nonappearance. Court denies request. Defense Counsel objects
to personal appearance Matter continued to 8-31-18 8:30am Courtroom 4,
Further Proceedings Defendant ordered to be present 8-31-18.”
On August 31, defendant was not present. And the minutes provide:
“Defendant not present Defense counsel appearing: J. Lemmon Counsel has
been directed to have his client present at the next court hearing.”
In its order denying the motion to vacate the forfeiture, the trial court
later explained:
“The record adequately discloses the contention over whether
defendant should be forced to appear—at a non-trial, non-essential hearing—
because the prosecution wanted the court to order the defendant to show up.
When the defendant failed to appear and his attorney picked up the
argument about the defendant’s right to appear through counsel in
misdemeanor cases where he had left off at the prior hearing, the court
informed defense counsel that the defendant had to come to court at the next
hearing; which he did. As defense counsel later argued, and the record
demonstrates: ‘Mr. Mazzaferro does not miss court, as the court is well
aware.’ At that point, this was indisputably true. The record shows that
there were no further issues regarding defendant’s appearances through
counsel. Later in the proceedings, when the court ordered the defendant to
be personally present for all trial and pre-trial hearings, defendant complied.”
Thus, the record indicates that there was there was some “contention”
on July 5 as to whether defendant should be required to personally appear,
and that the defense counsel objected to such appearance. On August 31,
14
defense counsel “picked up the argument . . . where he had left off at the prior
hearing,” an argument that was resolved by the trial court ordering that the
defendant appear at the next hearing—held on November 9—which he did.
Although the minutes of July 5 indicate that “[d]efendant ordered to be
present 8-31-18,” there was apparently some lack of clarity around that order
because of defense counsel’s objection to requiring defendant’s personal
appearance and his argument that he could appear through counsel, an
argument which was not definitively resolved until the hearing on August 31.
In short, the record admits the possibility that defendant was not
unequivocally required to be present on August 31 or that his counsel did not
so inform him. (See People v. Financial Casualty & Surety, Inc. (2017)
14 Cal.App.5th 127, 131, 135 [defendant may have had excuse where defense
counsel indicated he may have been “confused” by “issuance of two separate
court dates”]; People v. Frontier Pacific Ins. Co. (2000) 83 Cal.App.4th 1289,
1293 [finding excuse where there was “confusion” as to whether defendant
was required to appear and he had “appeared at every previous hearing and
throughout the trial”].) The trial court did not abuse its discretion in
concluding that defendant may have had sufficient excuse for his non-
appearance on August 31.
November 4 and 5, 2018
Again, the surety does not address the trial court’s reasoning behind its
finding of sufficient excuse on November 4 or 5, 2019—its opening brief does
not even mention the Kincaid fire. It simply asserts that “the transcripts of
the hearings held on November 4, and 5 do not contain any excuse for the
defendant’s failure to appear in court as lawfully required.” Again, we
disagree.
15
On Thursday, October 24, defendant was present in court and ordered
to return on Monday, October 28. On Friday the 25th, defendant met with
defense counsel at his office, waiting “to see what happened with the fires.”
However, over the weekend, the Kincaid fire began, resulting in the closure of
the courthouse for the entire week of October 28. The trial court informed
defense counsel, through its judicial assistant, that trial would resume on
Monday November 4, and defense counsel forwarded that message to his
client’s email but did not receive any response. On November 4, defense
counsel indicated that he had called and texted defendant, but had not seen
or heard from him since October 25th. Thus, the record supported the
inference that defendant may have had sufficient excuse for his non-
appearance on November 4, either because of the Kincaid fire itself or
because the fire prevented him from receiving notice that trial was to resume
on that date. (See People v. Financial Casualty & Surety, Inc., supra,
14 Cal.App.5th at pp. 131, 136; People v. Frontier Pacific Ins. Co., supra,83 Cal.App.4th at p. 1293.)
In addition, defense counsel noted that “Mr. Mazzaferro does not miss
count, as the court is well aware. I don’t think he’s ever missed court.”
Indeed, at this point, with the exception of the August 31 non-appearance
discussed above, defendant had personally appeared in court each and every
time he was ordered to do so— approximately 28 times over a period
spanning two years and four months. The trial court could permissibly
conclude from this long history of attendance that the defendant’s absence on
November 4 was with excuse. (See Ranger, supra, 108 Cal.App.4th at p. 953
[defendant’s past history of making court appearances “over a several month
period provided a ‘rational basis for believing there might be a sufficient
excuse for the defendant’s absence”].)
16
In sum, as the trial court put it: “The uncertainties created by the
Kincaid Fire combined with defendant’s long history of appearing in court
either in person or through counsel, was a sufficient basis to excuse
defendant’s non-appearance on November 4, 2019.” We agree.
As the trial court explained, “[t]he circumstances known to the court on
November 5, 2019 were not markedly different than the circumstances
known to the court on November 4, 2019.” Defense counsel had still not had
any contact with defendant, despite having called, emailed, and texted him.
There was still no indication that defendant had ever received notice that the
trial was set to resume on November 4. Although a document had been filed
in the case, evidently on November 5, there was no confirmation that
defendant had filed it himself. In short, the situation was essentially
unchanged from the day before. The trial court did not abuse its discretion in
concluding that defendant’s non-appearance may have again been with
sufficient excuse.
DISPOSITION
The judgment is affirmed.
17
_________________________
Richman, Acting P. J.
We concur:
_________________________
Stewart, J.
_________________________
Mayfield, J. *
People v. Accredited Surety and Casualty Company, Inc. (A162988)
*Judge of the Mendocino Superior Court, Judge Cindee Mayfield, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
18