People v. Accredited Surety & Casualty Co. CA2/2

Filed 9/29/14 P. v. Accredited Surety & Casualty Co. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B250642
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA398252)
v.
ACCREDITED SURETY & CASUALTY
COMPANY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Dorothy B. Reyes, Judge. Affirmed.
John M. Rorabaugh for Defendant and Appellant.
Jackie Lacey, District Attorney, and Phyllis Asayama and Cassandra Thorp,
Deputy District Attorneys for Plaintiff and Respondent.
___________________________________________________
The trial court ordered a bond forfeiture when a defendant failed to appear in
court. Appellant contends that the hearing was intended as a scheduling hearing only and
that the defendant was not required to be present. Case law and applicable statutes
confirm that the defendant was required to be present at the hearing and that the bond was
appropriately forfeited.
PROCEDURAL HISTORY AND FACTS
This appeal arises out of an order to forfeit bail when Francisco Javier Navarro
failed to appear in court for a preliminary hearing on December 11, 2012.
Appellant posted a bail bond on August 8, 2012, to secure Navarro’s appearance
in court. The case was called for a hearing on October 31, 2012. Navarro was present
with his counsel. The trial court granted Navarro’s motion to continue the preliminary
hearing. The court scheduled the preliminary hearing for December 11, 2012.
Navarro failed to appear in court for the December 11 hearing and the trial court
forfeited his bond on the record. The clerk mailed notice of forfeiture to the parties the
same day.
On June 13, 2013, appellant filed a motion to vacate forfeiture and exonerate bail,
or in the alternative for an extension of time. The trial court conducted a hearing on the
motion on July 10, 2013. The court denied the motion to vacate forfeiture and exonerate
bail.
DISCUSSION
Appellant contends that Navarro was not legally required to be present at the
December 11, 2012 hearing and that it was outside the jurisdiction of the trial court to
order bail to be forfeited. Appellant insists that the December 11 hearing was a pre-
preliminary hearing where the actual date for the preliminary hearing would be set. We
disagree.
Navarro had notice that the preliminary hearing was rescheduled for December 11,
2012, because he was present in court when the date was set during the October 31
hearing. The court informed Navarro of his right to a preliminary hearing within 60 days
of his arraignment and then asked him, “Do you waive and give up that right so that the
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court can set the case for December 11, 2012, as a zero of 10, which means your
preliminary hearing will take place that date or within 10 court days of that date?”
Navarro responded in the affirmative. By the language of the court, it is clear that the
preliminary hearing would be held on December 11, 2012, or within 10 days of that date.
Contrary to appellant’s argument, the court did not say that the hearing on December 11
was merely intended for scheduling the actual preliminary hearing. Navarro was required
to appear on December 11, 2012, and he failed to do so.
Appellant maintains that the December 11 preliminary hearing was a pre-
preliminary hearing, citing the reporter’s transcript of the October 31 hearing. At this
hearing the prosecuting attorney made the following statement: “[T]he People made an
offer yesterday to counsel, which is a pre-preliminary hearing offer only, of 13 years and
after the prelim starts the offer is off the table.” (Italics added.) Appellant’s argument
relies heavily on interpreting the term “pre-preliminary” as used by the prosecuting
attorney as a reference to an additional hearing, but it is clear that the term was a
reference to the period of time prior to the preliminary hearing.
Since December 11 was scheduled as a preliminary hearing, Navarro was lawfully
required to be present pursuant to Penal Code section 1043.5. This section simply states:
“(a) Except as otherwise provided in this section, the defendant in a preliminary hearing
shall be personally present.” The statute includes certain exceptions but they do not
apply to this case.
The trial court was obligated to order the bond forfeited because Navarro’s
presence was lawfully required within the meaning of Penal Code section 1305,
subdivision (a). This section provides in relevant part: “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: . . . (4) Any
other occasion prior to the pronouncement of judgment if the defendant’s presence in
court is lawfully required.” (Italics added.)
Appellant also raises the issue that Navarro was never specifically ordered to
appear at the December 11 hearing. In People v. American Bankers Ins. Co. (1990) 225
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Cal. App. 3d 1378, 1383, the court held that where a defendant’s appearance is lawfully
required and defendant has notice of the date of the hearing, bond forfeiture is
appropriate if the defendant fails to appear in court. Navarro had notice of the
December 11 hearing because he was present when the date was set. He was lawfully
required to be present at the hearing on December 11, as has been explained above.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J.
FERNS, J.*
_______________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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