Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. SJ-2997, Carol Koppel, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Brian T. Chu, Principal Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
A surety appeals an order denying its agent’s motion to vacate the forfeiture of a bail bond. Respondent County of Los Angeles does not oppose the appeal. We reverse.
This case requires us to apply two rules of law relating to bail bonds. First, upon concluding that a criminal defendant did not appear at a mandatory hearing, the trial court is required to declare in open court that the bail bond is forfeited. Second, if the bail bond is in an amount greater than $400, the clerk of the court must, within 30 days of the forfeiture, mail notice of the forfeiture to the surety.
Although the record is not perfectly clear, it appears that the court violated the first rule because it did not immediately declare the bail bond forfeited. If we assume the court complied with the first rule, then its notice of forfeiture to the surety was untimely. In either case, the court lost jurisdiction over the bail bond and should have granted the motion to vacate forfeiture.
FACTUAL AND PROCEDURAL BACKGROUND
On October 13, 2006, criminal defendant Arturo Neri was arraigned for burglary. The court set bail at $50,000. Neri was ordered to appear at a pretrial conference on November 14, 2006.
On November 14, 2006, the court entered a minute order which states:
“THE DEFENDANT BONDED OUT ON THIS MATTER ON 10/14/06. BOND NOT YET RECEIVED.
There is no minute order in the record dated October 14, 2006.
“THE DEFENDANT HAVING FAILED TO APPEAR FOR PRETRIAL CONFERENCE, A BENCH WARRANT IS ISSUED IN THE AMOUNT OF $ 150,000 . . . .
“BOND IS ORDERED FORFEITED WHEN RECEIVED.”
On January 9, 2007, appellant American Contractors Indemnity Company (American Contractors), through its agent Easy Access Bail Bonds Co. (Easy Access), filed a $50,000 bond. The bond, executed on October 14, 2006, stated that if Neri did not appear at court on November 14, 2006, American Contractors will pay the people of the State of California $50,000.
On January 26, 2007, the court entered a minute order which states: “AFTER REVIEW OF THE BOND AND BASED UPON DEFENDANT’S FAILURE TO APPEAR ON NOVEMBER 14, 2006, THE COURT ORDERS THE BOND FORFEITED.” On January 31, 2007, the court clerk mailed a notice of forfeiture to American Contractors and Easy Access.
On August 2, 2007, Easy Access, as real party in interest, filed a motion to vacate forfeiture and exonerate bond. The motion was denied on August 17, 2007. American Contractors filed a timely notice of appeal from the order denying the motion.
Bail agents have standing to challenge the forfeiture of a bail bond. (People v. Silva (1981) 114 Cal.App.3d 538, 547-548.)
An order denying a motion to vacate a forfeiture of a bail bond is appealable. (People v. Lexington National Ins. Co. (2007) 147 Cal.App.4th 1192, 1197, fn. 2.) Although American Contractors did not file the motion, it has standing to pursue this appeal as an aggrieved party. (See Code Civ. Proc., § 902.) “One is considered ‘aggrieved’ whose rights or interests are injuriously affected by the judgment” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737), or, as in this case, affected by the appealable order. Clearly American Contractors was injuriously affected by the order denying the motion because it is liable for $50,000 unless the order is vacated.
ISSUES
1. Did the court declare the bail bond forfeited in open court upon concluding that defendant Neri did not appear for the pretrial conference without sufficient excuse?
2. Did the court provide American Contractors with timely notice of the forfeiture?
DISCUSSION
Bail forfeiture proceedings are governed by statutes. (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195.) Penal Code section 1305 (Section 1305) is applicable in this case. As the law disfavors forfeiture, Section 1305 must be strictly construed in favor of the surety. (People v. Legion Ins. Co., supra, at p. 1195) If the trial court does not follow the requirements of Section 1305, it loses jurisdiction over the bail bond. (Id. at p. 1196; People v. National Automobile & Casualty Ins. Co. (2002) 98 Cal.App.4th 277, 287-288 (National).)
Section 1305, subdivision (a) provides: “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 . . . occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required.” (Italics added.)
Section 1305 should be interpreted in light of the plain language of the statute. (People v. Robles (2000) 23 Cal.4th 1106, 1111 (Robles).) In “open court” plainly means to announce from the bench, not merely to enter a minute order when court is not in session.
To the extent there is any ambiguity in the language of Section 1305, we can look to the legislative history of the statute in aid of ascertaining legislative intent. (Robles, supra, 23 Cal.4th at p. 1111). Prior to 1998, Section 1305, subdivision (a) did not include the words “in open court.” (See Historical and Statutory Notes, 51 West’s Ann. Pen. Code (2004 ed.) foll. § 1305, p. 466.) Trial courts could declare forfeiture by minute order after a defendant did not appear at a hearing. Often bail was declared forfeited days or weeks after the hearing. This gave the defendant an opportunity to flee and avoid apprehension. (See People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 710-713 [reviewing legislative history and purpose of 1998 amendment]; National, supra, 98 Cal.App.4th at pp. 282-284 [same].)
The 1998 amendment “ensures timely notice by expressly requiring courts to make an unequivocal declaration of bail forfeiture on the record the very moment the court concludes the defendant has failed to appear without sufficient excuse. This in turn furthers the amendment’s purpose of providing timely notice and quickly apprehending fugitives.” (National, supra, 98 Cal.App.4th at p. 284.)
On November 14, 2006, the court concluded that defendant Neri failed to appear, without sufficient excuse, for the pretrial conference scheduled on that date. Under Section 1305, subdivision (a), the court was required to immediately declare on the record that bail was forfeited. (National, supra, 98 Cal.App.4th at p. 283.) If it failed to do so, the court lost jurisdiction to declare bail forfeited. (Id. at p. 287-288.)
It appears that the court did not declare forfeiture of the bail bond on November 14, 2006. As we do not have the reporter’s transcript, however, it is impossible for us to determine precisely what transpired at the hearing on that date. The minute order is somewhat ambiguous. Did the court merely announce its intention to order bail forfeited at some future date? Conversely, did the court conclude that bail was forfeited and that the forfeiture would be effective when the bail bond was received?
There are only two possibilities: either the court did or did not declare in open court on November 14, 2006, that bail was forfeited. If the court did not make such a declaration, then it lost jurisdiction over the bail bond and should have granted the motion to vacate the forfeiture.
On the other hand, if the court did declare the forfeiture of bail on November 14, 2006, it failed to provide American Contractors with timely notice of the forfeiture. Section 1305, subdivision (b) provides: “If the amount of the bond or money or property deposited exceeds four hundred dollars ($400), the clerk of the court shall, within 30 days of the forfeiture, mail notice of the forfeiture to the surety or the depositor of money posted instead of bail.” Here, the amount of the bond exceeded $400 but the clerk of the court did not mail notice of the forfeiture within 30 days, i.e., on or before December 14, 2006. Instead, the clerk mailed notice of forfeiture on January 31, 2007, long after the statutory deadline. Where, as here, a surety is not given proper notice of forfeiture pursuant to Section 1305, subdivision (b), the court loses jurisdiction over the bail bond. (People v. American Contractors Indemnity Co. (2001) 91 Cal.App.4th 799, 805.)
DISPOSITION
The order denying Easy Access’s motion to vacate the forfeiture of American Contractors’s $50,000 bail bond is reversed. The parties shall bear their own costs on appeal.
We concur: KLEIN, P. J., ALDRICH, J.