Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SJ-2873, Luis A. Lavin, Judge.
Nunez & Bernstein, E. Alan Nunez for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Ralph L. Rosato, Assistant County Counsel, Ann M. Aguilar, Deputy County Counsel for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
A surety appeals an order denying its motion to vacate the forfeiture of a bail bond. We find that the trial court correctly denied the motion.
PROCEDURAL AND FACTUAL HISTORY
On November 9, 2005, criminal defendant Carlos A. Huaroc (Huaroc) appeared in court in custody for a preliminary hearing. Huaroc was charged with violating Penal Code section 496(a), commonly known as receiving stolen property. The matter was continued to November 28, 2005, and again continued to December 2, 2005. In the meantime, on November 12, 2005, appellant Fairmont Specialty Group (Fairmont), through its agent Bad Boys Bail Bonds Inc., posted a $30,000 bond for Huaroc.
On December 2, 2005, Huaroc appeared at the preliminary hearing and plead nolo contendere, which the court accepted. Fairmont claims that Huaroc was sentenced and/or granted probation at the hearing. Respondent County of Los Angeles (County) contends that the court merely advised the defendant of the sentence he would receive in the future, including probation, but did not actually pronounce a sentence or grant probation at the hearing.
Four excerpts of the transcript are most relevant to this issue. The first is a statement by Deputy District Attorney Jill Jadon and a related exchange between Ms. Jadon and the court:
“Ms. Jadon: [¶] . . . [¶] In exchange for your plea today, we’ve agreed that you will serve 180 days in the county jail, that you will go on three years of formal probation, and that you will submit to DNA sampling. [¶] We’ve also agreed that we will put over your surrender date until January 30th of 2006, and that on that date, we will put over the sentencing date for six months, so you will serve 180 actual days in the county jail.
“[¶] . . . [¶]
“The Court: And also, what about restitution?
“[¶] . . . [¶]
“Ms. Jadon: I believe, your honor, that the laptop computer that was the item in question in this case was actually recovered. [¶] I’m not sure if it’s still in evidence right now, or if it’s been returned. But we can set a restitution hiring. [Sic]
“The Court: I’ll let you look into restitution on the date of the sentencing.”
Later, prosecutor Jadon advised defendant Huaroc of his rights regarding sentencing:
“Ms. Jadon: You have a right to be sentenced within 20 court days after you have entered your plea. [¶] Do you give up this right so that sentencing can be couldn’t [sic] to a later date?
“The Defendant: Yes.
“Ms. Jadon: Your Honor, would the court like me to take an Arbuckle waiver?
“The Court: Sure.
“Ms. Jadon: You have a right to be sentenced by the same judge that takes your plea. [¶] Do you give that right up so that you can be sentenced by any judge?
“The Defendant: Yes.
“Ms. Jadon: Sir, we have agreed that we will put over your date for surrender and that you will not go into custody until January 30th of 2006. [¶] If you do not show up on that day to court to surrender and go into custody, you could be sentenced to the maximum term on the count that you are pleading to in count 1, which is three years in the state prison. [¶] Do you understand that?
“The Defendant: Yes.”
Subsequently, the following exchange took place between the court and the defendant’s attorney, Matthew Ruff:
“The Court: [¶] . . . [¶] All right. We’ll put sentencing over – or surrender over, actually.
“Mr. Ruff: Your honor could we set a sentencing date, and if he could surrender here without an attorney appearance.
“The Court: Okay.
“Mr. Ruff: How [does this] work? Can we do that?
“The Court: That’s okay. [¶] What about July 30th? Is that an actual court date? It’s a Friday. [¶] All right. You’re ordered to be here for sentencing on July 28th at 8:30, first of all. [¶] And do you waive time for sentencing to that date?
“Mr. Ruff: Yes.”
At the end of the hearing the court issued these orders:
“The Court: You’re also ordered to be here to surrender on January 30th of ’06 at 8:30. [¶] Do you understand?
“The Defendant: Yes.
“The Court: All right. Bail will remain up to stand pending his surrender on January 30th at 8:30.”
Defendant Huaroc did not appear on January 30, 2006. The court ordered the bail bond forfeited and issued a bench warrant. On February 28, 2007, the court denied Fairmont’s motion to vacate forfeiture and exonerate bail. Fairmont appeals the order denying its motion.
This is an appealable order. People v. Pugh (1970) 9 Cal.App.3d 241, 243, fn. 1.
ISSUE
Was bail exonerated at the December 2, 2005 preliminary hearing?
DISCUSSION
Fairmont argues that bail was exonerated by operation of law at the December 2, 2005 hearing pursuant to Penal Code section 1195, which provides in pertinent part: “If the defendant, who is on bail, does appear for judgment and judgment is pronounced upon him or probation is granted to him, then the bail shall be exonerated . . . .” The trial court, Fairmont contends, should not have ordered the forfeiture of Fairmont’s bail bond on January 30, 2006, because the bond was already exonerated on December 2, 2005.
“While it is true that the law disfavors forfeitures, including forfeitures of bail under the bail provisions of the Penal Code, it is the burden of the surety to show that a forfeiture of its bail should be set aside.” People v. American Surety Ins. Co. (2001) 88 Cal.App.4th 762, 768 (American Surety).
Fairmont has not met its burden. A fair reading of the entire transcript of the December 2, 2005 preliminary hearing indicates that the court did not pronounce a judgment at the preliminary hearing and intended to do so on July 28, 2006. Further, there is no clear statement in the record indicating that probation was granted at the December 2, 2005 hearing. Where, as here, the court merely indicates its intention regarding sentencing and probation but does not actually pronounce sentencing or grant probation, bail is not exonerated. (See American Surety, supra, 88 Cal.App.4th at p. 768.)
Fairmont relies on People v. Doe (1959) 172 Cal.App.2d Supp. 812, People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, and People v. Wilshire Ins. Co. (1977) 67 Cal.App.3d 521 to support its position. In each of these cases, however, it was undisputed that the defendant was actually sentenced. These cases are thus factually distinguishable from the present case.
Fairmont argues that the “only lawful and logical explanation” of the proceedings on December 2, 2005 was that the defendant was sentenced and/or granted probation. This is because, Fairmont contends, the court could not require the defendant to serve 180 days in jail beginning on January 30, 2006 unless and until he was sentenced or put on probation. Since the defendant did not appear on January 30, 2006, however, he did not actually serve any jail time prior to the forfeiture of bail. Thus, the issue of whether the trial court could have imposed jail time on January 30, 2006 is not before this court.
Further, the trial court acted well within its discretion in giving the defendant an incentive to appear at the January 30, 2006 hearing. Under the plea bargain, if the defendant did not appear, the court could impose a higher sentence. The court would not have taken this approach if it had actually sentenced the defendant on December 2, 2005. (See American Surety, supra, 88 Cal.App.4th at p. 767.)
Under People v. Cruz (1988) 44 Cal.3d 1247, 1253, the court could not impose a higher sentence without first giving the defendant the opportunity to withdraw his plea unless the defendant made a knowing and intelligent waiver. Defendant Huaroc made such a waiver here.
DISPOSITION
The order denying Fairmont’s motion to vacate forfeiture and exonerate bail is affirmed. The County is awarded costs on appeal.
We concur: CROSKEY, Acting P. J., ALDRICH, J.