Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SJ2801, Robert J. Schuit, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Ralph L. Rosato, Assistant County Counsel, and Doraine F. Meyer, Principal Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
Appellant Ranger Insurance Company appeals from a summary judgment in favor of respondent County of Los Angeles on a forfeited bail bond which had secured the release of Manuel Garcia. Ranger raises two issues on appeal: (1) the trial court lost jurisdiction to forfeit bail when it failed to order forfeiture after Garcia’s failure to appear as ordered on June 22 and July 18, 2005; and (2) the bond was exonerated by operation of law when the district attorney twice refused to extradite Garcia pursuant to Penal Code section 1305, subdivision (g). As neither contention has merit, we affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Ranger posted a bail bond on May 2, 2005, in the amount of $50,000 to secure the release of Garcia on a misdemeanor probation violation in case No. LAV2PN0305201. Garcia appeared in court as ordered on May 27, 2005. The case was continued in Division 113 in Van Nuys for a probation violation hearing to June 22, 2005.
On June 22, 2005, Garcia was not in court, but was represented by private counsel, Lawrence G. Larson, pursuant to section 977, subdivision (a). Further probation violation proceedings were continued in Division 113 to July 18, 2005, and Garcia was ordered to appear.
On July 18, 2005, Garcia was again represented by Attorney Larson pursuant to section 977, subdivision (a). At the request of Attorney Larson, the probation violation proceedings were transferred to Department G in San Fernando for a hearing on August 19, 2005, where Garcia had a pending felony trial in case No. PA051784. Garcia was not ordered to appear in Department G.
Garcia failed to appear in Department G for his probation violation hearing on August 19, 2005. Bail was forfeited. Notice of forfeiture was mailed on August 19, 2005.
On January 27, 2006, Ranger filed a motion to extend the 180-day period for surrender of Garcia pursuant to section 1305.4. The motion to extend the 180-day period was granted to August 28, 2006. On July 14, 2006, Ranger filed a motion to toll time pending extradition. On August 25, 2006, the trial court found good cause to toll time to November 27, 2006.
On November 27, 2006, Ranger filed a motion to vacate the forfeiture and reinstate bail pursuant to section 1305, subdivision (g), on the ground Garcia had been located in Mexico but the district attorney refused to extradite. On December 1, 2006, Ranger’s motion to vacate the forfeiture and reinstate bail was denied for failure to comply with the requirements of section 1305, subdivision (g).
On December 4, 2006, summary judgment was entered in favor of the County of Los Angeles in the amount of $50,000, plus $300 in court costs. Notice of entry of judgment was filed and entered on the same day. On February 6, 2007, Ranger filed a notice of appeal from the order of December 1, 2006, denying its motion for relief from forfeiture, and from summary judgment. Ranger indicated its intent to proceed without a reporter’s transcript, reserving the right to augment the record if necessary.
Ranger’s motion to augment the record with the reporter’s transcripts of the proceedings on June 22, 2005, and July 18, 2005, was granted.
DISCUSSION
Garcia’s Purported Failure to Appear on June 22 and July 18, 2005
Ranger’s first argument is that the trial court was obligated to forfeit bail on both June 22 and July 18, 2005, when Garcia failed to appear in court. The argument is based upon a faulty premise and without merit. The record unambiguously reflects that Garcia appeared through counsel pursuant to section 977, subdivision (a), as he was entitled to do, and there was no legal basis for the trial court to forfeit bail.
Under section 977, subdivision (a)(1), “[i]n all cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only, except as provided in paragraphs (2) and (3).” Paragraphs (2) and (3) of section 977, subdivision (a), apply to cases involving domestic violence and driving under the influence of alcohol or a controlled substance, neither of which applied to Garcia. “Thus, a defendant in a misdemeanor proceeding has a statutory right to be absent. (Olney v. Municipal Court (1982) 133 Cal.App.3d 455.)” (People v. American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, 746.) Defense counsel’s representation that he or she has authority to appear on behalf of a misdemeanor client may be oral. (Id. at pp. 746-747.) “Thus, without a strong factual showing to the contrary (see Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13), the attorney’s representation that he or she is authorized to proceed in the defendant’s absence is sufficient.” (People v. American Bankers Ins. Co., supra, 191 Cal.App.3d at p. 747.)
“For a required appearance in a misdemeanor proceeding other than trial, section 1305 governs the propriety of declaring a forfeiture of bail. That section provides that the bail must be declared forfeited if, ‘without sufficient excuse,’ the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his or her presence in court is lawfully required. Since the defendant may appear through counsel under section 977, subdivision (a), he or she will have sufficient excuse for not appearing so long as counsel appears and is authorized to proceed in the defendant's absence.” (People v. American Bankers Ins. Co., supra, 191 Cal.App.3d 747.) “Again, absent a factual showing to the contrary, the attorney’s representation that he or she is authorized to proceed in the defendant’s absence precludes a declaration of forfeiture unless the court specifically has ordered the defendant to personally appear.” (Id. at pp. 747-748.)
Attorney Larson represented that he was appearing on behalf of Garcia pursuant to section 977, subdivision (a), on June 22 and July 18, 2005. This was a statutorily sufficient excuse for Garcia’s nonappearance. Contrary to Ranger’s argument, the trial court had no basis to forfeit bail since Garcia appeared through counsel, as expressly permitted by statute.
We asked the parties to brief whether the trial court lost jurisdiction to forfeit bail because Garcia was not specifically ordered to appear in Department G in San Fernando on August 19, 2006. We conclude the court did not lose jurisdiction, as defendant failed to appear without sufficient excuse at a hearing to which he was required to appear. (See People v. Sacramento Bail Bonds (1989) 210 Cal.App.3d 118, 121-122.) There is no requirement of “‘actual knowledge of the continued date as a prerequisite for a declaration of forfeiture.’” (People v. Ranger Ins. Co. (2005) 135 Cal.App.4th 820, 824.)
Failure to Extradite
Ranger argues the trial court erred when it refused to vacate the forfeiture and exonerate the bail pursuant to section 1305, subdivision (g), on the basis that Garcia had been located in Mexico but the district attorney refused to extradite. Ranger did not establish a right to relief in the trial court under this statutory provision.
Section 1305, subdivision (g), provides as follows: “In all cases of forfeiture where a defendant is not in custody and is beyond the jurisdiction of the state, is temporarily detained, by the bail agent, in the presence of a local law enforcement officer of the jurisdiction in which the defendant is located, and is positively identified by that law enforcement officer as the wanted defendant in an affidavit signed under penalty of perjury, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release.”
Ranger’s argument fails because its motion under section 1305, subdivision (g), was not supported by an affidavit signed under penalty of perjury by a local law enforcement officer positively identifying Garcia as the defendant in case No. LAV2PN0305201. The statute expressly requires this affidavit. Defective on its face, the motion was properly denied.
DISPOSITION
The judgment is affirmed. The County of Los Angeles is awarded its costs on appeal.
We concur: ARMSTRONG, Acting P. J. MOSK, J.