Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F12692
ELIA, J.Bankers Insurance Company ("the surety") appeals from the denial of its motion to vacate forfeiture and exonerate a $20,000 bail bond and from the summary judgment rendered against the surety. Among other things, the surety contends that the trial court lost jurisdiction when it failed to declare the bond forfeited in open court the first time the bailee did not appear. Santa Cruz County Counsel, on behalf of the People (respondent), does not oppose the relief requested by the surety. For the reasons outlined in this opinion we agree that the bond should have been exonerated. Accordingly, we reverse the judgment.
Although respondent does not oppose the relief requested by the surety, there is no explanation of why respondent takes this position. The surety asserts several grounds why relief should be granted. It would be helpful to this court in the future if respondent gives reasons for the position it takes.
"An order denying a motion to set aside a forfeiture is appealable." (People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1382.) Some courts have recognized that both the order on a motion to vacate the forfeiture and the ensuing judgment are appealable. (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1490, fn. 1.) However, the California Supreme Court has concluded that the judgment is not generally appealable because it is one entered by consent, by the terms of the bond contract. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 663-664.) Nevertheless, when judgment is not entered according to the consent in the bond, such a judgment is appealable. (Ibid.; People v. Wilshire Ins. Co. (1975) 46 Cal.App.3d 216, 219-220.)
The clause in the bond pursuant to which the summary judgment was entered states: "If the forfeiture of this bond be ordered by the Court, Judgment may be summarily made and entered forthwith against the said BANKERS INSURANCE COMPANY, a Florida Corporation, for the amount of its undertaking herein as provided by Section 1305 and 1306 of the California Penal Code." "Though a summary judgment against a surety is a consent judgment which is normally not appealable [citations], it is implicit in the consent phrase above quoted from the bond that the judgment be entered pursuant to the terms of the consent, which by its terms requires compliance with the jurisdictional prescriptions contained in Penal Code sections 1305 and 1306. If the judgment is not entered in compliance with the consent given, the judgment is appealable." (People v. Wilshire Ins. Co., supra, 46 Cal.App.3d at p. 219.)
Background
On January 13, 2006, the surety, through its agent Eight Ball Bail Bonds (bail agent), posted a $20,000 bond for the custodial release of Jose Gonzalez, the defendant in the underlying criminal action.
Gonzalez failed to appear in court on May 25, 2006, as he was required so to do. The following exchange took place between the court, the court clerk and the prosecutor:
"MR DUNLAP: Judge, when we talk about staying a bench warrant though and, again, because we are going to issue subpoenas starting today. I already did that at lunch as a matter of fact. If the investigators come into contact with him over the weekend I would like to have that warrant in the system.
"THE CLERK: Your Honor, he is on a bail bond also.
"THE COURT: He's not
"THE CLERK: On this case he is on a bail bond.
"THE COURT: We'll make it 40,000 and we'll stay a bench warrant until Tuesday and make sure he is here at 8:15 so we can do -- those are the dates then for the trial and trial readiness and thank you."
The trial court did not declare bail forfeiture. However, in preparing the minute order of the proceedings, the clerk made the following entry: "Bail bond is ordered forfeited." The clerk mailed a notice of forfeiture on May 25, 2006.
On August 25, 2006, the surety's investigators located Gonzalez in Portland Oregon. However, because according to the bail agent, Oregon law prohibits the surety's agents or investigators from arresting a fugitive, the investigators contacted Oregon authorities to assist in Gonzalez's arrest. Oregon law enforcement officers were unable to arrest Gonzalez because the warrant issued for his arrest stated "no extradition." After the investigators returned to California, the Santa Cruz District Attorney was advised of Gonzalez's location in Oregon. It appears that no extradition warrant was sought or issued.
Several months later, the surety's agent learned that Gonzalez had gone to Mexico. An investigator determined that Gonzalez was in Villa Victoria, Mexico. On October 27, 2006, a local law enforcement officer in Mexico detained Gonzalez. Gonzalez was positively identified in the presence of the bail agent. Again, an agent contacted the Santa Cruz County District Attorney's office to notify them of Gonzalez's location. No one from the District Attorney's Office returned the call. The Mexican law enforcement officer advised the agent that Gonzalez could not be detained indefinitely. Eventually, Gonzalez was released.
On November 27, 2006, the surety, through its bail agent, filed a motion to vacate forfeiture and exonerate the bail bond on the grounds that the no extradition warrant prevented Gonzalez's arrest in Oregon and that the Santa Cruz County District Attorney elected not to extradite Gonzalez from Mexico.
On December 4, 2006, the Santa Cruz County Counsel filed a "non-opposition" to the motion on behalf of the People. On December 18, 2006, the court denied the motion on the ground that the "Bondsman did not give proper notice to the D.A."
On December 19, 2006, the bail agent re-filed the motion to vacate forfeiture and exonerate bail. This time the District Attorney was served. Again, County Counsel filed a non-opposition to the motion. On January 5, 2007, the trial court heard the motion, restated that the District Attorney was not properly notified and continued the case to January 19, 2007.
On January 12, 2007, the bail agent filed a supplemental pleading stating that on October 13, 2006, the District Attorney's Office had been notified of Gonzalez's location in Mexico and Jennifer Pike, a secretary, advised the agent that it was not likely the District Attorney's Office would seek extradition from Mexico. Ms. Pike told the bail agent that the warrant for Gonzalez stated "no extradition outside of California."
It appears that Ms. Pike is the personal secretary to Bob Lee the Santa Cruz County District Attorney.
The January 19, 2007 hearing was continued. On January 26, 2007 the court denied the motion to vacate forfeiture and exonerate the bail bond.
On February 5, 2007, the bail agent filed a motion to extend the exoneration period. County Counsel filed an opposition on the ground that it was untimely. On February 26, 2007, the trial court granted an extension to May 29, 2007.
On June 27, 2007, the forfeiture not having been set aside, the court entered summary judgment against surety. The surety filed a notice of appeal on July 25, 2007. On November 15, 2007, the surety filed a motion in this court to augment the record on appeal with the reporter's transcript of the proceedings on May 25, 2006, at which Gonzalez failed to appear. This court granted the motion on December 19, 2007.
Discussion
The surety argues that the trial court lost jurisdiction to order forfeiture of the bail bond when the court failed to declare forfeiture in open court.
"The forfeiture or exoneration of bail is entirely a statutory procedure, and forfeiture proceedings are governed entirely by the special statutes applicable thereto. [Citation.] Sections 1305 through 1309 govern bail forfeiture. [Citation.] Because the law abhors forfeitures, these statutes are to be strictly construed in favor of the surety. [Citation.]" (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552.)
Furthermore, the sections governing bail forfeiture " 'must be strictly followed or the court acts without or in excess of its jurisdiction. . . . [Citation.]' " (People v. Topa Ins. Co. (1995) 32 Cal.App.4th 296, 300.) Consequently, courts reviewing the application of bail bond statutes must apply a standard that protects the surety, and more importantly the individual citizens who pledge their property to the surety on behalf of persons seeking release from custody. (People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 287.)
In People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, the California Supreme Court summarized the relevant bail bond procedures: "When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (§ 1305, subd. (a).) The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1).) The trial court may also toll the appearance period under certain circumstances, or extend the period by no more than 180 days from the date the trial court orders the extension, provided that the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension. (§§ 1305, subds. (e), (i), 1305.4.) [¶] After the appearance period expires, the trial court has 90 days to enter summary judgment on the bond. (§ 1306, subds. (a), (c).) If summary judgment is not entered within the statutory 90-day period, the bond is exonerated. (§ 1306, subd. (c).)" (Id. at p. 658, fns. omitted.)
Prior to 1999, case law interpreting section 1305 held that the section did not impose a requirement that the trial court state on the record that bail had been forfeited. (See People v. Ranger Ins. Co. (1993) 19 Cal.App.4th 353, 356; People v. Topa Ins. Co. (1996) 42 Cal.App.4th 566, 568.) Furthermore, former section 1305 imposed no such express requirement.
"Effective January 1, 1999, the law regarding the procedures a trial court must follow for bail forfeiture includes the requirement that '[a] court shall in open court declare forfeited the undertaking of bail . . . if, without sufficient excuse, a defendant fails to appear . . . .' [Citation.]" (People v. Ranger Ins. Co. (1999) 76 Cal.App.4th 326, 329.)
"According to the Assembly Committee on Public Safety, the rationale for the 1999 bail forfeiture amendment, which was introduced as part of Assembly Bill No. 2083 in 1998, was to give bail agents 'notice of the forfeiture at the time, rather than when the notice is sent' and to thereby give the bail agents the ability 'to immediately pursue the fugitive.' " (People v. Ranger Ins. Co., supra, 76 Cal.App.4th at p. 330.) Thus, the 1999 amendment imposes an additional procedure to establish bail bond forfeiture.
"[S]ections 1305 and 1306 prescribe[] a particular procedure and set[] up certain limitations. . . . 'All directions to the court as to its duties are mandatory.' [Citations.]" (People v. Stuyvesant Ins. Co. (1963) 216 Cal.App.2d 380, 381-382; People v. Surety Ins. Co. (1973) 30 Cal.App.3d 75, 79-80.) An act beyond those limits exceeds the court's jurisdiction. (Id. at p. 79.) Once a trial court acts extrajudicially, it no longer has jurisdiction to make subsequent orders in the matter. (People v. Wilshire Ins. Co., supra, 46 Cal.App.3d at p. 221.)
"The plain language of the amended statute indicates in order for bail to be forfeited a trial court must (1) make a declaration of forfeiture stating 'bail is forfeited' (2) on the record while court is in session. The Legislature's use of the word 'shall' signifies this dual requirement is mandatory." (People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 283; accord People v. Allegheny Cas. Co . (2007) 41 Cal.4th 704, 714.)
The trial court in the present case failed to comply with the statutory requirements. It did not declare the bail forfeited in open court. Accordingly, as our Supreme Court has directed " 'where a statute requires a court to exercise its jurisdiction in a particular manner, follow a particular procedure, or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.' [Citation.]" (People v. Black (1961) 55 Cal.2d 275, 277.)
In People v. Amwest Surety Ins. Co. (2004)125 Cal.App.4th 547, 554 (Amwest), in a fact pattern with some similarities to this case, the trial court revoked bail but did not declare the bond forfeited on the record in open court. The clerk's minutes stated, as they do in this case, "Bail ordered forfeited." After the clerk mailed notice of the forfeiture to the surety, the surety attempted to return the defendant to custody (and obtained an extension of the statutory time for so doing), but, ultimately, was unable to find the defendant within the extended time period. The trial court entered summary judgment against the surety. The surety did not appeal. Two years later, the surety sought to discharge the forfeiture and exonerate the bond on the grounds that the trial court's failure to declare the bond forfeited in open court rendered the judgment void. (Id.at p. 550.)
The trial court rejected the surety's collateral attack on the judgment, but the Court of Appeal disagreed holding that "the trial court's failure to declare a forfeiture in open court, as mandated by section 1305, subdivision (a), resulted in the court's loss of jurisdiction over the bail bond." (Amwest, supra,125 Cal.App.4th at p. 550.) "Because the court did not have fundamental jurisdiction when it entered the summary judgment, the judgment was necessarily void, and subject to collateral attack at any time." (Ibid.) The language of the statute mandating a statement of the forfeiture "in open court" (§ 1305) demands a similar result here.
Thus, following the directive of our Supreme Court in People v. Black, supra, 55 Cal.2d at page 277, and the dictates of strict construction of bail forfeiture statutes as we must, we conclude the trial court's failure to expressly state bail is forfeited in open court as mandated by section 1305, subdivision (a) resulted in the court losing jurisdiction. Thus, the court's later attempt to forfeit the bail by having the clerk simply note it in the minutes was an act in excess of the court's jurisdiction. Accordingly, the trial court’s order purporting to do so is null and void. Likewise, the summary judgment predicated thereon is void. The order denying the motion to vacate forfeiture and exonerate the bond should have been granted.
We have no way of knowing if the court attempted to have the bail forfeited by telling the clerk to note it in the minutes or the clerk did so on his/her own initiative. Either way, bail was exonerated at the end of the hearing in open court by operation of law when the court failed to state in open court that the bond was forfeited.
Consequently, we reverse the judgment and remand with directions to the trial court to vacate the forfeiture and exonerate the bond. In so doing, it is not necessary to address the surety's contention that the bond was exonerated when the District Attorney elected not to extradite Gonzalez from Mexico.
Disposition
The judgment is reversed and the cause is remanded to the trial court with directions to vacate the forfeiture and exonerate the bond. The surety shall recover costs of appeal.
WE CONCUR: RUSHING, P. J. PREMO, J.