Opinion
E068036
05-30-2018
THE PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
Law Office of John M. Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and John Tubbs II, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. CIVRS1600448, FWV1303687) OPINION APPEAL from the Superior Court of San Bernardino County. James J. Hosking and Daniel W. Detienne, Judges. Reversed. Law Office of John M. Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and John Tubbs II, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Financial Casualty & Surety, Inc. (Financial) appeals the trial court's December 9, 2016 entry of summary judgment of a bail bond forfeiture and subsequent February 24, 2017 denial of Financial's motion to set aside summary judgment. We reverse because the court lost jurisdiction over the bond on November 19, 2014, when it failed to forfeit the bond as required under Penal Code section 1305 .
All further references to statute will be to the Penal Code unless otherwise indicated.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On or about November 27, 2013, the defendant in a felony case (defendant) was arraigned and a bail bond was posted. Defendant appeared at a hearing in January 2014, but failed to appear at a subsequent hearing on March 10, 2014. The court ordered the bond forfeited, and increased the bail amount to $50,000. At a March 12, 2014 hearing, defendant arrived at court 45 minutes late to the court's displeasure. Defendant's counsel explained the prior non-appearance as a mix-up in the hearing dates, and blamed defendant's tardiness on traffic. The court exonerated the forfeited bond, and defendant signed an agreement with Financial's agent to post a new bond in the amount of $50,000. The court told defendant if he appeared late again, he would be taken into custody. On April 8, 2014, defendant was more than five minutes late for his hearing. The court admonished defendant, but refrained from taking him into custody. Defendant timely appeared at the next three required court dates, but failed to appear for a pre-preliminary hearing on August 12, 2014. The bond was forfeited, but reinstated on August 15, 2014, when defendant appeared in court. Defendant timely appeared again on August 22, 2014 and September 24, 2014, and was ordered back to court for his pre-preliminary hearing at 8:30 a.m. on November 19, 2014. Defendant failed to appear as ordered on November 19, 2014. The court issued and held a $100,000 bench warrant, but at the urging of defense counsel agreed not to forfeit the bond until November 24, 2014. Defense counsel gave no reason for defendant's failure to appear, telling the court, "We had contact with him yesterday. He hasn't shown up." On November 24, 2014, defendant again failed to appear because he was in federal custody. Again, the court did not order the bond forfeited. Defendant appeared in court two days later. He also timely appeared for hearings in January, February, and March 2015, but failed to appear on April 9, 2015, because he was back in federal custody. The court ordered the $50,000 bail bond forfeited.
On October 23, 2015, the court granted Financial's motion to toll forfeiture of the bond until April 4, 2016. On January 5, 2016, the court issued a writ to have defendant delivered from federal custody into the care and custody of the San Bernardino County Sheriff's Department for trial, but defendant never appeared in court. On April 1, 2016, Financial filed a motion to exonerate the bail or, alternatively, to toll the bond forfeiture. The People opposed exoneration, but agreed to toll the forfeiture period. The court tolled bond forfeiture until October 19, 2016. The tolling period lapsed without Financial moving to set it aside, and summary judgment was entered on December 9, 2016. On February 24, 2017, the court denied Financial's motion to set aside summary judgment. On March 24, 2017, Financial filed its notice of appeal.
In its opposition to Financial's motion to set aside summary judgment, the county raises claims about a forged signature on a stipulation to exonerate bail. While such allegations are troubling, they are not relevant to our discussion in this matter, so we do not consider them in our analysis. --------
III.
DISCUSSION
Financial appeals from the summary judgment entered on December 9, 2016, and the court's February 24, 2017 order denying Financial's motion to set aside summary judgment. Both the judgment and the order are appealable. (People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 550 (Amwest) [judgment appealable at any time if void for lack of jurisdiction]; People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592 (International Fidelity) [motion to vacate summary judgment on bond is appealable].) Financial claims the court lost jurisdiction over the bond by failing to enter a forfeiture on November 19, 2014, in accordance with section 1305, subdivision (a), so the summary judgment is void. Alternatively, Financial argues, as it did in its motion to set aside summary judgment, that the court improperly forfeited the bond on April 9, 2015, when defendant was in federal custody.
As a threshold matter, we note that Financial's jurisdictional argument is not rendered invalid due to it being raised for the first time on appeal. If a court loses jurisdiction over a bond before summary judgment is entered, the judgment is void and may be attacked at any time. (Amwest, supra, 125 Cal.App.4th at p. 550.)
We next address the issue of whether the court lost jurisdiction of the bond on November 19, 2014. The county has adopted and conceded this issue. Nonetheless, because this question involves only legal issues, such as the interpretation of statute and issues of subject matter jurisdiction, we review the record de novo to determine if the trial court's entry of summary judgment was proper. (International Fidelity, supra, 204 Cal.App.4th at p. 592.) We conclude that it was not.
Bail bond forfeitures are governed by sections 1305 through 1308. Because the law abhors forfeitures, these provisions must be strictly construed. (People v. Harco National Ins. Co. (2005) 135 Cal.App.4th 931, 934. (Harco).) Strict construction in bond forfeiture cases is necessary to protect not only the surety from forfeiture, but also "the individual citizens who pledge . . . their property" in obtaining the bond. (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 950-951 (Ranger).) "Bail forfeiture statutes are [also] jurisdictional, and if not strictly followed, the court loses jurisdiction to later declare a forfeiture of the bond." (People v. Bankers Ins. Co. (2009) 171 Cal.App.4th 1529, 1532.) Section 1305, subdivision (a)(1), states that a court shall declare a bail bond forfeited if, "without sufficient excuse, a defendant fails to appear for any of the following: ¶ (A) Arraignment. ¶ (B) Trial. ¶ (C) Judgment. ¶ (D) Any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required." For forfeiture to be required, a defendant must fail to attend a mandatory court appearance, and the failure to appear must be without sufficient excuse. (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 710 (Safety National).) Thus, we examine the record to determine whether both conditions were present in this case.
A defendant's presence may be deemed " 'lawfully required' " under section 1305, subdivision (a), when a court orders such appearance at a particular date and time. (Safety National, supra, 62 Cal.4th at 710.) In Safety National, a defendant was deemed " 'lawfully required' " to appear at a pretrial hearing pursuant to section 1305 where he was present in court when the hearing was scheduled, had heard the court order him to appear at the hearing, and had not signed a written waiver of his right to be present. (Id. at p. 717.) In this case, the minute order from September 24, 2014, shows that defendant was present in court, the pre-preliminary hearing was continued to November 19, 2014, at 8:30 a.m., and defendant was ordered to appear on that date. Based on these facts, we conclude that defendant's appearance on November 19, 2014, was lawfully required by section 1305, subdivision (a)(1)(D).
We now turn to whether the court had sufficient reason to excuse defendant's appearance. Section 1305.1 permits a court to continue a hearing in a bonded defendant's absence without forfeiting the bond if it "has reason to believe that sufficient excuse may exist for the [defendant's] failure to appear." A trial court generally has discretion to determine what constitutes sufficient excuse in each case. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906-907 (United Bonding).) However, when there is no explanation for a criminal defendant's failure to appear, it is presumed to be without excuse unless proven otherwise by a party seeking to avoid bond forfeiture. (Harco, supra, 135 Cal.App.4th at p. 934, citing United Bonding, at pp. 907-908.)
At least one case has held that a sufficient excuse for nonappearance may be inferred from defendant's consistent punctual appearance in court. (Ranger, supra, 108 Cal.App.4th at p. 953.) In Ranger, a defendant failed to appear after having timely appeared at each of his seven previous hearings. (Id. at p. 948.) Defense counsel implored the court to give him a half of a day to reach his client, stating that he was concerned something had happened because his client never missed a hearing before and was typically early to court. (Id. at pp. 948-949.) The court continued the matter for one day without forfeiting the bond, stating on the record that it found good cause because defendant had not failed to appear in the past. (Id. at p. 949.) The appellate court affirmed the trial court's finding of sufficient excuse, because defendant's absence was so unusual it formed a rational basis for the court to believe a valid excuse existed. (Id. at p. 953.)
The Ranger holding was distinguished by Harco, supra, 135 Cal.App.4th 931. In Harco, both the defendant and his counsel were absent from the initial court appearance. (Id. at p. 933.) Defense counsel had someone ask the court on his behalf to trail the matter for one court day because he was in trial. No excuse was given for defendant's absence. The court continued the hearing to the following Monday without forfeiting defendant's bail bond. At the next court appearance, the defendant was again absent, and his attorney could not reach him. (Ibid.) The court forfeited the bond, and the county later obtained summary judgment. On appeal, the appellate court vacated the forfeiture and exonerated the bond. (Id. at pp. 933-935.) The appellate court concluded there was no evidence of sufficient excuse for defendant's failure to appear in court at the first hearing, and the trial court was required by section 1305, subdivision (a), to forfeit the bond on that date. The trial court's failure to do so deprived it of jurisdiction to forfeit the bond the next court day. (Id. at pp. 935-936.) The Harco court analyzed the holding in Ranger, but found it to be distinguishable because the Harco defendant "had no prior history of consistent appearances" to raise the inference that his absence was sufficiently excused. (Harco, at p. 935.)
As in Ranger and Harco, the record in this case is silent as to the reason for defendant's absence at his November 19, 2014 hearing. Although defendant made a number of court appearances on time, he was also late twice and failed to appear without a valid excuse on two occasions before November 19, 2014. Defendant's erratic attendance in court and previous absence without sufficient excuse gave the court no reason to infer his absence on November 19, 2014, was for good cause, and we distinguish the Ranger case on this basis. Without any evidence in the record to rebut the presumption that defendant's absence was unexcused, the trial court was required by section 1305, subdivision (a), to declare the bond forfeited. (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 708.) The trial court's failure to order the bond forfeited on November 19, 2014, violated section 1305, subdivision (a), and divested the court of jurisdiction over the bond on that date. As such, we need not reach Financial's second issue regarding the trial court's April 9, 2015 forfeiture order, because the bond had been exonerated by operation of law before that order was entered. (People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 582, 588.)
As previously discussed, because the summary judgment entered on December 9, 2016, is void, Financial was within its rights to raise the jurisdictional issue for the first time on appeal. However, we recognize that had the argument been raised before appeal, the parties and this court most likely would have avoided the expense of time and resources required by appeal. Therefore, in the interest of justice, we grant the county's request that costs not be awarded to Financial. (Cal. Rules of Court, rule 8.278(a)(5).)
IV.
DISPOSITION
The December 9, 2016 summary judgment forfeiting Financial's bond and the February 24, 2017 order denying the motion to set aside judgment are reversed. We direct the trial court to enter orders granting the motion, vacating the forfeiture, and exonerating the bond. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.