Opinion
B293606
06-11-2020
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
Law Office of John Rorabaugh, John Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel and David D. Lee, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 0SJ2178) APPEAL from an order and judgment of the Superior Court of Los Angeles County, Maame E. Frimpong, Judge. Affirmed. Law Office of John Rorabaugh, John Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel and David D. Lee, Deputy County Counsel for Plaintiff and Respondent.
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Appellant Financial Casualty & Surety Inc. (surety) posted a $150,000 bail bond to secure the release of a criminal defendant pending trial. The defendant failed to appear, and the trial court ordered bail forfeited. The court then denied the surety's motion to vacate the forfeiture and exonerate the bond and, subsequently, entered judgment on the bond.
The surety appealed from the judgment and order, contending the trial court did not enter judgment within the 90-day period provided by statute, and the bond was not enforceable because the bond amount was set without an evaluation of the defendant's ability to pay, in violation of his constitutional rights.
We conclude that the trial court timely entered judgment on the bond, and any failure by the trial court to consider the defendant's ability to pay did not invalidate the bond. We therefore affirm the judgment and order.
FACTUAL AND PROCEDURAL BACKGROUND
A felony complaint was filed against defendant Jorge Gonzalez (defendant) on August 1, 2016. Defendant was arraigned the same day, and the trial court set bail in the amount of $150,000. On September 12, 2016, Bail Hotline Bail Bonds, an agent of the surety, posted a $150,000 bail bond for defendant's release.
Defendant's bail was ordered forfeited on March 29, 2017 when defendant failed to appear in court. A notice of the forfeiture was mailed to the surety on April 4, 2017. On November 3, 2017, the court granted the surety's motion to extend the period within which it could seek to exonerate the bond to May 2, 2018.
On May 2, 2018, the surety filed a motion to vacate forfeiture and exonerate the bond. In support, it contended the order setting bail was unconstitutional because the amount of bail had been set without any inquiry into defendant's ability to pay.
On October 3, 2018, the trial court denied the motion to vacate forfeiture and exonerate the bond. On October 9, 2018, the court entered judgment against the surety on the forfeited bond and served notice of entry of judgment.
The surety timely appealed from the order denying the motion to vacate and the resulting judgment.
An order denying a motion to vacate or set aside a forfeiture and exonerate the bail bond is an appealable order. (People v. Financial Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 376; County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542.) A judgment entered following the forfeiture of a bail bond is also appealable in some circumstances—namely, if judgment is not entered in compliance with the bond's forfeiture provisions. (Id. at p. 542, fn. 2; People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 663-664.) Because this opinion concludes the judgment was properly entered, it is theoretically arguable that the judgment is not appealable. (Fairmont, at p. 542, fn. 2.) However, because the order denying the motion to vacate the forfeiture is appealable, we need not decide whether the resulting judgment is also appealable.
DISCUSSION
The surety raises two issues on appeal. First, it contends the trial did not enter judgment on the bond within 90 days of the order denying the surety's motion to vacate the forfeiture, and thus the bond was exonerated by operation of law. Second, the surety urges the bond was not enforceable because the bond amount was set without an evaluation of the defendant's ability to pay, in violation of defendant's constitutional rights. As we discuss, neither contention has merit.
I.
Standard of Review
"Ordinarily, appellate courts review an order denying a motion to vacate the forfeiture of a bail bond under an abuse of discretion standard." (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.) When the appellate court is deciding only legal issues, however, it conducts an independent review. (Ibid.) If there are factual disputes, "the trial court's findings of fact will be upheld under the abuse of discretion standard when those findings are supported by substantial evidence." (People v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th 548, 555.)
II.
The Trial Court Timely Entered Judgment
on the Bond on October 9, 2018
A. Overview
"While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature. (People v. Wilcox (1960) 53 Cal.2d 651, 654.) 'The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court.' (Id. at pp. 656-657; see Stack v. Boyle (1951) 342 U.S. 1, 5 ['Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused'].)" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657 (American Contractors).)
Although bail bonds are regarded as contracts between the government and the surety (American Contractors, supra, 33 Cal.4th at p. 657), the forfeiture and exoneration of bail bonds is a statutory procedure governed by the Penal Code. When a criminal defendant 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. (Pen. Code, § 1305, subd. (a).) Thereafter, the surety that posted the bond has a statutory "appearance" period in which to either produce the accused in court and have the forfeiture set aside, or demonstrate other circumstances requiring the court to vacate the forfeiture. For a bond exceeding $400, the appearance period is 185 days (180 days, plus five days for service by mail). (§ 1305, subds. (b)(1), (c)(1); People v. Western Ins. Co. (2012) 204 Cal.App.4th 1025, 1030 (Western Ins. Co.).) On the surety's motion, the court may, upon a showing of good cause, extend the appearance period for up to an additional 180 days. (§ 1305.4.)
All subsequent undesignated statutory references are to the Penal Code.
A surety's motion to exonerate the bond or vacate the forfeiture is timely if it is filed within the appearance period. (§ 1305, subd. (j); People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 762 (Granite State).) A timely motion to vacate the forfeiture may be heard within 30 days of the expiration of the appearance period, and the court may extend the 30-day period to hear the motion on a showing of good cause. (§ 1305, subd. (j); Granite State, at p. 762.)
If the trial court does not set aside the forfeiture, it must enter summary judgment against the surety. (§ 1306, subd. (a); Western Ins. Co., supra, 204 Cal.App.4th at p. 1030.) Summary judgment must be entered within 90 days of the expiration of the appearance period, or, if the surety has filed a motion to vacate the forfeiture, within 90 days of the court's order denying the motion to vacate. (§ 1306, subd. (c); Granite State, supra, 114 Cal.App.4th at p. 762.) If the court fails to timely enter summary judgment, "the right to do so expires and the bail is exonerated." (§ 1306, subd. (c).)
B. The Trial Court Entered Judgment on the Bond on October 9, 2018
It is undisputed that the surety timely moved to vacate the forfeiture and exonerate the bond, and the court timely denied that motion on October 3, 2018. It also is undisputed that the trial court had 90 days from October 3, 2018, or until January 2, 2019, to enter summary judgment. And, it is undisputed that the trial court signed the judgment on October 9, 2018, well within the 90-day period.
The surety contends, however, that although the trial court signed the judgment on October 9, it did not "enter" it within the meaning of section 1306, subdivision (c), but instead "merely placed [the judgment] in the court file." The surety therefore contends that judgment on the bond was not timely entered and, as a result, the bond must be exonerated. (§ 1306, subd. (c).) For the reasons that follow, the claim is without merit.
Prior to 1974, entry of judgment was governed exclusively by Code of Civil Procedure section 668, which required each county to maintain a judgment book, and provided that judgment was not entered until it was placed in the judgment book. In 1974, the Legislature enacted Code of Civil Procedure section 668.5, which as originally enacted permitted counties to cease use of judgment books so long as they microfilmed judgments before placing them in the court file. (See County of Los Angeles v. Ranger Ins. Co. (1994) 26 Cal.App.4th 61, 63.)
Code of Civil Procedure section 668.5 was adopted in its current form in 1983. It provides: "In those counties where the clerk of the court places individual judgments in the file of actions and either a microfilm copy of the individual judgment is made, or the judgment is entered in the register of actions, or into the court's electronic data-processing system, prior to placement of the judgment in the file of actions, the clerk shall not be required to enter judgments in a judgment book, and the date of filing the judgment with the clerk shall constitute the date of its entry." (Italics added.)
In the present case, the documents in our appellate record reflect that Judge M. Frimpong signed a judgment in the amount of $150,435 (the amount of the bond, plus court costs) in favor of "Plaintiff, People of the State of California," and against "Financial Casualty and Surety, Inc," on October 9, 2018. The judgment bears a file stamp indicating it was "filed and entered" by "Jessica Flores, Deputy," on behalf of "Sherri R. Carter, Executive Officer/Clerk." Notice of entry of the judgment was served on "Financial Casualty and Surety, Inc." on October 9, 2018, the same day the judgment was signed.
Although the surety concedes the judgment was signed by the judge and served on the surety on October 9, 2018, it asserts the judgment was never "filed" because it "was not file stamped." In fact, as we have said, the judgment bears a file stamp indicating it was "filed and entered." And, although the file stamp does not bear a date, we are unaware of any authority, and the surety cites none, for the proposition that the absence of a date on the file stamp means the judgment was not "filed." To the contrary, case authority suggests a judgment is deemed "filed" when it is signed by the court. (Filipescu v. California Housing Finance Agency (1995) 41 Cal.App.4th 738, 741 [rejecting contention that judgment had not been entered because it did not appear in the register of actions; "since the judgment was signed by the law and motion judge on June 30, 1995, it was deemed entered on that date"].) And, because Los Angeles County does not maintain a judgment book, a judgment is "entered" within the meaning of Code of Civil Procedure section 668.5 when it is "fil[ed] . . . with the clerk." (Code Civ. Proc., § 668.5.)
For all of these reasons, the judgment was entered within the 90-day period following the order denying the motion to vacate the forfeiture, and the bond was not exonerated by operation of law.
III.
The Trial Court Did Not Abuse Its Discretion
by Denying the Motion to Vacate Forfeiture
and Exonerate Bail
The surety contends the defendant had a constitutional due process right to have the trial court consider his ability to pay before setting bail. (See In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278.) Because the trial court failed to do so, the surety contends the bail contract was void and, therefore, the trial court was required to vacate the bond forfeiture. For the reasons that follow, the claim is without merit.
The Court of Appeal considered and rejected identical claims in People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891 (Accredited) and People v. North River Ins. Co. (2020) 48 Cal.App.5th 226 (North River). In Accredited, a criminal defendant was arrested and released on a bond posted by his bail bond agent. (Accredited, at p. 895.) When the defendant failed to appear at his sentencing hearing, the trial court ordered bail forfeited and, subsequently, denied the bond agent's motion to vacate the forfeiture. (Id. at pp. 895-896.) On appeal, the bond agent contended the trial court violated the defendant's constitutional right to due process by failing to consider his ability to pay before setting the bail amount. As a result, the agent urged, the bond contract was unconstitutional and void. (Id. at p. 896.)
The court held the bond agent had standing to raise the constitutional argument, but the argument failed on the merits. The court explained that ability-to-pay considerations were intended to protect an individual defendant's liberty interests, ensuring that a defendant " 'not be imprisoned solely due to poverty.' " (Accredited, supra, 34 Cal.App.5th at pp. 897-898, quoting In re Humphrey, supra, 19 Cal.App.5th 1006, 1041.) These considerations were for the protection of the defendant, and were not intended to "relieve[] the surety of its obligations under the bond once it has been executed." (Accredited, at p. 898.) Moreover, any defects and irregularities in the proceedings preliminary to the taking of bail " 'are considered as waived by the surety when it assumes its obligations as such at the time of the execution of the bond.' " (Id. at p. 898.) Thus, the court concluded, failure to conduct an ability-to-pay hearing before setting bail "did not render the subsequently issued bond void." (Id. at p. 899; see also North River, supra, 48 Cal.App.5th at p. 234 [trial court's failure to consider criminal defendant's ability to pay resulted, in "at best, a bail order that is voidable, not void," as to the defendant only].)
The court explained: "The statutory procedural requirements for setting bail set forth in sections 1269a, 1269b, 1269c, 1270.1, and 1275 do not 'address the validity of the bond but rather the procedure for the release of a defendant from custody upon bail.' [Citation.] The procedural requirements contained in these sections were not intended to protect the surety on the bail bond. In contrast, the procedural requirements set forth in sections 1305 and 1306, dealing with the procedural requirements for forfeiture and exoneration of the bond, do protect the surety. [Citations.] Failure to comply with the procedural requirements of setting bail is not among the statutory grounds for exoneration of the bail bond." (Accredited, supra, 34 Cal.App.5th at pp. 898-899.)
We agree with Accredited's and North River's analyses and adopt them here. Accordingly, for the reasons addressed in those cases, we conclude that the trial court's failure to consider the defendant's ability to pay did not invalidate the bail bond.
DISPOSITION
The judgment and order denying the motion to vacate forfeiture and exonerate bail are affirmed. The respondent is awarded its appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
DHANIDINA, J.