Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct. No. BAF003938, James T. Warren, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Patricia Munroe, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant and appellant Indiana Lumbermens Mutual Insurance Company was the surety on a $100,000 bail bond given to secure the appearance of Damon Arnelious Hall on felony charges. Hall failed to appear on March 30, 2009, and the bond was forfeited. Defendant filed a motion to vacate the forfeiture and exonerate bail. The trial court denied the motion and defendant appeals from that denial.
Defendant raises one claim on appeal that, since on prior occasions Hall missed court appearances and the court did not declare forfeiture of the bond as it was required to do so by Penal Code section 1305, the court lacked jurisdiction to later declare a forfeiture.
All further statutory references are to the Penal Code unless otherwise indicated.
We find defendant’s argument persuasive and reverse the trial court’s denial of the motion to vacate forfeiture and exonerate bail. We also reverse the award of costs to plaintiff and respondent, the People, ordered by the trial court.
I
FACTUAL AND PROCEDURAL BACKGROUND
On September 24, 2010, defendant filed a motion to augment the record on appeal with the reporter’s transcript for the hearing on the motion to vacate forfeiture and exonerate bail. We granted the motion.
On July 3, 2008, defendant posted a bail bond in the amount of $100,000 on behalf of Hall in Riverside County Superior Court case No. BAF003938 for charges, including robbery, and weapons and gang allegations.
On September 12, 2008, Hall appeared in court for trial. His counsel’s motion to continue the case was granted. Hall was ordered to return on any and all future hearing dates.
On September 16, 2008, the case was called for “jury trial.” Hall was not present. The minute order states: “Defense Counsel appears for [Hall] 977 PC.” The case was continued and the bail bond continued. No excuse, other than a section 977 waiver, appears in the record. No oral or signed written section 977 waiver—which allows a defendant to personally waive his appearance at specific trial proceedings—by Hall himself appears in the record.
On October 15, 2008, the case was called for “jury trial trailing.” Hall was present. The case was trailed to the following day. The minute order provides that “[Hall]’s presence is waived for appearance of 10/16/2008 only.” On October 16, 2008, Hall was not present at the jury trial trailing appearance. Counsel stated that he was appearing based on Hall’s section 977 waiver.
Hall failed to appear on March 30, 2009, and the clerk mailed a notice of forfeiture to the bail bondsman, The Bail Hotline Bail Bonds, and defendant. Upon a motion by the bail bondsman, time was extended on the bail bond to April 19, 2010.
On March 16, 2010, defendant filed a motion to vacate forfeiture and exonerate bail. In that motion, defendant argued, relying upon People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549 (Ranger) (which will be discussed in more detail, post) that since Hall had not been present in court on two prior occasions when the case was set for trial, and the trial court did not declare a forfeiture at that time, that it had lost jurisdiction to declare a forfeiture on the bond. Even though Hall’s counsel stated that he was appearing for Hall pursuant to a waiver under section 977, the waiver did not supersede Hall’s requirement to be present under the bail bond statute, i.e., section 1305.
Plaintiff filed opposition, arguing that the section 977 waiver was valid and that Hall could rely on his counsel’s appearance in not appearing.
At the hearing on the matter, the trial court stated that it had read Ranger and the motion and opposition. Defendant argued that the case was identical to Ranger. The bond was to be forfeited each time that Hall did not appear, even if he appeared at a later court date. Plaintiff argued that the 977 waiver was valid to excuse Hall’s presence. The trial court ruled, without explaining why it felt this case differed from Ranger, that “[a]t this time the motion is denied. I will order costs of $634.77, ” which was the fees for plaintiff to oppose the motion.
Summary judgment was entered on the bond.
II
ANALYSIS
Defendant contends the trial court erred by denying its motion to vacate forfeiture and exonerate bond. We agree.
“‘An order denying a motion to set aside a forfeiture is appealable. [Citations.]’ [Citation.] ‘The determination of a motion to set aside a bail forfeiture is in the discretion of the trial court and should not be disturbed on appeal unless an abuse of discretion appears in the record. [ Citation.]’ [Citation.]” (American Contractors Indemnity Co. v. County of Orange (2005) 130 Cal.App.4th 579, 583.)
Section 1305, subdivision (a) provides as follows: “(a) A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: [¶] (1) Arraignment. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. [¶] (5) To surrender himself or herself in execution of the judgment after appeal.” (Italics added.) Bail bond surety guarantees that the defendant will appear in court and if the defendant fails to appear without excuse, it is the surety who “is absolutely indebted to the state for the amount of the bond. [Citation.]” (People v. Allen (1994) 28 Cal.App.4th 575, 581.)
“The courts have held that because the law disfavors forfeitures, these provisions [section 1305 et seq.] regarding forfeiture of bail establish jurisdictional requirements that must be strictly construed in favor of the surety and the individual citizens who pledge their property to the surety on behalf of persons seeking release from custody.” (People v. National Automobile & Casualty Ins. Co. (2004) 121 Cal.App.4th 1441, 1448.)
The record is not in dispute that when Hall appeared on September 12, 2008, he was ordered to return on any and all future hearing dates. He failed to appear on September 16, 2008, a day set for “jury trial, ” and defense counsel stated that he was appearing for Hall pursuant to section 977. However, despite Hall’s failure to appear on that date, the bond was not forfeited. It was not until March 30, 2009, when Hall failed to appear again, that the bond was forfeited.
Plaintiff argued at oral argument that this generic language in the minute order only required that Hall or his counsel return to court, not that Hall personally appear. We will address this issue in more detail, post, but do not rely on this language in the minute order to decide this case, since we find Hall was required to appear for jury trial.
The trial court, by failing to declare a forfeiture on September 16, 2008, was without jurisdiction to declare a forfeiture on March 30, 2009. The Ranger court found, under identical circumstances as those here, as follows: “We find that the trial court lost jurisdiction when it failed to declare the bail bond forfeited when defendant failed to appear for trial. The word ‘trial’ includes ‘all proceedings from the time when the parties are called to try their cases in court or from the time when issue is joined to the time of its final determination.’ [Citation.] The date the trial is set is the calling of the parties to try their case in court. While it is clear that in today’s congested courts a case often does not go out to trial on the date set, that does not mean it is not by definition the date set for trial. The day set for the appearance in the master trial calendar department is the day for trial, whether it occurs or not. [¶] Section 1305 commands the court to forfeit the bail bond if, without sufficient excuse, a defendant fails to appear for trial. It is well settled that whenever a defendant fails to appear in court on one of the occasions enumerated in section 1305, the court must declare a forfeiture (if the record does not show a sufficient excuse for defendant’s absence) or else the court loses jurisdiction and the bond is exonerated by operation of law. [Citations.]” (Ranger, supra, 66 Cal.App.4th at p. 1553.)
Although Hall did not appear on October 16, 2008, the trial court advised him he did not have to appear on that date “only.”
Plaintiff contends that Hall had sufficient cause not to appear because his counsel appeared pursuant to section 977. Initially, the record does not contain a written section 977 waiver. This court has found that a written section 977 waiver is not necessary. However, the defendant must have “knowingly and voluntarily absented himself from trial.” (People v. Howard (1996) 47 Cal.App.4th 1526, 1539 [Fourth Dist., Div. Two.) There is nothing in the record explaining Hall’s absence on September 12, 2008, or indicating that he voluntarily absented himself from the proceeding. As such, it is arguable that Hall’s counsel’s representation that he was appearing for Hall under section 977 was not valid.
Nonetheless, despite counsel’s representation that he was appearing on a section 977 waiver in this case, Hall was required to appear under section 1305. Section 977, subdivision (b)(1) provides that a felony defendant must be present “at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence.” Section 977, subdivision (b)(2) provides that the defendant need not be present on other occasions if he has executed a written waiver, and the specific wording for that waiver is set out in the statute.
Ranger provides that although there is an apparent conflict between sections 977 and 1305, the specific language of section 1305 controls. It concluded as follows: “The People argue that because there was a section 977 waiver in place, defendant was excused from appearing at the master trial calendar hearing.... Section 977 allows the felony defendant to be absent on specified occasions including those parts of the trial when evidence is not being taken before the trier of fact. [Citation.] Section 1305 requires the defendant to be present for trial or else his bail must be forfeited. Thus, an apparent conflict exists between sections 977 and 1305. [¶] Section 977 is a general law designed to protect a defendant’s right to be present at his trial and other proceedings. [Citation.] Section 1305 is clearly a specific or special statute designed to govern the procedure to be followed when bail is to be forfeited. When there is a conflict between a general and a special law, the special law must control. [Citations.]” (Ranger, supra, 66 Cal.App.4th at pp. 1553-1554.) The Ranger court concluded that the trial court was without jurisdiction to forfeit bail because the section 977 waiver did not provide sufficient cause for Hall’s appearance.
Here, Hall failed to appear and bail should have been forfeited on September 16, 2008, even in light of his counsel’s representation through section 977. By failing to so order, the trial court lacked jurisdiction to forfeit the bond on March 30, 2009. Plaintiff argued at oral argument that Ranger is distinguishable because in Ranger the trial court did not proceed with trial because of the defendant’s absence, but in the instant case it was due to Hall’s counsel not being ready to proceed. However, Ranger did not discuss this issue, and it had no bearing on the decision regarding forfeiture of the bond. Plaintiff provides nothing to distinguish this case from Ranger.
Plaintiff makes two additional arguments that: (1) the surety must comply with the statutory requirements for tolling summary judgment by bringing Hall to court; and (2) even without the section 977 waiver, Hall had sufficient cause not to appear because his counsel was present and there was no objection by the court or prosecutor. Although plaintiff raises these issues, it does not provide sufficient argument to support that the claims are applicable here. Moreover, both arguments are devoid of merit. The tolling issue has no bearing on the trial court’s jurisdiction to forfeit bail, and the second argument is merely the same argument as a section 977 waiver excusing Hall’s nonappearance, and we assume that there was a valid section 977 waiver.
At oral argument, Plaintiff relied on this court’s recently published case of People v. Indiana Lumbermens Mutual Ins. Co. (2011) 194 Cal.App.4th 45 [Fourth Dist., Div. Two] (Indiana). In Indiana, the defendant appeared for arraignment and filed a written waiver of his presence under section 977. Defendant was out of custody on a bond. A date was set for the preliminary hearing. Prior to the date set for the preliminary hearing, a written motion for a continuance had been filed and was to be heard. Defendant did not appear at the hearing on the motion, and the preliminary hearing was continued. Thereafter, two more continuances of the preliminary hearing were granted, and defendant was not present but appeared through counsel under his written section 977 waiver. (Indiana, at pp. 47-48.) Defendant appeared at several other proceedings, eventually pleaded guilty, and then failed to appear at sentencing. The trial court forfeited the bond at the sentencing hearing when defendant failed to appear. The surety filed a motion to set aside the forfeiture, arguing the court lost jurisdiction when it did not declare the forfeiture on his first failure to appear when the preliminary hearing was scheduled. The trial court denied the motion, and the surety filed an appeal. (Id. at p. 48.)
The surety contended on appeal that when defendant first failed to appear for the preliminary hearing, the trial court was required to declare a forfeiture or lose jurisdiction. (Indiana, supra, 194 Cal.App.4th at p. 49.) This court rejected this argument, finding, “[T]he record does not show that the case was actually called for the preliminary hearing on that date. The record indicates that a motion for continuance was filed before the hearing. Rather than being called for the preliminary hearing, then, the case was actually called for a hearing on the continuance motion. Because the motion was granted, the case was never called for the preliminary hearing.... Because neither section 977 nor section 1305 requires a defendant’s presence for a hearing on a motion for a continuance, the section 977 waiver precluded a finding that [defendant]’s absence was unexcused.” (Id. at p. 50.)
The Indiana court distinguished Ranger, finding that in Ranger the case was called “for” trial on the master calendar, but in Indiana the case was not called “for” preliminary hearing, but rather for a hearing on a previously filed motion for continuance. (Indiana, supra, 194 Cal.App.4that pp. 50-51.)
The Indiana court further rejected the surety’s argument that since the minute order stated that defendant was to return “‘on any and all future hearing dates, ’” his appearance was required even on a continuance motion. “However, the minute orders do not state that [defendant] was required to be personally present; they merely order him to return. [Defendant] was present at all such hearings, either personally or through counsel. And, the minutes of each hearing at which [defendant] was not personally present state that he appeared through counsel pursuant to section 977, and they also state that the current bond was continued. From this record we can infer only that the court did not intend to require [defendant]’s personal attendance.” (Indiana, supra, 194 Cal.App.4th at pp. 51-52.)
The instant case is distinguishable from Indiana. In Indiana, a written motion for continuance was filed prior to the date set for the preliminary hearing; as such, the proceeding at which the defendant did not appear was a hearing on a motion for continuance, not “for” preliminary hearing. Here, the record before this court shows that on September 16, 2008, the case was called “for” jury trial. There is no written continuance motion in the record. Although a continuance motion was granted, no written continuance motion was filed, and defendant should have been present on September 16, 2008.
At oral argument, plaintiff argued that the minute order from September 12, 2008, supports that the case was called for a hearing on the motion for continuance on September 16, 2008, not for jury trial. On the September 12, 2008, minute order, the language states that “[h]earing is continued to 9/16/2008 @ 8:30 in Dept. 63B.” However, just before that, the September 12 minute order states that the motion to continue was granted. It makes no logical sense that the hearing on the motion to continue would be continued to September 16, 2008, when the motion had already been granted. The minute order for September 16, 2008, states that it is for “jury trial.” The case was continued again and set for jury trial on September 19, 2008. It was clear that each appearance was for jury trial and no written continuance was filed before the hearings. Plaintiff’s claim made at oral argument that all minute orders used the generic term “jury trial” is not only outside the appellate record, it makes no sense in this case when the only possible purpose for the parties to appear on these dates was for jury trial.
This case is indistinguishable from Ranger, and any findings that this court made in Indiana do not change the outcome in this case. Based on the facts of this case, the trial court erred by failing to grant defendant’s motion to vacate forfeiture and exonerate bail.
III
DISPOSITION
We reverse the trial court’s denial of defendant’s motion to vacate forfeiture and exonerate bail. The trial court is directed to exonerate the bond and order reimbursement to defendant if the bond was paid. We further vacate the trial court’s award of costs to plaintiff in the amount of $634.77. Defendant is awarded its costs on appeal.
We concur: RAMIREZ P.J., McKINSTER J.