Opinion
G056893
10-02-2019
THE PEOPLE, Plaintiff and Respondent, v. UNITED STATES FIRE INSURANCE, Defendant and Appellant.
Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Leon J. Page, County Counsel, D. Kevin Dunn, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 15CF2456) OPINION Appeal from a judgment of the Superior Court of Orange County, Larry Yellin, Judge. Affirmed. Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Leon J. Page, County Counsel, D. Kevin Dunn, Deputy County Counsel for Plaintiff and Respondent.
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Tony Sysavanh was out on bail when he failed to appear at a preliminary hearing. His counsel asked the court to refrain from forfeiting bail on the ground that, in the year and a half of proceedings to that point, defendant had made every appearance. The court agreed and continued the matter for a little over a month, but defendant failed to appear at the next hearing also, so the court forfeited bail.
United States Fire Insurance (US Fire), the surety on the bail bond, moved to vacate the forfeiture arguing that the bond had been exonerated as a matter of law when the court failed to forfeit bail at the first hearing. Its argument goes like this: Penal Code section 1305 says the court "shall" forfeit bail if a defendant fails to appear, and this requirement is deemed jurisdictional; the failure to declare a mandated forfeiture exonerates the bail as a matter of law. Section 1305.1 provides an exception where the court "has reason to believe that sufficient excuse may exist for the failure to appear" in which case the court may continue the matter without forfeiting bail. Here, US Fire argues, there was no evidence at all as to why defendant failed to appear, much less evidence of a sufficient excuse. Thus the court was required to forfeit bail at the first hearing. We disagree.
All statutory references are to the Penal Code unless otherwise stated.
Section 1305.1 gives the court broad latitude to continue a hearing without forfeiting bail. While a silent record cannot support a continuance, the record here was not silent. Under People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 952 (Ranger 2003), defendant's consistent attendance provided the court reason to believe a sufficient excuse may exist, warranting the continuance.
US Fire also contends the bail contract is void because, in setting bail, the court failed to make any inquiry about defendant's ability to pay. Citing In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278 (Humphrey), US Fire contends this was unconstitutional and voids the contract. This exact argument was recently rejected in People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891, which reasoned that a surety on a bail bond waives any Humphrey violations by voluntarily entering into the bail contract after bail has been set, and the protections announced in Humphrey are for the benefit of the defendant, not the surety. We find its analysis persuasive and thus affirm the court's denial of the motion to vacate the forfeiture.
FACTS
In October 2015, Tony Sysavanh was charged with second degree robbery (§§ 211, 212.5, subd. (c)) and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). The public defender was appointed to represent him, and he was ordered to appear at his upcoming preliminary hearing in November of that year. Bail was set at $100,000. He posted bail about a week later.
Both parties agree that defendant was present at all required hearings through May 18, 2017, when defendant failed to appear for a continued preliminary hearing (the May 18 hearing). Defendant's counsel also did not appear personally, but instead specially appeared through the alternate public defender, who was representing a codefendant. The alternate public defender told the court, "Your honor, we are asking for a future preliminary hearing setting of 6/28. I am specially appearing for [Sysavanh's counsel] from the [Public Defender's] office on behalf of [Sysavanh]. [Sysavanh] is not currently present before the court. I know that [Sysavanh's counsel] was asking for the court to hold a bench warrant until that future date of the 28th or any other date to allow her to have contact with her client and bring him in. I believe he has made all his prior appearances before." The court issued a warrant but held it until June 28, 2017. The minutes reflect, "Bail forfeiture for bond #U100-20573810 deferred due to Court finding pursuant to Penal Code [section] 1305.1." "Present bail deemed sufficient and continued."
Defendant did not appear on June 28, 2017 (the June 28 hearing), and the court ordered the bond forfeited. US Fire, who, through its agent, had posted the bail bond, moved to vacate the forfeiture on the ground the court had lost jurisdiction to forfeit bail when it elected not to forfeit bail at the May 18 hearing. The court denied the motion. It subsequently entered summary judgment against US Fire. US Fire appealed.
DISCUSSION
The Court Did Not Lose Jurisdiction to Forfeit Bail
US Fire contends the court lost jurisdiction to forfeit bail when it decided not to forfeit bail at the May 18 hearing. When a defendant on bail fails to appear at a mandatory hearing without sufficient excuse, the court must declare bail forfeited. (§ 1305, subd. (a)(1).) However, the court may continue the case "for a period it deems reasonable to enable the defendant to appear without" declaring bail forfeited if "the court has reason to believe that sufficient excuse may exist for the failure to appear." (§ 1305.1.) Our high court has described this statutory scheme as creating a presumption that a nonappearing defendant has no excuse, but the presumption is rebutted if there is "some rational basis for a belief at the time of his nonappearance that there exists a sufficient excuse therefor." (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906.) Although a silent record cannot justify a continuance, the standard for obtaining a continuance is quite low; "[e]ven vague assertions by defense counsel have been found to provide sufficient excuse." (People v. The North River Ins. Co. (2019) 37 Cal.App.5th 784, 797; People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 918 [counsel's vague assertion that "'there may be an emergency'" and the defendant "'may be available tomorrow morning'" deemed sufficient grounds for a continuance].)
Reasoning backward from section 1305.1, US Fire contends there was no sufficient excuse for defendant's failure to appear at the May 18 hearing, which means the court was required to forfeit bail, and its failure to do so deprived it of jurisdiction to forfeit bail at the June 28 hearing. (See People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 710 ["If the court fails to declare a forfeiture at the time of the defendant's unexcused absence, it is without jurisdiction to do so later"].) The question in this appeal, therefore, is simply whether the court had reason to believe that sufficient excuse may have existed for Sysavanh's failure to appear at the May 18 hearing. We review this question for abuse of discretion. (Ranger 2003, supra, 108 Cal.App.4th at p. 952.)
The record reveals one basis for finding reason to believe that sufficient excuse may have existed: defendant had a perfect record of attendance in the year and a half prior to the May 18 hearing. Was that enough? Under Ranger 2003, supra, 108 Cal.App.4th 945, which is on all fours with this case, it was.
In Ranger 2003 the defendant failed to appear at a hearing approximately 10 months into the proceedings. (Ranger 2003, supra, 108 Cal.App.4th at p. 948.) Defense counsel had "tried calling every number [he knew]," but could not reach the defendant. (Id. at p. 949.) At defense counsel's request, the court continued the hearing one day, finding, "'the good cause is he hasn't missed in the past. There is no reason to think otherwise yet. Tomorrow is another day.'" (Ibid.) The defendant subsequently failed to appear. (Id. at p. 950.)
On appeal, the bail company made the same jurisdictional argument we confront here. (Ranger 2003, supra, 108 Cal.App.4th at p. 950.) The Court of Appeal was unpersuaded, finding the record supported the continuance under section 1305.1: "In the present case it is true defense counsel had not communicated with the defendant and it is also true counsel did not provide any direct evidence to explain or justify the defendant's absence. However, the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance to justify continuing a hearing without declaring a bail forfeiture. Instead, the statute requires the court only have 'reason to believe that sufficient excuse may exist for the failure to appear.' [¶] The trial court in the present case impliedly agreed with defense counsel the defendant's absence was so unusual something must have happened." "The court's own experience with the defendant's past behavior over a several month period provided a 'rational basis' for believing there might be a sufficient excuse for the defendant's absence." (Ranger 2003, supra, 108 Cal.App.4th at p. 953, fn. omitted.)
The Ranger 2003 court relied in part on the policies animating the exception in section 1305.1. "The theory behind this exception is that '[i]f bail forfeiture is required immediately upon the first nonappearance of a defendant, no matter how valid his reason for nonappearance be, such defendant would be subjected not only to having his bail forfeited but the additional penalty of possibly being required to pay another premium for its reinstatement.'" (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 19.) Thus, the exception protects the accused from being remanded into custody, or, at a minimum, the financial liability of obtaining a new bond.
US Fire questions the soundness of this reasoning, arguing the court can mitigate any financial liability by, in lieu of exonerating the bond, ordering the bond reinstated pursuant to section 1305, subdivision (c)(4). But that section only applies if "[t]he bail has not surrendered the defendant." (Id., subd. (c)(4)(B).) If the surety surrenders the defendant, the bond must be exonerated. (Ibid.; see § 1305, subd. (c)(1); see also § 1300, subd. (b) [where surety surrenders defendant to custody, the court may only order the premium returned to a defendant "who has not failed to appear"].) And in that case the defendant is in the position of either being remanded to custody or paying the premium for a new bond. Thus section 1305, subdivision (c)(4), only partially mitigates a defendant's potential financial liability once a forfeiture is declared.
Section 1305, subdivision (c)(4) provides: "In lieu of exonerating the bond, the court may order the bail reinstated and the defendant released on the same bond if both of the following conditions are met: [¶] (A) The bail is given prior notice of the reinstatement. [¶] (B) The bail has not surrendered the defendant."
The holding in Ranger 2003, supra, 108 Cal.App.4th 945, is also consistent with the law's general disfavor of forfeiture, which "extends to forfeiture of bail" (id. at p. 950), and which "'compels us to protect the surety, and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody, in order to obtain the corporate bond.'" (People v. American Contractors Indemnity Co. (2001) 91 Cal.App.4th 799, 805.)
We recognize there is an important competing policy animating the bail statutes. The requirement that bail be declared forfeited promptly and in open court (§ 1305, subd. (a)(1)) reflects the reality that longer delays in notifying the surety of a defendant's absence make it more difficult to locate and return the defendant. That potentially undermines public safety and may ultimately harm the surety's interests if it is unable to locate and surrender the defendant within 180 days. (See § 1305, subd. (c)(1) [forfeited bond is exonerated if the defendant appears in court within 180 days of forfeiture]; People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906 [articulating the policy of prompt forfeiture]; People v. National Automobile & Casualty Ins. Co. (2002) 98 Cal.App.4th 277, 283-284 [same].) However, the Legislature balanced these competing policies by statute, and in describing the scope of the court's authority to order a continuance under section 1305.1, it chose to employ broad language: "has reason to believe that sufficient excuse may exist . . . ." The Ranger 2003 decision is consistent with the broad scope of the trial court's discretion, and thus we choose to follow it. There was no abuse of discretion.
US Fire did not argue that the court abused its discretion in continuing the matter for 41 days, as opposed to, for example, the one-day continuance the court issued in Ranger. We express no opinion on the matter. Our holding is limited to whether the court abused its discretion in relying on perfect attendance over a period of a year and a half to supply a rational basis for believing defendant's absence may have been justified.
The Bail Contract Was Not Void
Next, US Fire contends the bail contract was void because it was based on an unconstitutional bail order. There are two premises to its argument: (1) that setting bail without an individualized assessment of a defendant's ability to pay violates the defendant's due process rights; and (2) that any bail contract based on that unconstitutional process is void. Assuming the first premise to be true, we do not believe the second premise to be sound.
Humphrey, supra, 19 Cal.App.5th 1006, which was a petition for a writ of habeus corpus following an order setting bail, stands for the proposition that a court must consider a defendant's ability to pay in setting bail: "[U]nquestioning reliance upon the bail schedule without consideration of a defendant's ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process for a decision that may result in pretrial detention. Once the trial court determines public and victim safety do not require pretrial detention and a defendant should be admitted to bail, the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant's appearance at trial or a court ordered hearing." (Id. at p. 1044.) Although Humphrey is pending review before our Supreme Court, we will assume this is a correct statement of the law. Here, there is no indication the court made any sort of individualized inquiry into Sysavahn's ability to pay bail, and thus the court utilized a presumptively unconstitutional procedure.
The question becomes: What does that have to do with US Fire, who supplied a bail bond knowing the amount of the bond, presumably secured adequate collateral for the bond, and benefitted from the premium on the bond? US Fire argues "the order setting bail must be valid in order for the forfeiture to be enforced." It bases this conclusion on two cases.
The first is People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588. There, the defendant posted $35,000 bail. (Id. at p. 590.) At a subsequent hearing, it came to the court's attention that the defendant had four outstanding warrants, prompting the court to first remand defendant into custody, and subsequently increase bail to $100,000. (Ibid.) Because the defendant already had a bond in the amount of $35,000, the court permitted defendant to obtain an additional $65,000 bond to make up the difference, which the defendant obtained from a different surety later that day. (Id. at pp. 590-591.) He subsequently failed to appear, and the court forfeited both bonds. (Id. at p. 591.) The surety that posted the original $35,000 bail bond successfully moved to exonerate that bond on the ground that when defendant was remanded into custody, however briefly, the bond was exonerated as a matter of law. (Id. at p. 591.) The court did not exonerate the $65,000 bond, however, and that surety appealed. The Court of Appeal reversed, reasoning that the $35,000 bond was exonerated as a matter of law prior to the posting of the $65,000 bond, and thus defendant was released on a bail bond that did not conform to the court's order requiring a $100,000 bond. (Id. at pp. 594-595.) Employing a contract analysis, the court found that part of the consideration the state offered in setting bail was the maintenance of the $35,000 bond already in place. That consideration failed when the earlier bond was exonerated, which voided the contract with the bond company that issued the $65,000 bond. (Id. at p. 595.)
People v. International Fidelity Ins. Co., supra, 204 Cal.App.4th 588, is of no help to US Fire, who received all of the consideration the state promised (i.e., the release of Sysavanh to its constructive custody in exchange for the $100,000 bond). Moreover, the case does not stand for the proposition that any constitutional infirmity in the order setting bail voids the subsequent bail contract. There were no constitutional issues decided in People v. International Fidelity Ins. Co.
The second case is Taylor v. Exnicious (1925) 197 Cal. 443, which, factually, has nothing to do with this case: It was an action on a receiver's bond. (Id. at p. 444.) However, it enunciated the following legal principle: "We take it, therefore, to be the well-settled law of this state that a surety upon a bond given pursuant to an order of court or pursuant to a statute becomes such in contemplation of a valid order or valid statute, and not otherwise. If the order appointing the receiver be void, a material consideration for the execution of the bond has failed, and the surety cannot be held upon it." (Id. at p. 446.) That principle, however, does not aid US Fire because the court's order setting bail here was not void. It may have been beyond the court's authority in the sense that it violated the defendant's constitutional rights, but the court had jurisdiction to issue the order.
The only authority US Fire cites in an attempt to establish that the bail order was void is Nelson v. Colorado (2017) ___ U.S. ___ . Conspicuously, US Fire failed to provide a pin cite for that case, and having reviewed the case, the reason is clear: It does not stand for the proposition that an order setting excessive bail is void. In fact, it has nothing to do with bail at all. It holds that where a criminal conviction is reversed, and the state does not seek a retrial, the defendants must be refunded any fines and fees they paid. There, Colorado required such defendants to institute a separate proceeding in which the formerly convicted parties were required to prove their innocence by clear and convincing evidence to be eligible for a refund. The Supreme Court held this process was unconstitutional. (Id. at pp. 1252-1254.) Nelson v. Colorado has no relevance to the case before us. Since the bail order was not void, the ensuing bail contract was likewise not void.
And as a general matter, a surety on a bail bond waives any Humphrey violation when it endorses the bond after the bail amount has been set. This was the recent holding in People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891 (Accredited). The procedural posture of Accredited was identical to ours: Bail was set in violation of the principles announced in Humphrey, and after defendant failed to appear, the surety argued the Humphrey violation rendered the bond contract void. The court rejected the argument. We quote the court's analysis at length:
"Humphrey did not discuss the validity of a bail bond contract issued following a constitutionally inadequate hearing. Humphrey was concerned with how bail setting procedures can prevent a defendant from being able to make bail. The rights addressed in Humphrey, and the procedural requirements announced by the court, are intended to guard defendants' liberty interests. [Citation.] Nothing in Humphrey or the statutory rules regarding the setting of bail relieves the surety of its obligations under the bond once it has been executed.
"[The surety] argues the bond should not be forfeited because the procedures used to set the bail amount were defective. Similar arguments regarding defects in the bail setting procedures have been rejected. 'Defects and irregularities, if any, 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.' [Citations.] We find the analysis in these cases persuasive. [The surety] waived any procedural irregularities in the bail setting hearing when it 'assume[d] its obligations . . . at the time of the execution of the bond.' [Citations.]
"Moreover, noncompliance with the procedural requirements for setting bail 'have no legal effect on the forfeiture of bail upon defendant's failure to appear for sentencing.' (People v. Accredited Surety & Casualty Co., Inc. (2004) 125 Cal.App.4th 1, 4, [noncompliance with § 1275 is not a defense to forfeiture of a bond or ground for exoneration].) 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. [Citations.] Failure to comply with the procedural requirements of Humphrey, requirements intended to safeguard the defendant's constitutional rights, did not render the subsequently issued bond void." (Accredited, supra, 34 Cal.App.5th at pp. 898-899.)
Expanding upon that point, not only are the bail setting statutes, and Humphrey itself, unconcerned with protecting the bail bond surety, but a Humphrey violation does not prejudice the bail bond company at all. To the contrary, if the fundamental premise of a money bail system holds true—i.e., that a sufficiently large bail incentivizes a defendant to voluntarily appear in court—then a Humphrey violation can only benefit the surety. By the time we reach this stage in the proceedings, it is clear defendant was able to afford the bond, and if it was excessively high, then that should create excessive incentive to appear in court. Which is exactly what the bail bond surety wants.
In a similar vein, forfeiting a bond based on a Humphrey violation would create an eat-your-cake-and-have-it-too sort of moral hazard. Bail bond sureties would have no incentive to guard against Humphrey violations—because the larger the bail, the larger the profits, and the greater the incentive for defendant to appear—yet any time the defendant failed to appear in such a case, the surety could evade its obligations to pay on the bond. Such a windfall would undermine the purpose and functioning of a money bail system, which relies on the threat of forfeiting bail to incentivize a defendant's appearance. Moreover, once a bail bond surety determined a Humphrey violation had occurred, it would have no incentive to devote its resources to locating and surrendering the defendant, which would undermine public safety.
In short, there is no authority requiring that we invalidate a bail bond contract based on a Humphrey violation, and no compelling reason to create such authority.
DISPOSITION
The judgment is affirmed. The People shall recover their costs incurred on appeal.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.