Opinion
Cr. 6607
10-7-1959
PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Daniel WILCOX, Defendant and Respondent * .
Harold W. Kennedy, County Counsel, Robert W. Garcin, Deputy County Counsel, Los Angeles, for appellant. Thomas B. Sawyer, San Pedro, for respondent.
PEOPLE of the State of California, Plaintiff and Appellant,
v.
Robert Daniel WILCOX, Defendant and Respondent *.
Rehearing Denied Oct. 30, 1959.
Hearing Granted Dec. 2, 1959.
Harold W. Kennedy, County Counsel, Robert W. Garcin, Deputy County Counsel, Los Angeles, for appellant.
Thomas B. Sawyer, San Pedro, for respondent.
ASHBURN, Justice.
The People appeal from an order vacating forfeiture of a bail bond and reinstating and exonerating the same. Counsel for both sides assert that the order is appealable and we shall so treat it notwithstanding some doubts we entertain upon te subject.
Defendant Wilcox was charged in four counts of an information with issuing checks without sufficient funds (Pen.Code, § 476a). Anchor Casualty Company executed a bail bond in the sum of $1,000, the condition of which is as follows: 'Now, the Anchor Casualty Company, a Minnesota Corporation, hereby undertakes that the above-named defendant will appear in the above-named Court on the date above set forth to answer the complaint filed against him/her, and all duly authorized amendments thereof, in whatever court it may be prosecuted, and will at all times hold him/herself amenable to the orders and process of the court, and if convicted, will appear for pronouncement of judgment; or, if he/she fails to perform either of these conditions, that the Anchor Casualty Company, a Minnesota Corporation, will pay to the people of the State of California the sum of One Thousand Dollars ($1,000.00). If the forfeiture of this bond be ordered by the Court, judgment may be summarily made and entered forthwith against the said Anchor Casualty Company, a Minnesota Corporation, for the amount of its undertaking herein, as provided by Sections 1305 and 1306 of the California Penal Code.' This bond was filed on April 8, 1958. The public defender was appointed to represent defendant, who appeared with his counsel for arraignment on May 2, 1958, and entered a plea of not guilty. The case was then and there set for trial on June 20, 1958. Defendant failed to appear for trial on that date, his bail was forfeited and a bench warrant ordered issued but service withheld until June 23, to which date the cause was continued. Dr. Marcus Crahan was also appointed on the 20th to examine defendant physically and report to the court. Defendant, though examined by Dr. Crahan in Los Angeles on June 21, failed to appear for trial on the 23rd and same was continued to August 25. On that date defendant again failed to appear and the trial was continued to September 22.
On the 18th of September the surety, Anchor Casualty Company, filed a motion to vacate forfeiture of its bond; same was set for hearing at 9:00 a. m. of said date. The court then continued the hearing on the motion to an unspecified date 'to allow the Bonding Company to file the necessary affidavits.'
Defendant again failed to appear for trial on September 22, and trial and motion to reinstate the bond were placed off calendar.
On October 8 the surety filed a motion to restore its former motion to the calendar, attaching thereto affidavits of defendant and Dr. Harvey T. Pullen of Philadelphia. On October 14 the motion was granted and the bail exonerated. For aught that appears in the minutes or elsewhere in the record this was done ex parte.
Section 1305, Penal Code, reads as follows: 'If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court is lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes and the undertaking of bail, or the money deposited instead of bail, as the case may be, must thereupon be declared forfeited. But if at any time within 90 days after such entry in the minutes, the defendant and his bail appear, and satisfactorily excuse the defendant's neglect or show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just. If within 90 days after such entry in the minutes, it be made to appear to the satisfaction of the court that the defendant is dead or is physically unable, by reason of illness or insanity, or by reason of detention by civil or military authorities, to appear in court at any time during said 90 days, and that the absence of the defendant was not with the connivance of the bail, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.' Section 1306 provides for summary judgment upon the bond if the forfeiture has not been set aside within the 90 days prescribed by § 1305.
The surety company's motion for such relief was filed upon the 90th day after forfeiture of the bail. Certain supporting affidavits were filed later in September. Appellant argues that the court had no jurisdiction to receive or consider them because of late filing. We pass this and other precedural arguments and go to the merits of the ruling.
The burden of proof rested upon the surety company, as moving party, to make a showing complying with § 1305. People v. Niccoli, 102 Cal.App.2d 814, 819, 228 P.2d 827; People v. Bannister, 153 Cal.App.2d 480, 484, 314 P.2d 577. While the granting or denial of such a motion lies within the discretion of the court, a sound judicial discretion is called for, one resting upon substantial evidence. The motion cannot be granted ex gratia. See, People v. Calvert, 129 Cal.App.2d 693, 699, 277 P.2d 834; People v. Niccoli, supra, 102 Cal.App.2d 814, 818, 228 P.2d 827; People v. Bannister, supra, 153 Cal.App.2d 480, 484, 314 P.2d 577.
The surety company's showing was insufficient to afford basis for affirmative action under § 1305. A letter from Dr. Hine of Lancaster, California, dated June 16, 1958, appears to be part of that showing. He states that he has had professional care of defendant since May 15, 1958 'for thyrotoxocosis with angina pectoris and congestive heart failure.' Also, 'Mr. Wilcox's condition is most grave at this present time.' Dr. Crahan's report was made on June 23, 1958. It states that Dr. Hine sees the patient at his office and feels he could be driven to Los Angeles for examination. On June 21 defendant appeared at Dr. Crahan's office in Los Angeles and was there examined; he told the examiner that 'for the past two months [he] has worked as much as he was able, until he would become too nervous to continue.' Dr. Crahan expressed the following opinions: 'Despite treatment for the past month, clinical findings indicate that the toxic thyroid is still in critical condition, has not abated to any great extent and could go into thyroid crisis on any emotional or physical strain. * * * In the opinion of the examiner, Mr. Wilcox should be permitted to remain under his physician's care until such a time as surgery is possible and he has had sufficient opportunity to convalesce, in the interest of his life and health.'
This report spoke as of June 21, 1958. There follows a hiatus in the record covering all of July and August. The affidavit of Dr. Pullen, sworn to on September 25, 1958, says that defendant 'is now confined' to the Veterans Administration Hospital in Philadelphia, 'and will be'; 'that his present condition has and does prevent him from attendance at Court.' The affidavit also says that defendant 'has been known to this hospital and one or more of the staff physicians since the first week of September, 1958.' Where was he between June 21 and the first week of September? Defendant's own affidavit, made in Philadelphia on September 20, 1958, says that 'at all times since June 20, 1958, he has been unable to appear for trial due to serious illness. That he was compelled to journey to Burnham, Pennsylvania, for financial assistance from relatives residing at that place in order to obtain necessary medical treatment, which he was unable to obtain or afford otherwise.' Plainly this journey to Pennsylvania had occurred between June 21 and early September. He certainly could have made the shorter trip to the Los Angeles courthouse where his surety could surrender him, thus accomplishing the primary purpose of bail. When defendant got to Philadelphia in search of money he came to rest in the Veterans Hospital, an institution such as he could have found at Sawtelle in Los Angeles County, and presumably on the same basis of free service. An affidavit of September 17, 1958, made by Mr. Sawyer, attorney for the Casualty Company, says that defendant cannot come to California 'and in fact he is expected to die within the immediate future by reason of the illnesses from which he is now suffering.'
Section 1305, Penal Code, provides two methods of relief from bail forfeiture. The second sentence requires that both defendant and his bail appear within 90 days and satisfactorily excuse defendant's neglect or show there was no connivance by the bail. The phrase, 'the defendant and his bail appear' is the result of an amendment of 1927 substituting the word 'and' for 'or' which had previously appeared therein. This obviously was intended to require a physical surrender of the recalcitrant defendant to the custody of the court. It was so held in People v. Houle, 153 Cal.App.2d Supp. 894, 895, 316 P.2d 100; see, also, 10 Op.Cal.Atty.Gen. 212; Coast Surety Co. v. Municipal Court, 136 Cal.App. 188, 190, 28 P.2d 421. As defendant did not appear in person at any time within the 90-day statutory period there was no compliance with the second sentence of § 1305.
The alternative method of obtaining relief from the forfeiture is found in the last sentence of the section. This sentence was added by amendment in 1955. It does not require personal appearance of the missing defendant, but does exact a satisfactory showing within 90 days after forfeiture that defendant (inter alia) 'is physically unable, by reason of illness * * * to appear in court at any time during said 90 days' and that there was no connivance of the bail. This defendant did not appear in court within the 90 days nor was there a competent showing that he was unable by reason of illness to do so. There is complete absence of evidence that defendant on June 21 (when he was in Dr. Crahan's office) or thereafter until the first week of September (when he began treatments at the Veterans Hospital in Philadelphia) was too ill to journey from Lancaster to Los Angeles for the purpose of surrendering himself into custody of the sheriff, whose facilities presumptively would have afforded him any necessary medical attention. The conditions of the last sentence of § 1305 were not met and hence no basis for vacating the forfeiture was laid. See, People v. Houle, supra, 153 Cal.App.2d Supp. 894, 896, 316 P.2d 100; 10 Op.Cal.Atty.Gen. 212. Because of insufficiency of evidence to afford basis for exercise of discretion the order now on appeal must be reversed.
Order vacating forfeiture of bail and reinstating and exonerating bond is reversed with instructions to the lower court to make and enter an order denying the motion of Anchor Casualty Company for such relief and to take such further proceedings as are required by § 1306, Penal Code.
FOX, P. J., and HERNDON, J., concur. --------------- * Opinion vacated 2 Cal.Rptr. 754. 349 P.2d 522.