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County of Los Angeles v. Akseralyan

California Court of Appeals, Second District, Third Division
Jul 29, 2008
No. B198372 (Cal. Ct. App. Jul. 29, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. KA075177, Abraham A. Khan, Judge.

Law Offices of Kenneth F. Weston and Kenneth F. Weston, for Real Party in Interest and Appellant.

Steve Cooley, District Attorney, Natasha S. Cooper and William Woods, Deputy District Attorneys, for Plaintiff and Respondent.


KITCHING, J.

INTRODUCTION

A surety’s bail bond was forfeited after a defendant did not appear for his arraignment. The court stated at the hearing that “he [defendant] posted a $40,000 bond on the arrest warrant, so bond will be forfeited . . . .” The surety claims that the court did not in open court declare bail forfeited, as required by Penal Code section 1305. We disagree. When read in context, the transcript of the arraignment hearing indicates that the court in open court unequivocally declared bail forfeited.

PROCEDURAL AND FACTUAL BACKGROUND

Defendant Andranik Akseralyan was arrested pursuant to an arrest warrant and held in custody on charges of grand theft and burglary. The court set bail on the arrest warrant at $40,000. On July 10, 2006, Akseralyan was released from custody after appellant Sharky’s Bail Bonds (SBB) posted a $40,000 bail bond on behalf of Lexington National Insurance Corporation. The court ordered Akseralyan to appear for arraignment on July 27, 2006, and released him from custody.

In their briefs, the parties refer to the defendant as Adranik Aseralyan. A review of the record, however, indicates that the defendant’s name appears to be Andranik Akseralyan. We have modified the caption to reflect the correct spelling of the defendant’s name.

Akseralyan did not appear at the July 27, 2006 arraignment. The following exchange took place between the court and Deputy District Attorney Keith Thompson:

“Mr. Thompson: Judge, the defendant, Andranik Akseralyan, is not here today. He also didn’t show up yesterday on his – he had a ten-count felony in Compton where there was identity theft and other fraudulent activity going on. Also, he’s on federal probation with the U.S. Probation Department out of Arizona.

“The Court: He posted bond on our case.

“Mr. Thompson: On our case. [¶] I think he may have booked his ticket for departure because these officers have been looking for him in several locations, and they cannot contact him anywhere. His family does not report him as being nearby. I’d ask that the bail be made around $100,000, not just merely 20.

“The Court: He posted a $40,000 bond on the arrest warrant, so bond will be forfeited and a bench warrant will be issued in the amount of – he has, what? He’s got another case in Compton, and he’s on federal parole?

“Mr. Thompson: Yes.

“The Court: Okay. $125,000.”

On that day, the court entered a minute order stating that defendant failed to appear without sufficient excuse and that a bench warrant issued. The order also stated that “bail ordered forfeited” and that bail on the bench warrant was set at $125,000.

On January 16, 2007, SBB filed a Motion to Vacate Forfeiture and Exonerate Bond. The court denied the motion on February 7, 2007. SBB filed a timely appeal from the order denying the motion.

This is an appealable order. (People v. Lexington National Ins. Co. (2007) 147 Cal.App.4th 1192, 1197, fn. 2 (Lexington National).)

ISSUE

Did the trial court in open court declare SBB’s bail bond forfeited in compliance with Penal Code section 1305?

DISCUSSION

Penal Code section 1305, subdivision (a) provides: “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. . . .”

SBB argues that the trial court did not in open court declare the bond forfeited. By stating that the bond “will be” forfeited, SBB contends, the trial court merely indicated that the forfeiture would occur at some future date.

SBB relies on People v. National Automobile & Casualty Ins. Co. (2002) 98 Cal.App.4th 277 (National). There the court held that “in order for bail to be forfeited a trial court must (1) make a declaration of forfeiture stating ‘bail is forfeited’ (2) on the record while court is in session.” (Id. at 283.) Because the trial court here did not state “bail is forfeited,” SBB argues, the requirements of Penal Code section 1305 were not satisfied.

This case is distinguishable from National. In National, the trial court did not declare in open court that bail was forfeited. Rather, it stated that “ ‘bail status is revoked.’ ” (National, supra, 98 Cal.App.4th at p. 280-281, italics omitted.) Bail status, however, can be revoked “for any number of reasons, and all without ordering bail forfeit.” (Id. at p. 285.) Later, outside the presence of counsel, the trial court instructed the clerk to enter a minute order stating “ ‘Bail ordered forfeited.’ ” (Id. at 281.) At the hearing on the surety’s motion to vacate the forfeiture and exonerate the bond, the trial court conceded that “the transcript reflects that there was no forfeiture of the bail.” (Ibid.) Here, by contrast, the trial court orally declared the bond forfeited at the arraignment.

Although Penal Code section 1305 should be strictly construed because equity abhors a forfeiture, “we must also give a commonsense interpretation to events.” (Lexington National, supra, 147 Cal.App.4th at p. 1201.) When the defendant failed to appear at the arraignment, the trial court noted that he posted a $40,000 bond on the arrest warrant. It then concluded: “so bond will be forfeited.” The court clearly was not talking about some other bond. The word “so” indicates a link between the $40,000 bond and the forfeiture.

It is also clear that the forfeiture was related to the defendant’s failure to appear at the arraignment. “ ‘Forfeiture of bail’ can only occur in one circumstance—when a defendant fails to appear at a scheduled court appearance without sufficient excuse.” (National, supra, 98 Cal.App.4th at p. 285.)

The meaning of the word “will” is clear given the surrounding circumstances. In this context “will” must be understood as “[a]n auxiliary verb commonly having the mandatory sense of ‘shall’ or ‘must.’ ” (Black’s Law Dict. (6th ed. 1990) p. 1598, col. 1.) Although the phrase “bail is forfeited” is perhaps a better choice of words in this situation, there is no doubt what the trial court meant.

Penal Code section 1305 should be interpreted in light of the plain language of the statute. (People v. Robles (2000) 23 Cal.4th 1106, 1111 (Robles).) Nothing in Penal Code section 1305 requires a trial court to use the exact words “bail is forfeited” or any other specific words. All that is required is that the bond (undertaking) be declared forfeited in open court.

To the extent there is any ambiguity in the language of Penal Code section 1305, we can look to the legislative history of the statute in aid of ascertaining legislative intent. (Robles, supra, 23 Cal.4th at p. 1111). Prior to 1998, Penal Code section 1305, subdivision (a) did not include the words “in open court.” (Historical and Statutory Notes, 51 West’s Ann. Pen. Code (2004 ed.) foll. § 1305, p. 466.) Trial courts could declare forfeiture by minute order after a defendant did not appear at a hearing. Often bail was declared forfeited days or weeks after the hearing. This gave the defendant an opportunity to flee and avoid apprehension. (See People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 710-713 [reviewing legislative history and purpose of 1998 amendment]; National, supra, 98 Cal.App.4th at pp. 282-84 [same].)

The 1998 amendment “ensures timely notice by expressly requiring courts to make an unequivocal declaration of bail forfeiture on the record the very moment the court concludes the defendant has failed to appear without sufficient excuse. This [in] turn furthers the amendment’s purpose of providing timely notice and quickly apprehending fugitives.” (National, supra, 98 Cal.App.4th at p. 284.)

The trial court’s statement that “bail will be forfeited” was an unequivocal declaration of bail forfeiture within the meaning of Penal Code section 1305. Had a representative of SBB been at the hearing, he or she would have been immediately notified of the forfeiture of SBB’s bail bond at the very moment the court concluded the defendant failed to appear without sufficient excuse.

DISPOSITION

The order denying SBB’s motion to vacate forfeiture and exonerate bond is affirmed. Respondent County of Los Angeles is awarded costs on appeal.

We concur: CROSKEY, Acting P. J., ALDRICH, J.


Summaries of

County of Los Angeles v. Akseralyan

California Court of Appeals, Second District, Third Division
Jul 29, 2008
No. B198372 (Cal. Ct. App. Jul. 29, 2008)
Case details for

County of Los Angeles v. Akseralyan

Case Details

Full title:COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. ANDRANIK AKSERALYAN…

Court:California Court of Appeals, Second District, Third Division

Date published: Jul 29, 2008

Citations

No. B198372 (Cal. Ct. App. Jul. 29, 2008)