Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. SJ0985. Richard S. Kemalyan, Judge.
Nuñez & Bernstein and E. Alan Nuñez for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Brian T. Chu, Deputy County Counsel for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Indiana Lumbermens Mutual Insurance Company appeals from the trial court’s refusal to vacate summary forfeiture of the bail bond it posted on behalf of Frank Vierra (defendant) to secure his release from custody. It contends the trial court erred by not having ordered the bond’s immediate forfeiture upon defendant’s first failure to appear in court, thus depriving the court of jurisdiction to order the bond’s summary forfeiture several months later. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 30, 2007, Indiana Lumbermens posted a bail bond for the release of defendant from custody. Upon his release, defendant was ordered to appear in court on April 19, 2007, at 8:30 a.m., but he failed to appear. Defendant’s wife appeared in his place and submitted to the court a letter from the Department of Veterans Affairs. Dated three days earlier on April 16, 2007, the letter stated defendant was enrolled in a substance abuse treatment program requiring daily afternoon meetings and was scheduled to be admitted to the department’s full-time residential substance abuse program on April 17. The letter stated the program was to last for thirty days, but could be extended from sixty to ninety days. The trial court did not order forfeiture of defendant’s bail and continued the hearing to May 21, 2007. The minute order stated, “Defendant’s wife brings letter from Department of Veterans Affairs. [Bench warrant v]iolation hearing to continue to 05/21/07 at 8:30 a.m.”
Defendant failed to appear at the continued hearing on May 21, and the court ordered forfeiture of his bail. In January 2008, the court entered summary judgment on the forfeiture. The following month, Indiana Lumbermens filed a motion to vacate the forfeiture and set aside the summary judgment on the grounds the trial court exceeded its jurisdiction when it failed to declare forfeiture of defendant’s bail on April 19, 2007, the first court hearing defendant missed. The trial court denied the motion to vacate. This appeal followed.
DISCUSSION
Indiana Lumbermens contends the trial court lost jurisdiction under Penal Code sections 1305 and 1305.1 to order forfeiture of defendant’s bail because: (1) the court’s minute order continuing the hearing at which defendant first failed to appear did not state in writing the reason the court excused the defendant’s nonappearance, and (2) the Department of Veterans Affairs letter stating defendant was scheduled to enroll in a residential substance abuse program did not support finding good cause for defendant’s failure to appear. After considering each argument in turn, we disagree.
All further statutory references are to the Penal Code unless stated otherwise.
A. Is There a Requirement That the Excuse Be Written in the Record?
Indiana Lumbermens asserts that if a trial court excuses a defendant’s failure to appear and declines to order forfeiture of bail, section 1305 obligates the court to state in writing its reasons for excusing the defendant’s nonappearance. In the absence of a written statement of reasons, a reviewing court must, according to Indiana Lumbermens, presume the defendant lacked a sufficient excuse. Without a sufficient excuse from the defendant, a trial court must order forfeiture of bail or, Indiana Lumbermens concludes, lose jurisdiction to order forfeiture at a later time. We review questions of statutory interpretation de novo. (Unlimited Adjusting Group, Inc. v. Wells Fargo Bank, N.A. (2009) 174 Cal.App.4th 883, 893; Fifth Day, LLC v. Bolotin (2009) 172 Cal.App.4th 939, 947; see also People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 920.)
Section 1305, subsection (a) provides, in part, that “[a] court shall in open court declare forfeited the undertaking of bail... if, without sufficient excuse, a defendant fails to appear for... [¶] (1) Arraignment. [¶]... [¶] [or] (4) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required.” However, a court is permitted to continue a hearing without declaring bail forfeited if it has reason to believe there is sufficient excuse for the defendant’s nonappearance. Section 1305.1 provides in part that “[i]f the defendant fails to appear for... any... other occasion when his or her appearance is lawfully required, but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail....” (§ 1305.1.)
The trial court must strictly comply with the statutory requirements in order to validly declare forfeiture of bail. (People v. Topa Ins. Co. (1995) 32 Cal.App.4th 296, 300.) Statutes governing bail forfeitures must be strictly construed in favor of the surety because the law disfavors forfeitures. (People v. Aegis Sec. Ins. Co. (2005) 130 Cal.App.4th 1071, 1074; People v. Harco Nat. Ins. Co. (2005) 135 Cal.App.4th 931, 934.) “Bail forfeiture statutes are jurisdictional and, if not strictly followed, the court loses jurisdiction to later declare a forfeiture of the bond.” (People v. Bankers (2009) 171 Cal.App.4th 1529, 1532; see also People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552; People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th at p. 921.)
Indiana Lumbermens relies on People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898 (United Bonding) for the proposition that the reasons behind the defendant’s nonappearance must be reflected in the minutes. In United Bonding, a defendant failed to appear for a pretrial hearing, and our Supreme Court addressed whether the failure to appear was with sufficient excuse pursuant to the then-existing version of section 1305. (Id. at pp. 901-902, 904.) Indiana Lumbermens focuses on the court’s language that “[a]n excused nonappearance... should be expressly reflected in the minutes.” (Id. at p. 907.) However, the United Bonding Court was applying the version of section 1305 in effect in 1968 when the defendant there violated bail, which provided in part that “[i]f, without sufficient excuse, the defendant neglects to appear for... any... occasion when his presence in court is lawfully required,... the court must direct the fact to be entered upon its minutes and the undertaking of bail... must thereupon be declared forfeited,...” (Id. at p. 903, fn. 4, italics added.) The version of section 1305 relied upon by United Bonding is no longer controlling as it has been amended and revised several times in the almost 40 years since United Bonding was decided.
A 1969 amendment to section 1305 added subdivision (b) (and what has now been reworked to be section 1305.1) which provided in part that “[i]f, without sufficient excuse, the defendant neglects to appear for... any... occasion when his presence in court is lawfully required,... but the court has reason to believe that sufficient excuse may exist for his neglect to appear or surrender himself, the court may continue the case for such a period as it deems reasonable to enable the defendant to appear without ordering a forfeiture or issuing a bench warrant.” (People v. Wilshire Ins. Co. (1975) 53 Cal.App.3d 256, 260 (Wilshire) (italics in original).) The Wilshire Court determined that this statutory revision changed the “in the minutes” requirement dictated by United Bonding. “By conspicuously deleting from subdivision (b) the express provisions... that ‘the court shall direct the fact [of failure to appear] to be entered upon its minutes,...’ the Legislature intended the very simple alternative of a reasonable continuance without any specific minute order. Since the court is thus specifically authorized by the amendment to postpone its decision, it certainly retains jurisdiction to declare forfeiture at a later time.” (Id. at p. 261.)
Wilshire dispensed with the requirement that the reasons behind the defendant’s nonappearance must be expressly set out “in the minutes.” (See People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th at p. 922; People v. National Automobile & Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 305-06.) Instead, a reviewing court may look to the entire record to discover the nature of the defendant’s excuse. (People v. Amwest Surety Ins. Co. at p. 922; County of Los Angeles v. Surety Ins. Co. (1985) 165 Cal.App.3d 948, 950; People v. American Bankers Ins. Co. (1989) 215 Cal.App.3d 1363, 1369.) Here, the minute order reflects that defendant’s wife brought in a letter from the Department of Veterans Affairs. In addition, the letter is in the record, which obviated the need for the minute order to explain the letter’s contents. The court thus had before it a sufficient record to assess the reasons for defendant’s failure to appear.
B. Did the Trial Court Have a Rational Basis for Believing Defendant Had a Sufficient Excuse?
According to section 1305.1, a court may continue a case if it has reason to believe that a sufficient excuse might exist for defendant’s nonappearance. (§ 1305.1; People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th at p. 923; County of Los Angeles v. Ranger Ins. Co. (1996) 48 Cal.App.4th 992, 996.) “Whether the excuse proffered is sufficient is within the trial court’s discretion.” (People v. Frontier Pacific Ins. Co. (2000) 83 Cal.App.4th 1289, 1293.) “A reviewing court should not disturb the exercise of a trial court’s discretion unless it appears there has been a miscarriage of justice.” (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 80, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
The determination of whether the showing of an excuse is sufficient is performed on a case-by-case basis. (People v. Harco Nat. Ins. Co., supra, 135 Cal.App.4th at p. 934.) Here, the court was presented with a letter from the Department of Veterans Affairs stating that defendant was scheduled for admission to a 30-day residential drug treatment program, starting two days before his scheduled court appearance. The court could reasonably infer that defendant was enrolled in the program and was unable to leave in order to attend court. Under these circumstances, it was not an abuse of discretion for the court to find reason to believe a sufficient excuse existed for defendant’s nonappearance.
Our facts are not materially distinguishable from those in People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13 (Ranger Ins.). There, the court found that statements from the defendant’s attorney about the defendant’s whereabouts, in conjunction with a doctor’s letter confirming those whereabouts, provided the court with a jurisdictionally sufficient basis for continuing the case without declaring a bail forfeiture. (Id. at p. 20.) As another court explained, “In most situations involving a section 1305, subdivision (b) [now section 1305.1] determination the only reasons before the trial court are the evidence or representations furnished by defendant’s counsel. The cases demonstrate that the courts have cooperated with defense counsels’ requests and have liberally relied on their representations.” (People v. National Automobile & Cas. Ins. Co., supra, 75 Cal.App.3d at p. 306.) Like the doctor’s letter in Ranger Ins., the Veterans Affairs letter here was on its face a trustworthy source of information about defendant. And although defendant was not present, representations by his spouse were the next best thing to defendant’s being there himself. We therefore conclude the trial court did not abuse its discretion in not ordering forfeiture of bail upon defendant’s first failure to appear on April 19.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FLIER, J., BIGELOW, J.
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