Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 07NM06527 Sheila F. Hanson, Judge. Reversed.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Nicole M. Walsh, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Indiana Lumbermens Mutual Insurance Company appeals the denial of its motion to exonerate bail and its motion for relief from forfeiture. We reverse the orders of the trial court. The bond was posted after David Allen Benson was convicted of misdemeanors. Pursuant to Penal Code section 977, subdivision (a)(1) (all further statutory references are to this code unless otherwise stated) because defendant was charged with misdemeanors only, he was entitled to appear by counsel unless the court had ordered him to appear personally pursuant to section 977, subdivision (a)(3). But the record does not indicate the court did so before ordering the bond forfeited. Because we reverse on this ground, we do not address Lumbermen’s additional arguments.
FACTS AND PROCEDURAL HISTORY
In 2007, a jury convicted Benson of three misdemeanor Vehicle Code violations, including driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)). Although Benson apparently filed a notice of appeal, the appeal was dismissed and, after receipt of the remittitur in April 2008, the court ordered Benson to appear on May 14 and show cause why sentence should not be imposed. On May 14, the hearing was continued to June 19 and Benson was ordered to appear. There followed a substantial number of scheduled hearings, each of which was continued. At some of these hearings Benson appeared in person, at other times he appeared only by counsel. On November 20, at another scheduled hearing, Benson was not present but his retained attorney, Douglas Myers, appeared on his behalf and was then relieved as counsel. The court ordered the issuance of a bench warrant for Benson and set bail at $500,000. The order notes “[m]andatory [a]ppearance.” On December 2, Lumbermens posted a bond for $250,000. The court noted the discrepancy in the amount of the bond but took no action other than to state that this issue should be addressed at the next hearing. On December 2, the court calendared the case for hearing on December 29. At that hearing Benson was not present but was represented by retained attorney Louis Pilato. Although the docket report notes that “[d]efendant’s presence is waived, ” referencing section 977, the court nevertheless ordered the bail forfeited and ordered issuance of a bench warrant to be “issued and held for the defendant to 02/06/2009.” Subsequently the court denied a motion to exonerate bail and a motion to discharge forfeiture of the bond.
DISCUSSION
Section 977, subdivision (a)(1) provides that, with specified exceptions, “[i]n all cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only....” Section 977, subdivision (a)(3) lists exceptions, including where the court orders a defendant to be present for sentencing. This exception applies to a misdemeanor charge under Vehicle Code section 23152, the section Benson was found to have violated. But we searched the record in vain for any indication that Benson was ordered by the court to be personally present for sentencing.
County counsel’s valiant effort to find such an order is unavailing. The respondent’s brief first notes that the “bail bond posted to secure [d]efendant’s release ordered that he appear on December 29, 2008.” The bond does contain such language, which appears to be standard language for a bond, and does not state whether appearance by counsel is sufficient in the light of section 977 or whether personal appearance is required. And this argument assumes that Benson actually saw the bond; there is no evidence he did.
Next, county counsel asks us to ignore the entry in the December 29 docket to the effect that “[d]efendant’s presence is waived 977 PC [sic].” He suggests this is an error and the court, when noting this fact, did not realize Benson’s personal presence was required or that the clerk had made an erroneous entry. Were we to accept the suggestion this was an error by the court or by the clerk, we would engage in rank speculation. If this were a clerical error, the county could have sought correction of the minute order in the trial court.
County counsel also argues “the trial court could have determined that the attorney who appeared for [d]efendant for the first time on December 29, 2008, was without authority to proceed in [d]efendant’s absence.” Almost anything could have happened but we are bound by the record and no such finding was made by the trial court.
“It has been repeatedly held that since the law disfavors forfeitures and statutes imposing them, ... the statute must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture. It is also to be construed in light of the principle that ‘where a statute requires a court to exercise its jurisdiction in a particular manner, follow a particular procedure, or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.’ [Citations.]” (People v. Wilshire Ins. Co. (1975) 46 Cal.App.3d 216, 220.)
DISPOSITION
The orders are reversed. Appellant is entitled to its cost on appeal.
WE CONCUR: ARONSON, J.IKOLA, J.