Opinion
NOT TO BE PUBLISHED
Appeal from an order and a judgment of the Superior Court of Orange Count No. 04WF2626y, Richard F. Toohey, Judge. Request for judicial notice.
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 Accredited Surety and Casualty Company appeals from an order denying its motion to discharge an order forfeiting and exonerating bail and from a summary judgment based on the forfeiture. The motion to vacate the forfeiture and exonerate bail was based upon the contention that the court did not declare a bail forfeiture in open court and thus lost jurisdiction over the bond under Penal Code section 1305, subdivision (a) (section 1305(a)). In its reply brief defendant makes it clear that the attack on the summary judgment is based on the same contention that the court violated section 1305(a) by failing to declare a bail forfeiture in open court. We grant plaintiff’s motion to take judicial notice of the judgment, which originally was not included in the record provided to us.
We conclude the court failed to satisfy the requirements of the statute and therefore reverse the denial of defendant’s motion to discharge an order forfeiting and exonerating bail and reverse the judgment. Defendant asserts additional grounds for reversal. Because we conclude the court failed to satisfy the jurisdictional requirements of section 1305(a), we need not address these issues. We include the few relevant facts in our discussion.
DISCUSSION
Section 1305(a) provides in part: “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....” The issue here turns on the requirement the court declare the forfeiture “in open court.”
Defendant issued a bail bond to secure the presence of Dante Arnaud. He failed to appear after the jury announced it had reached a verdict. When Arnaud’s lawyer stated he had been unable to reach his client, the court stated, “The court will exonerate the bond that was posted. Issue a no-bail warrant for the defendant.” It appears the court misspoke, intending to forfeit rather than exonerate the bail. It is clear that the court did not realize its mistake, because, after having taken the verdict, the court told the jurors, “I will indicate that, prior to the court taking the verdicts, the defendant did not appear and the court forfeited the $250,000 bail that had been set by some other court some time ago. And I have issued a no-bail warrant for his arrest.”
Defendant cites a large number of cases for the proposition that Penal Code section 1305 “must be precisely followed, or the court is deprived of jurisdiction and the bond is exonerated by operation of law.” Plaintiff does not dispute this proposition. But, contrary to defendant’s contention, this does not mean the court needs to use the exact words of the statute. Defendant claims, “For a forfeiture to be effective, the jurisdictional statute requires that the precise and particular words, ‘bail is forfeited, ’ be spoken in open court at the time a defendant fails to appear without sufficient excuse. Judicial interpretation puts the matter beyond debate.”
We do not share this simplistic approach and thus the matter is not quite beyond debate. Plaintiff provides us with a number of cases demonstrating there is no requirement that certain “magic words” be used. Nevertheless, it is clear the court must declare a forfeiture and that it is not sufficient for the court to state the opposite, that the bond is exonerated, even if it appears the court misspoke unintentionally.
Recently decided People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 582 illustrates that a trial court’s failure to declare a forfeiture in open court results in loss of jurisdiction over the bond, which is then exonerated as a matter of law. In Bankers, after defendant failed to appear and his lawyer told the court he had had no contact with defendant since his last court appearance, “the court found ‘a willful failure to appear in both the felony and trailing misdemeanor case and issue[d] warrants for [the defendant’s] arrest with no bail....’” (Id. at p. 584.) Although the minute order had been checked in the ‘“bail forfeited”’ box (ibid.), the Court of Appeal concluded that the failure to make the appropriate statement in open court was fatal and ordered the bond exonerated. (Id. at p. 588.) Citing People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 554, the court stated, “If a trial court fails to declare a forfeiture in open court, it ‘no longer retain[s] “statutory control and jurisdiction over the bond” [citation]’ and the bond is exonerated by operation of law. [Citation.]” (People v. Bankers Ins. Co., supra, 182 Cal.App.4th at p. 586.)
DISPOSITION
The order denying the motion to discharge an order forfeiting and exonerating bail is reversed. The judgment is reversed. The request for judicial notice is granted. Appellant shall recover its costs on appeal.
WE CONCUR: O’LEARY, J., IKOLA, J.