Opinion
C075484
01-12-2017
THE PEOPLE, Plaintiff and Respondent, v. ACCREDITED SURETY & CASUALTY COMPANY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM038110)
Appellant Accredited Surety & Casualty Company (the surety) appeals from the superior court's order denying its motion to vacate the forfeiture of its bail bond. The surety contends its bond should not have been forfeited by criminal defendant Alfredo Ruvalcaba's non-appearance, because the trial court materially altered the terms of the bail contract without the surety's consent by releasing Ruvalcaba on his own recognizance (OR) rather than continuing him on bail. The surety contends this change materially increased its risk under the bond and resulted in automatic exoneration thereof.
We conclude that although the trial court referenced OR at the end of the hearing at issue, the mere reference to OR was ineffectual and did not materially alter the contract or increase the surety's risk such that bond should be exonerated. Accordingly, we shall affirm.
BACKGROUND
A complaint charged Ruvalcaba with continuous sexual abuse (Pen. Code, § 288.5, subd. (a)) in case No. CM038110. On February 4, 2013, the trial court (Roberts, J.) denied Ruvalcaba's request for OR release and set bail at $1,000,000. On February 6, McMains Bail Bonds, acting as an agent for the surety, posted the $1,000,000 bond, securing defendant's release from custody. The bond provided that the surety "hereby undertakes that the above-named defendant will appear in the above-named court on the date above set forth to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her or in duly authorized amendments therefor, in whatever court it may be filed and prosecuted, and will at all times hold himself/herself amendable to the orders and process of the court, and if convicted, will appear for pronouncement of judgment or grant of probation, or if he/she fails to perform either of these conditions that the ACCREDITED SURETY AND CASUALTY COMPANY, INC, . . . will pay to the people of the State of California the sum of One million dollars, subject to applicable legal provisions."
Further undesignated statutory references are to the Penal Code.
References to dates without included years are to 2013.
The following day, February 7, Ruvalcaba appeared out of custody and on bail. The trial court (Lucena, J.) continued the preliminary hearing to February 28 and ordered Ruvalcaba to be present. At the close of the proceedings, the court said: "O.R. as previously ordered with conditions and comply with the 136.2."
The corresponding minute order is visibly altered (using what appears to be correction fluid) to show Ruvalcaba's release on bail. It appears the order originally reflected OR release with conditions, as orally ordered at the hearing's end. The record does not disclose when or under what circumstances the minute order was altered.
Ruvalcaba failed to appear on February 28 and the court (Lucena, J.) ordered bail forfeited. Within the exoneration period, the surety filed a motion to vacate forfeiture and exonerate the bond. The surety argued the bond was automatically exonerated by Judge Lucena's OR release of Ruvalcaba on February 7.
The trial court (Candela, J.) denied the surety's motion. The court observed that Ruvalcaba "was never previously ordered on O.R. with conditions. It was always bail with conditions." The court opined that under that circumstance, the oral OR order, which included the "as previously ordered with conditions" language, "doesn't make any sense" and the (altered) minute order reflecting Ruvalcaba's February 7 release on bail rather than OR was therefore entitled to "greater credence" than the transcript of the oral order.
DISCUSSION
The surety contends that the trial court altered the terms of the bail contract when it released Ruvalcaba OR, as this changed term of release (OR rather than on bail), materially altered the risk undertaken by the surety and materially increased the risk that defendant would flee. County counsel responds that the trial court properly exercised its discretion in finding the minute order superseded the reporter's transcript, treating the situation as if a mistake were made by the court reporter without any reference to the fact that the minute order is clearly altered to change OR release to on-bail release, as we have described ante.
Neither of the parties' arguments persuades. As we explain, the trial court's "greater credence" analysis was not applicable to this situation. The court's February 7 oral order controlled. However, the court's oral order alone did not accomplish Ruvalcaba's OR release. Thus the oral order purporting to release Ruvalcaba OR (rather than continue him on bail) did not materially alter the terms of the surety's contract, and did not increase the risk to the surety such that exoneration was required.
"A bail bond is a contract between the government and the surety. [Citation.] The surety's liability is limited to the contract's terms. [Citation.]" (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 6.) "[I]t is the accepted rule that a surety cannot be held beyond the express terms of his or her contract." (People v. King Bail Bond Agency (1990) 224 Cal.App.3d 1120, 1124.)
We review issues of contract interpretation de novo. (People v. International Fidelity Ins. Co. (2010) 185 Cal.App.4th 1391, 1395 (International Fidelity).)
We begin with the trial court's ruling giving greater credence to the altered minute order than the reporter's transcript of the oral order.
Generally, when the record is in conflict, "it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript must depend upon the circumstances of each particular case." (In re Evans (1945) 70 Cal.App.2d 213, 216, quoted with approval in People v. Smith (1983) 33 Cal.3d 596, 599.)
However, as Smith itself makes clear, apparent discrepancies in the record do not necessarily indicate an irreconcilable conflict. (People v. Smith, supra, 33 Cal.3d at p. 599.) Rather, as in Smith, in this case it is clear that Judge Lucena simply misspoke when she referenced OR rather than bail. The subsequent alteration of the minute order (which until the change appears to have accurately reflected what Judge Lucena actually said) does not create an irreconcilable conflict in the record. Because there was no true conflict other than that created by the minute order's alteration, the "greater credence" analysis does not apply.
The question remains as to whether Judge Lucena's oral order purporting to release Ruvalcaba OR materially altered the terms of the contract and thereby increased the surety's risk such that exoneration of the bond was required.
In People v. Scott (1960) 184 Cal.App.2d 792, an on-bail defendant was convicted after a court trial. After announcing the verdict, the trial court stated, " 'The defendant is remanded to custody.' " (Id. at p. 794.) At the request of defendant, however, the trial court ordered that defendant return to court in three weeks for sentencing. When the defendant did not return, bail was ordered forfeited. Affirming the trial court's refusal to set aside the forfeiture, the Scott court held that "the mere statement of the court" regarding defendant's remand was insufficient to exonerate the bail bond, because while under governing statutes there was "no great formality [] required to constitute a taking into custody by the sheriff [citation], there must be some submission to custody or control to exonerate the bail [citation]." (Id. at p. 793, 794.)
Here, the governing statutes do require great formality for a defendant to be released OR. A "defendant shall not be released from custody [OR] until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes: [¶] (1) The defendant's promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending. [¶] (2) The defendant's promise to obey all reasonable conditions imposed by the court or magistrate. [¶] (3) The defendant's promise not to depart this state without leave of the court. [¶] (4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California. [¶] (5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release." (§ 1318, subd. (a), italics added.)
Here, none of these conditions were met. The mere statement of the court replacing "on bail with conditions" with "OR with conditions" was insufficient to effectively release Ruvalcaba OR rather than on bail. Thus the trial court did not actually release Ruvalcaba OR, and did not alter the terms of the contract, materially or otherwise. The surety argues that Ruvalcaba understood the trial court's misstatement to necessarily relieve the indemnitors who had posted collateral to secure his bail bond, because the Penal Code "explicitly exonerates a bail bond upon the O.R. release of a criminal defendant." If we join the surety in speculating about Ruvalcaba's state of mind, it seems equally likely that he understood he was released "as previously ordered with conditions" to mean he continued on bail as previously ordered, with conditions issued by the surety. Ruvalcaba did not have a lengthy record of making court appearances prior to the court's misstatement; he had made only one appearance out of custody before he failed to appear on February 28.
Moreover, even if the trial court's misstatement increased the risk to the surety by emboldening Ruvalcaba to flee, that increased risk does not automatically exonerate the bond. Although there is a greater risk to the surety that a criminal defendant will fail to appear for execution of sentence than pronouncement of sentence, the trial court does not materially increase the risk to the surety and automatically exonerate the bond by announcing an indicated sentence after a plea, but months before the sentencing hearing. (People v American Surety Ins. Co. (2001) 88 Cal.App.4th 762, 764-767.) Nor does adding charges to a complaint based on the same acts alleged in an original complaint, which materially increases the risk faced by the surety, automatically exonerate the bond. (People v. Bankers Ins. Co., supra, 181 Cal.App.4th 1; International Fidelity, supra, 185 Cal.App.4th at p. 1398; People v. Indiana Lumbermens Mutual Ins. Co. (2012) 202 Cal.App.4th 1541, 1546.) The express terms of the contract at issue here do not expressly refer to flight risk. If the surety entered into the contract believing the bond would be exonerated if Ruvalcaba's flight risk increased, that belief was based only on the surety's subjective intent and is not relevant to the issue of interpreting the bond. (See International Fidelity, at pp. 1396-1397.) The surety was free to monitor the case, analyze the ongoing risk as the case proceeded, and surrender Ruvalcaba if it believed the circumstances warranted it. (Ibid.)
While it is true that the law disfavors forfeitures, including forfeitures of bail under the bail provisions of the Penal Code, it is the burden of the surety to show that a forfeiture of its bail should be set aside. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 725.) Here, the surety has not made that showing. Accordingly, we affirm the trial court's order denying its motion to set aside the forfeiture.
DISPOSITION
The order (denying the surety's motion) is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Nicholson, Acting P. J. /s/_________
Murray, J.