Opinion
F072521
07-06-2017
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN CONTRACTORS INDEMNITY COMPANY, INC., Defendant and Appellant.
E. Alan Nunez and John M. Rorabaugh for Defendant and Appellant. Colleen Carlson, County Counsel, and Carrie R. Woolley, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15C0135)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge. E. Alan Nunez and John M. Rorabaugh for Defendant and Appellant. Colleen Carlson, County Counsel, and Carrie R. Woolley, Deputy County Counsel, for Plaintiff and Respondent.
Before Hill, P.J., Levy, J. and Gomes, J.
-ooOoo-
Appellant challenges the trial court's order denying its motion to vacate the summary judgment entered on a bail bond forfeiture, contending the bond was improperly forfeited when the misdemeanor defendant appeared in court by counsel. We conclude counsel did not make an authorized appearance on behalf of the misdemeanor defendant, and therefore the bond was properly forfeited. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant posted a bail bond for the release of a criminal defendant, Doria Johnson. Johnson had been charged only with misdemeanor and infraction violations. She had pled guilty and had been released on probation. Her probation was subsequently revoked due to new violations and, on October 16, 2014, she was released on a bond posted by appellant through its bail agent. On October 21, 2014, Johnson appeared in court with her attorney for arraignment on the misdemeanor charge of violation of probation. At that time, the trial court stated: "we'll set this matter for a pretrial conference. Return back to this court, ... at 8:15 on December ... 16th." The minute order reflected the pretrial conference date and stated: "defendant ordered to appear on the above stated date(s) and time(s)."
On December 16, 2014, Johnson's attorney was present in court, but Johnson was not. The trial court and counsel called her name, but counsel noted there was no response. The trial court stated that, on October 21, 2014, Johnson had been ordered to return to court on that date; the trial court ordered the bond forfeited and issued a bench warrant for Johnson's arrest. It gave notice of the forfeiture to appellant and the bail agent. On June 23, 2015, the trial court entered summary judgment on the bond forfeiture.
Appellant moved to set aside the summary judgment, discharge the bail forfeiture, and exonerate the bond. It contended Johnson was charged only with misdemeanors and infractions, was not required to be personally present in court on December 16, 2014, and was present in court by her counsel. Consequently, it asserted, the trial court lacked jurisdiction to forfeit the bail at that time. The People opposed the motion. The trial court denied the motion and appellant appeals.
DISCUSSION
I. Standard of Review
"An order denying a motion to vacate summary judgment on a bail bond forfeiture is an appealable order and is a proper vehicle for considering a jurisdictional attack on the summary judgment. [Citation.] Ordinarily, appellate courts review an order denying a motion to vacate the forfeiture of a bail bond under an abuse of discretion standard." (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.) When the appellate court is deciding only legal issues, however, it conducts an independent review. (Ibid.) "[W]hen there are factual disputes, the trial court's findings of fact will be upheld under the abuse of discretion standard when those findings are supported by substantial evidence." (People v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th 548, 555 (Accredited).)
"The law disfavors forfeitures in general and bail forfeitures in particular. [Citation.] Thus, as a general rule, the statutes governing bail are strictly construed to avoid forfeiture. [Citation.] This policy of strict construction to avoid forfeitures protects the surety 'and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody.' " (Accredited, supra, 230 Cal.App.4th at pp. 555-556.)
II. Statutory Framework
"Bail bonds are regarded as a contract between the government and the surety. [Citation.] ' "In general the state and surety agree that if the state will release the defendant from custody, the surety will undertake that the defendant will appear personally and at a specified time and place ...." ' [Citation.] Thus, the surety acts as guarantor of the defendant's appearance in court under risk of forfeiture of the bond." (Accredited, supra, 230 Cal.App.4th at p. 555.)
The trial court must declare the bond forfeited "if, without sufficient excuse, a defendant fails to appear for any of the following:
"(A) Arraignment.
"(B) Trial.
"(C) Judgment.
"(D) Any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required.
"(E) To surrender himself or herself in execution of the judgment after appeal." (Pen. Code, § 1305, subd. (a).)
We quote the version of Penal Code section 1305, subdivision (a), in effect in 2014 and 2015 when the bail was forfeited and the bond summary judgment was entered. All further statutory references are to the Penal Code unless otherwise indicated.
When the bond is forfeited, the trial court must mail notice of forfeiture to the surety and the bail agent. (§ 1305, subd. (b)(1).) If the defendant fails to appear in court or in custody, either voluntarily or through surrender by the surety or bail agent within 185 days after notice of forfeiture is given, the trial court "shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound." (§§ 1306, subd. (a), 1305, subds. (b), (c).)
The prescribed period is 180 days, extended by five days for the mailing of the notice of forfeiture. (§ 1305, subds. (b), (c).) --------
III. Appearance of Misdemeanant by Counsel
Appellant contends Johnson appeared through counsel as permitted by section 977, which provides: "In all cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only," with exceptions not applicable here. (§ 977, subd. (a)(1).)
In Olney v. Municipal Court (1982) 133 Cal.App.3d 455 (Olney), the court upheld a writ of mandate commanding the municipal court to end its blanket policy of requiring misdemeanor defendants to personally appear at all readiness and sentencing hearings. (Id. at pp. 457-458.) The court stated that, while criminal defendants have a constitutional right to be present at all stages of the criminal proceedings, misdemeanor defendants also have a statutory right pursuant to section 977 to be absent. (Olney, at p. 459.) "In apparent recognition that the possible burden of mandatory personal appearance placed upon a misdemeanant in light of the normally minimal benefit derived from such an appearance [citation] may exceed just punishment for the commission of a lesser crime, the Legislature has conferred upon a defendant in a misdemeanor proceeding 'a statutory right to be absent under the Penal Code.' " (Ibid.)
"In defining the nature of this statutory right of an accused to be absent from misdemeanor proceedings, case precedent has thus far consistently recognized it to be 'conditional' in character. A defendant who absents himself must do so with full knowledge of the pendency of the criminal proceedings, as the waiver of the right to be present must be a knowing and intelligent one. [Citations.] Moreover, the court must be confident that the acts of counsel are authorized by the absent defendant. [Citation.] However, the right to be absent is further conditioned upon the court's determination defendant's presence is unnecessary; for, 'section 1043, subdivision (e) clearly empowers the trial court to order a misdemeanor defendant to personally appear when necessary to properly conduct the trial.' " (Olney, supra, 133 Cal.App.3d at pp. 460-461.)
In Simmons v. Superior Court (1988) 203 Cal.App.3d 71, the criminal defendant, who was charged with a misdemeanor, explained to her counsel that she could not appear for arraignment as scheduled because she had a trip planned with a nonrefundable airplane ticket. (Id. at p. 73.) When her case was called for arraignment, her attorney attempted to appear on her behalf, but the trial court refused to accept the attorney's appearance. It issued a bench warrant for the defendant's arrest. (Ibid.) The appellate court concluded "[s]ection 977, subdivision (a), confers upon a defendant in a misdemeanor proceeding a 'statutory right to be absent under the Penal Code.' [Citations.] However, the court may, in the exercise of its judicial discretion, order an accused to appear in person at a particular state of the proceedings if 'the particular facts and circumstances underlying an individual case justify ordering an accused to personally appear.' " (Id. at p. 76, fn. omitted.) As to the appearance by counsel on behalf of an absent defendant, the court stated: "The court must be confident that the acts of counsel are authorized by the absent defendant. [Citation.] However, the court can rely upon the representations of defense counsel that the accused was knowingly absent from the proceedings." (Id. at p. 76, fn. 5.)
In People v. International Fidelity Ins. Co. (2010) 212 Cal.App.4th 1556 (Internat. Fidelity), the defendant was charged with misdemeanors. At a pretrial conference, the defendant's attorney stated he was appearing for the defendant, the defendant's wife had informed him the defendant was out of the country and unable to return, and the attorney had lost contact with the defendant. As a result, the trial court ordered bail forfeited and issued a bench warrant for the defendant's arrest. (Id. at p. 1559.) The surety on the bail bonds moved to vacate the forfeiture and exonerate the bonds, contending the trial court had not ordered the defendant to be personally present and his attorney was authorized to appear for him. (Id. at pp. 1559-1560.) On appeal, the court reversed the order denying the surety's motion to vacate the forfeiture. (Id. at p. 1559.)
The court noted that, under section 977, "a defendant charged with a misdemeanor may appear through counsel at pretrial proceedings, unless ordered to be present at one of the specified proceedings." (Internat. Fidelity, supra, 212 Cal.App.4th at pp. 1561-1562.) The bail statute authorized forfeiture if the defendant failed to appear when " 'lawfully required.' " (Id. at p. 1562.) The trial court had not ordered the defendant to be present at the pretrial conference, and the statute authorizing him to appear through counsel provided sufficient excuse under the bail statute for not appearing in person. (Ibid.) The court added: "Moreover, 'the court [may] rely upon the representation of counsel that the accused is knowingly absent from the proceedings. [Citation.] In the absence of a statutory requirement that the attorney's authority be evidenced by a writing, it is always presumed that an attorney appearing and acting for a party has authority to do so. [Citation.] This confidence rests not only upon a belief in the honor and integrity of the attorney, but upon the fact that the attorney is a sworn officer of the court. [Citation.] [¶] ... Thus, without a strong factual showing to the contrary [citation], the attorney's representation that he or she is authorized to proceed in the defendant's absence is sufficient.' [Citation.] Absent that 'strong ... showing,' the attorney 'has no obligation to prove his authority to represent his client beyond his oral statement to the court that he is appearing for his client and is ready to proceed.' " (Ibid.)
The trial court ordered bail forfeited when Johnson failed to appear at a pretrial conference. At the previous hearing, the trial court had merely ordered Johnson to return on a specified date for a pretrial conference. It had not ordered her to personally appear. Consequently, she was free to exercise her statutory right to be absent from that conference, by authorizing her attorney to appear for her in her absence. The record does not indicate she did so.
At the December 16, 2014, pretrial conference, Johnson's attorney apparently answered when her case was called, but he did not represent to the trial court that he was authorized to proceed in her absence. He appeared to expect her to be present at the hearing, calling her name and noting there was no response. The attorney did not proceed with the conference and act on Johnson's behalf. Rather, when it appeared Johnson was not present, her attorney allowed the trial court to forfeit bail and issue a bench warrant for her arrest without objection. Because the attorney did not represent that he was appearing for Johnson in her absence or act on her behalf at the pretrial conference, the presumption that the attorney was authorized to appear for her did not arise. The presumption dispenses with the need to prove authorization in every case. It does not create authorization where none was given to the attorney.
Under the circumstances of this case, the trial court did not abuse its discretion by denying the motion to vacate the summary judgment. Substantial evidence supports its determination that Johnson failed to appear at the pretrial conference, either in person or by counsel authorized to appear for her in her absence.
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.