Opinion
E050454
08-03-2011
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN SURETY COMPANY, Defendant and Appellant.
Law Offices of Brendan Pegg and Brendan Pegg for Defendant and Appellant. Pamela J. Walls, County Counsel, and Patricia Munroe, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF147813)
OPINION
APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed.
Law Offices of Brendan Pegg and Brendan Pegg for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Patricia Munroe, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Appellant and defendant, American Surety Company (American), the surety, appeals from an order denying its motions to vacate the forfeiture of two bail bonds. An order denying a motion to set aside the forfeiture of a bail bond is appealable if the question on appeal is whether the judgment of forfeiture was entered in compliance with Penal Code sections 1305 or 1306. (County of Los Angeles v. National Automobile & Casualty Ins. Co. (1998) 67 Cal.App.4th 271, 274-275, fn. 1.)
All statutory references are to the Penal Code unless otherwise indicated.
American contends that the bonds were exonerated by operation of law, pursuant to section 1305, subdivision (a), and that the trial court lacked jurisdiction to order the forfeiture. Plaintiff and respondent, the County of Riverside (County), urges the court to uphold the rulings below.
We conclude the trial court did not abuse its discretion in granting a five-day continuance and it retained jurisdiction to order a forfeiture of the bonds. We affirm the judgment.
II
FACTUAL AND PROCEDURAL HISTORY
Felony complaints were filed against defendants Victor Rivera and Raymond Grafal on January 12, 2009. Defendants appeared at the arraignment hearing on January 27, 2009. Defendants entered pleas of not guilty and were ordered to post bail of $100,000 each and appear for hearing on February 4, 2009.
On February 2, 2009, the surety posted two bonds in the amount of $100,000, warranting the appearance of Rivera and Grafal in court on February 4, 2009, to answer felony charges of violating sections 182 and 207 (conspiracy to commit kidnapping).
Defendants did not appear on February 4, 2009. Grafal's lawyer explained "both defendants made bail and are not present today. I think because it was set for bail motion, they didn't know they had to be here. That's my understanding." The court found good cause not to forfeit the bond because of "confusion over court dates" and for a continuance of the hearing date to February 9, 2009. (§ 1050.)
The defendants failed to appear again on February 9, 2009, and the court ordered the bail bonds forfeited.
American filed its motions to vacate the forfeiture and to exonerate the bail bonds. The motions were made pursuant to section 1305, subdivision (a) on the grounds that "the court lost jurisdiction to forfeit this bond when it did not forfeit on the first failure to appear by the defendant and good cause was not present for a continuance." The County opposed the motions, arguing there was good cause, or sufficient excuse, for the five-day continuance and the trial court did not abuse its discretion. The trial court denied the motions.
American appeals.
III
JURISDICTION TO ORDER FORFEITURE OF THE BOND
Section 1305, subdivision (a) provides a bond shall be forfeited when a defendant fails to appear: "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 for any of the following: [¶] (1) Arraignment. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required. . . ."
Section 1305.1 explains that a reasonable continuance may be granted without forfeiture if the court finds sufficient excuse for failure to appear: "If the defendant fails to appear for arraignment, trial, judgment, or upon 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 or issuing a bench warrant.
"If, after the court has made the order, the defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant's arrest may be ordered issued."
The trial court is obligated to exercise its sound discretion in making a determination whether a defendant's failure to appear is without sufficient excuse so as to warrant forfeiture of bail: "[S]ection 1305.1, working in conjunction with subdivision (a) of section 1305, addresses the situation where bail is still in effect, a defendant fails to make a required court appearance, and the trial court must determine whether the explanation for the defendant's absence warrants giving the defendant another opportunity to make the appearance. While it is true that courts often give a nonappearing defendant the benefit of the doubt when presented with the defendant's attorney's representation for why an appearance has not been made, the fact remains that such a decision is a matter for the court's discretion." (People v. International Fidelity Ins. Co. (2007) 151 Cal.App.4th 1056, 1061; People v. Harco Nat. Ins. Co. (2005) 135 Cal.App.4th 931, 934; People v. National Auto. and Cas. Ins. Co. (2004) 121 Cal.App.4th 1441, 1451; People v. Frontier Pacific Ins. Co. (2000) 83 Cal.App.4th 1289, 1293.)
Where the trial court can find sufficient excuse for defendant's nonappearance, the entirety of the record may supply sufficient reason for allowing the case to be continued without forfeiture of the bail bond. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 921-926.) The court is free to believe or disbelieve the explanation for nonappearance but "[w]hether another trial court, or even a reviewing court, would have granted defendant a continuance is not the test for abuse of discretion." (People v. International Fidelity Ins. Co., supra, 151 Cal.App.4th at p. 1061.)
In the cases relied upon by American, there was no reason whatsoever offered for the defendant's failure to appear. In the absence of sufficient excuse, the appellate courts held trial courts erred in not ordering forfeiture on the date of the defendant's first nonappearance and did not retain jurisdiction to declare a forfeiture at a later date. (People v. Surety Ins. Co. (1984) 160 Cal.App.3d 963, 969; People v. Surety Ins. Co. (1985) 165 Cal.App.3d 22, 30.)
By contrast, in subsequent cases, courts have recognized a trial court may find sufficient excuse for failure to appear where defense counsel represents to the court that a defendant misunderstood the need to appear. (People v. Ranger Ins.Co. (2005) 135 Cal.App.4th 820, 822, 825; People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 952.)
Here, we cannot say the trial court abused its discretion when it found sufficient excuse, or good cause, to continue the hearing date for five days because of "confusion over court dates." The trial court's finding was supported by defense counsel's explanation and the information in the record that defendants did not speak English and were using a Spanish interpreter.
In conclusion, we find the trial court could rationally find there was a sufficient excuse for defendants' failure to appear. The court granted a five-day grace period in compliance with section 1305.1. The trial court retained jurisdiction to declare a bail forfeiture on February 9, 2009, when defendants again failed to appear.
IV
DISPOSITION
The judgment is affirmed. The County shall recover its costs on appeal. (§ 1305.3.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington J.
We concur:
McKinster Acting P.J.
Miller J.