Opinion
C088040
03-12-2020
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN SURETY 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62150678)
Appellant American Surety Company (Surety) appeals from an order denying a motion to vacate forfeiture, exonerate bail, and set aside the summary judgment. Surety contends: (1) the bonds were void as they exceeded the authority of the power of attorney; and (2) the bail was set unconstitutionally. We conclude the bonds are not void and Surety waived any challenge to defects in proceedings setting bail. Accordingly, we affirm the judgment.
BACKGROUND
Defendant Garland Keith Callum, Jr., was charged in a single complaint with six offenses. Two of the offenses, commercial burglary and forging a prescription, were committed on December 12, 2016; four of the offenses, commercial burglary, forging a prescription, identity theft, and resisting a peace officer, were committed on December 31, 2016. The record reflects defendant was incarcerated only after the December 31 conduct. On January 1, 2017, prior to a complaint being filed, Act Fast Bail Bonds (bail agent), a bail agent for Surety, posted two separate bail bonds to secure defendant's release. Bail bond number AS100-144405 (4405) in the amount of $95,000 was issued solely for the December 31, 2016 offenses. Bail bond number AS100-144406 (4406) in the amount of $95,000 was issued solely for the December 12, 2016 offenses. Attached to each bond is a power of attorney that states, "This power is void if altered or erased or used in any combination with other powers of attorney of this company or any other company to obtain the release of the defendant named below or to satisfy any bond requirement in excess of the stated face amount of this power. This power can only be used once. . . . The obligation of the company shall not exceed the sum of [¶] ONE HUNDRED THOUSAND ($100,000) DOLLARS."
Approximately one month later, the district attorney filed a single felony complaint including all the charges from both dates. Defendant did not appear as ordered for the February 6, 2017 hearing and the trial court forfeited bail. The clerk sent separate notices of forfeiture for each of the bonds issued, 4405 and 4406. The bail agent filed two separate motions, one on each bond, to extend the appearance period. The trial court granted those motions. The day before the appearance period expired, the bail agent filed a motion on both bonds to toll time or vacate the forfeiture and exonerate both bonds based on its representation that defendant was in Mexico. The trial court denied the motion and entered summary judgment separately on each bond.
Approximately one month later, Surety filed a motion to set aside the summary judgment, discharge forfeiture, and exonerate bail. Surety argued the bonds were void because they exceeded the power of attorney and the bail was set unconstitutionally, in violation of defendant's due process rights. In the motion Surety asserted it "appears that bail was unconstitutionally set" and claimed the "[r]ecords relating to the calculation of bail" had been subpoenaed. Surety reiterated these arguments at the contested hearing. Surety made a number of representations as to why two separate bonds were posted, but provided no evidence to support these claims and did not submit any records relating to the calculation of bail. The trial court denied the motion.
DISCUSSION
I
Surety contends the bonds are void, as they exceeded their power of attorney. Surety claims the jail required two independent bonds, the prosecutor filed only one complaint, and the court combined the bonds into one case in violation of the powers of attorney.
The purpose of bail is to insure the defendant's attendance at court and adherence to court orders. The bail bond is a contract between the surety and the government by which the surety acts as the guarantor of the defendant's appearance in court. When there is a breach of the contract, the bond should be enforced. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) "Any ambiguities in a surety contract will be construed against the drafter, in this case [Surety] [Citations]. While bail forfeitures are generally disfavored and the statutes affecting forfeiture procedures must be interpreted when possible to avoid this result [citation], this rule does not mean the terms of a bail contract should be construed in the light most favorable to rendering the contract void." (People v. Ranger Ins. Co. (1998) 61 Cal.App.4th 812, 816 (Ranger).)
" 'The basic goal of contract interpretation is to give effect to the parties' mutual intent at the time of contracting. [Citations.] When a contract is reduced to writing, the parties' intention is determined from the writing alone, if possible. [Citation.] "The words of a contract are to be understood in their ordinary and popular sense." ' " (People v. International Fidelity Ins. Co. (2010) 185 Cal.App.4th 1391, 1396.) No extrinsic evidence was presented here to assist in the evaluation of the contract language. Accordingly, we independently construe the language. (Ibid.)
The language in the power of attorney renders it void if used in combination with other powers of attorney to issue a single bond. (Ranger, supra, 61 Cal.App.4th at pp. 816-817.) It does not render the power of attorney void if, as here, two separate powers of attorney are used to issue two separate bonds. There is no language in the contract that addresses the situation where the charges from two separate incidents are filed in one case. The trial court did not combine the two bonds to increase the bond in one case. And, throughout the proceedings, the court and the bail agent treated the bonds as separate from each other. The bail agent made separate motions to extend time and identified the bonds separately in its motion to toll time. The bonds were forfeited separately and separate notices of forfeiture were sent by the trial court. The power of attorney does not prevent the use of two powers of attorney to issue two separate bonds relating to two separate incidents. Rather, it prohibits combining powers of attorney to issue a single bond. Only one power of attorney was used for each bond, so the power of attorney does not provide a basis for exonerating the bond. (Ranger, at pp. 816-817.) Surety has failed to establish that the contract language entitles it to have the bonds exonerated.
II
Surety contends bail was set unconstitutionally in violation of defendant's due process rights and should be exonerated. Surety alleges the trial court failed to follow the "proper, constitutionally mandated procedures when setting the bail amount." The People argue Surety does not have standing to challenge the order setting bail.
Standing
In a virtually identical claim, we recently concluded the surety did not have standing to assert a violation of defendant's constitutional right or challenge the order setting bail. But, as a party to the bond contract, the surety had standing to assert claims involving the contract's invalidity. Thus, Surety "has standing because its claim is based on a theory that the constitutional violation rendered the contract itself void. [Citation.]" (People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891, 896-897 (Accredited).)
Record Demonstrating Error
Relying largely on In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278, Surety argues setting bail without a consideration of a defendant's ability to pay is unconstitutional, and in other cases the People have conceded that point. In Humphrey, the First District Court of Appeal held that pretrial detention determinations, such as setting bail, without an individualized consideration of the defendant's circumstances, including ability to pay or less restrictive nonmonetary alternatives to bail, violated the defendant's due process rights. (Id. at p. 1041.) The remedy was to remand the matter for a new hearing to provide the defendant the opportunity to present evidence and argument regarding the relevant circumstances and alternatives. (Id. at p. 1048.)
Surety claims that here the defendant's bail amount was unconstitutionally set because it was set without balancing defendant's constitutional interests and was instead set based on the bail schedule. Surety also states, "there is no explanation as to how the amount of bail was set." Therein lies part of the problem for Surety. The record on appeal does not indicate how defendant's bail was set; that is, it does not show bail was set based only on the bail schedule. Under these circumstances, we may not presume error. " '[E]very presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it [citation], and where the record is silent as to what was done it will be presumed in favor of the judgment that what ought to have been done was not only done but rightly done.' " (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 716.) It is the appellant's burden to affirmatively demonstrate reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) It is also the appellant's burden to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Because appellant has not met these burdens, we must affirm.
Waiver
Moreover, even if we were to assume the amount of defendant's bail was set solely according to the bail schedule and that this constituted error, as we did in Accredited, we reject the surety's argument, that violation of defendant's constitutional rights voids the bail bond contract. (Accredited, supra, 34 Cal.App.5th 897.) First, Surety waived any procedural irregularities in the bail setting hearing when it assumed its obligations at the time of the execution of the bonds. " 'Defects and irregularities, if any, in the proceedings preliminary to the taking of bail are considered as waived by the surety when it assumes its obligations as such at the time of the execution of the bond.' [Citation.]" (Id. at p. 898.) Second, the procedural requirements for setting bail are not intended to protect the surety and do not affect the validity of the subsequent bond. Failure to comply with the procedural requirements of setting bail is not among the grounds for exoneration of the bond. (Id. at pp. 898-899.) Finally, Humphrey, supra, 19 Cal.App.5th 1006 did not address the validity of a bond contract issued after a constitutionally inadequate hearing. Rather, it was concerned that ensuring bail setting procedures did not prevent a defendant from making bail and avoiding pretrial detention. The rights addressed and procedures required by Humphrey are intended to protect the defendant's liberty interests. "Nothing in Humphrey or the statutory rules regarding the setting of bail relieves the surety of its obligations under the bond once it has been executed." (Accredited, supra, at p. 898.) Therefore, the trial court did not err in denying American Surety's motion to set aside the judgment.
DISPOSITION
The order denying the motion to set aside the judgment is affirmed. The People shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278.)
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
ROBIE, J.