Opinion
H025435.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN CONTRACTORS INDEMNITY COMPANY, Defendant and Appellant.
American Contractors Indemnity Company (hereafter, the Surety) appeals from an order denying its motion to vacate summary judgment, discharge forfeiture and exonerate a bail bond. The Surety contends that the trial court lacked jurisdiction to order the bond forfeiture because notice had not been sent pursuant to Penal Code section 1305 as to an earlier forfeiture. We agree with this contention and we will therefore reverse the judgment.
I. BACKGROUND
On February 9, 2001, the Surety, through its agent Goodfellas Bail Bonds, posted a $10,000 bond for the custodial release of Christina Duran, the defendant in the underlying criminal action.
On May 21, 2001, Duran failed to appear in court at a scheduled hearing. Defense counsel represented to the court that Duran was experiencing "something of a car problem" and that she "may not [arrive] for another couple of hours." The trial court responded, "Being no appearance, on each defendant a bench warrant is issued, no bail. Bail is forfeited. Ill stay the warrant until Wednesday, the 23rd at 1:30. Need a bail reassumption at that time." The trial court clerks notes on the minute order for that day include the handwritten notation: "crt finds good cause not to forfeit bond @ this time." The box indicating that bail was forfeited was checked; however, another handwritten notation by the clerk added the words "and stayed." No notice of bail forfeiture was sent to the Surety or the bail agent.
On May 23, 2001, Duran appeared in court. The following colloquy transpired between the trial court and counsel for Durans codefendant:
"[DEFENSE COUNSEL]: We have — on behalf of our clients, we have a resumption [sic] letter.
"THE CLERK: We dont need those because bail wasnt forfeited. You stayed the forfeiture.
"THE COURT: Im going to take them anyway. All right. Present those to the clerk, please."
The minute order for the May 23 hearing reflects that the forfeiture was set aside, reassumption was filed and bail was reinstated.
On June 11, 2001, Duran failed to present herself for her next scheduled court appearance. The trial court declared the bond forfeited. The Surety and bail agent were notified of the forfeiture by mail on June 15, 2001. The trial court entered summary judgment on the bond on January 18, 2002. On October 24, 2002, the Surety brought a motion to set aside summary judgment "on the grounds that the court lacked jurisdiction." The trial court denied the motion on November 13, 2002, and this appeal followed.
II. DISCUSSION
The Surety contends that the trial court lacked jurisdiction to order the June 15, 2001 bond forfeiture because the notice requirements of Penal Code section 1305 were not complied with when bail was forfeited on May 21, 2001. The Attorney General concedes that no notice was sent regarding the May 21, 2001 forfeiture, but argues that the trial court dispensed with the notice requirement by staying its forfeiture order.
Section 1305 provides, in pertinent part, "(a) 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 . . . . (4) . . . if the defendants presence in court is lawfully required. . . . [¶] . . . [¶] (b) If the amount of the bond or money or property deposited exceeds four hundred dollars ($400), the clerk of the court shall, within 30 days of the forfeiture, mail notice of the forfeiture to the surety or the depositor of money posted instead of bail. At the same time, the court shall mail a copy of the forfeiture notice to the bail agent whose name appears on the bond. The clerk shall also execute a certificate of mailing of the forfeiture notice and shall place the certificate in the courts file. . . . [¶] . . . [¶] The surety or depositor shall be released of all obligations under the bond if any of the following conditions apply: (1) The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture."
"An order denying a motion to set aside a forfeiture is appealable." (People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1382.) "The resolution of a motion to set aside a bail forfeiture is within the trial courts discretion and should not be disturbed on appeal unless an abuse of discretion appears in the record. [Citation.]" People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195.) However, because the law disfavors the harsh results of forfeitures, statutes governing bond forfeiture "are to be strictly construed in favor of the surety. [Citation.]" (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552.) Consequently, courts reviewing the application of bail bond statutes must apply a standard that protects the surety, and more importantly the individual citizens who pledge their property to the surety on behalf of persons seeking release from custody. (People v. National Auto. & Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 287.)
"[S]ections 1305 and 1306 prescribe a particular procedure and set up certain limitations. . . . All directions to the court as to its duties are mandatory. [Citations.]" (People v. Stuyvesant Ins. Co. (1963) 216 Cal.App.2d 380, 381-382; People v. Surety Ins. Co. (1973) 30 Cal.App.3d 75, 79-80.) An act beyond those limits exceeds the courts jurisdiction. (Id. at p. 79.) Once a trial court acts extrajudicially, it no longer has jurisdiction to make subsequent orders in the matter. (People v. Wilshire Ins. Co. (1975) 46 Cal.App.3d 216, 221.) Where notice is not given in compliance with the requirements of section 1305, jurisdiction is lost, the surety is "released of all obligations under the bond," and the bond is exonerated by operation of law. (§ 1305, subd. (b); People v. Earhart (1972) 28 Cal.App.3d 840, 844.)
The Attorney General argues that no notice was required here regarding the forfeiture of the bond on May 21, 2001, because the trial court issued the forfeiture order and then stayed it, having impliedly found good cause for defendants non-appearance. Thus the statutory requirement to give the Surety notice of the forfeiture never arose. However, the record does not show that the trial judge stayed the forfeiture order. Instead, the court issued a bench warrant and then ordered "[b]ail is forfeited." Although the court then ordered the bench warrant stayed, it did not address the bond forfeiture. In fact, the trial judge observed that there would need to be a "bail reassumption" at the next hearing. Defense counsel responded "Ill do so." The court then accepted the reassumption letter at the next hearing when defendant appeared.
The Attorney General argues that a review of the entire record indicates that the court intended to stay the forfeiture order on May 21, 2001, having found good cause for defendants non-appearance. This argument derives from the clerks notation in the minutes of that day that "crt finds good cause not to forfeit bond @ this time." Further, when defense counsel offered the reassumption letter on May 23, 2001, the clerk said "we dont need those because bail wasnt forfeited. You stayed the forfeiture." And the court replied, "Im going to take them anyway." The Attorney General argues that there is an implication in this language that it was understood the reassumption letter was not needed because bail had not been forfeited. We disagree with this interpretation. Rather, the fact that the court took the reassumption letter for filing indicates that the court believed bail had been forfeited and must be reassumed. This is consistent with the courts comments at the previous hearing on May 21, 2001, that it would "need a bail reassumption" on May 23, 2001.
Moreover, it is improper to glean a judges intent from comments or notes by the court clerk, particularly where the clerks notes are inconsistent with the judges words. In the case of People v. Nat. Auto. & Cas. Ins. Co., supra, 98 Cal.App.4th 277, the trial judge stated in court "bail status is revoked" but the minutes reflected "`Bail ordered forfeited. " (Id. at p. 281, italics in original.) In a motion to vacate the forfeiture and exonerate the bond, the surety argued that the court lost jurisdiction over the bond because it failed to declare "in open court" that bail was forfeited, in strict compliance with the requirements of section 1305, subdivision (a). The trial court denied the motion, finding that the clerks notes merely clarified what had been said in court. The Court of Appeal reversed, finding that the trial court had failed to comply with the statutory requirements by not declaring the bail forfeited in open court. The court declined to "construe the `ambiguity in the courts actions in favor of its intention as reflected instead in the clerks minute order for the day stating bail is forfeited." (Id. at p. 286.) As in People v. Nat. Auto. & Cas. Ins. Co., supra, we decline to determine the courts intent from the clerks minute order notes. The court clearly stated that bail was forfeited. No stay was mentioned with regard to the bail.
Furthermore, there is no statutory authorization for staying a forfeiture order. If a court has "reason to believe that sufficient excuse may exist for the failure to appear," the statutory procedure is to "continue the case for a period [the court] 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 defendants arrest may be ordered issued." (§ 1305.1.) Continuing a matter and staying an order are distinct legal acts having different effects. The Legislature has made no provision for a stay of a forfeiture order. Nothing in the statute describes such a stay or provides whether the 30-day notice period is tolled or not activated during such a stay. When interpreting a statute "we may neither insert language which has been omitted nor ignore language which has been inserted. [Citation.] The language must be construed in the context of the statutory framework as a whole, keeping in mind the policies and purposes of the statute . . . ." (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 919-920.) In light of the detailed provisions governing bail forfeitures and the strict construction we must apply to these provisions, we conclude that the Legislature did not intend that bail could be ordered forfeited and then the order thereafter stayed. (See, People v. Frontier Pacific Ins. Co. (1998) 63 Cal.App.4th 889.)
Section 1305 requires notice on each occasion that the trial court orders a bond forfeited. (People v. American Contractors Indemnity Co. (2001) 91 Cal.App.4th 799, 808-810; People v. Wilshire Ins. Co., supra, 46 Cal.App.3d 216.) This applies even if bail is later reinstated or forfeited again. For example, in People v. Wilshire Ins. Co., supra, 46 Cal.App.3d 216, defendant failed to appear on November 29, 1971, and bail was declared forfeited. The following day the forfeiture was set aside and bail was reinstated. Defendant failed to appear again on January 4, 1972, and bail was again forfeited. Notice of forfeiture was given only as to the January 1972 forfeiture. No notice was given as to the November 1971 forfeiture. The reviewing court held that because of the courts failure to give the precise notice required by section 1305 as to the first forfeiture, the surety had been released from all obligations on the bond as a matter of law. Thus summary judgment on the bond forfeiture was void.
People v. American Contractors Indemnity Co., supra, 91 Cal.App.4th 799, is also instructive. In that case defendant was scheduled for an April 6, 1999 appearance. The court prematurely declared a bail forfeiture on March 10, 1999, and notice was sent pursuant to the statute on March 17, 1999. The defendant failed to appear at the April 6, 1999 hearing and the court again declared a bail forfeiture but did not give timely notice to the surety and the bail agent. The trial court found that the surety was on notice by virtue of the premature notice, but the Court of Appeal reversed. It held that "the surety and bail agent are entitled to separate notice under the statute every time a forfeiture is declared. The March 17 notice acted as notice of the purported March 10 forfeiture; separate notice of the April 6 forfeiture should have been sent within 30 days." (Id. at p. 808, italics added.) The court found that it did not matter whether the surety was prejudiced or not by the courts failure to follow the notice procedures. "[N]othing in the statute gives the courts permission to consider prejudice in deciding whether or not a bond will be exonerated for failure to meet a deadline. . . . [¶] Deadlines set forth in the statutes governing bail bonds are considered jurisdictional and are strictly enforced in every other situation that has arisen in this area. [Citations.] As the authorities make clear, the statutory deadlines in sections 1305 and 1306 are considered inviolable and do not depend on whether or not a party has suffered prejudice." (Id. at pp. 808-810.)
We conclude that the failure to give statutory notice of the forfeiture of bail on May 21, 2001, resulted in the court losing jurisdiction over the bond. The later declaration of forfeiture and summary judgment taken thereon was therefore void. (People v. Wilshire Ins. Co, supra, 46 Cal.App.3d at p. 221.) The trial court thus abused its discretion in denying the Suretys motion to vacate summary judgment and exonerate the bond.
III. DISPOSITION
The order denying the Suretys motion to set aside summary judgment is reversed and the cause is remanded to the trial court with directions to vacate the forfeiture and exonerate the bond. The Surety shall recover its costs of appeal.
WE CONCUR: WUNDERLICH, J., MIHARA, J. --------------- Notes: Unless otherwise indicated, all unspecified section references are to the Penal Code.