Opinion
F069762
04-12-2017
THE PEOPLE, Plaintiff and Appellant, v. BANKERS INSURANCE COMPANY, Defendant and Respondent.
John P. Doering, County Counsel, Alice E. Mimms, Deputy County Counsel, for Plaintiff and Appellant. Law Office of John M. Rorabaugh and John M. Rorabaugh for Defendant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. No. 1447922)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Nan Cohan Jacobs, Judge. John P. Doering, County Counsel, Alice E. Mimms, Deputy County Counsel, for Plaintiff and Appellant. Law Office of John M. Rorabaugh and John M. Rorabaugh for Defendant and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
The trial court vacated the forfeiture and exonerated the bail bond issued by Bankers Insurance Company (hereafter Bankers Insurance) to ensure the appearance of a defendant in a misdemeanor criminal action. The People appeal arguing the bail bond was properly forfeited.
The issue is whether the defendant was lawfully required to appear at the hearing at which the bail bond was forfeited. We conclude there is substantial evidence to support the trial court's conclusion the defendant was not ordered to appear, and therefore affirm the trial court's orders.
FACTUAL AND PROCEDURAL SUMMARY
Bankers Insurance issued bail bond number 555084355-1 in the amount of $50,000 to secure the release from jail of Juan Martin Zapata on or about July 10, 2012. On or about November 9, 2012, the trial court ordered the bond forfeited when Zapata failed to appear for a scheduled pretrial hearing. Neither Bankers Insurance nor its agents were able to produce Zapata within the statutory time. The parties stipulated for an extension of the period to vacate the forfeiture by producing Zapata for an additional 180 days.
On November 12, 2013, the day before the extended time to produce Zapata expired, Bankers Insurance filed a motion to vacate the forfeiture. The essence of the motion was that the trial court erroneously ordered the bond forfeited on November 9, 2012, because Zapata was not required to appear at the hearing.
The People, represented by Stanislaus County Counsel, opposed the motion arguing the bond was properly ordered forfeited.
The trial court granted Bankers Insurance's motion thereby vacating the forfeiture and exonerating the bond. The People appeal from this order.
DISCUSSION
The Supreme Court set forth the basic framework of bail bonds and their forfeiture in People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703 (Safety National).
"The forfeiture of bail and related proceedings are a matter of statutory procedure governed by [Penal Code] sections 1305 through 1308. [Citation.] 'The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court.' [Citation.] 'While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature.' [Citation.] In that regard, the bail bond itself is a ' "contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond." ' [Citation.] When a defendant who posts bail fails to appear at a scheduled hearing, the forfeiture of bail implicates not just the defendant's required presence, but constitutes a 'breach of this contract' between the surety and the government. [Citation.] Ultimately, if the defendant's nonappearance is without sufficient excuse, it is the surety who 'must suffer the consequences.' [Citation.]
"[Penal Code] [s]ection 1305(a) 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 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. [¶] (5) To surrender himself or herself in execution of the judgment after appeal.' (Italics added.) These two jurisdictional prerequisites - specifically, the defendant's failure to appear at an enumerated proceeding or on another occasion as 'lawfully required,' and the lack of a sufficient excuse for the defendant's nonappearance - must be met before the trial court may declare a forfeiture. [Citation.] If the court fails to declare a forfeiture at the time of the defendant's unexcused absence, it is without jurisdiction to do so later. [Citation.] However, the trial court may continue a case for a reasonable period without ordering a forfeiture of bail or issuing a bench warrant, if it 'has reason to believe that sufficient excuse may exist' for the defendant's failure to appear. [Citations.]
"For purposes of [Penal Code] section 1305(a), a defendant's presence may be deemed 'lawfully required' when a specific court order commands his or her appearance at a date and time certain [citation], or when a defendant has actual notice of a mandatory appearance - even without a court order - because he or she was present when the date and time of the appearance was set [citation]. [Citation.]" (Id. at pp. 709-710.)
The issue in Safety National, as in this case, was whether Zapata was "lawfully required" to appear at the November 9, 2012, hearing? If Zapata was required to appear, then the trial court correctly ordered the bond forfeited at that hearing, and the trial court erred when it vacated the forfeiture. If Zapata was not required to appear, the trial court did not have the authority to order the bond forfeited.
Although the record does not establish this fact, the parties both agree that Zapata was facing only misdemeanor charges in this case. This fact is significant, because the rules requiring a defendant to appear in court when charged with a misdemeanor are different than the rules for defendants charged with a felony.
Penal Code section 1305 requires the trial court to order a bail bond forfeited if a defendant fails to appear for arraignment, trial, judgment, or "[a]ny other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required." (§ 1305, subd. (a)(1)-(4).) The parties and authorities agree that this provision is applicable to all defendants regardless of whether they are facing felony or misdemeanor charges.
All further statutory references are to the Penal Code unless otherwise stated.
While section 1305 specifically address the forfeiture of bail bonds, a second statute also addresses when a defendant is required to appear in court. Section 977, provides that a defendant facing misdemeanor charges may appear by counsel unless the charge involves domestic violence or certain driving under the influence offenses. (§ 977, subd. (a)(1)-(3).)
Section 977, subdivision (b)(1) provides that a defendant facing felony charges must be present at the arraignment, at the time of plea, during the preliminary hearing, during trial when evidence is taken, when sentence is imposed, and "at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present ...."
In Safety National the Supreme Court clarified that a bail bond must be forfeited when a defendant facing felony charges fails to appear at a pretrial proceeding not specifically identified in section 1305. "[S]ection 977(b)(1)'s requirement of personal presence at 'all other proceedings' gives rise to a 'lawfully required' appearance under section 1305(a). Therefore, unless a defendant has properly executed a written waiver of personal presence (§ 977(b)), or has a 'sufficient excuse' for his or her absence at a scheduled proceeding (§ 1305), the trial court must declare any bail forfeited." (Safety National, supra, 62 Cal.4th at p. 708.)
To the extent the People rely on the holding in Safety National, that reliance is misplaced because Zapata faced a misdemeanor charge, not a felony charge. The provisions of section 977 at issue in Safety National dealt specifically with felony defendants, and the Supreme Court's discussion was directed at only felony defendants. (Safety National, supra, 62 Cal.4th at p. 707 ["Though not expressly governing bail forfeitures, section 977, subdivision (b)(1) ... provides that a felony defendant must be present at five specified proceedings and at 'all other proceedings' unless he or she has properly executed a written waiver."].)
Since section 977, subdivision (b) does not apply to this case, we must focus on section 977, subdivision (a) (an attorney may appear for a defendant facing misdemeanor charges), and section 1305, subdivision (a) (appearance required for arraignment, trial, judgment, and other occasion when defendant's presence is lawfully required) to determine if Zapata failed to appear at a proceeding which would allow the forfeiture of his bail bond. In this case, the trial court ordered the bail bond forfeited when Zapata failed to appear for the November 9, 2012, pretrial conference, and not one of the hearings listed in section 1305, subdivision (a). Therefore, the trial court could order the bail bond forfeited only if Zapata was lawfully required to appear at the hearing.
The copy of the minute order from this hearing is difficult to read, but appears to indicate the type of hearing is "PT" which we understand to mean a pretrial hearing. Neither party suggests the hearing at which the forfeiture was declared was an arraignment, trial, or judgment. --------
The parties agree, impliedly if not explicitly, that the only way Zapata could have been lawfully required to appear at the hearing was if the trial court ordered him to appear at the prior hearing held on October 26, 2012, at which Zapata was present. This issue is the crux of the appeal because the record reveals two conflicting pieces of evidence. The reporter's transcript of the October 26, 2012, hearing reveals the trial court informed Zapata of the date of the next hearing, but it did not order Zapata to appear at the hearing. The minute order for the October 26, 2012, hearing, on the other hand, states that Zapata was ordered to appear at the November 9, 2012, hearing.
At the hearing on Bankers Insurance's motion to vacate the forfeiture, the trial court recognized the evidentiary inconsistency. Counsel for Bankers Insurance argued that Zapata's defense counsel appeared at the hearing, and that was all that was required by section 977, subdivision (a). The trial court agreed.
"I'm looking at the language in 977(a)(1). It reads: 'In all cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only, except as provided in Paragraph Two and Three.'
"Two deals with domestic violence cases. Three charged - deals with driving under the influence and related cases, neither of which apply in this case.
"It certainly would have been better practice for defense counsel to have indicated on the record that he was appearing on behalf of the defendant. There may have been some other issues that do not appear on the record. But under the totality of the circumstances, given that counsel can appear pursuant to 977(a)(1), and the conflict between the minute order and the transcript, I'm going to grant the motion and vacate the forfeiture. The bond is exonerated."
The parties have cited numerous cases and made various arguments to support their positions. We think resolution of this appeal lies in the standard of review we are required to apply to this situation. The cases we have located are unanimous in recognizing that we review a trial court's order vacating a forfeiture for an abuse of discretion. (See, e.g., People v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th 548, 555.) " 'As the Supreme Court has noted, however, "the abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of the trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." ' [County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 543.]" (People v. Accredited Surety & Casualty Co. (2016) 3 Cal.App.5th 1180, 1184.)
The People assert that in this case we should review the trial court's ruling de novo, asserting the facts are undisputed and only legal issues exist. " 'When the appellate court is deciding only legal issues, however, such as ... matters of statutory interpretation, the abuse of discretion standard does not apply. [Citation.] When the facts are undisputed and only legal issues are involved, appellate courts conduct an independent review.' [Citation.]" (People v. Accredited Surety Casualty Co., supra, 230 Cal.App.4th at p. 555.)
Contrary to the People's argument, the abuse of discretion standard of review applies to this case because the issue involves a factual dispute, i.e., the issue of whether the trial court ordered Zapata to appear at the November 9, 2012, hearing. The trial court resolved this dispute, impliedly if not explicitly, by concluding Zapata was not ordered to appear. This conclusion is supported by substantial evidence since the reporter's transcript from the October 26, 2012, hearing confirms the trial court did not order Zapata to appear. The trial court could reasonably have concluded the notation on the minute order from the October 26, 2012, hearing was erroneous, or that Zapata was not given a copy of the minute order, or Zapata was never informed of the minute order. When ruling on Bankers Insurance's motion to vacate the forfeiture, the trial court was obligated to resolve this factual dispute. On appeal, we are obligated to accept the trial court's resolution unless there is no evidentiary support for it. Since there is evidentiary support for the trial court's factual finding, and this factual finding is dispositive, we must affirm the order.
Our conclusion is supported by People v. Lexington National Insurance Corporation (2016) 1 Cal.App.5th 1144 (Lexington National). The issue in Lexington National was, as in this case, whether the defendant was ordered to appear for a hearing at which she did not appear. The defendant faced misdemeanor charges, and Lexington National posted a bail bond to secure the defendant's release from custody. The defendant failed to appear for a pretrial hearing, and the trial court ordered the bail forfeited. Lexington National argued the trial court did not have jurisdiction to forfeit the bail because the defendant was not required to appear at the pretrial hearing. Lexington National argued the Safety National analysis was inapplicable to the issues before the appellate court because the defendant was charged with a misdemeanor, not a felony. The appellate court disagreed because the reporter's transcript established the trial court had ordered the defendant to appear at the pretrial hearing. "While Safety National involved a defendant charged with a felony, the court's rationale that a defendant is lawfully required to appear when specifically ordered to do so is equally applicable to a misdemeanor case. We hold that when a court orders a defendant charged with either a felony or a misdemeanor to personally appear in court, his or her 'presence in court is lawfully required,' within the meaning of ... section 1305, subdivision (b)(4), and a court may order bail forfeited if that defendant fails to appear." (Lexington National, supra, at p. 1149.
We agree with this holding, but note the converse is also true; when the trial court does not order a misdemeanor defendant to appear at a proceeding not otherwise identified in section 1305, subdivision (b), the trial court may not order a bail bond forfeited when the defendant does not appear because his or her appearance is not legally required. Therefore, Lexington National is consistent with our conclusion because there is no clear evidence that Zapata was ordered to appear at the pretrial hearing.
DISPOSITION
The trial court's order vacating the forfeiture and exonerating the bail bond is affirmed. Bankers Insurance shall recover its costs on appeal.