Opinion
D074241
12-18-2019
THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE COMPANY, Defendant and Appellant.
Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Thomas E. Montgomery, County Counsel, and Jennifer M. Stone, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CS288732) APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Thomas E. Montgomery, County Counsel, and Jennifer M. Stone, Deputy County Counsel, for Plaintiff and Respondent.
After Bankers Insurance Company (Surety) posted a $30,000 bail bond on behalf of criminal defendant Javier Ramirez, the trial court imposed a Fourth Amendment waiver and other bail conditions on Ramirez. When Ramirez failed to appear at a hearing, as ordered, the trial court ordered the bond forfeited. Surety then moved to vacate the forfeiture and to exonerate the bond, arguing the court's imposition of the allegedly unconstitutional Fourth Amendment waiver condition without Surety's consent rendered the bond void. The trial court denied the motion and entered summary judgment against Surety.
Surety appeals, raising the same arguments it relied on in the trial court. Our court recently rejected the same arguments in People v. Financial Casualty & Surety, Inc. (2019) 39 Cal.App.5th 1213 (Financial Casualty). As we will explain, we find Financial Casualty's reasoning persuasive, and therefore conclude Surety's arguments lack merit. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 30, 2016, while Ramirez was already on felony probation for a weapons-related offense and subject to a Fourth Amendment waiver probation condition, the People filed a complaint charging him and a codefendant with a single count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The complaint also alleged deadly-weapon and great-bodily-injury enhancements, but it is unclear from the record, as a whole, whether they apply to Ramirez. Based on the bail schedule applicable to the current charged offense, the trial court issued a bench warrant setting Ramirez's bail at $30,000.
Further undesignated statutory references are to the Penal Code.
On October 27, All-Pro Bail Bonds, as Surety's agent, posted a $30,000 bond (the bond) for Ramirez's release from custody. The bond states that Surety "hereby undertakes that the above-named defendant will appear in the above[-]named court on the date above set forth to answer any charge in any accusatory pleading based upon the acts supporting the complaint titled against him/her and all duly authorized amendments thereof, . . . and will at all times hold him/herself amenable to the orders and process of the court . . . ." The power of attorney attached to the bond clarifies that Surety's obligations relate only to producing Ramirez in court: "This power shall not obligate the surety for the Defendants' future lawful conduct, court imposed conditions, . . . or any other circumstances not specifically related to court appearances." (Boldface omitted.) The bond authorizes the trial court, in the event of a forfeiture, to enter summary judgment against Surety in the amount of $30,000.
At his November 3 arraignment, Ramirez pleaded not guilty. The trial court noted Ramirez was "out on a $30,000 bond." The prosecutor argued that because "the facts of this case [are] violent in nature" and because of Ramirez's violent criminal history, his bail should be "rais[ed] to the scheduled [$]80,000." However, "in lieu of raising bail," the prosecutor requested that the court impose a Fourth Amendment waiver. Defense counsel responded that he had "spoken with the DA and . . . Ramirez and advised him what a [F]ourth [Amendment] waiver entails. He's fully ready to comply if the Court should order one."
The court stated that although the "special allegations would justify increasing bail," the court would impose a Fourth Amendment waiver instead if Ramirez agreed to it. Ramirez agreed. The court then explained to Ramirez that a Fourth Amendment waiver "means that you, your person, your possession[s], home, and vehicle may be searched without a search warrant or without probable cause. And you are agreeing to that, correct?" Ramirez responded, "Yes." Accordingly, the trial court left Ramirez's bail at $30,000; imposed a Fourth Amendment waiver condition (the Fourth Waiver), a criminal protective order, and firearms restrictions; and ordered him to appear on December 15 for a readiness conference.
In the Fourth Waiver, Ramirez "agrees to submit person, vehicle, place of residence, property, [and] personal effects to search at any time with or without a warrant, and with or without reasonable cause, when required by a Probation Officer or other law enforcement officer."
Ramirez failed to appear, as ordered, for the December 15 hearing. Consequently, the trial court ordered his bail forfeited and notified Surety of the forfeiture. On Surety's motion, the court extended to February 5, 2018, the deadline by which Surety was required to produce Ramirez in court.
Before this deadline passed, Surety moved to vacate the forfeiture and to exonerate the bond. Surety argued the trial court lost jurisdiction over the bond by imposing an unconstitutional Fourth Waiver (and other conditions) after Surety had already issued the bond and without prior notice to Surety. The prosecution opposed the motion, arguing the trial court was authorized " 'to impose reasonable bail conditions intended to insure public safety' "; Ramirez had agreed to the Fourth Waiver; and the Fourth Waiver did not materially increase Surety's risk that Ramirez would fail to appear. In a surreply, the prosecution further argued Surety lacked standing to assert the Fourth Waiver violated Ramirez's constitutional rights.
At the hearing, the trial court rejected Surety's "conclusory statement[]" that the added bail conditions " 'materially change[d] the contract.' " The court reasoned the conditions related only to Ramirez's conduct, not to Surety's obligation to ensure Ramirez's appearance. The court further reasoned that, if anything, the added conditions "support[]" Surety's performance under the bond by increasing the possible circumstances under which Ramirez might be brought to court (e.g., if "the police . . . stopped [him] for a traffic violation while he's out on bond and he had a firearm," he "would be produced in court").
Similarly, the trial court rejected Surety's contention that the conditions exceeded the scope of the power of attorney attached to the bond (quoted above). Again, the court reasoned the conditions regulate only Ramirez's conduct, and Surety was not responsible for enforcing Ramirez's compliance with the conditions.
As the trial court put it: "There's no obligations for you to ensure compliance with the Fourth waiver; there's no obligations for you to make sure he doesn't have contact with the protected party; there's no obligations on you to make sure he doesn't have any firearms. Your sole obligation is to ensure his appearance."
Finally, the trial court found Surety lacked standing to assert a constitutional violation arising from the Fourth Waiver. Accordingly, the court did not address the constitutionality of the condition.
Based on its finding that "there's not enough proof that the imposition of [the added] conditions upon the defendant increased the surety's risk to ensure the defendant appear[s] in court," the trial court denied Surety's motion to vacate the forfeiture and to exonerate the bond.
The trial court later entered summary judgment against Surety on the bond.
Surety appeals.
DISCUSSION
I. Overview of Bail Bonds
"[E]xcept for capital crimes when the facts are evident or the presumption great," a criminal defendant "may be released on bail by sufficient sureties . . . ." (Cal. Const., art. I, § 28, subd. (f)(3).) In setting bail, "[p]ublic safety and the safety of the victim shall be the primary considerations." (Ibid.)
In 2018, the Legislature repealed California's cash bail statutes and enacted new statutes providing for a risk assessment system of pretrial release or detention, effective October 1, 2019. (§ 1320.7 et seq.; Sen. Bill No. 10 (2017-2018 Reg. Sess.); see In re Webb (2019) 7 Cal.5th 270, 274 (Webb).) However, a referendum has qualified for the November 2020 general election requiring voter approval before the new statutes may take effect. (Webb, at p. 274; see 4 Witkin, Cal. Crim. Law (2019 Supp.) Pretrial Proceedings § 139A, p. 87.) The parties do not contend this legislation impacts this appeal and, therefore, we do not address it.
"The forfeiture of bail and related proceedings are a matter of statutory procedure governed by 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.' " (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709; see People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 42 ["The purpose of bail and of its forfeiture . . . is to ensure the accused's attendance and obedience to the criminal court, not to raise revenue or to punish the surety."].)
" 'When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (§ 1305, subd. (a).) The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1).)' " (People v. Financial Casualty & Surety, Inc., supra, 2 Cal.5th at p. 42.) The appearance period may be extended by up to 180 days, for good cause. (§ 1305.4.)
"After the appearance period expires, the trial court has 90 days to enter summary judgment on the bond. (§ 1306, subds.(a), (c).)" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658.)
II. The Trial Court Did Not Err By Denying Surety's Motion to Vacate Forfeiture
and to Exonerate the Bond
Surety contends the trial court erred by denying its motion to vacate forfeiture and to exonerate the bond because the trial court's imposition of the Fourth Waiver rendered the bond void by violating Ramirez's constitutional rights and by materially changing the terms of the bond without Surety's consent. Based on the reasoning of our court's recent decision in Financial Casualty, supra, 39 Cal.App.5th 1213, which we find persuasive, we reject Surety's contentions.
A. Standing
As a preliminary matter, the People contend Surety lacks standing to assert claims based on an alleged violation of Ramirez's constitutional rights. We disagree.
The Financial Casualty court rejected a similar standing challenge. Following the recent decision in People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891, the Financial Casualty court explained: " 'We agree [the surety] would lack standing to assert a violation of [defendant's] constitutional rights at the bail setting hearing. [The surety], however, is not appealing the order setting bond. In this case, [the surety] is arguing that as a consequence of the potential violation of [the defendant's] constitutional rights, the bond contract, to which [the surety] is a named party, is invalid. "At its core, standing concerns a specific party's interest in the outcome of a lawsuit. [Citations.] We therefore require a party to show that he or she is sufficiently interested as a prerequisite to deciding, on the merits," the claims presented by the litigation. [Citation.] As a party to the bond contract, [the surety] has standing to raise claims involving its validity. [Citations.] [The surety] has standing because its claim is based on a theory that the constitutional violation rendered the contract itself void.' " (Financial Casualty, supra, 39 Cal.App.5th at p. 1223, fn. 10, quoting Accredited, at pp. 896-897.)
We find this reasoning persuasive. Accordingly, because Surety claims that an alleged violation of Ramirez's constitutional rights invalidates an agreement to which Surety is a party, Surety has standing to assert the claim.
B. Surety Has Not Shown that the Addition of an Unconstitutional Bai
Condition Renders the Bond Void
Surety contends the imposition of the Fourth Waiver violated Ramirez's constitutional rights, thereby rendering the bond void. We are not persuaded.
Although "trial courts have authority to impose reasonable conditions related to public safety on persons released on bail" (Webb, supra, 7 Cal.5th at p. 278), it is an open question under California law whether imposition of a Fourth Amendment waiver bail condition exceeds the scope of this " 'fairly narrow' " authority (Webb, at p. 278). We conclude we need not weigh in on this issue because Surety has not established that imposing an unconstitutional bail condition voids a bail bond. (See Financial Casualty, supra, 39 Cal.App.5th at p. 1224 & fn. 12.)
The surety in Webb challenged the constitutionality of a Fourth Amendment waiver bail condition, but the court did not reach the issue because it became moot while the appeal was pending. (Webb, supra, 7 Cal.5th at p. 278.)
"Because we do not reach the issue of whether a Fourth Amendment waiver can ever be a constitutionally permissible condition of bail, we do not address the authorities that Surety cites on the merits of that issue, including the Ninth Circuit's opinion in U.S. v. Scott (9th Cir. 2006) 450 F.3d 863, which suppressed evidence that was obtained as the result of a warrantless drug test performed on a defendant who was required to agree to waive his Fourth Amendment rights and agree to drug testing as a condition of bail in Nevada state court." (Financial Casualty, supra, 39 Cal.App.5th at p. 1224, fn. 12.)
In reaching the same conclusion, our court examined the contractual nature of a bail bond: " 'A [b]ail bond is characterized as a contract between the government and the surety. . . . " '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. . . . If the defendant fails to appear at the proper time and place, the surety becomes the absolute debtor of the state for the amount of the bond.' . . ." . . . [¶] The contractual nature of the relationship between the government and the surety leads to the conclusion that the bail order is the offer, and the posting of a bond is the acceptance of that offer.' " (Financial Casualty, supra, 39 Cal.App.5th at p. 1225.)
The Financial Casualty court further observed: "A bail bond agreement has also been described as 'a contract involving three parties,' as it also involves the defendant, who enters into an agreement with the surety that he will be ' "in the theory of the law, committed to the custody of the sureties as to jailers of his own choosing, not that he is, in point of fact, in this country at least, subjected or can be subjected by them to constant imprisonment; but he is so far placed in their power that they may at any time arrest him upon the recognizance and surrender him to the court, and, to the extent necessary to accomplish this, may restrain him of his liberty." ' " (Financial Casualty, supra, 39 Cal.App.5th at p. 1225, fn. 13.)
As did the surety in Financial Casualty, Surety argues here that imposing " 'an unconstitutional condition renders the consideration of the bail contract invalid and the contract void.' " (Financial Casualty, supra, 39 Cal.App.5th at p. 1225.) As our court explained in Financial Casualty, however, the authority Surety cites to support this proposition—People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588 (International Fidelity 2012)—"does not advance Surety's argument because it does not hold that an unconstitutional bail condition renders a bail agreement void and exonerates the surety from any obligation under the agreement." (Financial Casualty, at p. 1225.) Instead, International Fidelity 2012 stands only for the unremarkable proposition of basic contract law that "when there is a failure of some of the consideration that the surety understood to have been given by the government for the bail agreement, the agreement is void." (Financial Casualty, at p. 1226.) Because it found "the addition of the Fourth Waiver does not constitute a failure of any of the consideration that the government gave to Surety for the bail agreement," the Financial Casualty court found International Fidelity 2012 inapposite. (Financial Casualty, at p. 1226.)
We are not surprised that Surety worded its challenge identically to the surety's challenge in Financial Casualty—the same appellate counsel represented both sureties.
Here, too, Surety complains only of the imposition of the Fourth Waiver, and not a failure of consideration. Accordingly, "in the absence of any authority stating that a surety's obligation under a bail agreement is rendered void when an unconstitutional bail condition is imposed on a defendant, Surety has not met its burden to establish that, were the Fourth Waiver determined to be unconstitutional, it would operate to void the bail agreement." (Financial Casualty, supra, 39 Cal.App.5th at p. 1227.)
C. The Addition of the Fourth Waiver Did Not Materially Increase Surety's Risk
Surety contends the bond was exonerated because the trial court materially altered its terms by adding the Fourth Waiver without Surety's consent. Citing to authorities applying general surety principles, Surety argues it need only show that the terms of the bond agreement were materially altered, not that the alterations materially increased Surety's risk that Ramirez would not appear in court. (See, e.g., ITT Diversified Credit Corp. v. Highlands Ins. Co. (1987) 191 Cal.App.3d 301, 305 [involving surety for motorcycle purchases]; Roberts v. Security Trust & Savings Bank (1925) 196 Cal. 557, 564 [involving surety for construction of a building]; Civ. Code, 2819 ["[a] surety is exonerated . . . if by any act of the creditor, without the consent of the surety the original obligation of the principal is altered in any respect"].)
To the extent Surety contends the addition of the Fourth Waiver exceeded the scope of the power of attorney attached to the bond, we agree with the trial court's conclusion that Surety is not obligated under the bond to enforce Ramirez's compliance with the Fourth Waiver. Therefore, the power of attorney is of no import to our analysis.
In our court's Financial Casualty decision, we rejected the same argument. (Financial Casualty, supra, 39 Cal.App.5th at p. 1227, fn. 14.) Our court explained that the surety's reliance on cases arising under general surety principles was misplaced because "[c]ase law developed specifically in the bail bond context . . . requires that to exonerate a bond based on a change in bail conditions, the surety must establish that the change materially increased its risk under the bond." (Ibid., italics added; see id. at p. 1227, citing People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456, 461 (International Fidelity 2017) [" '[I]f the government materially increases the risk to the surety beyond the express terms of the bond without notice to the surety or the surety's consent, the government violates its contract with the surety, and the surety is entitled to vacation of the forfeiture and exoneration of the bond.' " (italics added)]; People v. Western Ins. Co. (2013) 213 Cal.App.4th 316, 322 (Western) ["a surety is discharged from its liability under the bail bond agreement if the government, without the surety's consent or knowledge, materially increases the surety's risks"], italics added; People v. Bankers Ins. Co. (2016) 247 Cal.App.4th 1004, 1011 (Bankers) ["We agree . . . that, if the government materially increases the risk to the surety beyond the express terms of the bond without notice to the surety or the surety's consent, the government violates its contract with the surety, and the surety is entitled to vacation of the forfeiture and exoneration of the bond." (italics added)].)
Applying the bail-bond-specific standard, the Financial Casualty court found as a matter of law that a bail condition identical to the Fourth Waiver did not materially increase the surety's risk in ensuring the defendant's appearance in court. (Financial Casualty, supra, 39 Cal.App.5th at p. 1228.) In reaching this conclusion, our court examined cases finding a material increase in the surety's risk (see Western, supra, 213 Cal.App.4th at p. 325 ["permitting [the defendant] to leave the United States"]) and finding no material increase in the surety's risk (see International Fidelity 2017, supra, 11 Cal.App.5th at p. 464 [imposing alcohol-related conditions]), and concluded a Fourth Amendment waiver was "more comparable" to the conditions that did not materially increase the surety's risk. (Financial Casualty, supra, 39 Cal.App.5th at p. 1228.)
We find the Financial Casualty court's analysis persuasive. Moreover, because Ramirez voluntarily agreed to the Fourth Waiver, it was less likely than an involuntarily imposed condition to increase the risk that he would not appear in court. Additionally, as the trial court observed, the Fourth Waiver likely increased the circumstances under which Ramirez would be produced in court, thereby decreasing Surety's risk on the bond.
Accordingly, we conclude the addition of the Fourth Waiver did not materially increase Surety's risk. Thus, the trial court did not err in denying Surety's motion and entering summary judgment against Surety.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.