Opinion
F078298
01-28-2020
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. Boze, County Counsel, and Robert J. Taro, Assistant County Counsel, for Plaintiff 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 4000051)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Douglas V. Mewhinney, Judge. (Retired judge of the Calaveras County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Robert J. Taro, Assistant County Counsel, for Plaintiff and Respondent.
Before Peña, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
All Pro Bail Bonds, as an agent of Bankers Insurance Company (collectively, Surety) appeals the trial court's entry of summary judgment on its forfeited bail bond. Surety contends the trial court had no jurisdiction to declare a forfeiture of bail on June 19, 2017, because the court failed to declare a forfeiture when defendant Robert Shane Piatt did not attend a June 6, 2017 pretrial hearing.
The bail statute requires trial courts to declare bail forfeited when, "without sufficient excuse, a defendant fails to appear" on an occasion where "the defendant's presence in court is lawfully required." (Pen. Code, § 1305, subd. (a)(1)(D).) "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." (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 710 (Safety National).)
All unlabeled statutory references are to the Penal Code.
Here, the parties dispute whether Piatt was required to be present at a June 6, 2017 pretrial hearing. If his presence was required, Surety was entitled to notice of Piatt's absence, and the failure to provide that notice would exonerate the bond. Whether the trial court required Piatt's presence at the hearing depends on how the court's oral scheduling order is interpreted. First, we conclude the words used by the court are ambiguous—that is, reasonably susceptible to two interpretations. Second, we conclude the trial court properly resolved the ambiguity by construing its words in context and concluding Piatt was required to be present at the June 6, 2017 pretrial hearing only if a settlement had been reached.
Consequently, we conclude "the defendant's presence in court" for the June 6, 2017 hearing was not "required" for purposes of section 1305, subdivision (a), and the court was not obligated to declare the bail bond forfeited at that hearing when the defendant was not present. Accordingly, the court retained jurisdiction to declare a forfeiture based on Piatt's subsequent failure to make a required appearance.
As a second ground for vacating the forfeiture of the bail bond, Surety contends the bond was void because bail was set in violation of Piatt's constitutional rights. (See In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278 (Humphrey).) We assume for purposes of this appeal that Piatt's constitutional rights were violated and conclude such a violation does not provide a ground for voiding the bail bond. Thus, we join the Third Appellate District's resolution of this legal question rather than creating a split among the Courts of Appeal. (People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891, 897 (Accredited '19).)
We therefore affirm the summary judgment granted on the bail bond.
FACTS AND PROCEEDINGS
On August 25, 2016, Surety posted a bail bond (No. 525004031-7) in the amount of $250,000 for the release of Piatt from custody. On September 19, 2016, a felony complaint was filed against Piatt. The four counts in the complaint alleged Piatt engaged in conduct with a minor from August 2006 through August 2010 that violated the Penal Code. (See §§ 288, subd. (a), 288.5, subd. (a), 288.7, subd. (b), 288a, subd. (c)(1).) Hearings Addressing Bail Amount
On September 26, 2016, Piatt was present in court after being released on bail. The prosecutor requested bail be increased to $450,000. The trial court denied the request without prejudice, appointed a public defender, and continued the matter so the defense attorney could be present. The court set a hearing for September 30, 2016, and ordered Piatt to appear.
On September 30, 2016, Piatt was present in court. The trial court began the hearing by identifying the prosecutor and identifying the attorney who was specially appearing for Piatt. Next, the court stated that the "purpose of your hearing today is for a first pretrial" and "for bail review." It also stated, "I think you wanted to hire a private attorney."
The prosecutor renewed the request to increase bail, stating: "Mr. Piatt was booked on $250,000 bail. Our office filed four charges, and we're requesting that bail be set at schedule for Counts 1, 2, and 3. Count 4 is charged in the alternative, so there should not be a separate bail for that. At least according to our calculations, bail should be $450,000." The prosecutor and the court discussed her calculations of bail, which added $250,000 for count 1 (a life charge) and $100,000 each for counts 2 and 3. The court stated that "ordinarily if it's a life case, then usually the life bail is the one that's set, which is 250
The attorney specially appearing for Piatt asserted the bail for the life charge "itself is sufficient." He argued (1) the offenses alleged were from 2007 to 2010, (2) Piatt had ties to the community, (3) he had lived a lawful life except for a minor public intoxication incident in 1985, (4) "the bond actually has an assurance of his father's, who's here, home," and (5) "his obligations to make sure that he also protects his father's home is paramount." The attorney argued the risk of flight was defined by the exposure to a life term, the additional charges did not increase the exposure and, thus, did not increase the flight risk.
The prosecutor responded by arguing Piatt posed a risk to society in general and to the victim in particular, describing past threats allegedly made to the victim—a member of his family. Defense counsel noted one of Piatt's daughters was in court to support him, the court could impose a stay away order to protect the victim, and the fact Piatt was under scrutiny by the prosecutor and police reduced the risk to society and the victim. Defense counsel concluded by stating, "I'd ask that the bond stay as set."
The trial court stated that, given the alleged incidents were more than five years old, it was "satisfied that the bail currently posted ... is sufficient with the stay-away orders." The court stated its ruling was without prejudice to the presentation of additional information, such as threats or intimidation, and bail could be revisited and modified accordingly. After denying the request to increase bail, the court scheduled another pretrial hearing for a week later, which was intended to give Piatt enough time to meet with the defense attorney he had retained.
On October 7, 2016, Piatt was present in court with retained counsel. The prosecutor again requested a bail increase and the trial court denied the request. Piatt waived time and executed a waiver of personal presence in open court pursuant to section 977. Absences at Hearings
On March 9, 2017, counsel appeared at another pretrial hearing. Piatt's presence was not required because he had filed a waiver under section 977. The court set a pretrial hearing for April 11, 2017, and a preliminary examination for June 19, 2017.
On April 11, 2017, defense counsel and a prosecutor were present for the hearing. Piatt was not present. During the hearing, the trial court made an order for further hearings, the meaning of which is disputed by the parties. Consequently, we set forth the entire exchange between the court and counsel at the April 11, 2017 hearing:
"THE COURT: Robert Piatt, 4000051. Miss Harris is here.
"MR. MEYER: There's a prelim set on it, so there's nothing to set at this time.
"THE COURT: Prelim's already set for June 19th, right?
"MR. MEYER: Right.
"THE COURT: Just want to confirm that?
"MR. MEYER: If we can just confirm that.
"THE COURT: You don't want to set another date?
"MR. MEYER: Yeah, let's do that.
"THE COURT: Let's do it sometime early—how about June 5th?
"MS. HARRIS: I should be here on that date.
"MR. MEYER: Can we do the 6th?
"THE COURT: Yeah. Set for further pretrial, confirm the preliminary examination. 977. I'll order defendant back on, at a minimum, the preliminary examination, unless there's going to be some kind of settlement, and we'll see him on the pretrial too, okay?
"MR. MEYER: Okay."
The minute order for the April 11, 2017 hearing listed the next appearance date in Department 4 as June 6, 2017, at 8:30 a.m. and another appearance date as June 19, 2017, at 9:30 a.m. After each listing, the clerk marked the box for "Def. ordered to appear / excused" and drew a line through "excused."
On June 6, 2017, defense counsel and a prosecutor appeared for the pretrial hearing. Piatt was not present. During the hearing, counsel and the trial court discussed a new case filed against Piatt. The clerk stated an arrest warrant had been issued in the new case. The court stated: "He needs to turn himself in on that, Mr. Meyer. What other option is there?" Neither the court nor the prosecutor stated or suggested that Piatt's absence from the hearing violated the court's scheduling order of April 11, 2017. Forfeiture and Judgment
On June 19, 2017, Piatt was not present at the hearing. The trial court ordered the forfeiture of bail in open court and issued a bench warrant. On June 20, 2017, the clerk of court mailed Surety a notice of forfeiture stating Piatt had failed to appear the previous day and the court ordered bail forfeited.
In January 2018, the trial court granted Surety an extension of the appearance period. In July 2018, Surety filed a motion to vacate forfeiture and exonerate bail. In August 2018, after opposition and reply briefs were filed, the trial court held a hearing on Surety's motion. The minute order from the hearing stated Surety's motion was denied and "order signed."
A copy of the signed order was not included in the appellate record. The copy of the register of actions included in the clerk's transcript identified the order as document No. 30 and lists its date as August 16, 2018. Appellants have the burden of providing a record that affirmatively demonstrates reversible error. (People v. Indiana Lumbermens Mutual Ins. Co. (2011) 194 Cal.App.4th 45, 52 (Indiana Lumbermens '11).) The general rules of appellate practice address the omission of the order from the appellate record by requiring us to indulge all intendments and presumptions about the contents of the order that support the judgment. (Ibid.)
On August 27, 2018, a judgment and notice of entry of judgment against Surety was filed. Surety timely appealed.
DISCUSSION
Generally, when this court publishes an opinion addressing the forfeiture or exoneration of a bail bond, it provides an overview of the statutory scheme governing bail bonds, the principles applied when construing the bail statutes, and the standards of appellate review. Such an overview is unnecessary in this unpublished opinion because the parties have demonstrated their familiarity with these principles.
Surety presents two independent grounds for vacating the forfeiture and exonerating the bail bond. First, Surety contends Piatt was lawfully required to appear in court on June 6, 2017, and his absence lacked a sufficient excuse. In Surety's view, the trial court lost jurisdiction over the bail bond when it failed to declare a forfeiture at the June 6, 2017 hearing. Second, Surety contends bail was set unconstitutionally, which rendered the bail bond void and requires the summary judgment on the bond to be vacated. As explained below, we reject both claims of error. I. DEFENDANT'S PRESENCE WAS NOT REQUIRED
A. Statutory Requirement
Section 1305, subdivision (a)(1) provides, in part: "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: [¶] (A) Arraignment. [¶] (B) Trial. [¶] (C) Judgment. [¶] (D) Any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required. [¶] (E) To surrender himself or herself in execution of the judgment after appeal." In this case, the June 6, 2017 hearing is not one of the proceedings enumerated in the statute. Consequently, the question presented by Piatt's absence from that hearing is whether it was another occasion where "the defendant's presence in court [wa]s lawfully required." (§ 1305, subd. (a)(1)(D).) Our Supreme Court discussed the meaning and application of this statutory text in Safety National, supra, 62 Cal.4th 703. The court stated that for purposes of section 1305, subdivision (a)(1)(D), "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 [citations], 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 were set." (Safety National, at p. 710.) Using this description, the question presented in this appeal can be restated as whether a specific court order commanded Piatt's presence at the June 6, 2017 hearing.
B. Trial Court's Interpretation
The parties disagree on whether the language used by the trial court at the April 11, 2017 hearing commanded Piatt to be present at the June 6, 2017 pretrial hearing. At the hearing on Surety's motion to vacate forfeiture, the court acknowledged that the issue presented involved the interpretation of its oral statements. The court then read most of the reporter's transcript from the April 11, 2017 hearing into the record. Having set forth exactly what it said, the court explained what its statements meant:
"The Court might not use that exact language, but clearly what is intended by the Court in this is if this matter is going to settle, he needs to be here. Because he needs to be advised of all of his constitutional rights. The plea forms, if appropriate, need to be entered. He needs to sign the Prop 64 waiver about the gun. All of those things need to be done.
"If it's not going to settle, it's not necessary that he be here because we already have a preliminary hearing set.
"The Court finds that he was allowed—the counsel was allowed to be appear 977 [sic], unless there was going to be a settlement in this matter. There was not a settlement of this matter. The defendant did not appear.
"The Court, therefore, denies the motion to vacate the forfeiture and exonerate the bail bond."
The trial court's written order filed on August 16, 2018, was not included in the clerk's transcript. (See fn. 2, ante.) Therefore, we do not know if the written order expanded on the court's explanation or provided additional rationale for denying the motion to vacate the forfeiture and exonerate bail.
C. Surety's Interpretation
Surety's opening appellant's brief disagrees with the trial court's interpretation of its April 11, 2017 statements and contends:
"The trial court erred when interpreting this language as a conditional order to appear. The trial court's interpretation of this order as 'conditional' is not supported by the actual language used by the court. The court's statement 'and we'll see him at pretrial too' (CT 62) is an unequivocal order for the defendant's personal presence at the pre-trial hearing scheduled for June 6, 2017. Accordingly, since the defendant was specifically ordered to appear in court on June 6, 2017, defendant was lawfully required to appear in court on that date."
Under this interpretation and the absence of any excuse for Piatt's failure to appear, Surety argues the trial court was required to order bail forfeited at the June 6, 2017 hearing. The next step of Surety's argument invokes the following principle: "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." (Safety National, supra, 62 Cal.4th at p. 710.) Surety argues the application of this principle to the trial court's failure to declare a forfeiture at the June 6, 2017 hearing requires us to conclude the trial court lost jurisdiction and thus, had no authority to declare a forfeiture of bail based on Piatt's absence from the June 19, 2017 hearing.
D. Analysis of Conflicting Interpretations
1. Ambiguity
The first step in our analysis of the meaning of the trial court's statements is to determine whether the language used was ambiguous—that is, reasonably susceptible to more than one meaning. This is a familiar step as it is taken by courts determining the meaning of statutes, contracts and other written documents. (See Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1249 [first question of statutory interpretation is whether the statute's language is ambiguous]; Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 754-755 [court's threshold question when interpreting a contract is whether the writing is ambiguous]; Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 619 [same]; see Estate of Newmark (1977) 67 Cal.App.3d 350, 355 ["ambiguity exists in a written instrument when its language is properly susceptible to multiple constructions"].)
Generally, whether language is ambiguous presents a question of law. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165.) As a question of law, it is subject to independent review on appeal. (Adams v. MHC Colony Park, L.P., supra, 224 Cal.App.4th at p. 619.)
The language used by the trial court to set the June 6, 2017 pretrial hearing was taken down by the court reporter as follows: "Yeah. Set for further pretrial, confirm the preliminary examination. 977. I'll order defendant back on, at a minimum, the preliminary examination, unless there's going to be some kind of settlement, and we'll see him on the pretrial too, okay?"
Surety's interpretation of this language treats the last clause—"we'll see him on the pretrial too"—as a separate order that is not modified by the earlier language. In contrast, respondent and the trial court interpret that language as being subject to a condition—specifically, Piatt's presence was required only if "there's going to be some kind of settlement." Under this view, the "minimum" required of Piatt was to be present at the preliminary examination and the maximum—that is, his presence at both hearings—was required only if there was a settlement. The language used would have been made slightly clearer by a one-word change so that it read, "unless there's going to be some kind of settlement, [then] we'll see him on the pretrial too." Use of the word "then" would have strengthened the connection between the conditional phrase and the requirement for an appearance at the pretrial hearing.
We conclude that, on its face, the language used by the trial court is reasonably susceptible to the two interpretations advanced by the parties. Therefore, the language is ambiguous.
2. Relevant Circumstances
Our next inquiry addresses the circumstances that are appropriately considered in resolving the facial ambiguity of the language. First, we conclude the trial court's other statements at the April 11, 2017 hearing are relevant to resolving the ambiguity. We reach this conclusion based on the fundamental principle that the language of a contract, statute, regulation or rule is best understood in context, with the whole of the written language being considered when attempting to construe a particular part. (Civ. Code, § 1641 [contract must be read as a whole]; Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158, 188 [statutes and regulations].) We conclude this principle is appropriately extended to spoken language. Therefore, when determining the meaning of a spoken order, the words of the order should be considered in the context of the court's other statements. Stated another way, the language of the order should not be viewed in isolation. (Ibid.)
Second, the relevant circumstances also include the conduct of the court and counsel after the issuance of the order in question. In a contract dispute involving ambiguous language, "[a] party's conduct occurring between execution of the contract and a dispute about the meaning of the contract's terms may reveal what the parties understood and intended those terms to mean." (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 393; In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 52 [course of performance evidence is entitled to great weight in resolving dispute about meaning of a contract].) By analogy, we conclude the conduct of counsel and the court between the order scheduling the June 6, 2017 hearing and the order of forfeiture at the June 19, 2017 hearing may have a bearing on their understanding as to the meaning of the court's statements at the April 11, 2017 hearing.
Third, the relevant circumstances include the procedural posture of the case and the purpose served by the court's order. When a court considers ambiguous statutory language, its goal is to "adopt the construction that best effectuates the purpose of the law." (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715.) Similarly, when considering ambiguous language in an order, a reviewing court should attempt to identify the underlying purpose of the order and adopt the interpretation that best effectuates its purpose or purposes. In this case, the purpose to be served by the ambiguous order is related to the procedural posture of the case and the legal requirements applied to the procedural steps that might follow.
Based on our determination about the surrounding circumstances relevant to resolving an ambiguity in an oral order, we conclude the trial court did not err by failing to consider relevant circumstances in its analysis. (See Oldham v. California Capital Fund, Inc. (2003) 109 Cal.App.4th 421, 430 ["a superior court abuses its discretion when it fails to consider relevant factors"].) Similarly, the trial court did not err by basing its decision on irrelevant circumstances.
3. Deference Due the Trial Court
The deference due the trial court's interpretation of its own order is determined by the appropriate standard of appellate review. We recognized that in some contexts, "it is ... settled that a court has power to construe and clarify its orders, in cases of uncertainty, in order to sustain rather than defeat them. (Goldberg v. Paramount Oil Co. (1956) 143 Cal.App.2d 215, 223.)" (Ballas v. Ballas (1963) 217 Cal.App.2d 129, 132.) Similarly, in a child custody proceeding, our Supreme Court stated it would not "second-guess the trial court's interpretation of its own orders ...." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 259.) Other cases support the application of the deferential abuse of discretion standard when determining whether a trial court has misinterpreted an earlier order. (See Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745, 763 [trial court's interpretation of its own orders dividing trial into phases was not an abuse of discretion]; Jacuzzi v. Jacuzzi Bros., Inc. (1966) 243 Cal.App.2d 1, 35 [trial court did not abuse its discretion in "the interpretation of its own order"].)
In the circumstances of this case, there is no disagreement about the language spoken by the trial court and little disagreement about the surrounding circumstances. Most of the disputes relate to the inferences that should be drawn from the language and surrounding circumstances. While a more deferential standard of review might be warranted, we will assume for purposes of this appeal that the interpretation presents a question of law subject to independent review. (See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [where uncontroverted evidence allows for conflicting inferences to be drawn about the meaning of a written contract, its interpretation is solely a judicial function subject to independent review].)
4. Resolving the Ambiguity
When considering all of the language used in the trial court's order and the discussions held prior to that order, we conclude the better of the conflicting interpretations is that Piatt was required to be present at the June 6, 2017 hearing only if there was a settlement. The court's reference to a minimum requirement supports the inference that there was a maximum requirement. Thus, the statement that "I'll order defendant back on, at a minimum, the preliminary examination" identifies the lesser requirement for his presence—that is, Piatt was required to be at the June 19, 2017 preliminary examination. Identifying the maximum requirement is aided by the court's use of the word "too" in the phrase "we'll see him on the pretrial too." The use of "too" supports the interpretation that Piatt's presence at the pretrial hearing would be in addition to his presence at the June 19, 2017 preliminary examination. The way the court phrased the order, the minimum applied "unless there's going to be some kind of settlement." Rephrased from another perspective, the maximum requirement was contingent upon there being "some kind of settlement." Thus, our review of the totality of the language used by the court most strongly supports the interpretation that Piatt was required to be present at the June 6, 2017 pretrial hearing only if there was a settlement.
The conduct of counsel and the court after the order was issued and prior to the forfeiture of the bail bond also supports the interpretation that Piatt was required to be present at the June 6, 2017 pretrial hearing only if there was a settlement. Specifically, when Piatt failed to appear for the June 6, 2017 hearing, no record was made that his absence was contrary to the court's order. The fact his absence was unnoteworthy further indicates his presence had not been required.
Finally, a comparison between the purposes might have been fulfilled by requiring Piatt to be present at both hearings and the purpose that was served by having him present at the June 6, 2017 hearing only if a settlement was reached supports the trial court's interpretation. Nothing was said by counsel or the court at the April 11, 2017 hearing that would indicate there was a reason for Piatt to be present at the next pretrial hearing. In contrast, the trial court provided a straightforward explanation of why Piatt was required to be present if the matter settled, stating: "[I]f this matter is going to settle, he needs to be here. Because he needs to be advised of all of his constitutional rights. The plea forms, if appropriate, need to be entered. He needs to sign the Prop 64 waiver about the gun. All of those things need to be done." Addressing the no-settlement alternative, the court stated: "If it's not going to settle, it's not necessary that he be here because we already have a preliminary hearing set."
We have weighed the circumstances and the conflicting inferences reasonably drawn from those circumstances and conclude the trial court adopted the most reasonable of the conflicting interpretations of its April 11, 2017 order. Under that interpretation, the court required Piatt to be present on June 6, 2017, only if there was a settlement. Because there was no settlement, Piatt's absence from that hearing did not trigger the court's statutory obligation to declare the bail bond forfeited. (See § 1305, subd. (a).)
5. Other Arguments
Surety's reply brief emphasizes the minute order of April 11, 2017, by arguing it is presumed correct and confirms that Piatt was ordered to appear at the June 6, 2017 pretrial hearing. The reporter's transcript of the oral proceedings on April 11, 2017, informs us what was said at the hearing. The minute order offers only an interpretation of what was said. We conclude the reporter's transcript is entitled to more weight than the unsigned minute order. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183 ["court's oral pronouncement controls over the abstract of judgment as the latter cannot add to or modify the judgment which it purports to summarize"]; People v. Gonzalez (1990) 51 Cal.3d 1179, 1239 [in conflict between minutes and oral ruling, the reasoning personally stated on the oral record prevails].) Thus, we reject Surety's argument that the unsigned minute order is presumed correct. Even if such a presumption existed, it was rebutted by the actual language of the court's order and the surrounding circumstances relevant to resolving the ambiguity in that order.
Surety argues at length that the principles applicable to establishing a sufficient excuse for failing to appear when lawfully ordered to do so should be applied to the analysis of whether a defendant was commanded to be present on a particular occasion. (See People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907 ["a defendant's failure to appear without explanation is presumptively without sufficient excuse"].) We reject these arguments and conclude the analysis set forth earlier in this opinion is the appropriate methodology for determining whether an ambiguous order commanded the defendant to be present at a particular hearing for purposes of section 1305, subdivision (a).
This methodology of selecting the most reasonable of the competing interpretations is more favorable to sureties than the following approach: "[E]ven if the record is arguably ambiguous as to whether [the criminal defendant's] personal presence was required at all hearings, we must resolve the ambiguity against the surety." (Indiana Lumbermens '11, supra, 194 Cal.App.4th at p. 52.)
Surety also argues this court cannot enforce a forfeiture unless it strictly complies with the statutory scheme. We recognize the principle that the bail statutes are strictly construed to avoid forfeiture. (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 714.) However, "[t]he policy disfavoring forfeiture cannot overcome the plainly intended meaning of the statute." (People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 308.) We conclude the requirement for strictly construing the bail statutes has little application to this case because we did not construe an ambiguous statutory requirement. Instead, we interpreted ambiguous language in a scheduling order by applying the standard of review described in part I.D.3 of this opinion. II. CONSTITUTIONAL VIOLATION IN SETTING BAIL
A. Contentions of the Parties
1. Surety
Surety contends the bail was set based on an unconstitutional order and, as a result, the bond is void and the trial court was without jurisdiction to order the forfeiture of bail. Under Surety's view of the law, the government must prove the trial court used a constitutionally sound method of calculating the amount of bail, which sets the monetary penalty for failure to appear at the minimum required to serve the legitimate government purposes of ensuring the defendant's appearance and public safety. Surety contends the imposition of excessive bail violates equal protection, section 12 of article I of the California Constitution, and due process.
To support the existence of a constitutional violation, Surety cites Humphrey. Surety recognizes that on April 29, 2019, the Third Appellate District filed Accredited '19, supra, 34 Cal.App.5th 891 and decided this issue by concluding the setting of bail without the individualized consideration of the defendant's circumstances in violation of the defendant's constitutional rights "does not void the underlying bail bond." (Id. at p. 897.) Surety contends Accredited '19 was contrary to established principles holding that for a bond to be valid, it must conform to the law. Surety argues this "court should reverse the ruling of the trial court, set aside the summary judgment, vacate the forfeiture and exonerate bail because bail was set based on an unconstitutional order and in violation of the defendant's due process rights in setting bail."
2. Respondent
Respondent argues this court should rely on the principle stated in Accredited '19, supra, 34 Cal.App.5th 891, that a "[f]ailure to comply with the procedural requirements of Humphrey, requirements intended to safeguard the defendant's constitutional rights, did not render the subsequently issued bond void." (Id. at p. 899.) Respondent contends Surety waived any right to object to the bail setting when it undertook the obligation. In addition, respondent contends Surety submitted to the trial court's jurisdiction by seeking an extension of the forfeiture period.
B. Waiver by Surety of Defects
In Accredited '19, the court addressed the waiver argument and concluded the surety "waived any procedural irregularities in the bail setting hearing when it 'assum[ed] its obligations ... at the time of the execution of the bond.' " (Accredited '19, supra, 34 Cal.App.5th at p. 898.) Generally, constitutional rights may be waived, provided the waiver is knowing, voluntary and intelligent. (Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 545.) "Waiver" is defined by California law as the intentional relinquishment or abandonment of a known right or privilege. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.) Under this definition, waiver is based upon intent and thus, presents a question of fact. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 745.) The party claiming waiver has the burden of proving it by clear and convincing evidence that does not leave the matter to speculation. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) The party claiming waiver may carry the burden of proving an intent to relinquish the known right by presenting "the words of the waiving party," either oral or written, or conduct from which the requisite intent may be inferred. (Ibid.)
For purposes of this appeal, we assume without deciding that Surety did not waive the claim that the bail was set in violation of the criminal defendant's rights. We make this assumption because, when the bail contract was made in August 2016, the First Appellate District had not issued its decision in Humphrey, supra, 19 Cal.App.5th 1006, review granted May 23, 2018, S247278, and it is unclear whether Surety would have known of, and intended to relinquish, the theory that setting bail based solely on the bail schedule violated the constitutional rights of the criminal defendant.
C. Consequences of the Constitutional Violation in Setting Bail
We further assume without deciding that the initial setting of Piatt's bail without the individualized consideration of his circumstances violated his constitutional rights and the subsequent hearings that addressed the amount of bail did not cure that violation. The rationale underlying this assumption is that Humphrey remains pending before the California Supreme Court. (Accredited '19, supra, 34 Cal.App.5th at p. 897.)
In Accredited '19, after the Third Appellate District assumed a violation of the defendant's constitutional rights, it concluded "that violation does not void the underlying bail bond." (Accredited '19, supra, 34 Cal.App.5th at p. 897.) The court stated sections 1305 and 1306 set forth the procedural requirements for forfeiting and exonerating bonds and these requirements are designed to protect the surety. (Accredited '19, at p. 899) In comparison, the procedural requirements for setting the amount of bail address the release of a defendant from custody on bail and are not intended to protect the surety. (Id. at p. 898.) The court also noted the "[f]ailure to comply with the procedural requirements of setting bail is not among the statutory grounds for exoneration of the bail bond." (Id. at p. 899.) Based on the comparisons, the court concluded a violation of the defendant's constitutional rights did not render the bail bond void and could not be equated to violations of the statutory procedures in sections 1305 and 1306, which were designed to protect the surety.
About four and one-half months later, the Fourth Appellate District addressed a surety's contention "that the presence of an unconstitutional condition of bail renders a bail agreement void as to all parties, including the surety." (People. v. Financial Casualty & Surety, Inc. (2019) 39 Cal.App.5th 1213, 1223 (Financial Casualty '19).) The court concluded the presence of an unconstitutional bail condition did not constitute a failure of any of the consideration that the government gave the surety for the bail agreement and, therefore, the presence of the unconstitutional condition did not void the surety's obligation under the bail agreement. (Id. at pp. 1226-1227.)
Based on Accredited '19 and Financial Casualty '19, we conclude a violation of the criminal defendant's constitutional rights in the setting of bail does not void the underlying bail bond.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.