Opinion
Rehearing Granted March 17, 1981.
Opinions on pages 1-26 omitted.
[172 Cal.Rptr. 17]Porras & Wong and Ernest Porras, Los Angeles, for defendants and appellants.
John K. Van de Kamp, Dist. Atty., Harry B. Sondheim, Head, Dist. Atty., Appellate Division, and Eugene D. Tavris, Deputy Dist. Atty., for plaintiff and respondent.
L. THAXTON HANSON, Associate Justice.
INTRODUCTION
This is an appeal from a bail forfeiture declared following a motion by appellants Bea Hernandez Bail Bonds and Insurance Company of the West (hereinafter collectively and for the sake of brevity the Surety) for relief from forfeiture pursuant to Penal Code section 1305, subdivision (a) (hereinafter section 1305(a)), on the grounds that defendant Larry N. Apodaca (hereinafter defendant and/or Apodaca) was temporarily disabled by reason of detention by military authorities to appear in court at any time during the 180-day period following entry of the bail forfeiture or mailing of the notice of forfeiture as provided in section 1305(a).
BACKGROUND OF EVENTS IN CHRONOLOGICAL ORDER
On January 16, 1979, an information was filed charging defendant Apodaca with burglary of the residence of Elidia Lopez on or about December 21, 1978, in violation of Penal Code section 459, a felony.
On January 16, 1979, the defendant was arraigned and Deputy Public Defender L. Read was appointed to represent defendant. The record indicates that the bail set at $2,000 had been posted by the Surety and that "Defendant was ordered to return" on February 26, 1979, for trial.
On February 26, 1979, the date set for trial, the minute order reflects that the defendant was personally present represented by Deputy Public Defender L. Tipton who appeared for defense counsel L. Read because of the illness of defense counsel Read. The minute order shows that "on defense motion" the trial was trailed (continued) to February 28, 1979, and the defendant was personally instructed to return on that date with bail to remain in effect.
On February 28, 1979, the minute order shows that "defendant fails to appear without sufficient excuse" and the bail was forfeited and a bench warrant was ordered issued.
On March 7, 1979, the notice of the forfeiture was mailed to the Surety and bail agent.
On August 16, 1979, the Surety filed its "Notice of Motion and Motion to Vacate Forfeiture and Reinstate Bond" dated June 19, 1979, to be heard on August 31, 1979. Attached to the above notice of motion is a "Declaration of Bail Agent" Ed Martinez dated August 16, 1979.
[172 Cal.Rptr. 18]Attached also to the above notice of motion is an offer of reassumption of the Surety's obligations should the bail bond remain in full force and effect along with a "Declaration of Non-Collusion in Support of Motion to Vacate Forfeiture and Reinstate Bond" dated June 19, 1979, and a copy of a United States Army roster indicating that defendant Apodaca went on active duty on February 28, 1979.
On August 31, 1979, the trial court denied the Surety's motion to vacate the bail forfeiture and to reinstate the bond. The minute order of August 31 in denying the motion merely states: "Motion is denied. Bail forfeiture stands" and makes no reference to the Surety's alternative request to toll the 180-day period (see fn. 1, supra.). The record on appeal does not include a reporter's transcript of the hearing conducted on this date.
On September 4, 1979, the Surety filed a "Notice of Motion and Motion for Tolling of Statutory Period due to Temporary Disability, pursuant to Penal Code Section 1305(a)" to be heard on September 21, 1979.
Attached to the foregoing notice of motion is another Declaration of Non-Collusion and another Declaration of bail agent Mike Hernandez dated September 4, 1979.
The declaration of Mike Hernandez reads as follows:
Also attached is a form "Statements for Enlistment" indicating the form is "to be completed by applicants enlisting for this enlistment option" which shows "the day of (defendant's) enlistment in the Regular Army is scheduled for 28 FEB 79 ... for 3 years ...." The document was signed by defendant Apodaca on May 26, 1978, and contains a statement that if he willfully failed to report on the date specified (Feb. 28, 1979) he would be subject to apprehension and disciplinary action, i. e., desertion or AWOL. The statement also indicated that defendant Apodaca had read and understood its contents. Attached also is a copy of Active Duty Order No: 108-33 dated 26 May 1978 from the Department of Defense stating that the reporting date for active duty was February 28, 1979. Attached also is a letter dated June 25, 1979, addressed "TO WHOM IT MAY CONCERN" from Platoon Sergeant Trent L. Jackson stating that defendant Apodaca was a private and enrolled in Airframe Structural Repairman's course at Fort Eustis, Virginia.
On September 21, 1979, the court denied the foregoing motion to toll the 180-day statutory period pursuant to section 1305(a) [172 Cal.Rptr. 19] on the merits on the ground that the defendant's absence did not constitute a temporary disability.
The reporter's transcript contains the following colloquy between the court and counsel at the time of the September 21, 1979, hearing:
On October 17, 1979, the Surety filed its notice of appeal.
ISSUE
On appeal Surety contends that the trial court erred in denying its motion to toll the 180-day statutory period because of defendant Apodaca's temporary disability by reason of his detention by military authorities pursuant to section 1305(a).
However, the determinative issue presented by the record is whether or not a motion to toll the 180-day period in section 1305(a) must be brought within the 180-day period. In other words, does the trial court lose jurisdiction when the motion to toll is not heard within the 180-day period?
DISCUSSION
Section 1305(a) in pertinent part provides:
"If within 180 days after such entry in the minutes or mailing as the case may be, it is made to appear to the satisfaction of the court that the defendant is dead or is otherwise permanently unable to appear in court due to illness, insanity, or detention by civil or military authorities, and that the absence of the defendant was not with the connivance of the bail, the court shall direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just. If within 180 days after such entry in the minutes or mailing as the case may be, it is made to appear to the satisfaction of the court that the defendant is temporarily disabled by reason of illness, insanity, or detention by civil or military authorities and is therefore unable to appear in court at any time during the remainder of such 180 days, and that the absence of the defendant has not been with the connivance of the bail, then the period of time during which the disability continues shall not be deemed part of such 180 days. Upon a finding by the court that a reasonable period of time is necessary in order to return the defendant to court upon the termination of the disability, then such period of time, as fixed by the court, shall not be deemed part of such 180 days." (Italics added.)
In People v. Wilshire Ins. Co. (1975) 45 Cal.App.3d 814, 119 Cal.Rptr. 702 (pet. for hg. den. May 1, 1975), a surety's bail bonds were forfeited when defendant failed to appear on the date of trial, and formal notice thereof was given to the surety. On the last day of the 180-day period within which an order of forfeiture could be set aside, the surety requested that a hearing be set on an oral motion for stay of execution of final forfeiture of the bond. After numerous continuances, the hearing was held and evidence was offered that the defendant had died. The court then granted judgment of final forfeiture of the bonds, based on jurisdictional grounds and on the merits.
[172 Cal.Rptr. 20]The Court of Appeal in affirming the trial court held that the court had no jurisdiction to vacate the forfeiture order after the expiration of the 180-day period provided by statute for setting aside a forfeiture order, stating at pages 817-818, 119 Cal.Rptr. 702:
"The statute setting forth the requirements empowering a court to set aside a bail forfeiture (Pen.Code, § 1305) sets jurisdictional time limitations for the commencement of the procedure and for the making of the order. (People v. Black (1961) 55 Cal.2d 275, 277 (10 Cal.Rptr. 459, 358 P.2d 915 ...); People v. Stuyvesant Ins. Co. (1963) 216 Cal.App.2d 380 (31 Cal.Rptr. 208 ...); People v. United Bonding Ins. Co. (1969) 272 Cal.App.2d 441 (77 Cal.Rptr. 310 ...).) The burden is upon the bonding company seeking to set aside the forfeiture to establish by competent evidence that its case falls within the four corners of the statute. (People v. United Bonding Ins. Co., supra.)
"The showing of excuse must be made to the satisfaction of the court within the 180-day period. People v. National Auto. & Cas. Co. (1966) 242 Cal.App.2d 150, 153 (51 Cal.Rptr. 212 ...), held that a forfeiture cannot be set aside where the hearing was continued to a date beyond the jurisdictional period.
"The trial court here was without jurisdiction to consider the evidence presented by appellants after October 30. Since the judgment against the bail is one taken by consent, the obligation assumed is absolute but for the defenses set forth in section 1305, and these must be asserted within the limited period or the court loses jurisdiction. (People v. Black, supra, 55 Cal.2d 275, 277 (10 Cal.Rptr. 459, 358 P.2d 915); People v. Stuyvesant Ins. Co., supra, 216 Cal.App.2d 380, 382 (31 Cal.Rptr. 208); People v. National Auto. & Cas. Co., supra, 242 Cal.App.2d 150, 153 (51 Cal.Rptr. 212).)
"The statutory 180-day period prescribed by section 1305 expired on October 30, 1972. Not until November 24 did the appellants attempt to present to the court any evidence, competent or otherwise, that the defendant Martinez was dead and that they were therefore entitled to the defenses of section 1305." (Original italics.)
The language in section 1305(a) in respect to tolling the 180-day period parallels the operative language of the same section pertaining to relief from forfeiture discussed in People v. Wilshire Ins. Co., supra, 45 Cal.App.3d 814, 119 Cal.Rptr. 702. Accordingly, by a parity of the reasoning set forth in Wilshire, we hold that section 1305 sets jurisdictional time limitations within which the court is empowered to toll the 180-day period. The language of section 1305(a) is clear and unambiguous: "If within 180 days after such entry in the minutes or mailing as the case may be, it is made to appear to the satisfaction of the court that the defendant is temporarily disabled by reason of ... detention by ... military authorities and is therefore unable to appear in court at any time during the remainder of such 180 days, ..." (Italics added.)
Having held that the 180-day time period fixes the time within which the court is empowered to entertain and rule on a motion to toll that time period, we further conclude that in the instant case the trial court was without jurisdiction to toll the 180-day period at the September 21, 1979, hearing since notice of the forfeiture of bail was mailed to the Surety and bail agent on March 7, 1979, more than 180 days prior to the hearing and not within the 180-day period prescribed in section 1305(a). The trial court should have dismissed the motion for lack of jurisdiction.
By reason of the foregoing we need not address, on the merits, the trial court's denial of the September 21, 1979, hearing of the Surety's motion to toll the 180-day statutory period. Nor do we address, [172 Cal.Rptr. 21] on the merits, the trial court's denial of the August 31, 1979, hearing of the Surety's alternative request to toll the 180-day period (see fn. 1, supra ) since we construe the notice of appeal to be directed solely at the September 21, 1979, ruling inasmuch as the briefs on appeal pertain to the September 21, 1979, hearing and denial and a reporter's transcript of the August 31, 1979, hearing was not made a part of this record on appeal.
We note, without deciding, that had the motion to toll been made and heard within the 180-day period a remand for reconsideration of the motion on the merits may have been in order in light of the purpose of bail and the disfavor with which the law looks on forfeitures.
DISPOSITION
The order (judgment) denying the motion to toll the 180-day period appealed from is affirmed on the ground of lack of jurisdiction.
SPENCER, P. J., and HOGAN, J. , concur.
Assigned by the Chairperson of the Judicial Council.
"Ed Martinez, under penalty of perjury declares as follows:
"That he is the BAIL AGENT in the above entitled action whose bail was ordered forfeited on FEBRUARY 28, 1979, by reason of defendant's failure to appear on that date; On 2-28-79, the defendant had to report to the United States Army on a Delayed Entry Program that he had enlisted into 6 months prior to 2-28-79. On 2-26-79, the defendant was to make the court aware of his enlistment but because of the illness of his public defender the case was trailed to 2-28-79, the day he entered the Army. On 2-28-79 he was shipped to Fort Jackson, South Carolina for basic training.
"We have been unable to bring the defendant before this court as he is now stationed permanently to the 101st Airborne, Fort Campbell, Kentucky. We are making this motion so that the Court exonerate bail or have time (180 days) on the bail forfeiture tolled. (per Section 1305 of the California Penal Code).
"That declarant did not willfully disobey the orders of the above Court; that defendant's failure to appear as aforesaid was without the knowledge or consent of the bail.
"WHEREFORE, declarant prays that the order forfeiting the bail be vacated and the said bond reinstated.
"I certify and declare under penalty of perjury that the foregoing is true and correct.
"Executed at Los Angeles, California, on August 16th, 1979.
"/s/ Ed Martinez"
"I, MIKE HERNANDEZ, declare:
"That on May 26th, 1978, the defendant, LARRY N. APODACA, enlisted in the United States Army Reserve Control Group (Delayed Entry) for 3 years active duty, such starting date to begin on February 28, 1979. See attached Exhibit 'A'.
"That on February 26, 1979, the defendant was ordered to appear in the above-entitled court, and that due to the illness of his Public Defender his case was trailed to February 28, 1979.
"That on February 28, 1979, at 6:00 am., the defendant reported for induction to the Department of Defense Armed Forces Examinig (sic ) and Entrance Station, Los Angeles, California, whereupon he was shipped to Fort Jackson, South Carolina, for basic training. See Attached Exhibit 'B'.
"That after completion of Basic training, defendant was sent to Fort Eustis, Virginia, for further training as an helicopter mechanic. See Exhibit 'C'.
"That on or about August 29th, 1979, I spoke with Sgt. McCullen at Fort Eustis, Virginia, about trying to bring defendant to court. I was informed that defendant's class had left to Fort Campbell, Kentucky and that I should call after September 3, 1979, as he would be permanently assigned to the 101st Air Mobile Unit, Fort Campbell, Kentucky.
"That on September 4th, 1979, I was informed that defendant is still being registered, and that after the defendant has been completely processed, I can make arrangements with his company Commander to have the defendant returned to California for trial.
"I declare under penalty of perjury that the foregoing is true and correct.
"Executed on this 4th, Day of September, 1979, at Los Angeles, California.
"/s/ Mike Hernandez"
THE COURT: "Counsel, I am not going to stay this period of time because I do not consider this a temporary disability.
"It looks to me like this man intentionally placed himself into a position where he could not respond to the court, so your motion is denied.
"MR. PORRAS (counsel for Surety): Your Honor, I don't see how that could have been so because he he had enlisted in the service long in advance of being picked up.
"THE COURT: Beg your pardon?
"MR. PORRAS: He had enlisted early entry program into the service long before this matter came up.
"He enlisted back in around June of 1978, and his induction into the service wasn't to begin
"THE COURT: The only thing I can conclude, counsel, is that the service is not going to take a person with a felony proceeding pending against him.
"MR. PORRAS: I am not sure if the authorities knew of that.
"THE COURT: That is correct, they probably didn't.
"MR. PORRAS: It would still be our contention that regardless of whether or not that is true
"THE COURT: Regardless, I do not consider this to be any disability whatsoever.
"I would rather have him desert the service and get back here."
The incentive of protecting the $2,000 bail bond would in all probability result in the Surety returning the defendant to the court faster and at no public expense than relying solely on the slow and costly (at public expense) procedures triggered upon issuance of the bench warrant. Although at oral argument it was disclosed that defendant Apodaca was presently stationed at Ft. Ord, California, he could well have been sent to overseas duty in Europe or Korea further complicating the procedure and prolonging the time of his return to the court to face the burglary charge.