Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06909279 Jonathan B. Conklin, Judge.
Nunez & Bernstein, E. Alan Nunez, for Real Party in Interest and Appellant.
Kevin B. Briggs, County Counsel, and Justin B. Atkinson, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
Fairmont Specialty Group (Fairmont) appeals from an order denying its motion to set aside a forfeiture and exonerate its bail bond. Fairmont argues the bail bond was exonerated when it was transferred to a new case without notice to Fairmont, and when, despite declaring the bond forfeited and reinstating the bond later the same day, the trial court failed to give notice of either the forfeiture or the reinstatement. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2007, a criminal complaint was filed in Fresno County Superior Court case number F07906192 (Case 192) charging Ravinder Singh Dosanjh (Dosanjh) with four counts of receiving stolen property on or about November 6, 2006 (Pen. Code, § 496, subd. (a)) against five named victims, and five counts of second degree vehicle burglary on or about November 6, 2006 (§§ 459, 460, subd. (b)) against the same five victims.
All subsequent statutory references are to the Penal Code.
Three of the victims are listed in separate counts (counts 1, 2 and 4), while two of the victims are listed together under a single count (count 3).
On November 27, 2007, Fairmont’s agent posted a $90,000 bond in Case 192 for the release of Ravinder Singh Dosanjh (Dosanjh) from custody. The bond stated that Dosanjh had been ordered to appear in court on December 26, 2007, on section 496, subdivision (a) felony charges. Fairmont specifically undertook “that [Dosanjh] 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 filed against him/her and as duly authorized amendments thereof, ...”
On January 29, 2008, the People filed a criminal complaint which consolidated Dosanjh’s case, Case 192, with that of another defendant, Tomas Alvarez Ochoa, case number F06909279 (Case 279). The court ordered the two cases consolidated, with future proceedings to be recorded in Case 279. The consolidated criminal complaint lists both case numbers, with Case 279 designated as the lead case, and contains eleven counts: (1) five counts of receiving stolen property on or about November 6, 2006 (§ 496, subd. (a)), each committed by Dosanjh and Ochoa against the same five victims listed in Dosanjh’s original complaint; (2) five counts of second degree vehicle burglary (§§ 459, 460, subd. (b)), each committed by Dosanjh and Ochoa against the same five victims listed in Dosanjh’s original complaint; and (3) one count of possession of marijuana by Ochoa. According to the Fresno County Superior Court Bail and Penalty Schedule, the base bail on all of the charges against Dosanjh in the consolidated complaint totals $100,000.
The two victims who were listed in Dosanjh’s original complaint under the same count (count 3) are listed in the consolidated criminal complaint under separate counts (counts 3 and 4).
At a January 15, 2008 hearing, Dosanjh, who appeared with a public defender, requested a continuance of the arraignment so he could hire private counsel. The court granted the request and ordered Dosanjh to appear in Department 31 for arraignment on January 29, 2008 at 8:30 a.m. According to the reporter’s transcript, in the morning session on January 29, 2008, the court called Ochoa’s case, Case 279, and was told by the district attorney that the People were trying to get Ochoa’s and the case of his co-defendant, Dosanjh, together. The court noted that Dosanjh’s case was in another department, Department 31, where he was set for arraignment that morning. Accordingly, the court trailed the matter. When Dosanjh’s case was recalled later that morning, the court noted that at the last hearing on January 15, 2008 he was ordered to appear in Department 31 that day, and according to Department 31, a call had been made for Dosanjh, but he did not answer. Accordingly, the court found “at this point” that his failure to appear was without good cause, issued a $250,000 bench warrant, and forfeited the bond set in the amount of $90,000.
The reporter’s transcript for the January 29, 2008 afternoon session shows the court recalled Dosanjh’s case. Dosanjh was now present in court out of custody. Dosanjh’s attorney confirmed his client’s failure to appear that morning. He explained he was retained on the case and had spoken to Department 31, who told him the case was set for 1:30 p.m., which information he relayed to his client, who appeared at 1:30. Based on those representations, the court recalled the warrant. Dosanjh then waived time for the preliminary hearing, which was set for February 27. The court ordered Dosanjh to appear at that hearing. The minute orders of the January 29 hearing state that Dosanjh remained on surety bond, and do not state that bail was forfeited or reinstated.
Dosanjh failed to appear for the pre-preliminary hearing on April 9, 2008. Accordingly, the court issued a no-bail bench warrant for Dosanjh and ordered the bail bond forfeited. The following day, the court mailed notice of forfeiture of bail in the amount of $90,000 to Fairmont and its agent, which listed Case 279 under the “case number” heading.
On April 17, 2009, Fairmont filed a motion to vacate the forfeiture and exonerate the bond. It argued the bond was exonerated because the court did not send notice to the surety or bail agent that Dosanjh’s case was dismissed and the bail bond transferred to Ochoa’s case. In support of the motion, Fairmont’s attorney submitted his declaration, in which he stated he reviewed the court’s minute orders for January 29, 2008, which showed a forfeiture of bail and an order reinstating bail, and contained a handwritten order that the bond is to be transferred to Case 279. These minute orders, however, were not attached to the declaration. In a reply brief, Fairmont also argued that the court lost jurisdiction over the bond when the court failed to mail notice of the January 29, 2008 forfeiture of bail.
At the June 3, 2009 hearing on the motion, the court denied the motion. Summary judgment on the bond was entered on August 6, 2009.
DISCUSSION
Fairmont contends the trial court erred in denying its motion to vacate and set aside the forfeiture. Specifically, Fairmont contends the forfeiture should be set aside and the bond exonerated because (1) the bond was transferred to the consolidated case, Case 279, without notice to it as required by section 1303, and (2) the trial court failed to send a forfeiture notice within 30 days of January 29, 2008, when it declared the bond forfeited, and notice of reinstatement when the bond was reinstated later that same day. The County of Fresno responds that section 1303 did not require notice to the surety because Dosanjh’s case was not dismissed, but instead was consolidated, and the January 29, 2008 forfeiture was never issued because the trial court reinstated the bond before the forfeiture could be entered in the clerk’s minutes. We agree with the County that Fairmont’s contentions lack merit.
A bail bond is in the nature of a contract between the government and the surety through which the surety guarantees that the defendant will appear under risk of forfeiture of the bond. (People v. Amwest Surety Ins. Co. (1991) 229 Cal.App.3d 351, 356.) The scope of the surety’s risk is defined by the terms of the bond agreement and applicable statutes. (People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 668.) As has been noted, “[t]he forfeiture or exoneration of bail is entirely a statutory procedure, and forfeiture proceedings are governed entirely by the special statutes [sections 1305-1309] applicable thereto.” (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552.) It has been said that the procedures set forth in these provisions are “jurisdictional” and must be strictly followed or the court acts without or in excess of its jurisdiction. (Ibid.;People v. Ranger Ins. Co. (1999) 76 Cal.App.4th 326, 328-329; County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 16.)
Addressing Fairmont’s first claim that section 1303 required notice to it when the bond was transferred to Case 279, we note that section 1303 concerns exoneration of a bail bond in cases in which the complaint has been dismissed and charges re-filed in a later proceeding. It provides: “If an action or proceeding against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal. If, within such period, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense. If an undertaking of bail is on file, the clerk of the court shall promptly mail notice to the surety on the bond and the bail agent who posted the bond whenever the bail is applied to a public offense pursuant to this section.”
Section 1303 was “apparently designed to save accused persons the expense of successive bail bond premiums when a later criminal prosecution was substituted for an earlier.” (People v. Resolute Ins. Co. (1975) 50 Cal.App.3d 433, 436 (Resolute).) “Notification of the surety is integral to the legislative plan. The transfer of bail to a new offense constitutes an ex parte change in the conditions of the bail contract. The notice of transfer supplies the surety an opportunity to reappraise his risks in the light of that change. The new prosecution might include a more serious charge, increasing the possibility that the defendant might skip bail. Notice of the transfer gives the surety an opportunity to surrender the accused and to secure his own exoneration. (See Pen. Code, § 1300.) The notice is an essential of fairness to the bondsman.” (Resolute, supra, 50 Cal.App.3d at p. 436.) Lack of notice to the surety when notice is required under section 1303 results in the exoneration of the surety’s obligation on the bond. (Resolute, supra, 50 Cal.App.3d at pp. 435-436.)
Section 1303 does not apply here, however, because we are not dealing with the dismissal of a complaint and the re-filing of charges arising out of the same act or omission that gave rise to the dismissed complaint, with the resulting transfer of bail to the later proceeding. Here Dosanjh’s case, Case 192, was consolidated with another case, Case 279, and a consolidated complaint filed. There is nothing in the record to show that when the consolidation occurred, Dosanjh’s case was dismissed; instead, the record shows that after consolidation, Case 279 became the lead case. While Fairmont contends that Dosanjh’s case was effectively dismissed because a consolidated complaint was filed which included charges against a co-defendant, we disagree, since the consolidated complaint contained essentially the same charges as the original complaint against Dosanjh, with the exception that two victims named in one count of the original complaint were separated into separate counts in the consolidated complaint. Dosanjh’s original charges were not dismissed; instead, they were incorporated into a new complaint with the same case number.
Since Dosanjh’s case was not dismissed, those cases holding that the bond is exonerated where the surety was not provided statutory notice of the transferred bail have no application here. (See. e.g., Resolute, supra, 50 Cal.App.3d at pp. 436-437 [dismissal of original complaint and transfer of bail to grand jury indictment on related charges without notice to surety resulted in exoneration]; People v. Surety Ins. Co. (1983) 139 Cal.App.3d 848, 854 [transfer of bail to new complaint charging same allegations as dismissed complaint without notice to surety exonerates the bond notwithstanding similarity of pleadings].)
Fairmont nevertheless relies on cases construing section 1303 here because of the policy underscoring that section - fairness to the surety in the notice of the transferred bail, a unilateral change to the surety’s contract referencing a specific complaint, which allows the surety to reassess its risk and surrender the defendant under section 1300 if it so chooses. (People v. Surety Ins. Co., supra, 139 Cal.App.3d at p. 854; Resolute, supra, 50 Cal.App.3d at p. 436.) Underscoring this policy is the idea that a surety is entitled to notice of a unilateral change to its contract that materially increases its risk, even when the surety has not necessarily been prejudiced by the change. This policy, Fairmont argues, applies here notwithstanding the absence of a statutory notice violation. Because the consolidated complaint added a new defendant and contained additional charges, so the argument goes, the consolidation materially increased the risk of Dosanjh’s flight and the concomitant risk of forfeiture of the bail bond, resulting in exoneration.
We rejected a similar argument in People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 7 (Bankers). There, the surety argued that when the state changes the conditions of a bail bond without the surety’s consent, such as where bail is posted based on charges on which the defendant is booked but a later-filed complaint includes additional charges, the surety is discharged. (Bankers, supra, 181 Cal.App.4th at pp. 6-7.) We held that where the bail bond specifically states that the surety undertakes that the defendant will appear in court to answer any charge in any accusatory pleading based on the acts supporting the complaint “and all duly authorized amendments thereof, ” there is no material increase in the risk justifying exoneration of the bond even when the complaint ultimately filed contains additional charges, since a change in charges comes within the bond’s language. (Id. at p. 7.)
The bond here contains the same language as that in Bankers. When Dosanjh’s case was consolidated with Ochoa’s, Dosanjh’s charges were amended to include two separate charges involving two victims that were included under one charge in the original complaint. Such an amendment is certainly encompassed within the bond’s language, which contemplates situations where new accusatory pleadings are filed after the original complaint. (Bankers, supra, 181 Cal.App.4th at p. 7.)
In its opening brief, Fairmont also contended that the bond was void because it was not in the amount warranted by the charges contained in the consolidated complaint. Recognizing that the trial court never raised the bail amount, Fairmont, in its reply brief, withdrew the argument in light of our decision in Bankers.
Fairmont next argues the bond was exonerated because the trial court failed to give (1) notice of forfeiture after it declared the bond forfeited on January 29, 2008, and (2) notice that the bond was reinstated later that day. Although the reporter’s transcript of the January 29, 2008 hearings shows that the trial court declared the bond forfeited and issued a bench warrant in the morning session, it also shows that when Dosanjh appeared at the afternoon session it recalled the bench warrant. The permanent minutes of that day are silent about the forfeiture and reinstatement.
Section 1305, subdivision (a) requires the trial court to declare a forfeiture of bail if a defendant fails to appear at specified court proceedings without a satisfactory excuse. Where, as here, the amount of the bond exceeds $400, the clerk of the court is required to mail notice of the forfeiture to the bail agent within 30 days of the forfeiture. (§ 1305, subd. (b).) Section 1305, subdivision (b), further expressly provides that the surety shall be released of all obligations under the bond - in other words, exonerated - if the clerk fails to mail the notice as required. (Ibid.) Proper notice under the statute is considered a jurisdictional prerequisite to a valid summary judgment of forfeiture under section 1306. (County of Los Angeles v. Ranger Ins. Co., supra, 70 Cal.App.4th at p. 16; People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1385.) Under section 1305, “[t]he purpose of notice is to alert ‘the surety when its bond is in danger of being forfeited, so it can choose to act one way or another.’” (County of Orange v. Lexington Nat. Ins. Corp. (2006)140 Cal.App.4th 1488, 1492.) Section 1305, subdivision (c)(4) provides that when the defendant appears in court after a forfeiture has been declared, in lieu of exonerating a bond the court may order the bail reinstated and the defendant released on the same bond if the bail was given prior notice of reinstatement and the bail has not surrendered the defendant.
Under established law, in this situation the trial court was not required to give notice of either the forfeiture or reinstatement. As this court explained in People v. Surety Ins. Co. (1983) 148 Cal.App.3d 351 (Surety Ins. Co.): “It has long been held that oral orders made in court are subject to the plenary power of the court until ‘entered.’ [Citations.] Unless the clerk prepares the ‘permanent minutes’ in court when the oral orders are announced, the judge is free to make new and different orders so long as it is done before the court clerk or a minute clerk prepares the permanent minutes.” (Id. at p. 357.) In Surety Ins. Co., the trial court ordered bail forfeited, then reinstated bail when the defendant appeared later the same day. (Id. at pp. 353-354.) After the defendant failed to appear once again, the court forfeited bail and subsequently entered summary judgment on the forfeiture. This court affirmed, establishing the bright-line rule that “[i]f the oral bail forfeiture order is noted by the clerk but not yet entered in the permanent minutes, the court has discretion to excuse a defendant’s late appearance and reinstate bail as if it had never been forfeited, without any notice to the surety.” (Id. at p. 357.)
That is precisely what occurred here. Although the reporter’s transcript shows the court orally ordered bail forfeited in the morning session, the permanent minutes do not reflect the forfeiture. Accordingly, the trial court had discretion to excuse Dosanjh’s late appearance and reinstate bail as if it had never been forfeited, which discretion it properly chose to exercise. The trial court did not err in failing to give notice of the forfeiture or reinstatement because it was not required to do so.
Fairmont contends that the minutes are “woefully deficient and unreliable” because they do not reflect anything about Dosanjh’s failure to appear. But that is exactly the point - the trial court chose to disregard Dosanjh’s initial non-appearance because it excused the failure to appear later that day. The failure to include the non-appearance and forfeiture in the permanent minutes shows that the trial court exercised its discretion, as it had authority to do under Surety Ins. Co., to excuse the late appearance and reinstate bail as if it had never been forfeited. (Surety Ins. Co., supra, 148 Cal.App.3d at p. 357.) We note that Fairmont’s trial attorney declared he reviewed minutes which showed the forfeiture and reinstatement of bail. These apparently were in the clerk’s “rough minutes, ” as the permanent minutes do not reflect either act; it is the permanent minutes that constitute the “official entry.” (Ibid.)
In sum, the trial court did not err in denying Fairmont’s motion to vacate the forfeiture and exonerate the bond.
DISPOSITION
The order denying Fairmont’s motion to vacate the forfeiture and exonerate the bond is affirmed.
WE CONCUR: Levy, Acting P.J., Dawson, J.