Opinion
B164131.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. ANDRES GUTIERREZ, Defendant; DAVID PEREZ BAIL BONDS, Real Party in Interest and Appellant.
Kenneth F. Weston for Real Party in Interest and Appellant. No appearance for Plaintiff and Respondent.
David Perez Bail Bonds, appellant, appeals from a trial court order denying its request to be reimbursed for the full premium on a bond it issued for release of a criminal defendant, Andres Gutierrez. The trial court limited appellants recovery to only a portion of the premium originally agreed to. We conclude that the trial court did not abuse its discretion under Penal Code section 1300, and accordingly affirm.
FACTS
On July 26, 2002, Gutierrez was arraigned on two felonies and his bail was set at $215,000. The next day, defendants mother, Yolanda Gutierrez, arranged for appellant to post a bond for her son. She agreed to pay appellant a premium of $21,500, $2,100 immediately, which she paid, and the remainder over time. She pledged her home as security for the full undertaking in case her son absconded.
On August 8, 2002, appellant posted the bond for defendant.
Defendant next appeared in court on September 10, 2002, for a preliminary hearing. The matter was continued at the request of defendants counsel and he was ordered to appear again on October 23, 2002.
Defendants mother made no further payments to appellant. Appellant learned that the defendant had another criminal case pending with a hearing set for October 10, 2002. On that date appellant appeared and requested that the court remand defendant into custody, which the court ordered. It also ordered the bail in this case exonerated and ordered that appellant appear on October 15, 2002, and advise "why the court should not order [the] premium returned" to defendants mother.
On October 15, the court ordered that appellant provide the court with an affidavit for a further hearing on why it should be entitled to the premium charged. It also ordered defendants mother to return for the hearing and provide witnesses and documentation why she should be entitled to return of the premium.
Appellants agent, David Perez, filed an affidavit which sought to justify the surrender of defendant Gutierrez and explain why recovery of the full premium was justified. He gave four reasons for the surrender of defendant Gutierrez: appellant had been paid only $2,100 of the premium; appellant had received notice of default on payment of the mortgage on the property pledged for collateral; appellant discovered that defendant Gutierrez did not live at his mothers house; and appellant discovered defendant Gutierrez had another case pending. Justifying his request for payment on the premium, he stated: "In fact as a bondsman I have to pay a premium to the Surety for the privilege of posting one of their bonds. I had to pay $2,500 for the premium on the bond. Thus I received less from the indemnitor on the total of $ 21,500 that she owed, and only paid $2,100, than I actually am out of pocket for the bond."
At the hearing on the motion, appellants counsel argued that there was good cause for defendants surrender primarily because the only security for the bond was Yolanda Gutierrezs home, which he argued was being foreclosed. Yolanda Gutierrez testified that the loan on her house had recently been purchased by a new lender and she was involved in refinancing her loan which is why she did not make the one payment which was in arrears. But she pointed out that another property had also been pledged as collateral for the bond and provided documentation to the court of the further collateral. Upon inquiry by the court, she said the second collateral was a house worth $350,000 which had no loan against it. Counsel for appellant responded that it appeared the other collateral was for another bond. The court found otherwise and concluded that collateral on the bond was adequate.
The trial court found no good cause to surrender defendant and that appellant acted precipitously in surrendering defendant. The court stated that its sense of equity was disturbed by the fact that appellant collected $2,100 after defendant was out on bond only for a couple of weeks. The court ordered Yolanda to pay $4,500 to appellant as a premium on the subject bond, ruled that Yolanda was not liable for any amount over $ 4,500, and ordered that appellant lift all liens over $2,400.
DISCUSSION
Appellant contests the trial courts finding that appellant lacked good cause to surrender defendant, and maintains that it is entitled to the total premium of $21,500 minus the $2,100 already paid by defendants mother. Appellant argues that the trial court abused its discretion in ordering that the entire already-earned premium was not due.
Since the trial court acted pursuant to subdivision (b) of section 1300, we examine the relevant portions of the statute. Preliminarily, subdivision (a) of section 1300 provides that prior to forfeiture of the undertaking or deposit by a third person, the bail or depositor may surrender a criminal defendant, in the exoneration of bail, "to the officer to whose custody he was committed at the time of giving bail." Subdivision (b) states: "Notwithstanding subdivision (a), if the court determines that good cause does not exist for the surrender of a defendant who has not failed to appear or has not violated any order of the court, it may, in its discretion, order the bail or the depositor to return to the defendant or other person who has paid the premium or any part of it, all of the money so paid or any part of it."
Subdivision (b) of section 1300 has been interpreted as the California Legislatures apparent attempt "to provide a remedy against potential abuse by a bondsperson of the broad power to surrender a defendant into custody and terminate liability at any time before forfeiture." (People v. Smith (1986) 182 Cal.App.3d 1212, 1217.) "Prior to the enactment of section 1300, subdivision (b), a defendant surrendered without good cause had no realistic remedy against a bondsperson unjustly enriched by such conduct. However, the availability of the remedy provided a defendant by section 1300, subdivision (b) still rests within the discretion of the trial court which must determine the good cause issue on a case-by-case basis." (Id . at p. 1217.)
"[G]ood cause will ordinarily exist where a defendant has failed to appear or has violated an order of the court, absent a proper showing of a justifiable excuse put forth at the hearing. However, those are not the sole events which may give rise to good cause. The trial court still has discretion to find good cause for surrender, for other good and sufficient reasons." (People v. Smith, supra, 182 Cal.App.3d at p. 1218.)
Appellant argues that the trial court erred in finding no good cause for defendants surrender for the following four reasons: (1) defendant and his mother gave appellant a "phony" residential address for defendant; (2) defendant did not disclose to appellant a second criminal case against him; (3) defendants mother never made payments beyond the initial $ 2,100; and (4) mothers house loan was in default, thus impairing the security on the bond.
The court found that there was no merit to appellants concern that inadequate security had been provided. Appellant has failed to provide us with any of the evidence presented to the court on this issue and has thus failed to prove the trial court erred in this finding. Appellant has failed to demonstrate why the fact that defendant was not residing at his mothers address created a risk on the bond, an argument not presented to the trial court. While the facts of the new case may have been of significance, defendant Gutierrez made his appearance in that case and made all of his appearances in this case. Nor was the significance of this fact argued to the trial court.
Appellant has failed to demonstrate that the trial court abused its discretion.
DISPOSITION
The order is affirmed.
We concur: EPSTEIN, Acting P.J. and CURRY, J. --------------- Notes: All further statutory references are to the Penal Code.