Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. SJ3367, Terry A. Bork, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, Brian T. Chu and Emery El Habiby, Deputies County Counsel, for Plaintiff and Respondent.
DOI TODD, J
Indiana Lumbermens Mutual Insurance Company (Indiana) appeals from an order denying its motion to set aside summary judgment on bond forfeiture after criminal defendant Hector Arrieta failed to appear in court. Indiana also appeals from the summary judgment entered on the forfeiture. Indiana asserts the court did not have jurisdiction to order the forfeiture and subsequently enter summary judgment on the bond because the court did not order forfeiture on the date of the first nonappearance, and the record does not support a finding that sufficient excuse existed for the nonappearance.
We conclude the court retained jurisdiction to order the forfeiture and enter summary judgment on the bond based on its determination that sufficient excuse existed for Arrieta’s failure to appear at the initial preliminary examination. We therefore affirm the trial court’s order denying the motion to discharge the forfeiture and set aside the summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 26, 2008, Indiana posted a bail bond in the amount of $10,000 for Arrieta’s release from custody. Upon his release, Arrieta was ordered to appear in court on July 1, 2008. Arrieta, then on bail, appeared in court on July 1, and was ordered to appear on July 7, 2008, at 8:30 a.m. for preliminary hearing.
At 3:05 p.m. on July 7, the court called the matter for preliminary hearing but Arrieta was not present. The trial court stated: “It was represented by Miss Roh [Arrieta’s attorney] that Mr. Arrieta was here this morning. He failed to return to court. Bench warrant is issued and held to Friday, 7/11/08. No bail.”
Arrieta failed to appear on July 11, 2008. His attorney informed the court that she had mailed a letter to him, but there may have been some confusion about the date. The court continued the preliminary hearing to August 1, 2008.
Arrieta did not appear on August 1, 2008. The court inquired of Arrieta’s counsel if she had had any contact with Arrieta. Arrieta’s counsel said she had not. The court then declared the bond forfeited.
On June 30, 2009, summary judgment on the forfeited bond was entered and served on Indiana. On July 30, 2009, Indiana filed a motion to set aside the summary judgment. Indiana argued that the trial court should have ordered the bail forfeiture on July 7, 2008, when Arrieta did not appear when the case was called. On May 21, 2010 the motion was denied and summary judgment was ordered to be paid by June 21, 2010. Indiana timely filed notice of appeal.
DISCUSSION
Penal Code sections 1305 through 1308, govern forfeiture of bail bonds. Section 1305, subdivision (a)(4) requires that the 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” on any occasion “prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required.” “[A] forfeiture of a bail bond, where required must be timely declared.” (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906.)
All further statutory references shall be to the Penal Code unless otherwise noted.
Section 1305.1 provides: “If the defendant fails to appear for arraignment, trial, judgment, or upon any other occasion when his or her appearance is lawfully required, but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant. [¶] If, after the court has made the order, the defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant’s arrest may be ordered issued.”
Indiana contends the trial court lost jurisdiction when it did not declare the bail bond forfeited on Arrieta’s first nonappearance on July 7, 2008, because there existed no sufficient excuse for his absence at that time. Indiana contends that this is a legal question and should be reviewed de novo. We consider the provisions of section 1305.1 in conjunction with those of subdivision (a) of section 1305 to determine whether the trial court erred in concluding that there was a sufficient excuse for Arrieta’s absence which warranted an opportunity to make an appearance.
Bail forfeiture statutes are jurisdictional, and if not strictly followed, the court loses jurisdiction to later declare a forfeiture of the bond. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 921 (Amwest).) If a sufficient excuse did not exist for Arrieta’s first nonappearance at the preliminary examination on July 7, 2008, the bail forfeiture statutes were not complied with, the court lost jurisdiction, and the later declared bond forfeiture was void. (Ibid.)
A sufficient excuse will only be found where the court has “‘some rational basis’” for belief at the time of defendant’s nonappearance that sufficient excuse may exist. (Amwest, supra, 56 Cal.App.4th at p. 923.) Because each case presents its own unique set of circumstances the issue whether the showing of excuse is sufficient is decided on a case-by-case basis. (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 953 (Ranger).)
A trial court may exercise its discretion in determining whether a criminal defendant has failed to appear at a required hearing without sufficient excuse. (People v. United Bonding Ins. Co., supra, 5 Cal.3d at p. 906.) Where the appeal challenges the propriety of continuing a hearing based on a defendant’s sufficient excuse for failing to appear, a reviewing court applies an abuse of discretion standard. (Id. at pp. 906–907.)
Here, the court found cause not to forfeit the bail bond, issued a bench warrant, which it agreed to hold, and continued the preliminary hearing to July 11, 2008.
In most situations involving a determination of sufficient excuse for failure to appear pursuant to section 1305.1, “the only reasons before the trial court are the evidence or representations furnished by defendant’s counsel. The cases demonstrate that the courts have cooperated with defense counsels’ requests and have liberally relied on their representations.” (People v. National Automobile & Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 306.)
Indiana’s assertion that no factual evidence of an excuse was presented is unavailing because under section 1305.1, “the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance to justify continuing a hearing without declaring a bail forfeiture. Instead, the statute requires the court only have ‘reason to believe that sufficient excuse may exist for the failure to appear.’” (Ranger, supra, 108 Cal.App.4th at p. 953.)
In Ranger, supra, 108 Cal.App.4th 945, the court concluded that the trial court’s finding of good cause was sufficiently supported by the record when a defendant who previously had made every appearance failed to appear. (Id. at p. 953.) His attorney asked to trail the case and issue and hold a bench warrant so he could continue to try to contact the defendant. (Id. at p. 949.) The trial court agreed because the defendant “hasn’t missed in the past. There is no reason to think otherwise yet.” (Ibid.) When the defendant failed to appear at the next hearing, the trial court issued the warrant, forfeited the bail, and later denied the surety’s motion to vacate the forfeiture. (Id. at p. 953.)
Here, Arrieta’s preliminary hearing was scheduled for 8:30 a.m. on July 7, 2008, but the matter was not called until 3:05 p.m. The court was aware that Arrieta had appeared as ordered on July 1, 2008, and was informed that he had again appeared a second time, earlier on the 7th. Based on the attorney’s representations, the court had a rational basis to believe that Arrieta was fulfilling his obligation to appear, and that something may have happened between the morning and afternoon court sessions that caused him to leave. Although there is no evidence showing Arrieta had an actual and valid excuse, the test is not whether it has been conclusively demonstrated that he had, only that the court has reason to believe that sufficient excuse may exist. (Ranger, supra, 108 Cal.App.4th at p. 953.) The representations by defense counsel, and the established record of appearances, similar to those in Ranger, provided the court with a rational basis for finding that a sufficient excuse may have existed for Arrieta’s failure to appear. (Ibid.)
Indiana’s reliance on People v. Harco National Ins. Co. (2005) 135 Cal.App.4th 931 (Harco) is misplaced. Contrary to appellant’s assertion, the circumstances in that case are not identical to those presented here. In Harco, the defendant was scheduled to appear for his initial arraignment on a Friday. (Id. at p. 933) Neither the defendant nor his attorney appeared for the arraignment. (Ibid.) Someone purportedly from defense counsel’s office contacted the court to inform the court that counsel would not be appearing and asked that the bench warrant be held. (Ibid.) The court did not declare a forfeiture but continued the hearing to the following Monday, and held the warrant. (Ibid.) On Monday, the defendant again failed to appear, and the bond was ordered forfeited. (Ibid.) The People argued that the defendant was “‘likely told’” his attorney could not appear for the Friday arraignment, and that was why the defendant did not come to court. (Id. at p. 935.)
The court in Harco rejected the argument that the trial court “rationally could have concluded” that the defendant had a sufficient excuse. (Harco, supra, 135 Cal.App.4th at p. 935.) The court emphasized the defendant’s lack of prior history of consistent appearances. (Ibid.) In fact, the Friday arraignment was to be the defendant’s first appearance in court. (Ibid.) It was also apparent from remarks at the Monday hearing, that the trial court itself understood that the defendant’s failure to appear on the preceding Friday was because counsel had lost contact with him, rather than because counsel had told him not to appear. (Ibid.)
Unlike Harco, there was nothing to indicate Arrieta’s counsel had lost contact with him on July 7, 2008. Further, Arrieta had established a record of appearances, having appeared on July 1, 2008, as well as on the morning of July 7, 2008. Considering all of the facts known to the trial court on the afternoon of July 7, 2008, the court had a rational basis to believe that a sufficient excuse may have existed for Arrieta’s failure to appear.
Under section 1305.1, the court had authority and discretion to continue the case for a reasonable time to enable Arrieta to appear without ordering a bail bond forfeiture because sufficient excuse may have existed for his nonappearance. Because there was a rational basis for the court to believe sufficient excuse may have existed, the trial court complied with the bail bond statutes. Accordingly, the court did not lose jurisdiction to later declare a forfeiture of bail when Arrieta did not appear at the continued preliminary hearing on August 1, 2008. Summary judgment was properly granted and the court did not err in denying appellant’s motion to set aside that judgment.
DISPOSITION
The order denying the motion of Indiana Lumbermens Mutual Insurance Company to set aside summary judgment on bond forfeiture, to recall and set aside bail bond forfeiture, and to exonerate bail bond is affirmed. Costs on appeal are awarded to Plaintiff and Respondent.
We concur: BOREN, P. J., ASHMANN-GERST, J.