Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Nos. SJ-3366, BA333929, Terry A. Bork, Judge.
Nunez & Bernstein and E. Alan Nunez for Plaintiff and Respondent.
Andrea Sheridan Ordin, County Counsel, Brian T. Chu, Principal Deputy County Counsel and Emery El Habiby, Deputy County Counsel, for Defendant and Appellant.
MANELLA, J.
On June 24, 2008, defendant Hector Arrieta was arraigned for a violation of Vehicle Code section 10851, subdivision (a) (taking or driving a vehicle not his own). Defendant was ordered to appear at a disposition hearing on July 1 and a preliminary hearing on July 7. On June 26, appellant Indiana Lumbermens Mutual Insurance Company posted a $20,000 bond securing defendant’s appearance in court. Defendant appeared at the disposition hearing on July 1. Defendant was not in court when his case was called in the afternoon of July 7. On August 1, 2008, the court ordered the bond forfeited.
Appellant moved to set aside the forfeiture and in the ensuing proceedings, the parties established the following facts: On the date the preliminary hearing had been scheduled (July 7), the court called defendant’s case at approximately 3:00 p.m. Defense counsel informed the court that defendant had been present in court that morning but was not there at the time. The court did not declare bail forfeited. It continued the hearing to July 11 and issued a bench warrant to be held until that date. On July 11, defendant did not appear when his case was called. His counsel stated that because she had no telephone number for defendant, she had notified defendant about the new appearance date by sending him a letter. Counsel stated that as the letter had been mailed July 7, it was unlikely that defendant had received it. The court agreed, continuing the hearing and holding the bench warrant until the next date, August 1. When defendant did not appear on August 1, the court declared bail forfeited. Based on these facts, the court denied the motion to set aside the forfeiture. This appeal followed.
DISCUSSION
The statutory scheme governing bail is found in Penal Code section 1268 et seq. “These provisions must be carefully followed by the trial court, or its acts will be considered without or in excess of its jurisdiction.” (People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1074.) In addition, it is “well settled” that “the law disfavors forfeitures, and that this disfavor extends to the forfeiture of bail.” (People v. Lexington National Ins. Corp. (2010) 181 Cal.App.4th 1485, 1489, quoting People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906.) “‘“Thus, [the Penal Code provisions] dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture.”’” (181 Cal.App.4th at p. 1489.)
“As a general rule, failure of a defendant to appear... without sufficient excuse requires entry of such fact upon the minutes, and an immediate forfeiture of the bail with prompt notice to the surety and its agent.” (People v. Surety Ins. Co. (1985) 165 Cal.App.3d 22, 26; see Pen. Code § 1305, subd. (a).) Penal Code section 1305.1 provides an exception: “If the defendant fails to appear... 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.”
“The failure to... declare an immediate forfeiture upon the nonappearance of a defendant bailee can be justified only where there is some rational basis for a belief at the time of his nonappearance that there exists a sufficient excuse therefor. What constitutes a sufficient excuse generally rests within the sound discretion of the trial judge, but it must be manifest that a defendant’s failure to appear without explanation is presumptively without sufficient excuse and the burden of rebutting such presumption rests with the defendant’s representatives or those who are interested in avoiding a forfeiture.” (People v. United Bonding Ins. Co., supra, 5 Cal.3d at pp. 906-907.) “[T]he court’s failure to declare a forfeiture upon a nonappearance without sufficient excuse, either where no excuse is offered or where the finding of an excuse constitutes an abuse of discretion, deprives the court of jurisdiction to later declare a forfeiture.” (Id. at p. 907.) “Because each case presents its own unique set of circumstance 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, 952; accord, People v. Harco National Ins. Co. (2005) 135 Cal.App.4th 931, 934.)
Here, defendant appeared at the disposition hearing on July 1 and came to court on the morning of July 7 to attend his preliminary hearing. However, his case was not called by the time the court adjourned for lunch. Although defendant did not return after lunch, the court could reasonably infer from the facts that defendant had been confused by the adjournment, and did not understand that he was required to return for the afternoon session. Thus, the court had the good cause needed to continue the matter without declaring bail forfeited. (See People v. Frontier Pacific Ins. Co. (2000) 83 Cal.App.4th 1289 [trial court’s finding of good cause for nonappearance upheld where defendant was not present when jury reached its verdict at 4:35 p.m. and defense counsel pointed out that when defendant left court earlier in the day, he had not been told to return at any particular time].) Good cause for defendant’s failure to appear was also present at the continued hearing date on July 11. Counsel represented that she had sent a letter to defendant with information about the continued hearing after leaving court on July 7. As counsel was in court until at least 3:00 p.m., the letter could not have gone out until late in the day. The court could reasonably conclude that defendant had not received the letter by July 10 and therefore had no knowledge of the continued hearing date.
Our conclusion is supported by the decision in People v. Ranger Ins. Co., supra, 108 Cal.App.4th 945. There, the defendant appeared as required on multiple occasions. When he failed to appear at trial, defense counsel expressed concern that something had happened to him, and the court agreed to trail the case and hold the bench warrant because the defendant “‘hasn’t missed in the past’” and there was “‘no reason to think otherwise yet.’” (Id. at p. 949.) The defendant failed to appear on the continued date and the trial court ordered bail forfeited at that time. On appeal, the court upheld denial of the bonding company’s motion to vacate the forfeiture, finding that the trial court had “impliedly agreed with defense counsel the defendant’s absence was so unusual something must have happened” and that “[t]he court’s own experience with the defendant's past behavior over a several month period provided a ‘rational basis’ for believing there might be a sufficient excuse for the defendant’s absence.” (Id. at p. 953.)
In the present case, the court was aware that defendant had appeared as ordered less than a week earlier, on July 1, and that defendant had appeared on the morning of July 7, the date set for his preliminary hearing. The court could reasonably find that defendant’s absence that afternoon was due to confusion rather than willful behavior. The court did not abuse its discretion by continuing the hearing without declaring bail forfeited.
DISPOSITION
The order is affirmed. Respondent is awarded its costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.