Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge. Super. Ct. No. CV-255637
B.C. Barmann, Sr., County Counsel, and John R. Irby, Deputy County Counsel, for Plaintiff and Appellant.
Robert W. Hicks & Associates and Robert W. Hicks for Defendant and Respondent.
OPINION
HARRIS, J.
INTRODUCTION
Respondent Lincoln General Insurance Company issued a $10,000 bail bond for Michelle Ann Graham. Graham failed to appear, the bond was forfeited, and the trial court entered summary judgment against respondent. Penal Code section 1305 sets forth specific circumstances which allow for the forfeiture to be vacated if the defendant is returned to custody within 180 days of the forfeiture; that period is extended by five days, to 185 days, if the notice of forfeiture is mailed. (§ 1305, subd. (b); People v. Ranger Ins. Co. (2002) 101 Cal.App.4th 605, 608.)
All further citations are to the Penal Code unless otherwise indicated.
Respondent subsequently learned Graham had been returned to custody and ordered to appear in court in the underlying case within the 185-day period, and moved to set aside the summary judgment and vacate the forfeiture. Appellant, the People of the State of California, conceded Graham had been returned to custody within the requisite period, but argued respondent’s motion to vacate was not timely because the motion itself was not filed within that 185-day period. The court granted the motion to set aside the summary judgment, vacated the forfeiture, and exonerated the bond.
Appellant contends the court lacked jurisdiction to hear respondent’s motion because it was not timely filed. We will affirm.
Issuance of Bail Bond and Failure to Appear
On September 11, 2004, Aladdin Bail Bonds, a division of respondent Lincoln General Insurance Company, executed bail bond No. LG10-249986 for Michelle Ann Graham for $10,000. Graham had been booked on felony violations of section 460, subdivision (b) and section 470, subdivision (d), in Superior Court of Kern County case No. BF107570A. On September 14, 2004, the bail bond was filed in the court.
On November 15, 2004, Graham appeared in court for the scheduled beginning of her jury trial, but the prosecutor was not ready to proceed and the matter was trailed for one day.
On November 16, 2004, the court reconvened to begin the trial but Graham failed to appear. According to the court’s minutes, the bond was not forfeited because Graham was “having a medical treatment, ” and the court granted defense counsel’s motion for the no-bail bench warrant to be held for one day.
On November 17, 2004, Graham again failed to appear in court. Defense counsel advised the court that Graham left a message with his office that her son had fallen and hit his head, and she had to take him to the hospital. Counsel requested the matter be trailed. The prosecutor agreed to the continuance because a prosecution witness was unavailable. The court again granted defense counsel’s motion to hold the bench warrant for one day, and the bond was not forfeited.
On November 18, 2004, Graham failed to appear. Defense counsel advised the court that he received a message that Graham had been taken to Good Samaritan Hospital. The prosecutor stated he was still not ready for trial because his primary witness was ill. The court trailed the matter to November 22, 2004, and stated the bench warrant would be issued and the bond forfeited at that time if the prosecution was ready and Graham again failed to appear.
On November 22, 2004, Graham failed to appear. The court vacated the trial date, issued the no-bail bench warrant for her arrest, and ordered forfeiture of the bond. The court filed the notice of forfeiture of undertaking of bail, pursuant to section 1305. On the same date, the notice of forfeiture was mailed to respondent as the surety, and the agent, Aladdin.
Forfeiture of Bond
As explained ante, section 1305 provides for the forfeiture to be set aside if the defendant is returned to custody within 185 days of the mailing of the notice of forfeiture. (See, e.g., § 1305, subds. (a) & (b); People v. Ranger Ins. Co., supra, 101 Cal.App.4th at p. 608.) Thereafter, the court has 90 days to enter summary judgment against the surety. (§ 1306, subd. (c).)
As applicable to the instant case, the notice of forfeiture was mailed on November 22, 2004, and the parties agree that the 185-day period ended on May 26, 2005. The 90th day after May 26, 2005, for the court to enter summary judgment against the surety, was August 23, 2005.
On May 31, 2005, the court ordered summary judgment as to Graham’s bond in case No. BF107570A, for her failure to appear on November 22, 2004. The court found:
“More than 180 days have elapsed since the entry of said order, and no order has been made setting aside said forfeiture of the above date. The defendant did not appear or show cause for not appearing and no declaration has been filed by the bail bond agent.”
The court entered summary judgment in favor of appellant, the People of the State of California, and against respondent, for $10,292.50. On June 16, 2005, the notice of entry of judgment was mailed to respondent.
Graham’s Status
In the meantime, however, the parties were apparently unaware that as of February 10, 2005, Graham was in the custody of the California Department of Corrections (CDC), in Valley State Prison for Women in Chowchilla, in Madera County. The record is silent as to why Graham was in custody, or whether custody was based on the underlying criminal case.
On May 26, 2005, the prosecutor filed a request in the Superior Court of Kern County case No. BF107570A, for the court to order Graham’s removal from CDC and transportation to Kern County on June 15, 2005, for arraignment in that case on charges of violating section 460, subdivision (b) and section 470, subdivision (d). On the same day, the court granted the request and ordered Graham’s removal. There is nothing in the instant record to indicate respondent was informed of Graham’s status or the court’s order.
On June 9, 2005, Graham was transported from CDC, Valley State Prison in Chowchilla, to Kern County, pursuant to the court’s order in case No. BF107570A. According to the court’s docket entry, on June 10, 2005, Graham made her “first appearance after the issuance of a bench warrant.” The court vacated the felony arraignment, dismissed all charges on the prosecutor’s motion, and ordered recall of the warrant and dismissal of the felony case pursuant to section 1385. The docket states Graham was released from custody, but the record also states that Graham was returned to state prison on June 22, 2005.
Respondent’s Motion to Vacate the Forfeiture
On August 16, 2005, respondent filed a motion to set aside the summary judgment, vacate the forfeiture, and reinstate and exonerate the bail bond, pursuant to section 1305. Respondent’s motion was based on documentary exhibits which set forth the history of the case, discussed ante, and a declaration from respondent’s attorney, that he contacted CDC on August 9, 2005, and learned Graham had been in custody since February 10, 2005, she had been transported to Kern County as ordered by the court, she was returned to CDC, and she remained in state prison.
Respondent argued the summary judgment should be set aside because Graham had been in CDC custody since February 2005, within the 185-day period, and she remained in custody. Respondent acknowledged the 185-day forfeiture period ran on May 26, 2005, pursuant to section 1305, subdivision (b), but noted the court granted the prosecutor’s motion and ordered Graham transported on that date. Respondent relied on section 1305, subdivision (h), which states that a hold placed on a defendant’s release from custody is the same as an arrest on the underlying case. Respondent argued the prosecutor’s request for removal should be considered the same as a hold placed on a defendant, and the bail forfeiture should be vacated because Graham “was in government custody and out of [respondent’s] reach for the majority, if not all, of the ... forfeiture period.”
On August 31, 2005, appellant filed opposition to the motion to set aside the summary judgment and vacate the forfeiture. Appellant did not challenge respondent’s account of Graham’s custodial status. Moreover, appellant acknowledged that given Graham’s custody status, section 1305, subdivisions (c)(3) and (h) arguably apply to vacate the forfeiture and exonerate the bond. However, appellant argued respondent’s motion was untimely as a matter of law pursuant to section 1305, subdivision (i), which states that a motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period. Appellant argued the court lacked jurisdiction to grant relief because respondent filed the motion to set aside beyond the statutory period.
At trial and on appeal, the County Counsel of Kern County has appeared in this case on behalf of appellant, the People of the State of California.
On September 6, 2005, respondent filed a reply to the opposition, and argued the key issue under section 1305 was whether the defendant was arrested within the 180-day period, not whether the surety sought relief from the forfeiture during that period.
The Court’s Hearing and Order
On September 8, 2005, the court conducted a hearing on respondent’s motion, reviewed the parties’ authorities, and took the matter under submission.
On September 15, 2005, the court granted respondent’s motion to set aside the summary judgment. The court found it properly ordered forfeiture of the bond on November 22, 2004, based on Graham’s failure to appear, notice was properly given to the surety, and the 185th day ran on May 26, 2005. The court further found that on May 26, 2005, it signed an order directing CDC to transport Graham to court from state prison, where she had been since February 10, 2005. The court found “the removal order acted the same as a bench warrant arrest, ” pursuant to section 1305, subdivision (c)(3).
On September 29, 2005, the notice of the court’s ruling was filed that the summary judgment was set aside, the forfeiture was vacated, and the bond exonerated. On the same day, the judgment was filed to set aside the summary judgment, vacate the forfeiture, and exonerate the bond.
On November 28, 2005, appellant filed a timely notice of appeal. On appeal, appellant contends the trial court lacked jurisdiction to set aside the summary judgment and vacate the forfeiture because respondent’s motion was not filed within 185 days of the forfeiture.
DISCUSSION
Appellant argues the court lacked jurisdiction to set aside the forfeiture because respondent’s motion was not timely filed. Respondent contends the court properly set aside the summary judgment, vacated the forfeiture, and exonerated the bond because the court ordered Graham to appear for arraignment within the 185-day appearance period.
We begin with the basic principles of forfeiture and exoneration.
A. Forfeiture and Exoneration
While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions, and are civil in nature. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) The bail bond “is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant’s appearance in court under the risk of forfeiture of the bond.” (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22.) “‘The surety enters a contract with the bailee which encompasses the risk that the bailee will not appear and has charged a fee which presumably is sufficient to provide a profitable enterprise despite occasional forfeitures of bail ....’ [Citation.]” (People v. Accredited Surety & Casualty Co. (2004) 132 Cal.App.4th 1134, 1138.)
While there is no element of revenue to the state or punishment of the surety, the surety bears the consequences of the defendant’s failure to appear. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at pp. 657-658.) Where there is a breach of the obligation stated in the bail bond, the bond should be enforced and the bail forfeited. (Ibid.; People v. Ramirez (1976) 64 Cal.App.3d 391, 402.) Thus, when a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (§ 1305, subd. (a); People v. American Contractors Indemnity Co., supra, at p. 658.)
The statutory scheme governing bail forfeitures is found in section 1305 et seq. (County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 16.) 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.) Section 1305, subdivision (a) provides the jurisdictional prerequisites before the court can order forfeiture of bail: (1) the defendant must fail to appear for arraignment, trial, judgment, execution of judgment, or when his or her presence is otherwise lawfully required; and (2) the failure to appear must be without sufficient excuse. (People v. National Automobile & Casualty Ins. Co. (2004) 121 Cal.App.4th 1441, 1447.) Section 1305.1 creates a limited exception to the general rule, and provides that 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 reasonable period to enable the defendant to appear without ordering forfeiture of bail or issuing a bench warrant. (§ 1305.1.) If the defendant fails to appear on the court ordered continued date, without sufficient excuse, the bail shall be forfeited and a warrant for the defendant’s arrest issued. (Ibid.) The determination whether an excuse is sufficient is a matter within the court’s discretion. (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 951-952.) A continuance should be allowed where the trial court is given enough information to find sufficient excuse, and the details need not be expressly specified in the minutes. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 922.) The court may rely upon defense counsel’s representations as to the defendant’s status. (Id. at pp. 924-926; People v. Ranger Ins. Co., supra, 108 Cal.App.4th at pp. 952-953; People v. Ranger Ins. Co. (2005) 135 Cal.App.4th 820, 824.)
The theory behind section 1305.1 is that “‘[i]f bail forfeiture is required immediately upon the first nonappearance of a defendant, no matter how valid his [or her] reason for nonappearance be, such defendant would be subjected not only to having his [or her] bail forfeited but the additional penalty of possibly being required to pay another premium for its reinstatement.’ [Citation.] Accordingly, the court can continue a hearing and still retain its jurisdiction to declare a forfeiture at a later time as long as it has a reason to believe that a sufficient excuse exists for the nonappearance. [Citation.]” (People v. Ranger Ins. Co., supra, 31 Cal.App.4th 13, 19; see People v. National Automobile & Casualty Ins. Co., supra, 121 Cal.App.4th 1441, 1450-1451.)
If the defendant has failed to appear and the bail forfeited, that forfeiture may be vacated and the bond exonerated if the defendant is returned to custody under certain statutory circumstances. (§ 1305, subd. (c)(1)-(4).) If the defendant appears voluntarily, is surrendered to custody by the bail, or is arrested in the underlying case under enumerated circumstances within 180 days of the date of the forfeiture, the court must vacate the order of forfeiture and exonerate the bond. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 723 (American Surety); § 1305, subd. (c)(1)-(4).)
The 180-day period is known as the appearance period. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 658.) The appearance period is extended by an additional five days, to 185 days, if the notice of forfeiture is mailed to the surety. (Ibid.; American Surety, supra, 75 Cal.App.4th at p. 723; People v. Aegis Security Ins. Co., supra, 130 Cal.App.4th 1071, 1074; § 1305, subds. (b) & (c).) The forfeiture notice must be mailed to the surety if the amount of the bond exceeds $400. (§ 1305, subd. (b).) “If the notice of forfeiture is required to be mailed pursuant to this section, the 180-day period provided for in this section shall be extended by a period of five days to allow for the mailing.” (§ 1305, subd. (b) .)
This period is also referred to as the “exoneration period.” (People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 762 (Granite State).)
The 180- or 185-day appearance period is calculated using weekdays, weekends, and holidays, with the exception that if the last day of that period is a holiday, then the last day of the period is extended to the next day. (See, e.g., People v. Ranger Ins. Co., supra, 101 Cal.App.4th 605, 608-609.)
In the instant case, the court ordered the forfeiture and the notice was mailed on the same day, November 22, 2004, so the 185-day period began on that date.
Section 1305 also provides for vacation of the forfeiture if the defendant is permanently or temporarily “disabled, ” as defined by the statute. The court shall order vacation of the forfeiture if it is made apparent to the court, within the appearance period, that the defendant is permanently disabled, i.e., “deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities.” (§ 1305, subd. (d)(1).) In the case of a temporary disability, the court shall order the tolling of the 180-day period if the court is satisfied the defendant is temporarily disabled by reason of “illness, insanity, or detention by military or civil authorities.” (§ 1305, subd. (e)(1).)
Section 1305 provides another ground for vacation of the forfeiture, if the defendant is in custody “beyond the jurisdiction of the court that ordered the bail forfeited, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant.” (§ 1305, subd. (f).) The statute further provides for vacation of the forfeiture if the defendant is not in custody, beyond the state’s jurisdiction, temporarily detained by the bail agent in the presence of a law enforcement officer in another jurisdiction, and the prosecuting agency elects not to seek extradition. (§ 1305, subd. (g).)
“Ordinarily, a surety must file a motion to exonerate the bond within 185 days of the mailing of the notice of forfeiture. (§ 1305, subds. (b) & (i).)” (People v. Ranger Ins. Co. (2006) 141 Cal.App.4th 867, 869-870 (Ranger Insurance I).) Section 1305, subdivision (i) states:
“A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period. The court may extend the 30-day period upon a showing of good cause. The motion may be made by the surety insurer, the bail agent, the surety, or the depositor of money or property, any of whom may appear in person or through an attorney. The court, in its discretion, may require that the moving party provide 10 days prior notice to the applicable prosecuting agency, as a condition precedent to granting the motion.”
Section 1305.4 allows the court to extend the appearance (or exoneration) period up to 180 days, upon the filing of a motion supported by a showing of good cause. A motion to extend the period or to vacate the forfeiture that is timely filed within the appearance period, may be heard within 30 days after the expiration of that period, and the court may extend the 30-day period to hear the motion on a showing of good cause. (§ 1305, subd. (i); Granite State, supra, 114 Cal.App.4th at p. 762.)
As we will discuss post, however, section 1305, subdivision (c) sets forth several statutorily enumerated circumstances which have been interpreted to permit the court to vacate the forfeiture order where the surety has not filed the motion to set aside within the 180- or 185-day period. (See, e.g., People v. American Contractors Indemnity (1999) 74 Cal.App.4th 1037, 1041-1042 (American Contractors); Ranger Insurance I, supra, 141 Cal.App.4th at pp. 870-871.)
If the appearance period expires without the forfeiture having been set aside, the trial court must enter summary judgment against the surety. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657; § 1306, subd. (a).) After expiration of the appearance period, the court has 90 days within which to enter summary judgment. (§ 1306, subds. (a) & (c); People v. Ranger Ins. Co., supra, 101 Cal.App.4th 605, 608; Granite State, supra, 114 Cal.App.4th at pp. 762-763.) If the summary judgment is not entered within the statutory 90-day period, the bond is exonerated. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 658.)
The burden is upon the surety seeking to set aside the forfeiture and exonerate the bond to establish by competent evidence that its case falls within the four corners of the statutory requirements. (American Surety, supra, 75 Cal.App.4th at p. 725.) However, “[t]he purpose of bail and forfeiture statutes is to ensure the attendance of the accused and his [or her] obedience to court orders and judgments. [Citations.] It does not have as a goal revenue for the state or punishment of the surety. [Citations.] Moreover, because the law disfavors forfeitures and statutes imposing them, the statutes are strictly construed in favor of the surety to avoid harsh results. [Citations.]” (American Contractors, supra, 74 Cal.App.4th at pp. 1044-1045.)
The determination of a motion to set aside is entirely within the discretion of the court and will not be disturbed absent an abuse of that discretion. (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 944.) “The abuse of discretion standard applies to the trial court’s resolution of a motion to set aside a bail forfeiture [citation], subject to constraints imposed by the bail statutory scheme. ‘[W]hen a statute requires a court to exercise its jurisdiction in a particular manner, to follow a particular procedure, or to act subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.’ [Citation.]” (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1491-1492.)
However, the trial court’s legal conclusions are not binding on appeal where the evidence is undisputed and the issue raises a question of law. (People v. American Bankers Ins. Co. (1992) 4 Cal.App.4th 348, 350; People v. American Bankers Ins. Co. (1991) 233 Cal.App.3d 561, 564 (American Bankers), superceded on statute on other grounds, as will be explained, post, in County of San Bernardino v. Ranger Ins. Co. (1995) 34 Cal.App.4th 1140, 1148 (County of San Bernardino).) “‘When interpreting a statute our primary task is to determine the Legislature’s intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent.’ [Citation.] ‘Words used in a statute ... should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature ....’ [Citation.]” (People v. Accredited Surety & Casualty Co., supra, 132 Cal.App.4th at p. 1143.) “We must use common sense when construing a statute. [Citations.]” (American Surety Ins. Co., supra, 75 Cal.App.4th at p. 727.)
B. A Defendant’s Appearance in Court
We now turn to the circumstances under which the forfeiture may be vacated, and whether the surety must bring a noticed motion within the appearance period to vacate the forfeiture and exonerate the bond. The resolution of these issues is based upon the language of section 1305.
“Since its enactment in 1872, section 1305 has been amended on numerous occasions. The statute has varied significantly with respect to the requirement of a motion, the right to a hearing, and notice to the district attorney or other prosecuting official before the surety may obtain relief from the forfeiture.” (American Contractors, supra, 74 Cal.App.4th at p. 1045, fn. omitted.) Prior to 1985, the last paragraph of section 1305, subdivision (a) stated:
“‘Unless waived by the district attorney or other prosecuting attorney, no order discharging the forfeiture of the undertaking or deposit shall be made without opportunity for hearing and the filing of a notice of motion for such order setting forth the basis for relief, with proof of service upon the district attorney or other prosecuting attorney at least 10 days prior to the time set for hearing of the motion and otherwise in compliance with the provisions of Section 1010 of the Code of Civil Procedure. Such notice may be given by the surety insurer, its bail agent, the surety, or depositor of money, any of whom may give such notice and appear either in person or by attorney. Such notice of motion must be filed within 180 days after such entry in the minutes or mailing as the case may be, and must be heard and determined within 30 days after the expiration of such 180 days, unless the court for good cause shown, shall extend the time for hearing and determination....’” (American Bankers, supra, 233 Cal.App.3d at p. 566, italics omitted.)
“Prior to 1985, section 1305 specifically required a noticed motion for any order to set aside a forfeiture ....” (American Contractors, supra, 74 Cal.App.4th at p. 1045.)
In 1985, section 1305 was amended “to address notice requirements before the surety could obtain relief from forfeiture when the defendant was surrendered or a disability was established. [Citation.]” (American Contractors, supra, 74 Cal.App.4th at p. 1046.) As a result of the 1985 amendments, section 1305 provided, in relevant part:
“‘(a) If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his or her presence in court is lawfully required, or to surrender himself or herself in execution of the judgment, the court must direct the fact to be entered upon its minutes, and, unless within 15 court days from arraignment no complaint has been filed or the charges have been dismissed, the undertaking of bail, or the money deposited instead of bail, as the case may be, must thereupon be declared forfeited, and, ... the clerk of the court shall, promptly upon entering the fact of such failure to appear in the minutes, mail notice of the forfeiture to the surety on the bond or depositor of money instead of bond, and shall execute a certificate of such mailing and place it in the court’s file in the case.... If the clerk fails to mail such notice within 30 days after such entry, the surety or depositor shall be released from all obligations under the bond.
“‘But if at any time within 180 days after such entry in the minutes or, if mailing of notice of forfeiture is required, within 180 days after mailing such notice of forfeiture, the defendant appears, and satisfactorily excuse [sic] the defendant’s neglect or show [sic] to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail, the court shall, under terms as may be just and that are equal with respect to all forms of pretrial release, direct the forfeiture of the undertaking or the deposit to be set aside and the bail or the money deposited instead of bail exonerated immediately. The court may order the bail reinstated and the defendant released again on the same bond after notice to the bail, provided that the bail has not surrendered the defendant. If at any time within 180 days after such entry in the minutes or mailing as the case may be, the bail should surrender the defendant to the court or to custody, the court shall under terms as may be just direct the forfeiture of the undertaking or the deposit to be set aside and the bail or the money deposited instead of bail exonerated immediately. [¶]…[¶]
“‘Unless waived by the district attorney or other prosecuting attorney, no order discharging the forfeiture of the undertaking or deposit shall be made without notice by the bail to the district attorney or prosecuting attorney, who may request a hearing within 10 days after receipt of the notice. The notice may be given by the surety insurer, its bail agent, the surety, or the depositor of money, any of whom may give the notice and appear either in person or by an attorney. The court shall then set the date, time, and place of hearing and give notice to the district attorney or prosecuting attorney and to the bail....’ [Citation.]” (American Bankers, supra, 233 Cal.App.3d at pp. 565-566.)
The 1985 version of section 1305 was interpreted by this court in American Bankers, where the defendant failed to appear in court and the bail was forfeited. The defendant later reappeared in court but the surety took no steps to seek relief from the forfeiture within the statutory period, and the trial court denied the surety’s subsequent motion to set aside the forfeiture. On appeal, the surety argued the court had a sua sponte duty to discharge the forfeiture immediately upon the defendant’s return to custody. (American Bankers, supra, 233 Cal.App.3d at pp. 563, 566.)
In American Bankers, this court rejected the argument, and held the surety must comply with the statutory mechanisms and conditions before relief would be granted. (American Bankers, supra, 233 Cal.App.3d at p. 570.) This court acknowledged the 1985 amendments eliminated the requirement “that the bail request a hearing for and give notice of its motion to set aside the forfeiture, ” but rejected the surety’s claim that the court had a sua sponte duty to exonerate the bond. (Id. at p. 566.)
“We think [the surety] reads too much into the 1985 amendments. The new procedure requires that the bail must notify the prosecuting attorney before any order setting aside forfeiture and exonerating bail is filed. In turn, the prosecuting attorney may request a hearing, if one is desired. If a hearing is requested, the court sets the matter for hearing and notifies all parties of the date and time. (§ 1305, subd. (a).) Thus the statute continues to require affirmative steps by the bail seeking relief, although it stops short of requiring that the bail notice a hearing.
“The statute is not a model of clarity. However, we do not read it as creating a sua sponte duty to grant relief from forfeiture in the absence of a request by the bail. Exactly how the bail requests relief, or what the required notice must contain, is not clear. We need not address those questions in this case, though, because [the surety] made no request for relief and gave no notice until after the statutory period expired.
“In our view the 1985 amendments were designed to simplify, and perhaps expedite, the procedure for obtaining relief from forfeiture—not to shift the burden of initiating that procedure from the bail to the court. The major change was to eliminate the need for a hearing unless one is requested by the prosecuting attorney. The significance of this change is clear—the Legislature has offered a less formal procedure, simplifying the process and eliminating the expenditure of valuable court time when a hearing is not needed nor desired by the parties. This is consistent with previous legislative amendments to the statute. The trend has consistently been to provide quicker, less formal and more efficient relief from forfeiture. [Citation.]” (American Bankers, supra, 233 Cal.App.3d at p. 567.)
American Bankers reviewed the amendments to section 1305, and noted “the trend has been to grant more flexibility to the trial court, provide quicker and less formalized relief from forfeiture, and avoid contested hearings when able.” (American Bankers, supra, 233 Cal.App.3d at p. 568.)
“It is the bail’s obligation to secure attendance of a defendant. [Citations.] The bail contract encompasses a risk that the defendant will not appear. [Citation.] When the defendant fails to appear and forfeiture is declared, it remains the obligation of the bail to find the defendant and prove to the court that it is entitled to relief from forfeiture.” (American Bankers, supra, 233 Cal.App.3d at p. 568.)
American Bankers concluded that “although the statute does not spell out the mechanism by which relief from forfeiture may be sought, the burden of coming forward with a request and making the necessary showing within the statutory time frame remains with the bail. Under the statute as it stands the court has no duty to notify the bail when a defendant is rearrested or otherwise returned to custody.” (American Bankers, supra, 233 Cal.App.3d at p. 570.)
Thus, the 1985 version of section 1305 was interpreted such that “where the ground for exoneration of the bail is that the absconding defendant has afterward appeared in court, the surety or bond agent must apply by motion for an order exonerating the bail. [Citations.] The provision was open to the interpretation that if the bail has been declared forfeited before the defendant is returned to custody, the surety was required to move for an order discharging the forfeiture upon notice and a hearing, and that the 180-day period in which to do so is jurisdictional. ‘Since the 180-day period prescribed by section 1305 is jurisdictional, a court is powerless to vacate a forfeiture unless a motion for relief from forfeiture is made within that time frame.’ [Citation.]” (County of San Bernardino, supra, 34 Cal.App.4th at pp. 1147-1148.) The 1985 amendment “eliminated the requirement that the surety request a hearing and give notice of the motion to set aside the forfeiture. [Citation.] However, the statute was interpreted to mean that: relief from a forfeiture was not automatic but still required the affirmative act of notice, ‘by application, ’ on the part of the surety to obtain relief. [Citation.] The statute provided for a less formal procedure which eliminated the need for a hearing on the application, unless, after receiving such an application, a hearing was requested by the prosecution. [Citation.]” (American Contractors, supra, 74 Cal.App.4th 1037, 1046; see also People v. National American Ins. Co. (1995) 32 Cal.App.4th 1176, 1183-1184 [following American Bankers in interpreting the 1985 version of section 1305].)
In 1993, section 1305 was repealed and replaced, effective January 1, 1994, “with an new statute which dealt with the nonappearance of the defendant, vacating forfeiture, and exoneration of bonds. [Citation.] Since 1993, although the statute has been amended in many other respects, the language of subdivision (c), relating to notice to vacate forfeiture where the defendant has appeared, has been surrendered, or is in custody, has remained the same.” (American Contractors, supra, 74 Cal.App.4th at p. 1046; see County of San Bernardino, supra, 34 Cal.App.4th at p. 1148.) Section 1305, subdivision (c) now states:
“(c)(1) If the defendant appears either voluntarily or in custody after surrender or arrest in court within 180 days of the date of forfeiture or within 180 days of the date of mailing of the notice if the notice is required under subdivision (b), the court shall, on its own motion at the time the defendant first appears in court on the case in which the forfeiture was entered, direct the order of forfeiture to be vacated and the bond exonerated. If the court fails to so act on its own motion, then the surety’s or depositor’s obligations under the bond shall be immediately vacated and the bond exonerated. An order vacating the forfeiture and exonerating the bond may be made on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release.
“(2) If, within the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, and is subsequently released from custody prior to an appearance in court, the court shall, on its own motion, direct the order of forfeiture to be vacated and the bond exonerated. If the court fails to so act on its own motion, then the surety’s or depositor’s obligations under the bond shall be immediately vacated and the bond exonerated. An order vacating the forfeiture and exonerating the bond may be made on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release.
“(3) If, outside the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, the court shall vacate the forfeiture and exonerate the bail.
“(4) In lieu of exonerating the bond, the court may order the bail reinstated and the defendant released on the same bond if both of the following conditions are met: [¶] (A) The bail is given prior notice of the reinstatement. [¶] (B) The bail has not surrendered the defendant.”
In County of San Bernardino, supra, 34 Cal.App.4th 1140, the defendant failed to appear but was arrested by the surety’s agents and returned to custody, and pleaded guilty to the pending charges, all within the appearance period. The court clerk advised the bail agent that the bond was exonerated when the defendant was returned to custody, and the surety did not take any steps to exonerate the bond. However, the trial court subsequently granted summary judgment to the county, 202 days after the forfeiture was declared and 196 days after the notice was mailed. The surety moved to set aside the summary judgment and exonerate the bond, but the court denied the motion. (Id. at p. 1143.)
On appeal, the surety argued that its surrender of the defendant into the sheriff’s custody should have resulted in exoneration of the bond as a matter of law. The court reviewed the previous version of section 1305, as interpreted by American Bankers, that the surety was required to move to set aside the forfeiture within 180 days, that period was jurisdictional, and the court was powerless to vacate the forfeiture unless the motion was made within that time frame. The court noted the 1993 amendments to section 1305 went into effect during the pendency of the appeal. (County of San Bernardino, supra, 34 Cal.App.4th at p. 1148 .) Based upon the amendments, the surety argued, and the county counsel conceded, “that the statutory change means that exoneration of the bail is automatic upon the surrender of a defendant, without the need of moving to set aside the forfeiture. In fact, the county counsel acknowledges the statute as it now reads ‘clearly imposes a duty on the court to, on its own motion, exonerate any bail previously forfeited, when a defendant subsequently appears within [180] days.’” (Ibid.) However, the county counsel argued the amendments should not be applied to the case. The court disagreed, and held the surety was entitled to the benefit of the statutory change “ameliorating the forfeiture provisions.” (Id. at p. 1149.)
“… Because the amendment provides—as county counsel concedes—that the exoneration of bond must now be done automatically upon the court’s own motion upon the surrender of a defendant, without the necessity of moving to set aside the forfeiture, the judgment below must be reversed.” (County of San Bernardino, supra, 34 Cal.App.4th at p. 1150.)
In American Contractors, the court addressed whether the surety was required to file a noticed motion to set aside the forfeiture pursuant to section 1305, subdivision (g), where the defendant was found in Mexico but the district attorney elected not to extradite him. (American Contractors, supra, 74 Cal.App.4th at p. 1042.) In the course of reviewing subdivision (g), the court also reviewed the 1993 amendments to subdivision (c):
“As reenacted, section 1305, created a significant change in the law regarding requirements for vacating forfeiture when the defendant has appeared, has been surrendered, or is in custody. (§ 1305, subd. (c)(1)-(4); County of San Bernardino v. Ranger Ins. Co., supra, 34 Cal.App.4th at pp. 1148, 1150.) At present, the statute does not require a motion by the surety or even make reference to a right to a hearing by the prosecuting attorney where the defendant fits into the specific criteria set forth in section 1305, subdivision (c)(1) through (4). (§ 1305, subd. (c)(1)-(4); County of San Bernardino v. Ranger Ins. Co., supra, 34 Cal.App.4th at pp. 1148, 1150.) In fact, the 1993 amendment, which was effective January 1, 1994, established the following rule of surety law when the defendant surrenders within the 180 days, ‘[E]xoneration of bail is automatic upon the surrender of a defendant, without the need of moving to set aside the forfeiture.’ (County of San Bernardino v. Ranger Ins. Co., supra, 34 Cal.App.4th at p. 1148.) The court has a duty to vacate the forfeiture on its own initiative and the surety is not required to make a motion. (Id. at p. 1150.) The court, however, has discretion to determine, as a condition precedent to vacating the forfeiture, whether notice of an application is to be provided to the applicable prosecuting agency. (§ 1304, subd. (c)(4).)
“... The section 1305, subdivision (c) scenarios are limited in scope. The potential situations of section 1305, subdivision (c) apply only when the accused is either in court or has been arrested or otherwise taken into custody. No notice of an order vacating a forfeiture within the 180-day time period or any extensions would necessarily always be required. In any case, where the absconding defendant is in custody before the trial judge, no useful purpose is typically served by requiring additional law and motion litigation; the accused has been returned to custody within the statutory period and the surety is entitled to have the forfeiture vacated. Similar considerations apply to fugitives who are taken into custody outside the county where the case is pending as enumerated in section 1305, subdivision (c)(3).” (American Contractors, supra, 74 Cal.App.4th at p. 1047, italics added.)
The court thus interpreted section 1305, subdivision (c) as not requiring a separate law and motion proceeding to set aside the forfeiture if the defendant appeared in court within the statutory period. Having discussed subdivision (c), the court turned to the surety’s arguments therein, which involved “the distinct factual considerations” of section 1305, subdivision (g). (American Contractors, supra, 74 Cal.App.4th at p. 1047.) The court held there was no evidence the Legislature intended the provisions of subdivision (c) to apply to the situation contemplated by subdivision (g), when an absconding defendant flees to another country. (American Contractors, supra, at p. 1048.) The court concluded that under section 1305, subdivision (g), the surety was required to file a noticed motion to set aside the forfeiture, and the motion therein was not timely. (American Contractors, supra, at p. 1049.)
In Ranger Insurance I, supra, 141 Cal.App.4th 867, the defendant failed to appear, the bail was forfeited, and the defendant was arrested outside the county within 180 days of the notice of forfeiture. The trial court denied the surety’s motion to set aside the forfeiture because it was filed more than 185 days after the notice of forfeiture. On appeal, the surety relied on American Contractors, and argued section 1305, subdivision (c)(3) required the trial court to exonerate the bond on its own motion when the defendant was taken into custody. (Ranger Insurance I, supra, at pp. 869-870.)
Ranger Insurance I held that unlike section 1305, subdivision (c)(1) and subdivision (c)(2), subdivision (c)(3) contained “neither the requirement that the court act on its own motion, nor language of automatic exoneration.” (Ranger Insurance I, supra, 141 Cal.App.4th at p. 870.) Ranger Insurance I held American Contractors’ discussion of section 1305, subdivision (c)(3) was dicta because that court failed to analyze “the obvious difference in language between subdivisions (c)(1) and (c)(2), and subdivision (c)(3).” (Ranger Insurance I, supra, at p. 870.)
“Section 1305, subdivisions (c)(1) and (c)(2), unmistakably show that when the Legislature wanted to provide for exoneration on the court’s own motion or automatic exoneration, it knew how to do so. This, however, does not square with the Legislative Counsel’s Digest to a 1994 amendment to section 1305. The Digest states that the bill would require the court to vacate forfeiture and exonerate the bond if the defendant is surrendered or arrested outside the county where the case is located. (Legis. Counsel’s Dig., Assem. Bill No. 3059 (1993-1994 Reg. Sess.); Stats.1994, ch. 649, § 1, p. 3133.) Often, the Legislative Counsel’s Digest is helpful in construing a statute. But when the plain words of the statute are unambiguous, they are the sole source of legislative intent, not the Digest.” (Ranger Insurance I, supra, 141 Cal.App.4th at pp. 870-871.)
While Ranger Insurance I rejected the surety’s arguments about a sua sponte exoneration, the court held that “all is not lost” for the surety. (Ranger Insurance I, supra, 141 Cal.App.4th at p. 871.)
“… Section 1305, subdivision (c)(3), does not require that a motion to exonerate the bail be brought within 180 days. And the Legislative Counsel’s Digest, at the very least, evidences no intent that bail should be forfeited when the surety makes its motion to exonerate the bail beyond the 180 days. What is significant here is that the defendant was in custody within 180 days of the notice of forfeiture. In fact, it was within one day. Moreover, defendant was arrested and in custody on the case in which his bail was forfeited. The county has cited no cases, and we have found none, where under these circumstances the court loses jurisdiction when the surety does not move to vacate the forfeiture within 180 days.
“Bail insures the accused’s attendance at court proceedings. The surety is guarantor of defendant’s presence. When defendant is in custody for the case in which bail is set, that guarantee is met. That is what happened here. Defendant ‘showed up, ’ albeit not voluntarily. That is 100 percent success for the surety. The county does not gain a windfall.” (Ranger Insurance I, supra, 141 Cal.App.4th at p. 871, italics added.)
Ranger Insurance I thus concluded that the trial court should have set aside the forfeiture because section 1305, subdivision (c)(3) did not contain any time limits for the filing of a motion to set aside.
C. Analysis
With these cases in mind, we turn to the trial court’s ruling and appellant’s contentions in the instant case. The parties herein agree that respondent’s motion to vacate the forfeiture was based on the defendant’s custodial status and the court’s order for her to appear in the underlying case. As such, section 1305, subdivision (c)(3) states the circumstances which are potentially applicable to this case:
“If, outside the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, the court shall vacate the forfeiture and exonerate the bail.” (Italics added.)
As explained ante, Graham appeared on November 15, 2004, for the scheduled beginning of her jury trial, but the court trailed the matter. On November 16, 2004, the court reconvened, Graham failed to appear, and the court granted defense counsel’s motion to hold the bench warrant for one day because Graham was “having a medical treatment.” On November 17, 2004, Graham again failed to appear in court, and the court again trailed the matter based upon defense counsel’s statement that Graham left a message with his office, that her son had fallen and hit his head, and she had to take him to the hospital. On November 18, 2004, Graham failed to appear, and the court again held the bench warrant and continued the matter based on defense counsel’s statement that Graham had been taken to the hospital.
On November 22, 2004, Graham failed to appear in the Superior Court of Kern County case No. BF107570A. On that date, the court issued the no-bail bench warrant, ordered forfeiture of the bond, and the notice of forfeiture was mailed to respondent as the surety. The 185-day appearance period ended on May 26, 2005. Appellant concedes that as of February 10, 2005, Graham was in CDC custody in Valley State Prison for Women in Chowchilla, Madera County, which is outside of Kern County.
Respondent quizzically suggests the trial court herein lacked jurisdiction to order the forfeiture on November 22, 2004, because it improperly continued the prior hearings without stating, on the record, that it found sufficient excuse for Graham’s failures to appear. However, the record before this court reflects that defense counsel advised the trial court of the reasons for Graham’s absence, the trial court apparently accepted defense counsel’s representations, and we cannot say the court abused its discretion in continuing the matter and holding the bench warrant until November 22, 2004. (§ 1305.1; People v. Ranger Ins. Co., supra, 108 Cal.App.4th 945, 951-953; People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th 915, 922, 924-925; People v. Ranger Ins. Co., supra, 135 Cal.App.4th 820, 824.)
On May 26, 2005, the 185th day in the appearance period, the prosecutor in case No. BF107570A filed a request for the Superior Court of Kern County to order Graham’s removal from CDC and transportation to Kern County on June 15, 2005, for arraignment in case No. BF107570A, on charges of violating section 460, subdivision (b) and section 470, subdivision (d). On the same day, the court granted the request and ordered Graham’s removal.
Nevertheless, on May 31, 2005, the court ordered forfeiture of Graham’s bond in case No. BF107570A, for her failure to appear on November 22, 2004. The court found:
“More than 180 days have elapsed since the entry of said order, and no order has been made setting aside said forfeiture of the above date. The defendant did not appear or show cause for not appearing and no declaration has been filed by the bail bond agent.”
On June 9, 2005, Graham was transported from CDC, Valley State Prison in Chowchilla, to Kern County, pursuant to the court’s order in case No. BF107570A. On August 16, 2005, well beyond the 185th day, respondent filed the motion to set aside the summary judgment and vacate the forfeiture.
As in Ranger Insurance I, Graham was returned to custody in another county, as described in section 1305, subdivision (c)(3). Section 1305, subdivision (c)(3) states the court shall vacate the forfeiture if, outside the county where the case is located, the defendant is “arrested in the underlying case” within the appearance period. On May 26, 2005, the 185th day in the appearance period, the court ordered Graham to appear in the underlying case for which the bond had been issued. Section 1305, subdivision (h) defines “‘arrest, ’” as used in that statute, to include “a hold placed on the defendant in the underlying case while he or she is in custody on other charges.” (§1305, subd. (h).) Appellant concedes the removal order was “the substantial equivalent” of a section 1305, subdivision (h) hold. Thus, based on these undisputed facts, Graham fell within the provisions of section 1305, subdivision (c)(3)—she was outside the county where the case was located, and she was arrested in the underlying case, within the meaning of subdivision (h), within the appearance period—such that the court “shall vacate the forfeiture and exonerate the bail.” (§ 1305, subd. (c)(3).) The trial court properly granted respondent’s motion, vacated the forfeiture, and exonerated the bond.
Appellant presents several arguments against such a conclusion. First, appellant asserts section 1305, subdivision (c)(3) does not place a sua sponte duty with the trial court to vacate the forfeiture and exonerate the bond in the absence of the surety’s timely motion, and that such a finding is contrary to this court’s position in American Bankers. Appellant argues the time requirements of section 1305, subdivision (i), which have been “part of section 1305 since 1927, ” apply to all motions for relief, except for those specified in subdivision (c)(1) and subdivision (c)(2). Appellant asserts that the surety’s failure to timely file the motion to set aside left the trial court without jurisdiction to grant the motion and vacate the forfeiture.
As explained ante, however, American Bankers addressed the 1985 version of section 1305, whereas the statute was repealed and replaced, effective January 1, 1994, “with an new statute which dealt with the nonappearance of the defendant, vacating forfeiture, and exoneration of bonds. [Citation.]” (American Contractors, supra, 74 Cal.App.4th at p. 1046; see County of San Bernardino, supra, 34 Cal.App.4th at p. 1148.) While section 1305, subdivision (i) may not have been amended, subdivision (c) was heavily amended and directly addressed the situation presented in the instant case—the exoneration of the bond when the defendant is returned to custody within the appearance period.
Appellant complains that while Graham may have been under “‘arrest’” within the provisions of section 1305, subdivisions (c)(3) and (h), respondent failed to file a timely motion to set aside the summary judgment and vacate the forfeiture, as required by American Bankers and section 1305, subdivision (i). Appellant acknowledges section 1305 has been amended since American Bankers, but asserts those amendments were incorrectly analyzed by both American Contractors and Ranger Insurance I, and the amendments did not eliminate the surety’s duty to file a noticed motion within the appearance period, as required by section 1305, subdivision (i). Appellant also complains that Ranger Insurance I left an “ambiguous statement” of the law and mistakenly relied upon the flawed reasoning of American Contractors. Appellant asserts Ranger Insurance I “is at odds with precedent and erases subdivision (i), ” and describes the court’s holding as “the freshly minted ‘anytime rule.’”
We agree with the analysis of section 1305, subdivision (c)(3), as set forth in County of San Bernardino, American Contractors, and Ranger Insurance I, that the 1993 amendments vastly changed the statutory procedures for exoneration. While American Contractors and Ranger Insurance I differed as to whether the court had a sua sponte duty to order exoneration, we need not resolve that dispute since both cases agreed the surety’s failure (or inability) to file the motion to vacate the forfeiture and exonerate the bond within the appearance period was not fatal to the matter, and did not divest the trial court of jurisdiction to vacate the forfeiture and exonerate the bond. Moreover, the amendments to section 1305, subdivision (c) clearly creates specific circumstances for vacation of forfeiture upon the defendant’s return to custody. In contrast, the other provisions of section 1305 address a surety’s ability to vacate the forfeiture or toll the appearance period under circumstances aside from the defendant’s return to custody in the underlying case. Section 1305, subdivision (i) is not rendered as surplusage, but addresses the situations not otherwise covered within the particular subdivisions at issue.
Appellant relies on this court’s opinion in Granite State, supra, 114 Cal.App.4th 758, and contends this court made it “abundantly clear” in Granite State that the 1993 amendments to section 1305 did not overrule the motion requirements of section 1305, subdivisions (c) and (i), as explained in American Bankers. In Granite State, the defendant failed to appear and the court ordered forfeiture of the bond. The defendant was not returned to custody. The surety moved to vacate the forfeiture and exonerate the bond, and argued the court lost jurisdiction over the bond when it allowed the defendant to remain out on bail after taking his guilty plea. The surety’s motion to vacate was filed before expiration of the appearance period, and the hearing was scheduled within the 30 days after expiration of the appearance period. The motion was denied, and the trial court entered summary judgment on the bond within 90 days following the denial. The surety moved to set aside the summary judgment and claimed the trial court lost jurisdiction to enter it after the expiration of the appearance period. (Granite State, supra, at pp. 761-762.)
On appeal, Granite State held the trial court had jurisdiction to enter the summary judgment. “Given that subdivision (i) of section 1305 specifically authorizes the court to hear a motion to vacate forfeiture after the expiration of the exoneration period, if such a motion has been timely filed, summary judgment cannot be entered before the motion has been decided even if that decision occurs after the expiration of that period. [Citation.] To hold otherwise would require a court to enter summary judgment before reaching a decision on a motion to vacate the forfeiture, the hearing on which may have been properly extended for good cause as authorized by section 1305, subdivision (i), beyond 90 days from the expiration of the exoneration period, rendering those proceedings futile.” (Granite State, supra, 114 Cal.App.4th at p. 764.) The court concluded that the 90-day period to enter summary judgment does not begin until the pending motion to vacate forfeiture is denied. (Id. at p. 768.)
Appellant cites to the following language from Granite State in support of its argument that respondent’s motion to vacate had to comply with the time limits of section 1305, subdivision (i):
“In sum, we conclude that where a surety timely files a motion to vacate forfeiture prior to the expiration of the exoneration period, and the motion is decided after expiration of that period as provided under section 1305, subdivision (i), the court’s power to enter summary judgment begins on the day following denial of the motion and expires 90 days later. Since summary judgment in this case was entered within 90 days of the date the trial court denied the motion to vacate, it was timely entered and the court did not err in denying Granite’s motion to set aside the judgment.” (Granite State, supra, 114 Cal.App.4th at p. 770.)
Granite State, however, is inapposite to the instant case because it addressed a completely different factual situation, dealing with the surety’s motion to vacate the forfeiture, the trial court’s alleged procedural error, the court’s jurisdiction to enter summary judgment against the surety, and section 1305, subdivision (i)’s application to such a scenario. Granite State did not address the situation presented in the instant case, being the vacation of the forfeiture based upon the defendant’s return to custody as defined within section 1305, subdivision (c)(3). Indeed, section 1305, subdivision (c)(3) sets forth the precise factual situation found in this case, and provides the sole means for vacation of the forfeiture and exoneration of the bond. (See, e.g., People v. Accredited Surety & Casualty Co., supra, 132 Cal.App.4th at p. 1144.)
Appellant also cites to American Surety, supra, 75 Cal.App.4th 719, as holding that a motion to vacate the forfeiture must be timely filed. In that case, however, the defendant failed to appear and the court initially held the bench warrant. The defendant failed to appear for the continued hearing, the court declared the forfeiture, and the defendant was not returned to custody. The surety moved to vacate the forfeiture, and claimed the trial court lacked good cause to hold the bench warrant when the defendant failed to appear at the first hearing, and lacked jurisdiction to order the forfeiture when he failed to appear at the second hearing. After the appearance period had run, the surety subsequently withdrew the motion to vacate the forfeiture and conceded the court had good cause to hold the bench warrant at the first hearing. Instead, the surety requested an extension of the appearance period pursuant to section 1305.4. The court denied the extension because the motion was not filed within the appearance period, and the surety failed to give appropriate notice to the opposing party. (American Surety, supra, at pp. 721-722.)
On appeal, the court held the surety’s extension motion was properly denied because it did not comply “with the express provisions of section 1305.4, which requires 10 days’ notice to the prosecuting agency.” (American Surety, supra, 75 Cal.App.4th at p. 726.) While the surety timely moved to vacate the forfeiture, that motion did not request to extend the appearance period pursuant to section 1305.4. (American Surety, supra, at p. 726.) The court rejected the surety’s argument that there was no express time limit to bring a section 1305.4 extension motion.
“… Section 1305.4 provides that the court may extend the 180-day period. However, once the period has expired there is nothing left to extend. Common sense compels the conclusion that a trial court cannot extend a time period that has already expired. We must use common sense when construing a statute. [Citation.] Under such circumstances, the trial court did not err in determining the request to extend the 180-day period was untimely because it was filed after the period expired. Moreover, our conclusion is consistent with authorities which have concluded that applications to toll the 180-day period must be made before it expires, or the court loses jurisdiction to grant relief. [Citations.] Because the request for the extension was made after the 180-day period had expired, the trial court did not err in refusing to extend the statutory period.” (American Surety, supra, 75 Cal.App.4th at pp. 727-728, fn. omitted.)
As with Granite State, American Surety is inapposite to the instant case because it addressed the specific provisions of a motion to extend the appearance period under section 1305.4. It did not address vacation of forfeiture upon the defendant’s return to custody under section 1305, subdivision (c)(3). Indeed, there are others cases which address the current version of section 1305 and find the surety failed to timely file a motion to vacate the forfeiture within the appearance period. In those cases, however, the surety’s motion to vacate the forfeiture was based on an alleged procedural error with the notice, the court’s failure to rule upon pending motions to extend or toll the appearance period, or the defendant’s return to custody after the appearance period had expired. (See, e.g., County of Los Angeles v. American Bankers Ins. Co. (1996) 44 Cal.App.4th 792, 794-795; People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1193-1195, 1200, fn. 3; People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 79-80; People v. American Bankers Ins. Co., supra, 4 Cal.App.4th 348, 350-351; County of Los Angeles v. Ranger Ins. Co., supra, 70 Cal.App.4th 10, 15.) In contrast, Ranger Insurance I and County of San Bernardino addressed the surety’s attempts to vacate forfeiture when the defendant was returned to custody within the circumstances described in section 1305, subdivision (c). (Ranger Insurance I, supra, 141 Cal.App.4th at pp. 869-870; County of San Bernardino, supra, 34 Cal.App.4th at p. 1143.)
We thus conclude the trial court properly set aside the summary judgment, vacated the forfeiture, and exonerated the bond in this case.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: VARTABEDIAN, Acting P.J., KANE, J.