Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County Super. Ct. No. SCD178055, Stephanie Sontag, Judge.
NARES, Acting P. J.
In the criminal proceeding in this matter, the court ordered that a $25,000 bail bond be forfeited when the defendant, Bertha Gines, failed to appear at a hearing on July 13, 2004. The insurer that issued the bond, Ranger Insurance Company (Ranger) moved to set aside the forfeiture, arguing the court lost jurisdiction to declare a forfeiture when it did not order the bond forfeited when Gines failed to appear at previous hearings on May 17 and July 12. The court denied the motion, finding (1) the evidence showed that Gines was present at the hearing on May 17; and (2) the court had good cause to continue the July 12 hearing to July 13 when Gines did not appear at the hearing on July 12.
All further references to dates are to the calendar year 2004 unless otherwise specified.
On appeal Ranger asserts that the bond forfeiture should be set aside because the court was without jurisdiction to declare a forfeiture as (1) the evidence shows Gines was not present at the hearing on May 17; and (2) there was no good cause to continue the July 12 hearing when Gines did not appear.
We conclude that there was sufficient evidence for the court to find that Gines was present at the hearing on May 17. However, we also conclude that there is insufficient evidence of good cause for the court to continue the July 12 hearing when Gines did not appear and accordingly the court lost jurisdiction to declare a forfeiture and it must be set aside. We therefore reverse the court's order denying Ranger's motion to set aside the bond forfeiture.
FACTUAL AND PROCEDURAL BACKGROUND
After having posted bail, Gines failed to appear for her preliminary examination on November 4, 2003. At that time, the court found good cause not to forfeit her bail bond, and continued the matter to November 18, 2003. However, when Gines failed to appear on November 18, the court ordered the bond forfeited and issued a bench warrant for her arrest.
On January 13 Ranger issued a new $25,000 bond for Gines. Gines appeared at readiness hearings on January 26 and March 19. On May 17 another readiness conference was held. That hearing was not recorded, but the clerk's minutes stated the following:
"CUSTODY STATUS
"The defendant is to remain at liberty on $25,000 bail bond posted.
"OTHER
"Attorney Pam La[c]her called and stated she is attorney of record on this case but there is no Substitution of Attorney in the file. She asked for a continuance because she is in trial in El Cajon. Attorney Jerry Leahy appears for Ms. La[c]her. There was no confirmation form filed[;] therefore, the Court does not have knowledge of the defendant[']s presence." (Italics added.)
Gines was then present at trial calls on May 24 and June 1.
Gines failed to appear at a trial call on July 12, but the trial court found "suffic[ie]nt cause not to forfeit the bond at this time." The court's statements on this issue were as follows:
"The Bailiff: Item No. 3. Gines. She is not here, right?
"Ms. Lacher: Right.
"Ms. De Leon: We ask to be heard on the issue of bail.
"The Court: We'll talk about that tomorrow. Item No. 3 is Bertha Gines. On Miss Gines I will find good cause not to forfeit the bond and I'll issue a bench warrant in the amount of $50,000 and hold it until tomorrow.
"Ms. De Leon: I'm not sure if the court is familiar with the case. This is now the third time that she has failed to appear.
"The Court: She is always coming late.
"Ms. De Leon: She failed to appear on November 4[, 2003]. The bench warrant was held until 11/18[/03]. She showed up at 10:00 o'clock. Then in Department 51 she showed up late again.
"The Court: I know her. I remember her. If she is not here tomorrow she gets a $50,000 bench warrant.
"Ms. De Leon: May I have the officer in my case come up so you can order him back?
"The Court: I will need the file, please. Sir, the Gines case is trailed to tomorrow morning at 9:00 a.m. in this department.
Ms. De Leon: Thank you."
The defendant did not appear for trial the following day and the bail bond was forfeited on that date.
On July 23 the clerk mailed notice of forfeiture of bail bond. On March 18, 2005, in a civil proceeding, the trial court entered a summary judgment on the bond forfeiture.
On November 4, 2005, Ranger filed a motion to set aside the summary judgment, to discharge the forfeiture, and to exonerate the bail. Ranger argued that (1) the summary judgment was void because the court lost jurisdiction when it failed to timely declare a forfeiture when Gines did not appear without sufficient excuse on May 17 and (2) the summary judgment was void because the court lost jurisdiction when it failed to timely declare a forfeiture when Gines did not appear without sufficient excuse on July 12.
The People opposed the motion. In support of the opposition the People submitted a declaration from Deputy District Attorney Kathleen Lewis regarding the issue of whether Gines was present at the May 17 hearing. In the declaration she stated that she was present and represented the People at the May 17 pretrial readiness conference in the underlying criminal proceedings. Lewis's declaration further stated that she had been the pretrial readiness deputy district attorney for two years. As part of her duties, she oversaw case negotiations of felony cases pretrial. At the readiness conference, she would either confirm that the case would go to trial or take a plea if the parties reached a disposition. Lewis stated that it was her practice, and that of Department 31, in which the proceedings in this case occurred, to have all defendants sign a form confirming the case for trial if the parties did not reach an agreement as to a disposition. If the defendant was out of custody, the defendant was supposed to sign the form with his or her attorney. If a defendant failed to appear at the readiness conference, it was Lewis's practice to request the issuance of a warrant, and the court's practice was to issue a warrant for the defendant's arrest. This procedure was done on the record.
Lewis reviewed her file for this case for the May 17 hearing date. On that date she wrote a note that defendant's jury trial date was confirmed. Lewis further wrote in that entry that the defendant "is looking at prison and out-of-custody and case has been going on since October. Jury trial confirmed. If defense counsel [is] in trial, trail case until she's done." Lewis's note that Gines was "out-of-custody" indicated to her that Gines was present in court that day. Likewise, Lewis's note that the trial date was confirmed indicated to her that Gines was present in court that day.
Lewis also stated that when a defendant did not appear at the readiness conference, it was her standard practice to write a note to the district attorney's clerk to transfer the file to the complaints division for issuance of a failure to appear case. Her notes in such cases always would have read: "Issue FTA Case w/12022.1 allegation. Defendant was out-on-bail." In this case, Lewis made no such entry. The absence of that entry indicated to Lewis that Gines was present in court on May 17. (Supp. CT 3:24-28; 4:1-2.)
On January 30, 2006, the trial court denied Ranger's motion to set aside summary judgment on the bond forfeiture. On the issue of whether Gines appeared at the May 17 hearing, the court found that the minutes did not show that Gines was not present: "The Court: I don't read the minute order to say that the defendant did not appear. Although the clerk is saying they don't know, there's no indication, really, that the defendant did not appear. There's an indication that defense counsel did not appear." The court also found that there was good cause to not declare a forfeiture of the bond when Gines did not appear at the July 12, 2004 hearing, based upon the fact that Gines had appeared at several hearings before that date, but would always appear late, so it was reasonable to wait one day before forfeiting the bond.
On February 28, 2006, Ranger appealed from the order denying the motion to set aside forfeiture of the bond.
DISCUSSION
I. STANDARD OF REVIEW
The question of whether to set aside an order of forfeiture and to exonerate a bail bond "'is entirely within the discretion of the trial court'" (County of Los Angeles v. Noble Ins. Co. (2000) 84 Cal.App.4th 939, 944), and the trial court's decision will "'not be disturbed on appeal unless a patent abuse appears on the record.'" (Ibid.) Further, "'"unless a clear case of abuse is shown and unless there has been a miscarriage of justice, a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power."'" (Id. at pp. 944-945.) The appellant bears the burden of demonstrating that "a miscarriage of justice" occurred. (Id. at p. 945.)
II. ANALYSIS
Penal Code section 1305 provides in part: "(a) A 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 for any of the following: [¶] (1) Arraignment. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required. [¶] (5) To surrender himself or herself in execution of the judgment after appeal."
All further statutory references are to the Penal Code.
However, 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."
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).) Thus, compliance with sections 1305 and 1305.1 dictates whether the court retained jurisdiction in this matter. If Gines did not appear at the May 17 hearing, and if a sufficient excuse did not exist for the court not to declare a forfeiture when Gines did not appear at the July 12 hearing, the bail forfeiture statutes were not complied with, the court lost jurisdiction, and the later-declared bond forfeiture was void. (Amwest, supra, 56 Cal.App.4th at p. 921.)
As we shall now discuss, the court did not abuse its discretion by finding that Gines was present at the May 17 hearing. However, we also conclude that good cause did not exist to continue the July 12 hearing.
A. The May 17 Hearing
There was sufficient evidence from which the court could conclude that Gines appeared at the May 17 hearing. It is true that the minutes stated "the Court does not have knowledge of the defendant[']s presence." However, the minutes did not state that Gines did not appear and did state that "[t]he defendant is to remain at liberty on $25,000 bail bond posted." Further, the court had before it the declaration of the prosecutor that represented the People at that hearing. She stated under oath that if Gines was not present, (1) she would not have written in her notes that she was out on bail; and (2) she would have requested a warrant be issued for her arrest. She further declared that her note that the trial date was confirmed, and the absence of a note to issue a failure to appear case, indicated that Gines was present. This evidence provided a reasonable basis for the court to conclude that Gines was present at that hearing. (In re Lopez (1970) 2 Cal.3d 141, 146-147 [affidavit of judge regarding his practice sufficient as evidence that event occurred].)
B. The July 12 Hearing
A sufficient excuse will 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.) In determining what showing constitutes a rational basis for such belief, "a case-by-case analysis is always performed." (Ibid.)
Where the record is silent, the nonappearance is without sufficient excuse. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907 (United Bonding).) For example, in United Bonding, a defendant on bail failed to appear and no explanation was offered suggesting there was any excuse for the nonappearance. Despite this fact, the trial court continued the matter for four months, at which point a forfeiture was declared. (Id. at pp. 901-904.) After the surety unsuccessfully sought to vacate the forfeiture at the trial and Court of Appeal level, the California Supreme Court reversed, directing that the forfeiture be vacated. In doing so, the high court stated: "If a surety is to be afforded the protections provided by these provisions he must be advised at an early date of the fact of the forfeiture in order that he may institute procedures to locate and compel the appearance of the bailee. Should the surety not have an early opportunity to institute these endeavors the possibility of discharging the forfeiture will be severely prejudiced, and it is manifest that he will suffer such prejudice whether there is an undue delay in advising him after the declaration of a forfeiture or a delay in making the declaration itself." (Id. at p. 906.)
The United Bonding court also rejectedthe idea that a previously excused absence would provide a sufficient excuse for a present failure to appear: "[I]t 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. A nonappearance once excused does not constitute an excuse for subsequent nonappearances, and at any such nonappearance without sufficient excuse the court must thereupon declare the forfeiture." (United Bonding, supra, 5 Cal.3d at p. 907.)
Alternatively, where defense counsel makes representations regarding reasons for the defendant's nonappearance, the court liberally relies on them because they are generally the only evidence offered on the matter. (Amwest, supra, 56 Cal.App.4th at p. 922.) Where a defendant does not appear and defense counsel states his or her concern that something has happened, sufficient excuse exists even if defense counsel has not communicated with the defendant or provided any direct evidence to explain or justify the defendant's absence. (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 953.) "[T]he 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.'" (Ibid., fn. omitted.)
In Amwest, this court concluded there was ample reason for the trial court to believe sufficient excuse may have existed for the defendant's failure to appear where defense counsel stated his belief that "there may be an emergency" and the defendant would be available the next morning. (Amwest, supra, 56 Cal.App.4th at p. 925.) Under these facts, we held there was a rational basis for the court's belief that sufficient excuse existed at the time of the nonappearance. (Id. at p. 923.)
Here, the court abused its discretion in finding that there was good cause to continue the matter and not declare a forfeiture of the bond. Defense counsel appearing at the July 12 hearing offered no excuse for Gines's failure to appear. Nothing in the record explains why Gines was not present. The record reflects a poor track record of appearances in the past. Gines had failed to appear on two separate occasions, resulting in a previous forfeiture of bail. The court, in finding good cause, merely stated that she knew her and that she was "always coming late." There was no evidence presented from which a rational trier of fact could find "'"some rational basis" for belief at the time of [Gines's] nonappearance that sufficient excuse may exist.'" (Amwest, supra, 56 Cal.App.4th at p. 923.)
Nor was it a sufficient excuse that she had been late in the past. A prior excused nonappearance cannot be an excuse for a subsequent failure to appear. (United Bonding, supra, 5 Cal.3d at p. 907.) Without a rational basis for believing that there was sufficient excuse for Gines's nonappearance, the court's failure to declare an immediate forfeiture constituted a "clear abuse of discretion." (County of Orange v. Ranger Ins. Co. (2005) 135 Cal.App.4th 820, 823.)
DISPOSITION
The order denying Ranger's motion to set aside forfeiture of its $25,000 bail bond is reversed, and the trial court is directed to vacate the forfeiture and exonerate the undertaking.
WE CONCUR: AARON, J., IRION, J.