Opinion
G053310 C/w G053327
10-26-2017
THE PEOPLE, Plaintiff and Respondent, v. UNITED STATES FIRE INSURANCE, Defendant and Appellant.
John M. Rorabaugh and E. Alan Nunez for Defendant and Appellant. Leon J. Page, County Counsel and Suzanne E. Shoai for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 11NF0094 & 14NF0825) OPINION Appeal from an order of the Superior Court of Orange County, Jacki C. Brown, Judge. Affirmed. John M. Rorabaugh and E. Alan Nunez for Defendant and Appellant. Leon J. Page, County Counsel and Suzanne E. Shoai for Plaintiff and Respondent.
I. INTRODUCTION
A comparatively new statute in California's bail bond scheme, Penal Code section 1305.6, adopted in 2012, requires courts to set aside summary judgments entered against bail bond companies in situations where the absconding defendant has been arrested outside the county in which the bailed case is pending. The kicker is that section 1305.6 requires "good cause" as a prerequisite for such a belated, post-summary judgment, request. So far, two published opinions, People v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th 548 (Accredited 2014) and People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 308 (Financial Casualty 2017) have explored the quantum of effort on the part of the bail bond surety - in practice, usually the surety's bail agent - which makes for good cause.
All statutory references are to the Penal Code.
The statute arose out of the 2010 decision in People v. Indiana Lumbermans Mutual Ins. Co. (2010) 49 Cal.4th 301 (Lumbermans). In resolving a split between two districts of the Court of Appeal, Lumbermans held that in cases where an absconding defendant is arrested in a county other than where the case is pending, the surety has no choice but to seek relief from forfeiture under section 1305, subdivision (c)(3) before the 185-day appearance period lapses, as distinct from after that period. (See id. at pp. 304, 313.) The high court said policy reasons to the contrary would be "better addressed to the Legislature." (Id. at p. 313.) Apparently they were. As a result we have section 1305.6, enacted two years later.
Section 1305.6 in its entirety: "(a) If a person appears in court after the end of the 180-day period specified in Section 1305, the court may, in its discretion, vacate the forfeiture and exonerate the bond if both of the following conditions are met: [¶] (1) The person was arrested on the same case within the county where the case is located, within the 180-day period. [¶] (2) The person has been in continuous custody from the time of his or her arrest until the court appearance on that case. [¶] (b) Upon a showing of good cause, a motion brought pursuant to paragraph (3) of subdivision (c) of Section 1305 may be filed within 20 days from the mailing of the notice of entry of judgment under Section 1306. [¶] (c) In addition to any other notice required by law, the moving party shall give the applicable prosecuting agency written notice of the motion to vacate the forfeiture and exonerate the bond under this section at least 10 court days before the hearing." (Italics added.)
In the present case the trial judge, following Accredited 2014, determined that the agent did not show reasonable good cause to grant the section 1305.6 motion. The bail agent had relied on optimistic expectations generated by the defendant's family and his own wishful thinking in light of the defendant's out-of-county arrest to conclude that there was no need to make a pre-summary judgment motion under section 1305, subdivision (c)(3) - or even verify whether the defendant had actually been returned to Orange County. Rather, the agent only assumed a return and automatic exoneration of the bond in the normal course of events.
Section 1305, subdivision (c)(3) provides: "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.)
We agree with the trial court. The surety failed to show good cause under section 1305.6 here. While the trial judge did not have the benefit of the recently decided Financial Casualty 2017 case, that case is, in any event, distinguishable.
II. FACTS
In 2014, two criminal cases were filed against defendant Onorato Uribe, Orange County case Nos. 11NF0094 and 14NF0825, on a variety of offenses that appear to have arisen from car theft and property crime charges. Surety US Fire Insurance (US Fire) underwrote Uribe's bail in the aggregate amount of $55,000. Uribe was scheduled to appear in court in both cases on May 21, 2015. He didn't show up, and the respective bonds were ordered forfeited.
The forfeiture orders were mailed the next day. That mailing began what is generally known in bail bond law as the "appearance period" (see People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 718), a 185-day period which the surety has to find and return a defendant to custody. While the 185-day period can be extended for good cause, if the defendant is not returned, the court must enter summary judgment against the surety. (Financial Casualty 2017, supra, 14 Cal.App.5th at p. 313.) The 185-day appearance period expired November 23, 2015.
The reason Uribe didn't show for his hearing on May 21, 2015, was that he had already been arrested, about two weeks before, on May 7, 2015, on unrelated charges in Los Angeles County. About June 1, 2015, US Fire's bail agent learned that Uribe was in custody in Los Angeles. At that point the bail agent had the perfect opportunity to bring the fact of Uribe's arrest to the Orange County court's attention and obtain an automatic exoneration of the bond under subdivision (c)(3) of section 1305.
He didn't. Rather, he spoke to Uribe's uncle sometime between June 1 and July 27. The uncle told the agent that Uribe had a court date scheduled for July 27, 2015. The bail agent asked Uribe's uncle if the family wanted to bail Uribe out of the Los Angeles case and "reassume the Orange County bonds." The uncle said no. The family did not want to bail Uribe out because Uribe was planning on "pleading guilty at his July 27, 2015 court date." The family "expected the case to be over quickly and the defendant would be transferred back to Orange County." The uncle told the agent Uribe himself "believed that he would be able to serve his time in State prison for all of his cases concurrently."
In early July, the bail agent confirmed that a "hold" had been placed on Uribe's Los Angeles case by what a Los Angeles Sheriff's Department Inmate Information Center printout called the "Orange County Repository," which we take to mean simply Orange County. On informing US Fire of the fact of Uribe's custody and the hold, US Fire Surety removed Uribe's bail bonds from the agent's "open forfeiture list." Later, on August 1, 2015, the agent visited the Orange County Sheriff's Department web site and learned "the defendant's Orange County warrants had been cleared from the system and were not showing up." It appears from the agent's declaration he then decided not to file a section 1305, subdivision (c) (3) motion to exonerate US Fire's bonds "because based on [his] conversation with the defendant's family and the information" he had "found on the Orange County website," he "believed the defendant had been returned to Orange County."
Those are the agent's exact words. He did not say he learned the warrants were actually "recalled" or that the defendant had been actually returned to Orange County.
But Uribe had not, in fact, been returned to Orange County, though the agent's declaration gives no clue as to why. So on December 15, 2015, the trial court entered summary judgment against US Fire on its two bonds.
US Fire then brought a timely motion (i.e., on January 4, 2016, within 20 days of the December 15 summary judgment) under section 1305.6 to set aside the summary judgment and exonerate the bond. The trial judge denied the motion, noting that the agent had not followed up on his expectation that Uribe had been (or would be in time) transported back to Orange County. US Fire timely appealed from the denial order.
Two issues raised in the opening brief were waived by failure to present them to the trial court: (1) That Uribe's Los Angeles arrest exonerated the bail bonds as a matter of law and (2) the trial court was required sua sponte to toll the appearance period. --------
III. DISCUSSION
The first opinion to explicate 2012's section 1305.6 was Accredited 2014. The way section 1305.6 works is that after the 185-day appearance period has run and the bail bond has been the subject of a summary judgment against the surety, the surety has 20 days for "a motion brought pursuant to paragraph (3) of subdivision (c) of Section 1305."
A motion under section 1305, subdivision (c)(3) contemplates a situation where, as here, a defendant who has skipped bail in the county in which a case is pending (let's call it the "bail-county") has been arrested in another county (which we will call "out-county"). In such a case the court is given no choice but to vacate the forfeiture and exonerate the bail: "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.)
One mustn't be misled by that "arrested in the underlying case" language. Under subdivision (i) of section 1305 a "hold" on a defendant arrested on unrelated charges is as good as an arrest in the underlying case. ("As used in this section, 'arrest' includes a hold placed on the defendant in the underlying case while he or she is in custody on other charges.")
The effect of section 1305.6, then, is to convert a mandatory exoneration of the bail under section 1305, subdivision (c)(3) during the appearance period into one contingent on good cause in not having already brought a section 1305, subdivision (c)(3) motion during that period. Good cause, as explained by the Accredited 2014 court, consists of two components: a subjective one entailing "honesty of purpose and freedom from intention to defraud or mislead" and an objective one, based on the objective reasonableness of the surety's actions. (See Accredited 2014, supra, 230 Cal.App.4th at pp. 560, 563.)
The subjective component is typically a given, as was the case in both Accredited 2014 and Financial Casualty 2017. Thus the central issue on appeal will be whether the surety's actions in delaying bringing the section 1305.6 motion were objectively reasonable.
In Accredited 2014, the surety failed the test of objective reasonableness. As Financial Casualty 2017 later described Accredited 2014, the surety's bail agent took a passive approach to the problem of the missing defendant's arrest in another county: "In Accredited, the surety's conduct reflected a laissez-faire approach with the operating assumption that bail would eventually be exonerated through the normal course of events." (Financial Casualty 2017, supra, 14 Cal.App.5th at p. 318, italics added.) The Financial Casualty 2017 court further noted that the surety in Accredited 2014 never filed any motion of any kind during the appearance period. (Ibid.)
What precisely did the bail agent do, or not do, during the appearance period in Accredited 2014? Fresno was the bail-county, Sacramento the out-county. When the agent learned of the defendant's out-county arrest, he decided not to file a section 1305, subdivision (c) (3) motion thinking the defendant would be returned to the bail-county after completion of the out-county case. He also obtained a minute order showing the bond had been exonerated - only to learn later that was a different bond. The file on his case had gone missing. The agent tried to follow up on the bail-county's record of the status of the bond, but was told the status could not be ascertained until the file was found. When the file finally was found - ironically the day after summary judgment was entered - the agent learned the bond had not been exonerated. (Accredited 2014, supra, 230 Cal.App.4th at pp. 553-554.)
By contrast, the surety in Financial Casualty 2017 took two discrete "proactive steps," which the Financial Casualty 2017 court emphasized showed that objective reasonableness was present. These two proactive steps were: (1) attempting to have the bail-county warrant served on the defendant in the out-county in which he had been arrested - attempts thwarted by the out-county sheriff's "persistent notice that there was no warrant" for the defendant in the out-county's system - and (2) bringing a motion, within the appearance period, under section 980, subdivision (b) to have the forfeiture set aside, based on defendant's warrant not having been entered into a national computer database. Financial Casualty 2017 stressed that even though the agent failed to make the showing required under section 980 motion, and hence the motion was denied, there was still a "colorable basis" for it. (See Financial Casualty 2017, supra, 14 Cal.App.5th at pp. 316-318.)
The case before us much more resembles Accredited 2014 than Financial Casualty 2017 - except that here the bail agent's actions seem even less energetic than those of the agent in Accredited 2014. As in Accredited 2014, the bail agent here focused on an easy bail-county way of ascertaining whether it was probable the defendant had been returned. As in Accredited 2014, the bail agent here made no formal effort to bring the fact of the custody-county arrest to the bail-county court's attention. As in Accredited 2014, the bail agent here merely assumed the defendant would be transferred from the custody-county to the bail-county in the normal course of events. (See Accredited 2014, supra, at p. 563.) As in Accredited 2014, the agent here took no proactive steps.
Two particular aspects of the present case appear dispositive in demonstrating a lack of section 1305.6 good cause. First is the bail agent's reliance on what Uribe's uncle told him about the defendant's own plans and expectations about the soon-coming course of events in Los Angeles. The agent provided no basis for considering the uncle reliable or for his assumption that if Uribe did plead guilty, he would be transferred back to Orange County before the end of the appearance period. We note the absence of a basis to assume a transfer back to the bail-county in time was a major reason the Accredited 2014 court concluded there was an absence of good cause. (See Accredited 2014, supra, 230 Cal.App.4th at p. 564 [emphasizing agent's lack of reasonable belief the transfer would be "before the appearance period expired"].) That absence is compounded by the failure of the agent's declaration to say exactly what Uribe was charged with, or why the agent could just assume a timely transfer back. The agent took no account of any possibility of delay or postponement of the Los Angeles case. As county counsel perceptively put it at oral argument in our court, the bail agent was simply gambling the defendant would be returned in time in order to save the expense of a section 1305, subdivision (c)(3) motion.
And second, there is an over-reliance on the bail-county's "hold" on defendant in the out-county. Again, the bail agent's declaration here gives no reason why he assumed Orange County's "hold" on Uribe would result in his return within the appearance period. (See again Accredited 2014, supra, 230 Cal.App.4th at p. 564.) No legal authority to that effect is provided. The possibilities of delay, much less a bureaucratic snafu, seem grossly underestimated.
US Fire's counsel's reliance on People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791 (Far West) in this regard is unpersuasive. Far West is a case where the bail-county police, without consulting with the bail-county prosecutor, advised out-of- state authorities who had just arrested the defendant to release him. (See id. at p. 793.) US Fire's theory seems to be that if the failure to return a defendant to the bail-county is solely the result of actions beyond the surety's control, the bond must be exonerated, as happened in Far West.
Far West has no application here. Uribe was not released by custody-county authorities at the behest of bail-county law enforcement. US Fire appears to be confusing the issue of whether an absconding defendant is inadvertently released by authorities with the issue of whether a bail agent has good cause to refrain from filing a section 1305, subdivision (c)(3) motion.
US Fire's main claim of error in regard to the section 1305.6 issue appears to rest on a few comments made by the trial judge in the process of determining the absence of good cause. The judge mused - and that's all she did - about whether the bail agent's actions were "necessary" as distinct from "sufficient," and noted the agent took no "official" actions. According to US Fire, such comments reflect what the Accredited 2014 court eschewed as a "formalistic" approach to section 1305.6 good cause. (See Accredited 2014, supra, 230 Cal.App.4th at p. 561.)
We cannot agree. The trial judge's observations about necessary and sufficient actions make perfect sense in exploring the totality of circumstances bearing on objective good cause - which is, after all, the main point of Accredited 2014's disavowal of "formalistic prerequisites." (Accredited 2014, supra, 230 Cal.App.4th at p. 562.) Obviously a bail agent must take some action - action that is "necessary" to even begin to show good cause - in situations where he or she learns a defendant has been arrested in an out-county. But whether those actions are "sufficient" for good cause is going to be a matter for the court, as both Accredited 2014 and Financial Casualty 2017 illustrate. And the trial judge's observation that the bail agent here took no "official" actions was in fact predictive of the way the Financial Casualty 2017 court itself distinguished the Accredited 2014 decision. (See Financial Casualty 2017, supra, 14 Cal.App.5th at p. 317 [emphasizing section 980 motion brought by surety].) We see no error.
IV. DISPOSITION
The order denying the set aside motion is affirmed. Respondent shall recover its costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.