Opinion
A168076
08-09-2024
THE PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 21-CR-012683)
SIGGINS, J. [*]
Financial Casualty & Surety, Inc. (Financial Casualty) posted a bond to secure the appearances of criminal defendant Margarita Vazquez in her prosecution for various drug and firearm offenses. It appeals from the denial of its motion to set aside forfeiture of the bond and corresponding entry of summary judgment for the amount of the bond. Financial Casualty argues the trial court lost jurisdiction over the bond because there is no court record of a hearing, or any action taken on the bond, on the date Vazquez was first directed to appear by the sheriff upon her release from custody. To the contrary, the absence of any court record for the date directed by the sheriff is fatal to Financial Casualty's argument. Since there is no reason to conclude the trial court did not timely revoke the bond when Vazquez later failed to appear in court, we affirm.
I. BACKGROUND
In September 2021, Financial Casualty posted a bond through its bail agent to secure Vazquez's release from custody. The Alameda County Sheriff's Office directed her to appear in court on November 23, 2021. There is no court record of any proceedings involving Vazquez's matter on that date.
Instead, an arraignment date was set for November 3, 2021, as an add on to Vazquez's two other pending criminal matters. Vazquez was not present but was represented by an attorney who had already been appointed for her in the two previous cases. The minutes reflect that the district attorney advised the court that Vazquez had been arrested on this third set of charges. However, she apparently was not notified of the November 3 hearing. The court therefore continued the arraignment to December 1, 2021 and relied upon defense counsel to inform Vazquez of her required appearance.
When Vazquez failed to appear on December 1, the court forfeited bail and issued a bench warrant. The clerk mailed the notice of forfeiture that same day.
Upon motion of Financial Casualty, the court extended the time for forfeiture to December 20, 2022, to allow for Vazquez's possible appearance in the proceedings. On December 20, 2022, Financial Casualty filed its motion to vacate forfeiture and exonerate the bond. In part, Financial Casualty argued the trial court lost jurisdiction over the bond because there was no record of proceedings held on November 23, 2021, when Vazquez was first directed to appear. The motion was denied and summary judgment was entered in favor of the County of Alameda for $102,500, the amount of the bond. Financial Casualty timely appealed.
II. DISCUSSION
The processes for forfeiture of bail are set forth in Penal Codesections 1305 through 1308. (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709 (Safety National).) They are to be"' "strictly followed or the court acts without or in excess of its jurisdiction." '" (People v. International Fidelity Ins. Co. (2018) 20 Cal.App.5th 345, 354.)"' "The burden is upon the bonding company seeking to set aside the forfeiture to establish by competent evidence that its case falls within the four corners of these statutory requirements." '" (Ibid.) To the extent the facts are not in dispute, as is the case here, we independently review the denial of relief from forfeiture. (People v. The North River Ins. Co. (2018) 31 Cal.App.5th 797, 804.)
All statutory references are to the Penal Code.
Section 1305 directs that a court shall declare bail forfeited when a defendant fails to appear without sufficient cause on any occasion for which their presence in court is lawfully required. (§ 1305, subd. (a)(1)(D).) "If the court fails to declare a forfeiture at the time of the defendant's unexcused absence, it is without jurisdiction to do so later." (Safety National, supra, 62 Cal.4th at p. 710, citing People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907 (United Bonding).) "However, the trial court may continue a case for a reasonable period without ordering a forfeiture of bail or issuing a bench warrant, if it 'has reason to believe that sufficient excuse may exist' for the defendant's failure to appear. (§ 1305.1; [citation].)" (Safety National, at p. 710.) The time and date for the defendant's first required court appearance upon release from custody may be ordered by the jailer at the time of the defendant's release. (§ 1269b, subd. (a); County of Los Angeles v. Financial Casualty & Surety, Inc. (2018) 5 Cal.5th 309, 320 (Los Angeles County) [the date and place set by the jailer under § 1269b gives rise to an appearance that is required by law under § 1305].)
In this case, Financial Casualty argues that, because there is no record of a hearing held on the date the sheriff directed Vazquez to appear (November 23, 2021), the court lost jurisdiction over the bond. Thus, it could not declare it forfeited for Vazquez's later unexcused failure to appear at her arraignment on December 1, 2021. We disagree.
Financial Casualty seeks to rely on the presumption announced in United Bonding 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." (United Bonding, supra, 5 Cal.3d at p. 907.) But in this case, Financial Casualty's reliance is misplaced. United Bonding's presumption arises when there is a sufficient record of proceedings that will allow an inference. "Court minutes which fail to disclose that the court has expressly excused a nonappearance on a record which is silent as to a defendant's reasons therefor, will require a reviewing court to conclude that a nonappearance was without sufficient excuse and that the right to declare a forfeiture not having been exercised was foreclosed." (Ibid.) In this case, there is no record.
The absence of any record of a court hearing on the date specified by the jailer in release documents was addressed in County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018 (Fairmont). In that case, just like in this one, the defendant upon release was ordered to appear on a date specified in the bond. There was no record of any proceedings held on that date. Apparently, no complaint had yet been filed. However, the defendant subsequently appeared for hearings as the case progressed, until she failed to appear for sentencing and the court declared bail forfeited. (Id. at pp. 1021-1022.) On appeal, Fairmont Specialty Group argued the court lost jurisdiction over the bond because the court did not declare bail forfeited on the date for arraignment set by the jailer. (Id. at p. 1024.)
The Court of Appeal rejected Fairmont Specialty Group's argument, concluding, among other things, that the surety was improperly relying on the general rule announced in United Bonding that a silent record supports a presumption that a defendant's nonappearance was without sufficient excuse. (Fairmont, supra, 164 Cal.App.4th at p. 1026.) The problem for Fairmont Specialty Group, and the problem for Financial Casualty here, is that "[t]his is a 'no record' case, not a 'silent record' case.... There is simply no record of any sort for the day-no minute order reflecting the court's orders; no indication of anyone's appearance." (Ibid. [" 'some events that occur in open court simply are not recorded by a reporter or memorialized by a court clerk' "].)
For us to conclude a forfeiture should have been declared in this case on November 23, 2021, we would have to assume-without any evidentiary support-that Vazquez failed to appear in court that day. This we cannot do. Moreover, we do assume Vazquez had notice of the December 1 hearing since the record shows defense counsel was present on November 3, 2021, when the matter was continued to December 1, and presumably informed his client of the new date. (See People v. The North River Ins. Co. (2019) 37 Cal.App.5th 784, 798 [inferring actual notice to the defendant from fact that his attorney was served with motion and appeared at hearing]; People v. Jimenez (1995) 38 Cal.App.4th 795, 802-803 [evidence defense counsel was notified of and attended hearing supported inference he notified client and client chose not to appear].) On this record, Financial Casualty clearly cannot meet its burden to show that Vazquez failed to appear for her first required court appearance and that, as a result, the court lost jurisdiction to later declare her bail forfeited. (Accord, Fairmont, supra, 164 Cal.App.4th at p. 1027.)
Financial Casualty's attempt to distinguish Fairmont is unconvincing. It argues that, since no complaint was pending against the defendant in Fairmont at the time scheduled for his appearance, bail could not possibly have been forfeited on that day. While this is true, it is a distinction without a difference. Fairmont cited multiple reasons for its conclusion that forfeiture was appropriate in the case, and the analysis we rely on turns on the absence of a record of any hearing, not on the pendency of the criminal complaint. (Fairmont, supra, 164 Cal.App.4th at pp. 1026-1027.) Moreover, contrary to Financial Casualty's characterization, none of the analysis we cite from Fairmont turned on the requirement of a court order for the defendant to appear. Instead, the Fairmont court had "no quarrel" with the jailer's authority to set the time and place for a defendant's initial appearance, and neither do we. (Id. at p. 1024; see Los Angeles County, supra, 5 Cal.5th at p. 320.)
In sum, we agree with Fairmont and will apply its holding. Due to the absence of any record of a November 23, 2021 hearing, Financial Casualty is unable to meet its burden to show that the trial court had lost jurisdiction to declare Vazquez's bail forfeited when she failed to appear for arraignment on December 1, 2021.
III. DISPOSITION
The judgment of the superior court is affirmed. Each party shall bear their own costs on appeal.
WE CONCUR: HUMES, P. J. BANKE, J.
[*]Retired Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.