People v. Accredited Sur. & Cas. Co., Inc.

• Decision Date: 01 December 2004
• Docket Number: No. B166737.,B166737.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. ACCREDITED SURETY & CASUALTY CO., INC., Defendant and Appellant.

22 Cal.Rptr.3d 375

125 Cal.App.4th 1

The PEOPLE, Plaintiff and Respondent, v. ACCREDITED SURETY & CASUALTY CO., INC., Defendant and Appellant.

No. B166737.

Court of Appeal, Second District, Division 4.

December 1, 2004.

Steve Cooley, Los Angeles District Attorney, Patrick D. Moran and William Woods, Deputy District Attorneys for Plaintiff and Respondent.

Nathan W. Tarr, Irvine, for Defendant and Appellant.

GRIMES, J.^*

Accredited Surety & Casualty Co., Inc. (Accredited), appeals from the order denying its motion to vacate forfeiture of the bail it posted for Jose Antonio Pantaleon (Pantaleon) and for reinstatement and exoneration.

Accredited contends the court's failure to consider the statutory factors in Penal Code, § 1275¹ before reducing Pantaleon's bond operates to exonerate its liability on the bond. Alternatively, Accredited contends its liability should be exonerated based on the failure of the State of California (State) to make some special disclosure to Accredited that Pantaleon possessed in excess of 44 pounds of cocaine, he had a prior drug-related conviction, he was facing a maximum of 25 years in prison, and to avoid this sentence, he had to perform his informant duties to the satisfaction of law enforcement.

Based on our review of the record and applicable law, we affirm the order.

The amount of bail is primarily within the discretion of the magistrate or judge limited only by the general rules that bail should be fixed to secure the appearance of the defendant and not to punish, and it should not be excessive. (See 4 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Pretrial Proceedings, § 87, p. 286.) The judicial officer has discretion to reduce bail below the minimum established by the bail schedule. In that case, the judge or magistrate must state the reasons on the record and, in some circumstances, make findings of fact on the record. (See, e.g., §§ 1270.1, subd. (d) & 1275, subd. (c).) Here, the trial court reduced bail from $2 million to $20,000 pursuant to stipulation between the People and Pantaleon, without making any findings under section 1275.

The procedures for setting a criminal defendant's bail pursuant to section 1275 have no legal effect on the forfeiture of bail upon defendant's failure to appear for sentencing. The failure of the trial judge or magistrate to comply with section 1275 is not a defense to forfeiture and does not operate to exonerate the bond.

Moreover, the State does not owe the bail bond surety a duty of disclosure in the absence of active concealment or misrepresentation, or a showing that the State had exclusive knowledge of facts that were not known to or reasonably discoverable by the surety.

FACTUAL AND PROCEDURAL SUMMARY

On September 12, 2001, a complaint was filed charging Pantaleon with a single count of possessing a controlled substance (cocaine) for sale, a felony, and alleging that the amount possessed was over 20 kilograms (or 44 pounds). (Health & Saf. Code, §§ 11351 & 11370.4, subd. (a)(4).)²

The People requested that bail be set at $2 million based on the crime charged and the amount of narcotics alleged. Following a hearing (§ 1275), the court ordered bail set at $2 million. Subsequently, the complaint was amended to allege Pantaleon had suffered a prior drug-related conviction (Health & Saf.Code, § 11370.2, subd. (a)).

On November 16, 2001, pursuant to a plea bargain, Pantaleon pled guilty to the charged offense and admitted both special allegations. The prosecutor informed Pantaleon that on May 16, 2002, six months later, at sentencing, the trial court would "have the option" to sentence him to probation on certain terms and conditions, including a year in county jail or "up to the maximum time" of 25 years in prison.

The People agreed to reduce bail to $20,000. When the trial court inquired about the need to comply with section 1275, the prosecutor requested that compliance be "lifted at this time." The court agreed and reduced Pantaleon's bail to $20,000 pending imposition of sentence.

Pantaleon's parents gave Andy Andriole, an Accredited bail agent, documents which reflected Pantaleon had been with "the same employer for over 7 years." Andriole then telephoned an unidentified person at "the jail" who related that Pantaleon was charged with "H & S Code 11351," his bail was $20,000, and provided "his booking number, the date, time and place of his appearance." Based on this information, Accredited issued a bail bond for Pantaleon's release on November 19, 2001.

On May 16, 2002, Pantaleon failed to appear, and the court declared his bail forfeited. On May 17, 2002, notice of the bail forfeiture was mailed. On November 15, 2002, Accredited filed its motion to vacate forfeiture and for reinstatement and exoneration of the bail bond. It later filed supplemental moving papers, which included the February 12, 2003, declaration of Mr. Andriole. On February 18, 2003, the trial court denied Accredited's motion.

DISCUSSION

1. Surety's Liability Not Tied to Compliance With Section 1275

Accredited contends its liability on the bond is discharged, because the trial court failed to comply with section 1275 in that it reduced bail from $2 million to $20,000 without considering the amount of cocaine involved; that defendant had a prior drug-related conviction; he was facing a maximum of 25 years in prison; and to avoid this sentence, he had to perform his informant duties to the satisfaction of law enforcement.

We disagree. Noncompliance with section 1275 is not a cognizable ground for exoneration nor a defense to forfeiture of a bail bond.

Accredited does not assert any statutory defenses to forfeiture. It does not deny it received proper notice of forfeiture, nor does it claim Pantaleon's nonappearance was due to the fact that he was deceased or was otherwise permanently or temporarily unable to appear because of illness, insanity, or detention by military or civil authorities. (See, e.g., § 1305, subds.(d)(1) & (e)(1).) Rather, its defense is based on the claimed failure of the trial court to comply with section 1275. We have found no authority, and Accredited has cited none, which recognizes this as a valid non-statutory defense to forfeiture, and we decline to create such a defense.

Accredited also fails to cite any applicable authority in support of its claim that noncompliance with section 1275 operates to exonerate the surety from liability on the bond. This claim is not among the statutory grounds for exoneration. (See, e.g., §§ 980, subd. (b), 1000.2, 1116, 1188, 1296, 1305, subd. (c)(1), 1371, 1384.) Moreover, Accredited's claim does not fall within the "well established [rule] that where performance of the conditions of a bail bond is rendered impossible by an act of God, an act of the obligee (i.e., the People), or an act of law, the bond will be exonerated. [Citations.]" (People v. Amwest Surety Ins. Co. (1987) 195 Cal.App.3d 1396, 1399, 241 Cal.Rptr. 412, fn omitted.)

The rule of statutory interpretation that "the law disfavors forfeitures" does not apply here. The statutes pertaining to posting of a bail bond (§§ 1269, 1269a, 1278, 1279, 1280, 1281, 1287, 1292) do not refer to section 1275, and neither does section 1305, the statute expressly listing the defenses of a surety to forfeiture. A plain reading of section 1275 reveals that its purpose and provisions have nothing to do with bail bonds, including exoneration or forfeiture of the bail bond. "If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction. [Citations.] If the statutory language contains no ambiguity, the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs. [Citations.]" (People v. Johnson (2002) 28 Cal.4th 240, 244, 121 Cal.Rptr.2d 197, 47 P.3d 1064.)

The unambiguous purpose of section 1275 is public safety. "In setting, reducing, or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration." (§ 1275, subd. (a).)

As support for its argument that the bond should be exonerated because the trial court failed to comply with section 1275, Accredited misinterprets People v. Seneca Ins. Co. (2003) 29 Cal.4th 954, 129 Cal.Rptr.2d 842, 62 P.3d 81. In that case, the surety moved to vacate forfeiture and exonerate bail on several grounds, including the trial court's failure to proceed pursuant to section 1166 before permitting defendant to remain free on bail following his guilty plea and pending sentencing. (At p. 955, 129 Cal.Rptr.2d 842, 62 P.3d 81.) Section 1166 lists the public safety factors that may support a decision to allow an out-of-custody defendant to remain on bail after conviction pending sentencing. The court concluded that section 1166 does not apply to a defendant who pleads guilty, and therefore, the trial court was not required to comply with section 1166. (Id. at p. 957, 129 Cal.Rptr.2d 842, 62 P.3d 81.)

Accredited argues that because the trial court here was not required to comply with section 1166, it was required to comply with section 1275. Accredited contends there is support for this argument in language of the Seneca opinion noting that section 1166 lists "almost verbatim" the same factors as section 1275, subdivision (a) and that trial courts consider these factors in initially setting bail "in the case of all on-bail defendants." (People v. Seneca Ins. Co., supra, 29 Cal.4th at p. 961, 129 Cal.Rptr.2d 842, 62 P.3d 81.) In making this observation, the Seneca court was not stating that failure of the trial judge or magistrate to consider the factors in section 1275, subdivision (a), in setting (or reducing) bail operates to exonerate liability on the bail...