People v. Allen

• Decision Date: 20 September 1994
• Docket Number: No. B077269,B077269
• Citation: 33 Cal.Rptr.2d 669,28 Cal.App.4th 575
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Anthony ALLEN, Defendant; AMWEST SURETY INSURANCE COMPANY, Real Party in Interest and Appellant.

Page 669

33 Cal.Rptr.2d 669

28 Cal.App.4th 575

The PEOPLE, Plaintiff and Respondent, v. Michael Anthony ALLEN, Defendant;

AMWEST SURETY INSURANCE COMPANY, Real Party in Interest and Appellant.

No. B077269.

Court of Appeal, Second District, Division 6, California.

Sept. 20, 1994.

Nunez & Bernstein and E. Alan Nunez, Fullerton, for real party in interest and appellant.

James B. Lindholm, Jr., County Counsel, Jac A. Crawford, Asst. County Counsel, and John Paul Daly, Deputy County Counsel, for plaintiff and respondent.

STEVEN J. STONE, Presiding Justice.

Amwest Surety Insurance Company appeals from an order denying motion to set aside summary judgment and exonerate bail and denial of motion for reconsideration of that order. ¹ Amwest contends that the trial court acted in excess of its jurisdiction in declaring the appeal bond forfeited while the appeal was still pending and before the defendant was required to appear. We agree and reverse the order of summary judgment.

FACTS

Michael Anthony Allen, along with two codefendants, was charged in the San Luis Obispo County Superior Court in case number CR16372 with certain criminal offenses involving the manufacture of methamphetamine. (Health & Saf.Code, §§ 11379.6, 11378; Pen.Code, § 182.) ² Allen was also While Allen's appeal was pending in this Court in CR16372 (our No. B057204), he was charged with a new offense (Health & Saf.Code, § 11377, subd. (a)) in case number CR17387. ³ The jury convicted Allen as charged. In a bifurcated proceeding, the trial court took judicial notice of the contents in case file CR16372, specifically Allen's status of bail pending appeal, and found true the enhancement allegation that the crime was committed while Allen was on bail. (§ 12022.1.) The court set the matter for sentencing and ordered that Allen remain at liberty "on bail previously posted."

                charged with possession of a machinegun and silencer.  (§§ 12220, 12520.)   After his motion to suppress evidence was denied, Allen entered into a plea agreement and stipulated sentence with the People on February 21, 1991.  When Allen filed a notice of appeal on April 18, 1991, the court ordered bail on appeal be set in the amount of $30,000
                

On August 3, 1992, case number CR17387 was called for sentencing. The minute order reflects that "Counsel advises Court that Counsel had a message from Defendant at 9AM this date advising Counsel that Defendant was 'stranded[.]' [p] Court orders bail forfeitured [sic ]; Bench Warrant ordered to issue with service withheld to 8/4/92 at 1:30PM in Department II." The order also reflects that Allen was ordered to be present on August 4, 1992, at 1:30 p.m. The reporter's transcript of August 3, 1992, indicates that the bail agent was present and that the court ordered bail of $5,000 posted in CR17387 forfeited when it issued a bench warrant. The court also stated, "... I'm not going to take any action at this time in 16372. That case, sentence was passed by Judge Christopher Money. I'll refer that case to Judge Christopher Money to consider what action to take." The court ordered the bench warrant held until the next day at 1:30 p.m.

A minute order was also made in CR16372 reflecting the same information as in CR17387, i.e., that the court was advised that defendant was stranded at 9 a.m., and at 4 p.m., the defendant still having not appeared, the matter was transferred to Department 5, Judge Christopher Money. Judge Money requested the matter be set for a motion to revoke bail on appeal. The minute order stated that the court ordered the motion to be held on August 4, 1992, at 1:30 p.m. for hearing. The order reflects that defense counsel was present, but not the defendant or the bail agent.

On August 4, 1992, defendant Allen failed to appear in case CR17387 and the court ordered bail forfeited again in that case. On the same date in Department 5, Judge Money ordered that bail on appeal was forfeited and a bench warrant issued for Allen's arrest. Notice of forfeiture of bail bond was sent to Amwest on that date. A minute order of April 9, 1993, shows that remittitur issued from this court in case CR16372, that the judgment had been affirmed in full, and that bail had been forfeited and a bench warrant issued August 4, 1992. Summary judgment was entered on the bail bond in CR16372 on April 30, 1993.

Amwest moved to set aside the summary judgment and exonerate bond on the grounds that the court lacked jurisdiction to forfeit the bond while the appeal was still pending and before the defendant and surety had notice defendant was required to appear. The bail agent's declaration asserted that at the time of the forfeiture, Allen was not in default of his appeal and that neither the remittitur nor the court's subsequent minute order was served on him or on the surety, nor was he given an opportunity to produce the defendant subsequent to the remittitur. Respondent filed no written opposition, but argued at the hearing that the minute orders reflected that Allen had called into the court. Thus he must have had notice. The court (Judge Money) denied the motion on the ground that the court had inherent authority to order a defendant back to court pending appeal.

Amwest moved for reconsideration on grounds that subsequent conversations with Allen's trial counsel, and to which his counsel stood ready to attest, revealed that Allen had

talked to his counsel on the morning of [28 Cal.App.4th 580] August 3, 1992, but did not talk to him after Allen called into the court that he was stranded. Furthermore, no proceedings were pending in CR16372 until Judge Hammer transferred the matter to Judge Money after Allen failed to appear in CR17387. The court (Judge Duffy) agreed that the record was somewhat confusing but denied the motion.

DISCUSSION

Amwest contends that the government may not unilaterally change the terms of the bond or increase the risk of nonperformance without the knowledge or consent of the surety. Respondent counters that the posting of a bond on appeal permits the convicted criminal an opportunity to remain at large so long as he is responsive to the superior court's orders during the time that the matter is on appeal. Respondent expounds dramatically that to presume that the purpose of the bond on appeal may only be activated when the appellant fails to present himself for hearing or the imposition of sentence after the appeal is finalized and the remittitur returned is unreasonable. According to respondent, "[i]t would thwart the ends of justice, deny the Superior Court control of a convicted criminal, and effectually present a dilemma to every Superior Court judge who, when asked to permit bail pending appeal, would be inclined automatically to deny it. Such a result could not possibly be the intent of the law."

Respondent is correct that the primary responsibility for making the necessary appearances is on the defendant and it is his appearances the surety guarantees. (People v. Surety Ins. Co. (1977) 76 Cal.App.3d 57, 62, 143 Cal.Rptr. 47.) If the defendant's nonappearance is without excuse, the surety must suffer the consequences. (Ibid.) " 'The object of bail is to insure the attendance of the principal and his obedience to the orders and judgment of the court....' " (People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675, 111 Cal.Rptr. 757.)

The appeal bond issued provided that "An order having been duly made on the 18 day of April, 1991, by the Hon. Christopher Money a Judge of the Superior Court of the San Luis Obispo, County of San Luis Obispo, State of California, that said Defendant be admitted to bail in the sum of Thirty Thousand Dollars ($30,000.00) pending the hearing and determination of the appeal of the defendant from the judgment and sentence heretofore rendered in the above entitled cause, in the above entitled court on the 18 day of April, 1991, wherein said defendant was charged with and convicted of the crime of [Health and Safety Code Sections] 11379.6 [, and] 11378 [, and Penal Code sections] 182 [,] 12220 [, and] 12520 and said defendant having duly appealed from said conviction and judgment herein, and said defendant having been duly admitted to bail pending the hearing and determination of said appeal in the sum of Thirty Thousand Dollars ($30,000.00): [p] Now, we, the AMWEST SURETY INSURANCE COMPANY, a California corporation hereby undertake that the above named Defendant Allen Michael Anthony will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that, in case the judgment be reversed and that the cause be remanded for new trial, that he will appear in the court to which said cause may be remanded and submit himself to the orders and process thereof; and that if he fails to perform either of these conditions that we will pay to the People of the State of California the sum of Thirty Thousand Dollars ($30,000.00) in lawful money of the United States. If the forfeiture of this bond be ordered by the Court, judgment may be summarily made and entered forthwith against the said AMWEST SURETY INSURANCE COMPANY, a California corporation, and that the defendant, if he be a party to the bond, for the amount of their respective undertakings herein as provided by Sections 1305 and 1306 of the Penal Code."

The language of the bail bond tracks the pertinent statutory language in section 1273: "If the offense is bailable, the defendant may be admitted to bail ... after conviction, and upon an appeal: ... If judgment of imprisonment has been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the Court to which said cause may be remanded, and submit himself to the orders and process thereof."

Section 1305 provides in...