People v. American Bankers Ins. Co.
| Decision Date | 29 April 1987 |
| Citation | 191 Cal.App.3d 742,236 Cal.Rptr. 501 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. AMERICAN BANKERS INSURANCE COMPANY, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. CLASSIFIED INSURANCE CORPORATION, Defendant and Appellant. F008123, F008118. |
This proceeding concerns two municipal court cases which were consolidated for decision.
In People v. Classified Insurance Corporation, the municipal court declared bail forfeited in the underlying action when only the defendant's counsel appeared for trial. After the giving of proper notices and the expiration of 180 days for exoneration of the forfeiture as required by law, summary judgment was entered against appellant, Classified Insurance Corporation, as the surety, in the amount of the bond.
In People v. American Bankers Insurance Company, the municipal court declared bail forfeited in the underlying action when defendant did not personally appear for a pretrial hearing. Again, after complying with appropriate notice and time procedures required by law, summary judgment was entered against appellant, American Bankers Insurance Company, as the surety, in the amount of the bond.
Each appellant moved to set aside the summary judgment and exonerate the bond. Both motions were denied. The court found in each case that the trial court had the discretion to forfeit bail in the absence of any showing of counsel's authority to proceed in the defendant's absence.
Each appellant then appealed to the appellate department of the superior court. 1 That court affirmed the municipal court's denial of the motion to set aside the summary judgments.
The appellate department then certified both cases for transfer to this court to secure uniformity of decision and to settle the question of whether "it is the court's duty to make inquiry whether the defendant's attorney has been authorized to proceed in the absence of the defendant." This court ordered the proceedings transferred for hearing and decision.
As we shall explain, the trial court was under no duty to make inquiry concerning defense counsel's authority to proceed in the case. Rather, the burden was on the defendant through counsel to show that he had authorized counsel to proceed in his absence. The authority need not be in writing, however. An oral statement by counsel that he is appearing on the defendant's behalf and is ready to proceed with the hearing or trial will suffice absent proof that the attorney did not have authority to proceed on the defendant's behalf or that the court had specifically ordered the defendant to appear at the hearing. Because the record is silent as to what defense counsel may have stated to the court when the bail was forfeited, we must presume that the evidence supports the judgments. Accordingly, we shall affirm the judgments.
Whether the municipal court properly declared bail forfeited when defendants appeared in court through their attorneys.
Penal Code section 977, subdivision (a) 2 provides, "[i]n all cases in which the accused is charged with a misdemeanor only, he may appear by counsel only." Thus, a defendant in a misdemeanor proceeding has a statutory right to be absent. (Olney v. Municipal Court (1982) 133 Cal.App.3d 455, 184 Cal.Rptr. 78.)
Section 1043, subdivision (e) pertains specifically to a misdemeanor defendant's right to be absent at trial. That section provides that the court shall proceed with the trial in the defendant's absence, unless good cause for a continuance exists, if the defendant has authorized his counsel to so proceed pursuant to section 977, subdivision (a). However, if the defendant has not authorized his counsel to proceed in his absence and fails to personally appear at trial, the court, in its discretion, may do one or more of the following (1) continue the matter; (2) order bail forfeited or revoke release on the defendant's own recognizance; (3) issue a bench warrant; (4) proceed with the trial if the court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held. Further, the court has the right to order the defendant to be personally present at trial for purposes of identification unless counsel stipulate to the issue of identity.
In construing the statutory right of an accused to be absent from misdemeanor proceedings, case law has recognized that the right is conditional: a defendant who absents himself must do so with full knowledge of the pendency of the criminal proceedings, as the waiver of the right to be present must be a knowing and intelligent one. (Olney v. Municipal Court, supra, 133 Cal.App.3d 455, 460-461, 184 Cal.Rptr. 78.) Further, the court must be certain that the acts of counsel are authorized by the defendant. (People v. Kriss (1979) 96 Cal.App.3d 913, 917, 158 Cal.Rptr. 420.) However, the court can rely upon the representation of counsel that the accused is knowingly absent from the proceedings. (Olney v. Municipal Court, supra, 133 Cal.App.3d 455, 461, fn. 5, 184 Cal.Rptr. 78.) In the absence of a statutory requirement that the attorney's authority be evidenced by a writing, it is always presumed that an attorney appearing and acting for a party has authority to do so. (Pacific Paving Co. v. Vizelich (1903) 141 Cal. 4, 8, 74 P. 352.) This confidence rests not only upon a belief in the honor and integrity of the attorney, but upon the fact that the attorney is a sworn officer of the court. (Id. at pp. 8-9, 74 P. 352.)
Neither section 977, subdivision (a) nor section 1043, subdivision (e) require the attorney's authorization to be in writing. 3 Thus, without a strong factual showing to the contrary (see Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13, 118 Cal.Rptr. 21, 529 P.2d 53), the attorney's representation that he or she is authorized to proceed in the defendant's absence is sufficient.
The appellate department of the superior court concluded that the attorney has the burden of furnishing evidence of his or her authority to proceed in the defendant's absence. This conclusion was based on Code of Civil Procedure section 283 which states that an attorney has authority "[t]o bind his client in any of the steps of an action or proceeding by his agreement filed with the Clerk, or entered upon the minutes of the Court, and not otherwise; ..." However, this section refers to the attorney's authority to enter into stipulations in civil cases and is inapplicable to an attorney's authority to proceed with a trial or a hearing in a misdemeanor defendant's absence.
Thus, if an attorney appears on behalf of the defendant at a misdemeanor trial and represents that he or she is authorized to proceed in the defendant's absence, the court does not have the authority to declare a forfeiture of bail under section 1043, subdivision (e) unless either there is a factual showing that the attorney does not in fact have authority to proceed or the court has specifically ordered the defendant to personally appear. In short, the attorney has no obligation to prove his authority to represent his client beyond his oral statement to the court that he is appearing for his client and is ready to proceed absent a showing of one of the factors above mentioned.
For a required appearance in a misdemeanor proceeding other than trial, section 1305 governs the propriety of declaring a forfeiture of bail. That section provides that the bail must be declared forfeited if, "without sufficient excuse," the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his or her presence in court is lawfully required. Since the defendant may...
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...a notice of appeal signed by the client's attorney should raise no question about its validity"]; People v. American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, 745, 236 Cal.Rptr. 501["An oral statement by counsel that he is appearing on the defendant's behalf and is ready to proceed with t......
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...to order bail forfeited. ( Id. at p. 1562, 152 Cal.Rptr.3d 52.) International Fidelity cited to People v. American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, ( American Bankers ), which also involved bail forfeitures in two misdemeanor cases. The American Bankers court also focused on the ......
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...We observe that the appellate division could then certify questions to this court if desired. (People v. American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, 744-745, 236 Cal.Rptr. 501.) On the other hand, Minor notes that relief was directly sought in superior court in People v. Swink (198......
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People v. Am. Contractors Indem. Co.
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