People v. Bankers Ins. Co.

• Decision Date: 31 May 2016
• Docket Number: H040226
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE CO., Defendant and Appellant.

247 Cal.App.4th 1004

202 Cal.Rptr.3d 607

The PEOPLE, Plaintiff and Respondent

v.BANKERS INSURANCE CO., Defendant and Appellant.

H040226

Court of Appeal, Sixth District, California.

Filed May 31, 2016

Attorney for Defendant/Appellant: E. Alan Nunez

Attorneys for Plaintiff/Respondent: Orry P. Korb, County Counsel, Sara J. Ponzio, Deputy County Counsel

Mihara

, J.

Appellant Bankers Insurance Co. (Bankers) appeals from the superior court's order denying its motion to vacate the forfeiture of its bail bond. The bond expressly applied to “duly authorized amendments” to the complaint. Bankers contends that the court was required to vacate the forfeiture because the prosecution's filing of an unauthorized amended complaint materially increased its risk under the bond. Respondent maintains that the court was not required to vacate the forfeiture because there was no statutory basis for doing so and the amended complaint did not materially increase Bankers's risk under the bond. We conclude that, although the amendment to the complaint was not duly authorized, it did not materially increase the surety's risk and therefore did not require the court to vacate the forfeiture and exonerate the bond.

I. Background

Martin Hernandez Moreno was arraigned on December 6, 2011 on a complaint charging him with felony counts of domestic violence (Pen.Code, § 273.5, subd. (a)

)¹ and false imprisonment (§§ 236, 237), which had occurred on December 2, 2011. At the arraignment, the court issued a domestic violence protective order (DVPO), set bail at $50,000, and remanded Moreno into custody.

On December 24, 2011, Bankers issued a bail bond of $50,000 to secure Moreno's release in the domestic violence and false imprisonment case. The bond stated that Moreno had been ordered to appear in court on January 18, 2012 on “pc 273.5(A)

, pc236/237 charge/s” and that the surety “undertakes that the above-named defendant will appear in the above named court on the date above set forth to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her and all duly authorized amendments thereof, in whatever court it may be filed and prosecuted, and will at all times hold him/herself amenable to the orders and process of the court....”

Moreno appeared at the January 2012 hearing and at a February 5, 2012 hearing. On February 22, 2012, Moreno appeared in court for a “plea” hearing. The prosecutor announced that she was filing an “amended complaint ... based on the new conduct, based on a violation of a restraining order on February 12, 2012.” The amended complaint, filed that day, added misdemeanor counts of violating a protective order (§ 273.6, subd. (a)) and aggravated trespass (§ 602.5, subd. (b)), both based on conduct on February 12, 2012, to the two existing felony counts, which were both based on conduct on December 2, 2011. The prosecutor asked the court to increase the bail amount “based on the new law violations,” which had “occur[red] while he was out on bail.” The court was initially inclined to increase the bail amount, but after an unreported bench conference, the court decided “to leave the bail set at $50,000.” The court set the preliminary examination for April 5, 2012.

Moreno did not appear at the April 5, 2012 hearing, and the court ordered the bail forfeited. Bankers was notified of the forfeiture. The court subsequently granted Bankers's request to extend the appearance period for an additional 180 days to April 2013.

In April 2013, Bankers filed a motion to vacate the forfeiture and exonerate the bond. Bankers argued that the court had materially increased its risk on the bond when it permitted Moreno to remain free on the bond after the amended complaint was filed. In June 2013, the court denied Bankers's motion. It found that the fact that the bond stated that it applied to “duly authorized amendments” was determinative. The court thereafter entered judgment on the bond, and Bankers timely filed a notice of appeal.

II. Analysis

“ ‘Ordinarily, appellate courts review an order denying a motion to vacate the forfeiture of a bail bond under an abuse of discretion standard. [Citation.] When the appellate court is deciding only legal issues, however, such as jurisdictional questions and matters of statutory interpretation, the abuse of discretion standard does not apply. [Citation.] When the facts are undisputed and only legal issues are involved, appellate courts conduct an independent review.’ [Citation.]” (People v. Lexington National Insurance Corporation (2015) 242 Cal.App.4th 1098, 1102, 195 Cal.Rptr.3d 574

.) The issues before us in this case do not involve any factual disputes, so we exercise independent review.

Bankers contends that it was entitled to vacation of the forfeiture because the amendment of the complaint materially increased its risk. It points out that the additional counts in the amended complaint were not based on the same acts as the counts in the original complaint since the crimes alleged in the new counts occurred two months after the complaint was filed and the bond was issued. Respondent contends that Bankers could not obtain vacation of the forfeiture because it did not establish any of the circumstances set forth in section 1305, which respondent claims are the exclusive bases for a vacation of a forfeiture.² Respondent also contends that the amendment of the complaint did not materially increase the risk because the bond expressly applied to “all duly authorized amendments.” We begin by reviewing the cases that have dealt with these issues.

In People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 104 Cal.Rptr.3d 87

(Bankers I ), the Fifth District Court of Appeal opined that the statutory grounds for vacating a forfeiture set forth in section 1305 are exclusive and “[t]here is no common law defense” to a forfeiture. (Bankers I, at p. 6, 104 Cal.Rptr.3d 87.) However, the Fifth District also stated that it had “no quarrel” with the proposition that “a surety is entitled to stand on its contract and increasing the risk to a surety is the gravamen of a unilateral change on the government's part,” but it found that the risk had not been materially increased on the facts of the case before it. (Bankers I, at pp. 7–8, 104 Cal.Rptr.3d 87.) The criminal defendant in Bankers I had been in custody on sale and transportation of narcotics charges when the surety posted the broadly worded bond, which applied to “all duly authorized amendments” to a pleading. (Bankers I, at p. 3, 104 Cal.Rptr.3d 87.) The subsequently filed complaint alleged that the criminal defendant had sold and transported more than one ounce of methamphetamine. (Bankers I, at p. 3, 104 Cal.Rptr.3d 87.) The defendant thereafter failed to appear. On appeal, the surety claimed that the allegations regarding the amount of methamphetamine materially increased the risk to the surety entitling it to vacation of the forfeiture. The Fifth District found that the bond covered the subsequently filed complaint, and the amount allegations did not materially increase the risk to the surety. (Bankers I, at pp. 3, 5, 7–8, 104 Cal.Rptr.3d 87.)

In People v. International Fidelity Ins. Co. (2010) 185 Cal.App.4th 1391, 111 Cal.Rptr.3d 460

(Fidelity ), the Fourth District Court of Appeal followed Bankers I in a case, like Bankers I, where a pleading increased the potential penalty but was based on the same acts alleged at the time the bond was issued. (Fidelity, at p. 1393, 111 Cal.Rptr.3d 460.) The criminal defendant was charged in a complaint with several counts and enhancements concerning a robbery and assault on a single victim on a single date. (

Fidelity, at pp. 1393–1394, 111 Cal.Rptr.3d 460

.) The surety issued a bond guaranteeing the criminal defendant's appearance “ ‘to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her and all duly authorized amendments thereof. ’ ” (Fidelity, at pp. 1395–1396, 111 Cal.Rptr.3d 460.) Amended pleadings were subsequently filed alleging additional offenses and enhancements pertaining to two additional victims that had occurred on the same date as the original charges. (Fidelity, at p. 1394, 111 Cal.Rptr.3d 460.) The criminal defendant subsequently failed to appear, and the court ordered the bond forfeited and denied the surety's motion to vacate the forfeiture. (Fidelity, at pp. 1394–1395, 111 Cal.Rptr.3d 460.) The Fourth District recognized the issue was one of contract interpretation. (Fidelity, at p. 1396, 111 Cal.Rptr.3d 460

.) It found that the bond covered the amended pleadings because the new counts were based on the same acts as those alleged in the original complaint. (Fidelity, at p. 1396, 111 Cal.Rptr.3d 460.)

In County of Los Angeles v. American Contractors Indemnity Co. (2011) 198 Cal.App.4th 175, 129 Cal.Rptr.3d 563

(American ), Division Five of the Second District followed Bankers I. The criminal defendant had been arrested and charged with domestic violence. (American, at p. 177, 129 Cal.Rptr.3d 563.) Before the complaint was filed, the surety issued a bond that undertook to ensure the criminal defendant's appearance on the domestic violence charge and to “ ‘answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him....’ ” (American, at p. 179, 129 Cal.Rptr.3d 563.) The complaint thereafter charged him with domestic violence and two “unrelated ” sex offender registration violations, and it alleged two prior strike convictions. (American, at pp. 177, 179, 129 Cal.Rptr.3d 563.) When the criminal defendant subsequently failed to appear, the court ordered the bond forfeited, and it later denied the surety's motion to vacate the forfeiture. (American, at pp. 177–178, 129 Cal.Rptr.3d 563.) On appeal, the surety claimed that the filing of the complaint adding two new unrelated charges and the strike allegations materially increased its risk. (American, at p. 178, 129...