People v. Bankers Ins. Co.

• Decision Date: 17 July 2019
• Docket Number: D073724
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE CO., Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE CO., Defendant and Appellant.

D073724

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

July 17, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. CD261535 & 37-2018-00006266-CU-EN-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgreen and Lorna Alkskne, Judges. Affirmed.

Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal Rorabaugh for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, and Jennifer M. Stone, Deputy County Counsel, for Plaintiff and Respondent.

Bankers Insurance Company (Bankers) posted a $35,000 bail bond on behalf of Jorge Matzunaga, who later failed to appear at his preliminary hearing. The trial court declared bail forfeited, denied Bankers's motion to exonerate bail, and entered judgment.

On appeal, Bankers contends that the judgment is void because several days after initially setting bail, and without good cause, the trial court (1) added "unlawful and unconstitutional conditions" to the bail contract; and (2) the conditions, imposed by the court without notice to Bankers, materially altered the contract. We reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Bail Initially Set

Matzunaga was jailed on charges of blowing up an apartment building while using butane to extract hash oil from marijuana. On April 19, 2016, Bankers posted a $35,000 bail bond for his release.¹ The court set Matzunaga's preliminary hearing for May 2.

B. Additional Conditions

On April 28, Matzunaga's attorney asked the court to continue the preliminary hearing to June 1. The court granted this request, but only after Matzunaga agreed to a "Fourth Amendment waiver" and also to not use or possess marijuana while released on bail. The court explained, "We're continuing this matter for prelim[inary hearing] date for almost one month. He was involved in very dangerous conduct that involved drugsand then injuries not only to himself, but a loss of homes for eight separate families, and a financial loss of $1.8 million."

C. Matzunaga Fails to Appear

Ultimately, one month evolved into a five-month continuance. On October 12, Matzunaga failed to appear for his preliminary hearing. The court declared bail forfeited and on October 18 mailed Bankers notice of forfeiture.

D. Motion to Exonerate Bail

Bankers moved to exonerate bail based on Penal Code section 1305, subdivision (g)² (hereafter, section 1305(g)). That statute provides a means for exonerating bail if the bail bond agency locates the defendant in another jurisdiction, but the district attorney elects not to seek extradition. Section 1305(g) requires that the defendant be "positively identified" as the wanted defendant in a sworn affidavit by law enforcement in the other jurisdiction. (§ 1305(g).)

Bankers asserted that its agent located Matzunaga in Ensenada, Baja California. Bankers filed an "Affidavit of Identification" purportedly signed by Jose Aguirre, an Ensenada police officer. (Boldface omitted.) Four months later, Bankers filed an amended motion on the same grounds, correcting the officer's name to Herrera. The People opposed the motion with their own affidavit from Officer Herrera, who denied identifying Matzunaga and stated that the signature on the affidavit submitted by Bankers was not his.

E. "Supplemental" Papers

In late October 2017, now represented by different attorneys, Bankers filed a "supplemental memorandum" in support of its motion to exonerate bail. (Capitalization omitted.) There, Bankers asserted that the bail conditions the court imposed on April 28 (i.e., the Fourth Amendment waiver and no marijuana) without notice to Bankers "voided the bail contract." (Capitalization and boldface omitted.) Bankers argued that by imposing conditions "outside of the terms of the bail bond contract, in exchange for allowing the defendant to exercise the constitutional right to remain free on bail prior to judgment," the court materially altered bail and, therefore, terminated the bail bond contract. Bankers further asserted that as a result of these conditions, "the bail contract was void and the subsequent forfeiture invalid."

After the People filed opposition and the court conducted a hearing, the court denied Bankers's motion. The court ruled that Bankers had not satisfied section 1305(g), and that the conditions imposed were reasonably necessary for public safety and did not materially alter Bankers's risk on the bond.

DISCUSSION

I. BANKERS'S ARGUMENTS THAT THE JUDGMENT IS VOID ARE NOTFORFEITED

A. General Rule—The Court May Not Exonerate Bail On Theories Not Asserted During the Appearance Period

"[E]xcept for capital crimes when the facts are evident or the presumption great," a criminal defendant "may be released on bail by sufficient sureties . . . ." (Cal. Const., art.I, § 28, subd. (f)(3).)³ In setting bail, "[p]ublic safety and the safety of the victim shall be the primary considerations." (Ibid.)

A bail bond is a promise by a surety to guarantee the defendant's appearance in court. "The purpose of bail and of its forfeiture, however, is to ensure the accused's attendance and obedience to the criminal court, not to raise revenue or to punish the surety." (People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 42.) In adopting rules of law that disfavor the forfeiture of bail, "the courts' concern is not so much for the bail bond companies, to whom forfeiture is an everyday risk of doing business, but for those who bear the ultimate weight of the forfeiture, family members and friends who have pledged their homes and other financial assets to the bonding companies to secure the defendant's release." (County of Los Angeles v. American Contractors Indemnity Co. (2007) 152 Cal.App.4th 661, 666.) "There is a public interest at stake here as well—the return of fleeing defendants to face trial and punishment if found guilty. Given the limited resources of law enforcement agencies, it is bail bond companies, as a practical matter, who are most involved in looking for fugitives from justice. . . . [I]f the bonding company has no assurance that once it has located theabsconding defendant its bail will be exonerated[,] . . . the company has no financial incentive to undertake the search." (Ibid.)

In most cases, a surety has a time period—known as the "appearance period"—in which it may seek to vacate forfeiture, either by returning the defendant to court or by otherwise demonstrating entitlement to vacatur. (§ 1305, subds. (c)-(g).) The appearance period is 185 days from mailing notice of forfeiture to the surety. (§ 1305, subd. (b)(1).)⁴ In this case, the appearance period expired on April 21, 2017.

The appearance period is a jurisdictional deadline. "A trial court lacks jurisdiction to entertain a motion to vacate forfeiture if filed after the appearance period has ended." (People v. The North River Ins. Co. (2017) 18 Cal.App.5th 863, 871.) A corollary to this rule is that when a surety has filed a timely motion to vacate the forfeiture of a bail bond, "[a] court may also not grant relief based on theories not 'actually asserted' during the appearance period." (Id. at p. 873.)

B. Void Judgments

Bankers filed its motion to vacate forfeiture on February 10, 2017—within the appearance period. However, the only theory Bankers asserted in that motion was under section 1305(g). Only after the appearance period expired did Bankers file supplemental papers asserting that the conditions rendered the bail contract void.

On appeal, Bankers does not challenge the trial court's ruling denying relief under section 1305(g), but instead urges that the bail conditions rendered its bail contract, and the subsequent summary judgment, void. Invoking the rule just mentioned—that the trial court cannot exonerate bail based on theories not presented during the appearance period—the People contend Bankers's appeal is over before it even starts because Bankers did not raise any of its appellate issues in the trial court until after the appearance period lapsed.

Bankers replies, however, with its own jurisdictional counter argument. Citing People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547 (Amwest), Bankers contends that if the judgment forfeiting bail is not merely erroneous (i.e., voidable), but rather void for lack of fundamental jurisdiction, the judgment may be challenged "at any time."

Bankers's argument has merit. "Because the law disfavors forfeitures, the bail statutes must be construed strictly to avoid forfeiture, and the procedures set forth therein must be ' "precisely followed or the court loses jurisdiction and its actions are void." ' " (People v. International Fidelity Ins. Co. (2012) 212 Cal.App.4th 1556, 1561.) Many statutory procedures involving bail have been held jurisdictional within this rule. (People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66, 74-75 [collecting cases] (Landon White).)

For example, in Amwest, supra, 125 Cal.App.4th 547, the appearance period expired on June 14, 2000. (Id. at p. 549.) When the surety did not produce the accused or otherwise seek to vacate the forfeiture, in September 2000 the court entered summaryjudgment against the surety, which did not appeal from the judgment. (Ibid.) More than two years later, in December 2002, the surety filed a motion to set aside the judgment, discharge the forfeiture, and exonerate bail on the ground the trial court lacked jurisdiction to enter judgment because the court failed to declare the bond forfeited "in open court," as required by statute. (Id. at p. 550.) The County of Los Angeles...