People v. Burton

• Decision Date: 14 November 1956
• Docket Number: A-3,A-12,Cr. A
• Citation: 146 Cal.App.2d Supp. 878,305 P.2d 302
• Court: California Superior Court
• Parties: 146 Cal.App.2d Supp. 878 The PEOPLE of the State of California, Plaintiff and Appellant, v. Arthur BURTON, Clyde Hammond, Azell Guster, Frances, Martinez, Alberta Bizzel, Floyd A. Plaster, Otho Puckett, Jack Chapman, Mae Nobles, Bobbie Jean Teague, Defendants. The National Automobile and Casualty Insurance Company, a Corporation, Walter E. Binger, Harry F. Devenney, Margaret L. Devenney, Carl H. Devenney, Respondents. to Appellate Department, Superior Court, Kern County, California

Page 302

305 P.2d 302

146 Cal.App.2d Supp. 878

The PEOPLE of the State of California, Plaintiff and Appellant, v. Arthur BURTON, Clyde Hammond, Azell Guster, Frances, Martinez, Alberta Bizzel, Floyd A. Plaster, Otho Puckett, Jack Chapman, Mae Nobles, Bobbie Jean Teague, Defendants.

The National Automobile and Casualty Insurance Company, a Corporation, Walter E. Binger, Harry F. Devenney, Margaret L. Devenney, Carl H. Devenney, Respondents.

Cr. A. A-3 to A-12.

Appellate Department, Superior Court, Kern County, California.

Nov. 14, 1956.

As Amended on Denial of Rehearing Nov. 30, 1956.

Roy Gargano, County Counsel, Kern County, and M. W. Creagh, Deputy County Counsel, Bakersfield, for appellant.

Donahue & Goldberg, Bakersfield, for respondents Devenney.

Norbert Baumgarten, Bakersfield, for other respondents.

MAIN, Judge.

The appeal in each of the ten captioned cases involves the validity of a summary judgment against bondsmen upon undertaking taking of bail in a criminal case, which judgment was entered more than one year after the entry by the lower court of the declaration of forfeiture for failure of the defendant to appear. Penal Code Sections 1278, 1305, 1306.

With exceptions noted, the record in each case discloses the following actions:

1. Defendant was charged with a criminal offense in the Municipal Court, was taken into custody, and was released upon posting an undertaking of bail furnished (exception in case A-12) by a corporate bondsman, the National Automobile and Casualty Insurance Company.

2. Defendant failed to appear when ordered to do so, and thereafter the Municipal Court entered in its minutes a declaration of forfeiture of the bond. In each instance the forfeiture was declared within one year of the failure to appear.

3. More than one year after entry of the forfeiture, the Municipal Court entered a summary judgment upon the bond. In some instances the judgment was entered against the corporate surety only, and in some cases also against one Walter E. Binger, presumably the attorney in fact for the corporate surety.

4. The docket contains an entry: 'Summary judgment entered. Bondsman notified.' The record does not contain other proof of service, copy of the notice, nor indication of what person or persons were notified. The only appearance of record in opposition to the appeal is by attorney Norbert Baumgarten, appearing 'for respondent Walter E. Binger.' Neither Mr. Baumgarten nor other counsel appear for the corporate surety.

5. A motion was made in the Municipal Court by Attorney Baumgarten to set aside the summary judgment so entered. The docket does not disclose the identity of the moving party, but only of counsel.

6. On February 27, 1956, the Municipal Court entered its order in each case, setting aside the summary judgment previously rendered.

7. The People (County Counsel of Kern County) appeal from the orders setting aside the summary judgments.

In setting aside the judgments, the Municipal Court in effect decided that entry of such summary judgments was barred by the one-year limitation of Sections 335 and 340(2) of the Code of Civil Procedure, reading:

'The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows: * * * An action upon a statute, or upon an undertaking in a criminal action, for a forfeiture or penalty to the people of this State.'

In other words, the holding is that the court cannot enter the summary judgment on a date more than one year after its declaration of the forfeiture. No such limitation of time is contained in the Penal Code Sections. Only a minimum time is mentioned, in that the defendant and his bail are now allowed ninety days from the declaration of forfeiture within which to appear and offer excuses, before summary judgment can be entered.

Since 1927 the Penal Code Sections 1305, 1306 has required the court in which a bail bond has been filed to perform specified acts as a means of fixing liability of bail after the unexcused non-appearance of the defendant. There is no civil action on the bond by the district attorney, as formerly.

Prior to 1927 the method provided for enforcing a forfeiture of bail under Penal Code Sections 1305 and 1306 was by civil action upon the bond, brought by the District Attorney, which action could only be commenced after a declaration of forfeiture by the court in which the principal had failed to appear, and the lapse of twenty days more during which the non-appearance remained unexcused.

In the case of Los Angeles County v. Metropolitan Casualty Insurance Company, 1933, 135 Cal.App. 26, 26 P.2d 699, 700, based on the pre-1927 law, it was held that the court might declare the forfeiture even after five years time from the date of non-appearance of the defendant; and that his further failure to appear for the twenty-day period then provided by Penal Code Section 1305 entitled the district attorney to proceed with his action on the bond. 'It cannot be said * * * that such obligation [became] actionable until established by the procedure' prescribed by Penal Code Sections 1305 and 1306 as they then read. The opinion does not mention Section 340(2) of the Code of Civil Procedure, but does uphold a judgment against the bondsman in a suit filed less than one year after the accrual of the cause of action. The district attorney in filing such suit was following the mandate of Penal Code Section 1306 as it read before 1927, that he might 'proceed by action against the bail upon their undertaking.'

However, by the amendments of 1927 the legislature put into operation an entirely new scheme for fixing liability of sureties on bail bonds. The bail bondsmen were required, P.C. Section 1287, to consent to summary judgment against themselves as an integral part of the undertaking. Section 1306 of the Penal Code was recast to provide that ninety days after the declaration of forfeiture, unless set aside, the court 'shall * * * enter a summary judgment' against the bail. All directions to the court as to its duties are mandatory. As to the new system, the court said in People v. New York Indemnity Company, 1931, 113 Cal.App. 487, 298 P. 849, 850:

'Section 1306 is so radically changed that nothing remains of the former enactment, the section as amended providing for the entry of a summary judgment against each bondsman named, in place of the action against the bail on their undertaking as theretofore provided. It is to be observed that the amendment adds to the form of the bond provided by section 1278 of the Penal Code an express consent to the entry of such summary judgment by the bondsman and also by 'the defendant if he be a party to the bond.' Necessarily the bond would have to be signed by the surety, thereby making such consent effective. Here we have a very important change in the form of the bond, making effective by consent the summary judgment provided for in the amendment to section 1306.'

No change was made in 1927 in the language of C.C.P. Section 340(2), perhaps in view of the large number of outstanding bonds enforceable only by the old procedure because they lacked the consent clause. Whether this section ever became applicable to bonds given since the 1927 changes does not seem to have been decideed. We believe that on principle and in view of the drastic and specific changes above referred to, the section has no application to bonds given under the new law.

It will first be observed that Sections 1305 and 1306 are specific statutes concerning obligation of bail, and so 'are governed by the statutes specially applicable thereto.' Section 2781 of the Civil Code. They do not provide for the filing of an action as did the old law. They contain no reference to periods of limitation within which the specified acts must be performed by the court, and no limitation can be imported from a general statute.

Next, the law recognizes two types of forfeiture, 22 Cal.Jur. 510, and has done so in this state at least since 1882. See Upham v. Hosking, 62 Cal. 250; People v. Broad, 216 Cal. 1, 12 P.2d 941. The first, called common-law or judicial forfeiture, requires the taking of some action by one of the parties litigant in order to establish the forfeiture or perfect the judgment. Of this character are actions to forfeit vehicles used in the transportation of narcotics. Health and Safety Code Section 11610 et seq., require a series of steps by the state as litigant before forfeiture can be adjudicated. Similarly the liability of sureties upon an undertaking to...