People v. Durbin

• Citation: 218 Cal.App.2d 846,32 Cal.Rptr. 569
• Court: California Court of Appeals
• Decision Date: 02 August 1963
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lee DURBIN, Defendant and Appellant Civ. 6959.

Page 569

32 Cal.Rptr. 569

218 Cal.App.2d 846

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lee DURBIN, Defendant and Appellant

Civ. 6959.

District Court of Appeal, Fourth District, California.

Aug. 2, 1963.

Jack Galen Whitney, San Diego, and Joseph Joblin, Los Angeles, for defendant and appellant.

Henry A. Dietz, County Counsel of San Diego County, Duane J. Carnes and Stanley Friedman, Deputies County Counsel, for plaintiff and respondent.

GRIFFIN, Presiding Justice.

Defendant-appellant Lee Durbin was charged with a criminal offense on May 19, 1961 in the Superior Court of San Diego County and bail was set at $5,250. It was posted by the execution of two bonds by National Automobile and Casualty Insurance Company, by their agent Homer Rushing. On August 16, 1961, the date set for trial, defendant did not appear and the bail was ordered forfeited. On September 22, 1961, the agent, Rushing, made oral motion to set aside the forfeiture and followed it with a written motion filed on November 22, 1961. The hearing was continued to and was held on January 5, 1962 and the motion was denied. The appeal is by defendant Lee Durbin from this order. Although no appeal was taken by the bail agent, the same questions it raised are here answered.

On the hearing, it was shown that Durbin had been arrested in Longview, Texas on August 19, 1961 for investigation of robbery and escaped that same day or the next day, masquerading as another prisoner; that he was again arrested on September 5, 1961 in Natchez, Mississippi and released on September 12 in connection with that arrest for bunko. He was again arrested in Memphis, Tennessee on September 22, 1961. On the third arrest, for armed robbery in Memphis, Tennessee on September 22, 1961, there was a conviction and he was sentenced to 10 years on the charge. Following the date of his last arrest, defendant remained in the custody of the state authorities of Tennessee, both while awaiting trial on the charge and after judgment and imposition of sentence to the penitentiary. It therefore appears that subsequent to the forfeiture involved in this action on August 16, 1961, he was at large and subject to recapture by the bail for the period from August 16, 1961 to September 5, 1961, with the exception of some part of August 19, 1961. He was again at large during the period between September 12, 1961 and September 22, 1961.

The transcript recites that Rushing appreciably assisted the F.B.I. office and that he materially effected the apprehension of Durbin by informing the F.B.I. office as to his whereabouts, because the bail bondsman had about $30,000 at stake.

Respondent, County of San Diego, does not contend that there was any connivance or misconduct on the part of the bail. Appellant seeks to make it appear that Penal Code, section 1305, permits the court to set aside a forfeiture of bail if at any time within the 90-day period the accused is incarcerated in any jail, anywhere. Penal Code, section 1305, provides:

'But if at any time within 90 days after such entry in the minutes, the defendant and his bail appear, and satisfactorily excuse the defendant's neglect or show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.

'If within said 90 days after such entry in the minutes, it be made to appear to the satisfaction of the court that the defendant is dead or is physically unable, by reason of illness or insanity, or by reason of detention by civil or military authorities, to appear in court at any time during said 90 days, and that the absence of the defendant was not with the connivance of the bail, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.'

These facts bring the case directly within the holding in People v. Houle, 153 Cal.App.2d Supp. 894, 316 P.2d 100. It was there held that a defendant who was detained by civil authorities for less than 90 days from the date of an order forfeiting his bail does not qualify under the provision in Penal Code, section 1305, authorizing discharge of such order if his failure to appear within 90 days resulted from his detention by civil authorities, since such provision contemplates that there was no day within such 90 days on which he was not so detained.

Counsel for appellant claims that this is not the law of this state, and argues that People v. Meyers, 215 Cal. 115, 118, 8 P.2d 837, 839, holds that the state acting through its officers in one county, cannot hold the sureties on a bail liable for failure to perform, when such performance is delayed, hindered and finally, for all practical purposes made impossible, by the state acting through its officers in another county. It also held that the:

'* * * mere arrest and incarceration of a person released on bail does not exonerate the bail, if the accused is at liberty subsequently and at the time he is required to appear on the first charge. In such case performance by the sureties is possible. [Citation] If, however, he is still in custody at the time of the hearing on the first charge, the liability of the sureties is, under some of the authorities, suspended, and, under others, wholly exonerated. But all are substantially in accord on the point that during the custody the surety cannot perform and the bail cannot be forfeited.'

Appellant also relies upon the dissenting opinion in Seaboard Surety Corp. v. Municipal Court, 208 Cal. 596, 283 P. 289.

It does not affirmatively appear from the section being construed and its historical background that the bail has an automatic vested right under the section to 90 days' time after forfeiture in which to produce a willful defaulting defendant and to be thereby relieved of the forfeiture. The section provides that if a defendant englects to appear for trial when required, without sufficient excuse, the court must direct the forfeiture. But if at any time within 90 days, defendant and his bail appear and satisfactorily excuse the defendant's negligence to thus appear for trial, the court may direct the forfeiture of the undertaking to be discharged and upon just terms, and that if, within said 90 days, it appears to the...