People v. Durbin

• Court: United States State Supreme Court (California)
• Writing for the Court: PETERS; TRAYNOR
• Citation: 64 Cal.2d 474,50 Cal.Rptr. 657,413 P.2d 433
• Parties: , 413 P.2d 433 The PEOPLE, Plaintiff and Respondent, v. Lee DURBIN et al., Defendants and Appellants (two cases). L.A. 28720, 28721.
• Decision Date: 25 April 1966

Page 657

50 Cal.Rptr. 657 64 Cal.2d 474, 413 P.2d 433 The PEOPLE, Plaintiff and Respondent,
v.
Lee DURBIN et al., Defendants and Appellants (two cases). L.A. 28720, 28721. Supreme Court of California,
In Bank. April 25, 1966.

[64 Cal.2d 475] Frank Fullenwider, Langford, Langford & Lane, J. Perry Langford, Colton, Thompson & Thompson and David R. Thompson, San Diego, for defendants and appellants.

Bertram McLees, Jr., County Counsel, Duane J. Carnes and Lloyd M. Harmon, Jr., Deputy County Counsel, for plaintiff and respondent.

Page 658

[413 P.2d 434] PETERS, Justice.

These are two appeals from orders denying motions to set aside forfeitures of bail. The problem involved is whether an amendment to the forfeiture statute passed before the forfeitures here involved became final is applicable to these cases. The amended statute is clearly applicable. For that reason the orders appealed from must be reversed.

The facts are not in dispute: Lee Durbin was charged in one case (L.A. 28720; 4 Civ. 7606) with two counts of burglary, and was released on bail. Arraignment was set for September 13, 1961. In another case (L.A. 28721; 4 Civ. 7607) Durbin was charged with one count of attempted grand theft, and was released on bail. Arraignment was set for August 17, 1961. He failed to appear for either arraignment, and on the date set for the arraignments bail was ordered forfeited in each case. Durbin and his sureties United Bonding Insurance Company and George H. Martin moved to set aside the [64 Cal.2d 476] forfeitures. Both motions were denied after a hearing on February 27, 1962, and summary judgments were entered against the sureties on March 6, 1962. Durbin and his sureties appealed. These orders are appealable. (People v. Wilcox, 53 Cal.2d 651, 655, 2 Cal.Rptr. 754, 349 P.2d 522, 78 A.L.R.2d 1174.) The appellate court reversed upon the ground that the trial court had failed to exercise the discretionary power then conferred by section 1305 of the Penal Code with regard to relief from bail forfeitures. (People v. Durbin, 218 Cal.App.2d 851, 32 Cal.Rptr. 573.) Thereafter, on November 7, 1963, the trial court exercised its discretion, and again denied the motions. These appeals followed.

The motion were based upon Penal Code section 1305 which throughout 1961 provided, in part, that the court 'may' discharge the forfeiture upon such terms as may be just if within 90 days after entry in the minutes of the failure to appear it is shown 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.' In September of 1963, between the time the appellate court issued its remittitur reversing the orders denying relief and the time the trial court again denied the motions to set aside the forfeitures, section 1305 was amended by replacing 'may' with 'shall' and thereby made mandatory the granting of relief upon such terms as may be just if a timely motion is made and the inability specified by the statute is shown. (Stats. 1963, ch. 2014, p. 4113, § 1.)

Durbin was arrested in Texas for investigation of robbery on August 19, 1961, and escaped that same day or the next. He was arrested in Mississippi on a bunco charge on September 5 and was released on September 12. He was arrested a third time in Tennessee on September 22 for armed robbery in Memphis. He was thereafter convicted and sentenced to 10 years on the robbery charge. Following this last arrest, he remained in custody of the Tennessee authorities both while awaiting trial and after judgment imposing sentence. It thus appears that Durbin was free on and after August 17, the first date set for his appearance, until September 5, with the exception of August 19. He was again at large during the period between September 12 and September 22, which includes the second date he was ordered to appear. Thus, the motions to set aside the forfeiture, both of which were made within the 90-day period, showed that although Durbin was at large and [64 Cal.2d 477] free to appear on the dates set for arraignment, and for brief periods within the 90 days thereafter, he was in continuous custody of the Tennessee authorities after September 22, 1961.

The appellate court held on the prior appeal that relief should be granted in the present case under section 1305 even though defendant was able at some point within the 90 days to appear in court. (People v. Durbin, supra, 218 Cal.App.2d at pp. 853--855, 32 Cal.Rptr. 573.) Questions determined by an intermediate appellate court

Page 659

[413 P.2d 435] constitute the law of the case after the decision...