People v. Fin. Cas. & Sur., Inc.

• Decision Date: 16 July 2020
• Docket Number: E072188
• Citation: 265 Cal.Rptr.3d 843,52 Cal.App.5th 347
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

52 Cal.App.5th 347

265 Cal.Rptr.3d 843

The PEOPLE, Plaintiff and Respondent,

v.FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

E072188

Court of Appeal, Fourth District, Division 2, California.

Filed July 16, 2020

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

Gregory P. Priamos, County Counsel, Tiffany North and Eric Stopher, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

FIELDS, J.

I. INTRODUCTION

Defendant and appellant, Financial Casualty & Surety, Inc. (Surety), appeals from the January 15, 2019 order denying Surety's motion to set aside the summary judgment against Surety on a $25,000 bail bond. Surety claims the court did not have jurisdiction to enter the summary judgment on the bond, because it lost jurisdiction over the bond on two prior occasions. We affirm.

Surety first claims the court lost jurisdiction over the bond on May 9, 2017, when the jury returned verdicts of conviction and the court allowed the defendant to remain released on bail pending judgment and sentence—without taking evidence or making express factual findings concerning the five factors listed in Penal Code section 1166.¹ Surety argues that the failure to comply with section 1166, by holding an evidentiary hearing and making express factual findings supporting an order continuing a defendant on bail ( § 1166 ), is a jurisdictional error which exonerates the bond by operation of law. We disagree. We conclude that the failure to comply with section 1166 does not exonerate the bond by operation of law. Pursuant to the terms of the bond, Surety agreed to be liable on the bond if the defendant failed to appear for judgment and sentence.

Alternatively, Surety claims the court lost jurisdiction over the bond on June 30, 2017, when the defendant failed to appear for judgment and sentence. At that time, the court declared the bond forfeited and continued sentencing to July 6, 2017. Surety argues the court "held" the June 30, 2017 forfeiture, along with its hold on a bench warrant for the defendant's arrest, until July 6, 2017. Surety argues the court lost jurisdiction over the bond because it did not expressly declare the bond forfeited, in open court, on July 6, 2017 or at any later time. (§ 1305, subd. (a) [requiring bond forfeiture to be declared in open court if the defendant fails to appear in court as lawfully required].)

Surety's alternative claim fails because it misreads the record. The record plainly shows that the court did not "hold" its June 30, 2017 order declaring the bond forfeited. (§ 1305, subd. (a).) Rather, it only held the issuance of the bench warrant for the defendant's arrest, pending his appearance at the continued sentencing hearing on July 6, 2017. Thus, the court never lost jurisdiction over the bond and properly entered summary judgment on the bond against Surety.

II. BAIL BOND STATUTES, OVERVIEW

Although bail proceedings occur in connection with criminal prosecutions, they are civil proceedings, independent from and collateral to the prosecutions. ( People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657, 16 Cal.Rptr.3d 76, 93 P.3d 1020.) "The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court." ( People v. Wilcox (1960) 53 Cal.2d 651, 656-657, 2 Cal.Rptr. 754, 349 P.2d 522.) "[A] bail bond is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond. [Citations.]" ( People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22, 36 Cal.Rptr.2d 807.) Ultimately, if the defendant fails without sufficient excuse to appear in court as lawfully required, the surety " ‘must suffer the consequences’ " and forfeit the bail. ( People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709, 199 Cal.Rptr.3d 272, 366 P.3d 57.)

Sections 1305 through 1308 govern the forfeiture of bail and related proceedings. ( People v. Safety National Casualty Corp., supra , 62 Cal.4th at p. 709, 199 Cal.Rptr.3d 272, 366 P.3d 57.) The court is required to declare a bail forfeited "in open court" when a defendant released on bail fails without sufficient excuse to appear in court for arraignment, trial, judgment, or as otherwise lawfully required. (§ 1305, subd. (a).) The clerk is required to mail a notice of forfeiture of the bail to the appropriate parties, including the bail bond surety and its agent, if any. (§ 1305, subd. (b).) The 185-day period following the date the clerk mails the notice of forfeiture (180 days plus five days for mailing) is known as the appearance period. ( People v. American Contractors Indemnity Co., supra , 33 Cal.4th at p. 658, 16 Cal.Rptr.3d 76, 93 P.3d 1020.) If, during the appearance period, the defendant appears in court, the court is required to vacate the forfeiture and exonerate the bond. (§ 1305, subd. (c)(1).)

Upon a showing of good cause, the court may extend the appearance period by no more than an additional 180 days, provided the surety, bail agent, or depositor moves to extend the appearance period before it expires. (§§ 1305, subd. (j), 1305.4.) If the defendant is temporarily disabled, the court may also toll the appearance period. (§ 1305, subd. (e).) After the appearance period expires, the court has 90 days to enter summary judgment, against each bondsman named in the bond, for the amount of the bond plus costs. (§ 1306, subds. (a), (c).) If summary judgment is not entered within the 90-day period, the bond is exonerated by operation of law. (§ 1306, subd. (c).)

III. FACTS AND PROCEDURE

In August 2016, the defendant, Lawrence Dumond Howard, was charged with two counts of making criminal threats (§ 422), among other charges and allegations. Several days later, Surety's bail agent, Bail Hotline Bail Bonds, posted a $25,000 bail bond to secure the defendant's appearance in court in all of the proceedings in his case, through the pronouncement of judgment and sentence. The defendant appeared in court for all of the pretrial and trial proceedings in his case.

Specifically, the defendant appeared in court on 14 separate days, including for his preliminary hearing and arraignment, and for his five-day jury trial, which concluded on May 9, 2017. But the defendant failed to appear in court on June 30, 2017, the day the court was to pronounce judgment and sentence.

On May 9, 2017, defendant was present in court when the jury found him guilty of two counts of making criminal threats. (§ 422.) Also on May 9, after the jury rendered its verdict, the defendant admitted three prison priors (§ 667.5, subd. (b)), the court scheduled sentencing for June 30, 2017, and referred the matter to the probation department for a presentence investigation and report.

At the conclusion of the May 9, 2017 proceedings, the court (Judge Jeffrey J. Prevost) addressed the prosecutor concerning the defendant's release on bail pending judgment and sentence: "I would suppose you're going to request a remand [of the defendant to custody], but it's my intent to leave [the defendant] out on bail. What's your pleasure?" The prosecutor responded: "I'm really torn on this one. He's got a pretty significant record ... but he's appeared to every court date, and he does appear to have some kind of physical ailment, so I'll submit to the court's ruling, ..." In response to the court's question, defense counsel confirmed that she was asking the court to allow the defendant to remain released on bail pending his sentencing. The court ordered the defendant to remain released on bail pending judgment and sentence.

On June 30, 2017, when the court (Judge Prevost) called the defendant's case, defense counsel said the defendant was not present. She explained that her calls to the defendant and to one of his family members, who usually gave him rides, were going "straight" to voicemail, but she had spoken to another family member who said that her mother and the defendant had left that morning to come to court, but that she, too, had since been unable to reach them. Defense counsel then said, "I'd just ask the court to hold a bench warrant so that I can determine if maybe he [the defendant] ended up with a medical issue or a car accident, something that prevented him from coming. " (Italics added.) The court then asked the People to state its position. The prosecutor said: "The People's position is a bench warrant should issue. This is the date for sentencing. We don't have any specific information of why he's not here. [¶] The court already gave some pretty gracious relief allowing the defendant to be out of custody pending sentencing on a case where he was convicted of two strikes and three prison priors. And, as the Court noticed from the probation report, he had six pages of criminal history dating back to 1970." (Italics added.)

The court said it would be "willing to hold" a bench warrant "for a very short period of time" and continued sentencing to July 6, 2017, saying it would "like to keep [the continuance] shorter than two weeks." The court then announced: "Bail is ordered forfeit. Bench warrant in the nominal amount of $25,000. Hold to July 6th. I will call it at 8:30 [a.m.] in this department."² (Italics added.)

On July 6, 2017, the defendant did not appear at his continued sentencing hearing, and the court released the bench warrant from its June 30 hold. On January 23, 2018, the court granted the motion of Bail Hotline Bail Bonds to toll or extend the appearance period, to July 23, 2018. On September 18, 2018, the court denied Surety's motion to vacate the forfeiture and exonerate the bond. On October 12, 2018, the court entered summary judgment against Surety on the bond.

On December 11, 2018, Surety moved to set aside the summary judgment, vacate the forfeiture, and exonerate the bond. Surety argued, as it argues in this appeal, that the court...