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

• Decision Date: 17 September 2019
• Docket Number: D073948
• Citation: 39 Cal.App.5th 1213,252 Cal.Rptr.3d 564
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

39 Cal.App.5th 1213

252 Cal.Rptr.3d 564

The PEOPLE, Plaintiff and Respondent,

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

D073948

Court of Appeal, Fourth District, Division 1, California.

Filed September 17, 2019

As Modified October 3, 2019

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

Thomas E. Montgomery, County Counsel and Walter J. de Lorrell, III, Senior Deputy, for Plaintiff and Respondent.

IRION, J.

Financial Casualty & Surety, Inc. (Surety), which posted a bail bond on behalf of criminal defendant Abdul Karim Juma, appeals following the trial court's denial of its motion to vacate the trial court's forfeiture of the bail bond and to exonerate the bail bond following Juma's failure to appear. Surety contends that the trial court lacked jurisdiction to forfeit the bond because (1) it failed to enter an order forfeiting the bond at an earlier hearing at which Juma may not have been present; and (2) on several grounds, the bail agreement was rendered void and was exonerated when the trial court required that Juma waive his Fourth Amendment right against warrantless searches. We conclude that Surety's arguments lack merit, and we accordingly affirm the judgment.

I.FACTUAL AND PROCEDURAL BACKGROUND

On June 23, 2016, Juma was arraigned on charges of mayhem ( Pen. Code, § 203 ),¹ assault with a deadly weapon (§ 245, subd. (a)(1)), and assault likely to produce great bodily injury (§ 245, subd. (a)(4)). Bail was set in the amount of $100,000. On June 26, 2016, Surety posted a $100,000 bail bond for Juma's release from custody. The bond set forth an undertaking from Surety that Juma would appear in court on a specific date, and "will at all times hold him/herself amenable to the orders and process of the court, and if convicted, will appear for pronouncement of judgment or grant of probation." The bond provided that if Juma failed to perform the conditions, the court could enter summary judgment against Surety in the amount of $100,000.

After Juma was released on bail, the trial court twice identified specific additional conditions of bail. First, a minute order from July 15, 2016, states that the court ordered that Juma have no contact with the victim of the crime. Second, the minute order for the August 24, 2016 hearing stated that a "previously ordered" condition of bail requiring Juma to waive his Fourth Amendment rights against warrantless searches (the Fourth Waiver) "continues."²

According to the minute orders in the appellate record, Juma appeared for hearings on July 1 and 15 and August 24, 2016. However, for a hearing held on August 5, 2016, the clerk who filled out the minute order neglected to check the box indicating whether Juma was present, and no reporter's transcript exists for that hearing. The only indication that Juma may, in fact, have been present in court on August 5, 2016, is the minute order's statement that "distribution" of the order to defense counsel and Juma took place on the date of the hearing.

After having appeared on August 24, 2016, Juma failed to appear for a September 29, 2016 hearing, and the trial court entered an order forfeiting bail. The notice to Surety of the order stated that the forfeiture would become final in 180 days unless Surety obtained a court order setting aside the forfeiture or tolling the forfeiture statute. (§ 1305).³ The trial court subsequently entered an order extending Surety's deadline to appear to set aside the forfeiture to November 6, 2017.

On September 26, 2017, Surety filed a motion to set aside the forfeiture and exonerate the bail bond, or in the alternative to further extend the period to seek such relief based on the fact that Surety's investigator had located Juma in Kenya and the District Attorney was in the process of deciding whether to extradite Juma. County Counsel filed an opposition, in which it argued that Surety had not fulfilled all of the requirements for exonerating bail by merely locating Juma in Kenya. Among other things, the applicable statute authorizes exoneration of the forfeiture only if the prosecuting agency has already made an election not to extradite the defendant. (§ 1305, subd. (g).)⁴ On October 23, 2017, the trial court denied the motion without prejudice.

On November 6, 2017, Surety filed a second motion to vacate the forfeiture and to exonerate the bond, or in the alternative to toll the period for it to seek to vacate the forfeiture. The motion was based on substantially the same facts as the previous motion, but it updated the facts concerning the District Attorney's continued consideration of whether to seek extradition of Juma and Surety's efforts to provide information to the District Attorney relating to that issue. County Counsel opposed the motion on the same grounds as earlier and also pointed out that an order tolling Surety's period to vacate the forfeiture was not available because the District Attorney would not agree to it.⁵

On January 9, 2018, prior to the hearing on the motion (but after the appearance period expired on November 6, 2017) Surety filed a "Supplemental Memorandum of Points and Authorities" in support of its motion. The supplemental briefing argued (1) the trial court lost jurisdiction over the bail bond because a minute order indicates that Juma may have failed to appear at an August 5, 2016 hearing, but the trial court did not order bail forfeited for the nonappearance; and (2) the trial court materially and unconstitutionally altered the terms of the bail contract when it imposed the Fourth Waiver as a condition of bail and failed to notify Surety of the additional condition, which had the effect of voiding the bail agreement. County Counsel filed a supplemental opposition, in which it argued, among other things, that Surety was barred from raising additional grounds for its motion after the expiration of the appearance period.

At a hearing held on February 21, 2018, the trial court denied the motion to vacate the forfeiture and to exonerate the bond. The trial court considered and rejected the two arguments set forth in Surety's supplement briefing. On the first issue, the trial court explained that Surety, which had the burden to set forth competent evidence in support of its motion, had not established that Juma failed to appear on August 5, 2016, and thus had not established that the trial court lost jurisdiction over the bail bond by failing to order bail forfeited on that date. On the second issue, the trial court stated that the addition of the Fourth Waiver as a condition of bail did not materially affect the bail contract with Surety and did not "in any way further expose[ ] [Surety]."

On March 5, 2018, the trial court ordered summary judgment on the bail bond forfeiture, ordering that Surety pay $100,000, along with costs and interest. Surety appeals from the judgment.

II.DISCUSSION

A. Surety Did Not Establish That the Trial Court Lost Jurisdiction by Improperly Failing to Order Bail Forfeited on August 5, 2016

We first consider Surety's argument that the trial court lost jurisdiction over the bail bond when it failed to order bail forfeited on August 5, 2016.⁶

1. Standard of Review

"We normally review an order denying a motion to set aside the forfeiture of a bail bond for abuse of discretion.... When, however, the issue is one of statutory construction or contract interpretation, and the evidence is undisputed, we review the order de novo." ( People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456, 461, 217 Cal.Rptr.3d 668 ( International Fidelity 2017 ), citation omitted.)

2. Applicable Legal Standards

Under section 1305, subdivision (a)(1), "[w]hen a defendant facing criminal charges is released on bail and fails to appear as ordered or as otherwise required and does not have a sufficient excuse, a trial court must declare the bail bond forfeited."⁷ ( People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 707, 199 Cal.Rptr.3d 272, 366 P.3d 57 ( Safety National ).) Further, when, as here, the amount of the bond or money or property deposited exceeds $400, the clerk of the court must also mail notice of the forfeiture to the surety. (§ 1305, subd. (b)(1).) "When [a] trial court fail[s] to declare bail forfeited in open court, no forfeiture occur[s], the bond [is] exonerated, and the court no longer ha[s] jurisdiction to declare a forfeiture" on a later date. ( Amwest , supra , 125 Cal.App.4th at p. 553, 22 Cal.Rptr.3d 810 ; see also People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1555, 78 Cal.Rptr.2d 763 [the trial court "erred in not forfeiting the bail when defendant failed to appear for trial without sufficient excuse. It follows that the court was without jurisdiction to forfeit the bail several days later ...."].) Put simply, "[i]f the court fails to declare a forfeiture at the time of the defendant's unexcused absence, it is without jurisdiction to do so later." ( Safety National , at p. 710, 199 Cal.Rptr.3d 272, 366 P.3d 57.)

As the party seeking to set aside an order forfeiting bail, Surety "has the burden to ‘establish by competent evidence that its case falls within the four corners of these statutory requirements.’ " ( County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1027, 79 Cal.Rptr.3d 421 ( Fairmont ).)

3. Surety Did Not Establish the Trial Court Failed to Forfeit the Bond When It Was Required to Do so

Here, as we have explained, there is no reporter's transcript for the August 5, 2016 hearing and, due to an apparent oversight in filling out the minute order form, the clerk failed to check any box on the line near the top of the form to indicate whether Juma was "present," "not present," or "failed to appear." Thus, the record of the August 5, 2016 hearing does not indicate conclusively one way or another whether Juma was present.

Surety contends that because the trial court failed to create a record as to...