People v. N. River Ins. Co.

• Decision Date: 01 April 2020
• Docket Number: C/w B292408,B292401
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. THE NORTH RIVER INSURANCE CO. et al., Defendants and Appellants.

THE PEOPLE, Plaintiff and Respondent, v. THE NORTH RIVER INSURANCE CO. et al., Defendants and Appellants.

B292401

C/w B292408

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

April 1, 2020

ORDER MODIFYING OPINION AND DENYING REHEARINGNO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on April 1, 2020, be modified as follows:

1. On page 11, the first full sentence at the top of the page beginning with "But it is not enough" is modified to read as follows:

But it is not enough merely to be physically present in the courthouse because a defendant by merely being present does not subject himself "to the prospect of being remanded" and hence does not submit himself to the court's jurisdiction. (Id. at p. 919; People v. Ranger Ins. Co. (2005) 133 Cal.App.4th 1000, 1002 [defendant's physical presence "in the courthouse vestibule, hallway, restroom, or clerk's office is not an appearance in court"].)

2. On page 11, the second full sentence at the top of the page beginning with "Because defendant's case" is modified to read as follows:

Because defendant's case was not called for hearing until after he fled, he was never faced with the prospect of being remanded into custody and thus had not submitted himself to the court's jurisdiction.

3. On page 11, after the sentence beginning with "Until that time," and before the sentence beginning with "On these facts" insert the following as two new paragraphs:

Resisting this conclusion, the surety in its petition for rehearing points to the portion of the trial court's minute order for the November 1, 2016 hearing, which states, "[t]he defendant appears in court, but leaves after being advised that he would be remanded." Read in conjunction with the minuteorder's further statement that "[t]he defendant fails to appear," the sentence cited by the surety likely refers to defendant's physical appearance in the courtroom during the off-the-record bench conference, yet as we conclude, this does not amount to an "appear[ance]" within the meaning of the pertinent statute; as such, it does not alter our conclusion. And to the extent the trial court was intending to make a finding under section 1305, subdivision (c)(1), we disagree with that finding for the reasons stated above. Further, and contrary to what the surety also asserts in its petition for rehearing, our ruling does not impose an extra-statutory "open court" requirement; we are merely applying the statutory "appear . . . in court" requirement as guided by the precedent in this area.

In its petition for rehearing, the surety further offers up a new affirmative argument for why defendant should be deemed to have "appear[ed] . . . in court"—namely, that the trial court's off-the-record conversation with the lawyers necessarily excused defendant from the operation of the fugitive disentitlement doctrine, and hence necessarily qualified as an "appear[ance] . . . in court." The surety waived this argument by making it for the first time in its petition for hearing, particularly after forgoing its right to file a reply brief. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1013.) The argument also lacks merit. Even assuming the surety has properly characterized thecontours of the equity-based fugitive disentitlement doctrine, that doctrine does not inform—let alone control—the meaning of the phrase "appear . . . in court" within the meaning of section 1305, subdivision (c)(1).

4. On page 11, the sentence "On these facts, defendant never appeared in court" should be a new paragraph, and add the following footnote at the end of the sentence:

In its petition for rehearing, the surety argues that we must grant rehearing because our conclusion that defendant did not "appear . . . in court" is an "issue . . . not proposed or briefed by any party to the proceeding." (Gov. Code, § 68081.) The surety is wrong. The surety argued in its opening brief that defendant "appear[ed]" in court on November 1, 2016. That we found that issue to be without merit under a different rationale than the one advanced by the county in its responsive brief does not entitle the surety to rehearing or supplemental briefing. (See People v. Alice (2007) 41 Cal.4th 668, 679 ["the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of section 68081"], italics added.)

There is no change in the judgment.

Appellants' petition for rehearing is denied.

/s/_________

CHAVEZ, Acting P.J.

/s/_________

WILLHITE, J.^*

/s/_________

HOFFSTADT, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. SJ4480)

APPEAL from a judgment of the Los Angeles Superior Court, Christopher K. Lui, Judge. Affirmed

Jefferson T. Stamp, for Defendants and Appellants.

Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel, and Jessica C. Rivas, Deputy County Counsel, for Plaintiff and Respondent.

******

A surety issued two bail bonds to a criminal defendant guaranteeing his appearance at a consolidated hearing for two different cases. When the defendant did not show, the trial court ordered the bonds forfeited. A year later, the court entered summary judgment for the county as to both bonds and denied the surety's motion to set aside that judgment. The surety argues that the court erred in denying its motion. We conclude there was no error as to the issues properly before us, and affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Criminal Charges and Bail Bonds

In July 2016, Marcus Jeffrey Lamour (defendant) pled no contest to a felony count of using personal identifying information to obtain goods or services (Pen. Code, § 530.5, subd. (a)).¹ The trial court continued the sentencing for one year with the understanding that, if defendant picked up no further arrests, his conviction for this "wobbler" offense would be reduced to a misdemeanor.

Approximately one month later, in August 2016, defendant was arrested at Los Angeles International Airport in possession of four credit cards in other people's names as well as an identification card bearing his photograph and someone else's name. For this conduct, the People charged defendant with four counts of possessing access card account information for a cardissued to someone else (§ 484e, subd. (d)), and one count of forgery (§ 470, subd. (b)).

In September 2016, after the trial court set bail for the original case at $100,000 and for the new case at $150,000, defendant posted bail bonds in those amounts. For each, the surety is defendant North River Insurance Company (the surety). Each bond explicitly listed that defendant was required to appear in court on October 28, 2016.

II. Defendant's Nonappearance and Forfeiture of the Bond

A. The October 28, 2016 hearing

Defendant did not appear in court on October 28, 2016.

However, defendant's attorney was present. He represented that defendant was absent because his flight—which was originally scheduled to arrive one hour before the court appearance—had been canceled, and that defendant's rescheduled flight would not arrive until later that day. The court found that defendant had "failed to appear" and, in open court, ordered both bonds forfeited. The court also issued a bench warrant for defendant, but set a hearing for November 1, 2016 and ordered the bench warrant held until that date to give defendant the opportunity to appear.

B. The November 1, 2016 hearing

Before the trial court called defendant's cases, the court held an off-the-record bench conference with the prosecutor and defendant's attorney. Defendant did not participate in the bench conference, although he was present in the courtroom. During that conference, the court indicated its intent to remand defendant into custody and instructed defense counsel to tell his client not to leave the courtroom until the case was called. Defense counsel told defendant of the court's intention anddefendant proceeded to walk out of the courtroom to a waiting car outside the courthouse. When the court called defendant's cases, it learned of defendant's flight, kept the bonds forfeited and issued a bench warrant for defendant's arrest.

C. Notice of forfeiture and appearance period

The court clerk mailed a Notice of Forfeiture of Bond to the surety and bail agent on November 4, 2016. Before the initial 185-day appearance period expired (that is, the period during which the forfeiture must be vacated and the bond exonerated if the defendant appears (§ 1305, subds. (b)(1), (c)(1) [180 days plus five days for mailing]), the court extended the period until November 22, 2017.

III. Motion to Vacate Forfeiture and Exonerate Bond

On the last day of the extended appearance period, the surety filed a motion to vacate the forfeiture on the grounds that (1) defendant had appeared in court on November 1, 2016, and (2) forfeiture of the bond would be inequitable. After considering further briefing, the trial court denied the motion.

IV. Entry of Summary Judgment and Motion to Vacate Summary Judgment

On January 5, 2018, the trial court entered summary judgment for the county on each bond, as required by section 1306, for the amount of each bond plus $435 in costs.

On March 19, 2018, the surety moved to set aside the summary judgments on the grounds that (1) the trial court lacked jurisdiction to forfeit the bond because defendant had a "sufficient excuse" for his absence on October 28, 2016, and (2) the then-recent decision in In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278, rendered the current, money-bail system unconstitutional. Following a full round of...