People v. National Auto. & Cas. Ins. Co.

• Decision Date: 10 May 1979
• Citation: 92 Cal.App.3d 907,155 Cal.Rptr. 602
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. NATIONAL AUTOMOBILE & CASUALTY INSURANCE CO., Defendant and Respondent. Civ. 18166.

Page 602

155 Cal.Rptr. 602

92 Cal.App.3d 907

The PEOPLE, Plaintiff and Appellant, v. NATIONAL AUTOMOBILE & CASUALTY INSURANCE CO., Defendant and Respondent.

Civ. 18166.

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

May 10, 1979.

Hearing Denied July 5, 1979.

Donald L. Clark, County Counsel, and Phillip L. Kossy, Deputy County Counsel, San Diego, for plaintiff and appellant.

Matthew Nelson Lees, San Diego, for defendant and respondent.

COLOGNE, Associate Justice.

The People appeal after the trial court granted the Penal Code section 1305 motion of defendant National Automobile & Casualty Insurance Co. (National) to vacate an order forfeiting a bond issued in a criminal case and to exonerate the bond. The motion to vacate and exonerate was made on the 181st day after the court ordered the bond forfeited.

On June 15, 1977, Gladys Irene Bishop failed to appear for the readiness conference in her criminal case and the superior court ordered her bond forfeited. A notice of forfeiture letter together with a proof of its service by mail, both dated June 15, were prepared under the name of Mary Jo Thompson, deputy county clerk. The parties stipulated Mary Jo Thompson did not stamp or prepare the notice letter for mailing nor did she take to or deposit in the United States mail the notice letter of forfeiture on June 15, 1977, and, if she were called, would state she could not say she personally knows of her own knowledge that the letter was or was not deposited in the United States mails on June 15, 1977.

On June 23, defendant Bishop was returned to court. She entered a guilty plea July 26 and was sentenced August 23.

The bondsman's moving papers for the motion here under consideration were filed December 13. While admitting the 180-day period for filing the motion is jurisdictional, National argued in light of the deputy clerk's stipulated testimony there was no mailing on June 15 and in light of the provisions of Code of Civil Procedure section 1013, giving five extra days, the motion was nevertheless timely. The county counsel acknowledged Code of Civil Procedure section 1013a applied with reference to the formalities of a clerk's proof of service of the notice required by Penal Code section 1305, but claimed the five-day extension of Code of Civil Procedure section 1013 did not apply. This, essentially, remains the People's contention on appeal.

In ruling on the motion, the trial court concluded both sections 1013 and 1013a, subdivision (3) of the Code of Civil Procedure applied to the case, and the motion was timely made under the applicable law.

The People contend the superior court was without jurisdiction to grant the motion vacating the forfeiture and exonerating the bond because the 180-day period set forth in Penal Code section 1305 is a limit on the jurisdiction of the courts, the five-day extension provided for in Code of Civil Procedure section 1013 is inapplicable, and the motion here was filed on the 181st day.

Pertinent portions of Penal Code section 1305, subdivision (a), read as follows:

"(a) If, without sufficient excuse, the defendant neglects to appear . . . upon any other occasion when his presence in court is lawfully required, . . . The court must direct the fact to be entered upon its minutes and the undertaking of bail, . . . must thereupon be declared forfeited, and, if the amount of the forfeiture exceeds fifty dollars ($50), The clerk of the court shall, promptly upon entering the fact of such failure to appear in the minutes, mail notice of the forfeiture to the surety on the bond . . ., and shall execute an affidavit of such mailing and place it in the court's file in the case. If the surety is an authorized corporate surety insurer, and If the bond has plainly printed or stamped thereon the address of its principal office in California, such notice shall be mailed to such surety at such address, and mailing to the bail agent or solicitor who posted the bond shall not constitute compliance with this section; The clerk shall at the same time send a copy of such notice to the bail agent or solicitor who posted the bond. If the clerk fails to mail such notice within 30 days after such entry, the surety or depositor shall be released from all obligations under the bond." (Par. 1; italics added.)

". . . if at any time . . . Within 180 days after mailing such notice of forfeiture, the defendant and his bail appear, and . . . show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail, The court shall direct the forfeiture of the undertaking . . . To be discharged upon such terms as may be just . . . . If at any time within 180 days after such entry in the minutes or mailing as the case may be, the bail should surrender the defendant to the court or to custody, the court shall direct the forfeiture of the undertaking . . . to be discharged upon such terms as may be just." (Par. 2; italics added.)

"Unless waived by the district attorney or other prosecuting attorney, No order discharging the forfeiture of the undertaking . . . Shall be made without opportunity for hearing and the filing of a notice of motion for such order setting forth the basis for relief, With proof of service upon the district attorney or other prosecuting attorney at least 10 days prior to the time set for hearing of the motion and otherwise in compliance with the provisions of Section 1010 of the Code of Civil Procedure. Such notice may be given by the surety insurer, its bail agent, the surety, or depositor of money, any of whom may give such notice and appear either in person or by attorney. Such notice of motion must be filed within 180 days after such entry in the minutes or mailing as the case may be, and must be heard and determined within 30 days after the expiration of such 180 days, unless the court for good cause shown, shall extend the time for hearing and determination." (Par. 4; italics added.)

Code of Civil Procedure section 1010, compliance with which is required by paragraph 4 of Penal Code section 1305, provides in part:

". . . Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter, when not otherwise provided by this code . . ."

Both sections 1013 and 1013a of the Code of Civil Procedure are contained in the same chapter as Code of Civil Procedure section 1010. Sections 1013 and 1013a provide, in part:

"1013. ...