People v. North Beach Bonding Co.

• Decision Date: 10 January 1974
• Citation: 111 Cal.Rptr. 757,36 Cal.App.3d 663
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. NORTH BEACH BONDING COMPANY, Defendant and Appellant. Civ. 31800.

Page 757

111 Cal.Rptr. 757

36 Cal.App.3d 663

PEOPLE of the State of California, Plaintiff and Respondent, v. NORTH BEACH BONDING COMPANY, Defendant and Appellant.

Civ. 31800.

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

Jan. 10, 1974.

Hearing Denied March 8, 1974.

Keith C. Sorenson, Dist. Atty., San Mateo County, by James M. Parmelee, Chief Civ. Deputy, Redwood City, for plaintiff and respondent.

Nathan Cohn by Richard W. Carpeneti, San Francisco, for defendant and appellant.

SIMS, Associate Justice.

North Beach Bonding Company has appealed from orders of the trial court which refused to set aside a forfeiture of bail. ¹ The record fails to contain a copy of the bail bond or of any judgment entered against the bail bond agent or a surety insurer, ² so the interest of appellant is obscure. Nor does the record contain any written motion identifying the party or parties who moved to set aside the bail forfeiture. ³

Reference to the 'Order Directing Forfeiture of Bail and Issuance of Bench Warrant' signed and filed March 27, 1972, which is the order attacked by the motion made in the lower court, indicates that the bail involved was bond numbered 30 A 10012 of the Wilshire Insurance Company in the sum of $20,000, filed January 18, 1971, to insure to appearance of the defendant Peter J. Tovar.

'1] Appellants' Opening Brief' blithely refers to Peter John Tovar, Wilshire Insurance Company and North Beach Bonding Co. as 'Defendants and Appellants' despite the fact that the third party is the only one which filed a notice of appeal. That party, however, is nowhere named in the record before the court. The People, as represented by the county which is the real party in interest, acquiesced in this designation. Augmentation of the record does indicate that appellant, North Beach Bonding Company, was the bail bond broker. ⁴ It will, therefore, be assumed as it has been by the parties, that the broker, who may be responsible to his principal, the bonding company, is a party aggrieved by the orders it seeks to have reversed. Section 1305 of the Penal Code expressly recognizes that the bail agent of the surety insurer is a party who is authorized to give notice of a motion and move for an order discharging the forfeiture of an undertaking for bail. It is established that an order refusing to set aside a forfeiture of bail is subject to review in a civil appeal. (Newman v. Superior Court (1967), 67 Cal.2d 620, 622, 63 Cal.Rptr. 284, 432 P.2d 972; People v. Durbin (1966), 64 Cal.2d 474, 476, 50 Cal.Rptr. 657, 413 P.2d 433, and People v. Wilcox (1960), 53 Cal.2d 651, 654--655, 2 Cal.Rptr. 754, 349 P.2d 522.)

The record reveals that the defendant, Peter John Tovar, following his conviction of violations of provisions of the Health and Safety Code appeared with his attorney before the court on the morning of March 21, 1972 for consideration of his motion for probation and pronouncement of judgment. The minutes reflect that probation was denied and that he was sentenced to the Department of Corrections for the term prescribed by law. A motion for bail pending appeal was denied. Defendant was granted a stay of execution to 5 p.m., March 24, 1972, at which time he was to surrender himself to the sheriff for delivery to the Department of Corrections. Bail was ordered exonerated upon surrender. ⁵

The clerk's minutes reflect that on Friday, March 24 at 3:30 p.m. the defendant's attorney unaccompanied by the defendant, presented an 'Application for Stay of Execution of Judgment and Bail Pending Appeal, Application for Order Shortening time for Service & Order, Notice of Application for Bail Pending Appeal, and Application for Stay of Execution of Judgment.' The application was denied, as was also a motion for a continuance to March 30, 1972.

The defendant failed to surrender himself in execution of judgment. On March 27, 1972 an order was signed and filed which ordered 'that the $20,000 deposited as bail (represented by Wilshire Insurance Company bond No. 30 A 10012 filed January 18, 1971) for the appearance of the defendant is forfeited, and that a Bench Warrant issue in the above entitled matter directing that defendant be arrested and taken forthwith to the San Mateo County Jail.'

The appellant contends that the court erred in failing to set aside the order directing forfeiture of bail because the conditions of the bond were fully performed when the defendant appeared for pronouncement of judgment; that the bond should have been exonerated at that time; and that in any event, the right to declare a forfeiture was waived because the court failed to declare a forfeiture when the defendant failed to appear in open court on the afternoon of May 24, 1972. The last point has no merit. Resolution of the former question depends upon the construction to be given the provisions of sections 1195, 1305, 1306 and 1459 of the Penal Code, and the terms of the bond filed on behalf of the missing defendant. It is concluded that the surety insurer's obligation must be measured by the provisions of the bond as viewed in the light of the applicable statutes; that the statutes as amended do not require that the surety shall produce a defendant who has appeared for pronouncement of judgment in execution of judgment; and that on the record in this case the bail should have been exonerated when the defendant appeared for pronouncement of judgment. The order denying the motion to exonerate bail and set aside bail forfeiture must be reversed. The appeal from the order denying rehearing will be dismissed as moot. (Cf. People v. Wabash Fire & Cas. Ins. Co. (1967), 256 Cal.App.2d 386, 388, 64 Cal.Rptr. 74.)

I

In People v. United Bonding Ins. Co. (1971), 5 Cal.3d 898, 98 Cal.Rptr. 57, 489 P.2d 1385 the court ruled that the provisions of section 1305 of the Penal Code ⁶ require that the court must declare a forfeiture immediately when it appears that the defendant has failed to appear without sufficient excuse or the surety will be discharged. The court stated, 'Court minutes which fail to disclose that the court has expressly excused a nonappearance on a record which is silent as to a defendant's reasons therefor, will require a reviewing court to conclude that a nonappearance was without sufficient excuse and that the right to declare a forfeiture not having been exercised was foreclosed. An excused nonappearance, accordingly, should be expressly reflected in the minutes.' (5 Cal.3d at p. 907, 98 Cal.Rptr. at p. 62, 489 P.2d at p. 1390. See also People v. Surety Ins. Co. (1973), 34 Cal.App.2d 444, 447, 109 Cal.Rptr. 894.)

Subdivision (b) of section 977 of the Penal Code provides that in felony cases a defendant must be present at certain designated stages of the proceedings and then adds: 'The accused shall be personally present at all other proceedings unless he shall, with leave of court, execute in open court, a written waiver of his right to be personally present, approved by his counsel, which waiver must then be filed with the court; . . .'

] By juxtaposition of the two foregoing principles appellant asserts that the unexcused absence of the defendant at the proceedings held at 3:30 p.m. on March 24, 1972, gave rise to an opportunity to declare the bail forfeited which, unexercised, precluded further action to forfeit the bail on the following Monday, March 27. The provisions in section 977 are designed to implement the defendant's due process right to be present at his trial and other proceedings. (See People v. Williams (1970), 10 Cal.App.3d 745, 751--752, 89 Cal.Rptr. 364.) It is absurd to contend that an attorney by appearing without his client an hour and one-half before the latter was directed to appear could place his client in default. The remedy, if the appearance of the defendant was necessary, was to refuse to entertain the motions without the presence of the defendant. The denial of the motions renders that issue moot. No order of forfeiture could have been entered at those proceedings and therefore People v. United Bonding Ins. Co., supra, is inapplicable.

II

The form of undertakings for bail is prescribed by statute in this state. The parties have assumed that the provisions of section 1459 of the Penal Code, which refer to 'Undertakings of bail filed in inferior courts' governs this case. The record indicates that although the defendant was prosecuted by an indictment on which he was arraigned on February 5, 1971 in the superior court, he was originally charged by a complaint filed in the municipal court, and was released on bail on January 5, 1971 to appear in the municipal court on January 11, 1971. Apparently as a result of proceedings taken in that court the bond was filled with the superior court on January 18, 1971, and concededly stood for his further appearance in that court on the same or similar charges whether prosecuted by information or indictment. ⁷

The undertaking prescribed by statute and found in the bail bond filed in this case reads: 'Now, the $ $ (stating the name of admitted surety insurer and state of incorporation) hereby undertakes that the above-named defendant will appear in the above-named court on the date above set forth to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her and all duty authorized amendments thereof, in whatever court it may be prosecuted, 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 or if he/she fails to perform either of these conditions, that the $ $ (stating the name of admitted surety insurer and state of incorporation) will pay to the people of the State of California the sum of dollars () (stating the amount of the undertaking of the admitted surety insurer).' (Emphasis added.)

As originally enacted (Stats.1955, ch. 510, § 1, pp. 987--988) section 1459 required...