People v. Ranger Ins. Co.

• Citation: 134 Cal.Rptr.2d 199,108 Cal.App.4th 945
• Decision Date: 19 May 2003
• Docket Number: No. B160168.,No. B154010.,B154010.,B160168.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. RANGER INSURANCE COMPANY, Defendant and Appellant. County of Los Angeles, Plaintiff and Respondent, v. Ranger Insurance Company, Defendant and Appellant.

134 Cal.Rptr.2d 199

108 Cal.App.4th 945

The PEOPLE, Plaintiff and Respondent, v. RANGER INSURANCE COMPANY, Defendant and Appellant.

County of Los Angeles, Plaintiff and Respondent, v. Ranger Insurance Company, Defendant and Appellant.

No. B154010.

No. B160168.

Court of Appeal, Second District, Division 7.

May 19, 2003.

Rehearing Denied June 12, 2003.

Review Denied August 13, 2003.

Nunez & Bernstein and E. Alan Nunez, Fresno, for Defendant and Appellant.

Steve Cooley, District Attorney, Brent Riggs and Juliet Schmidt, Deputy District Attorneys for Plaintiff and Respondent the People of the State of California.

Lloyd W. Pellman, County Counsel, Gary N. Miller, Acting Assistant County Counsel, and Syna N. Dennis, Senior Deputy County Counsel, for Plaintiff and Respondent County of Los Angeles.

JOHNSON, J.

A surety appeals from an order denying its motion to vacate a bail forfeiture and to exonerate a bond. The surety separately appeals from a summary judgment entered against it on the forfeited bond. The surety argues the court lost jurisdiction to declare the bond forfeited because it failed to do so on the defendant's initial nonappearance. The record reflects the trial court had a rational basis for believing there may have been an excuse for the defendant's failure to appear sufficient to warrant continuing the case until the next day without declaring a forfeiture of the bond. Accordingly, we conclude the trial court retained jurisdiction to later declare the bail forfeited when the defendant failed to appear on the continued date. We thus affirm.

FACTS AND PROCEEDINGS BELOW

On June 7, 2000, appellant, Ranger Insurance Company (Ranger) posted a bail bond in the amount of $500,000 through its agent for the release of defendant Jason A. Okezie from custody.¹

At the initial date set for arraignment the defendant appeared and requested a continuance to retain private counsel. The trial court granted his request and reset his arraignment for September 18, 2000. On September 18, 2000, the defendant appeared with private counsel for arraignpled not guilty to the charges, and denied the special allegations. The court set a pretrial conference date of October 10, 2000.

The defendant appeared at the pretrial conference. At its conclusion the court ordered him to appear on November 15, 2000, the date set to hear his motion to dismiss under section 995.

The defendant appeared as ordered on November 15, 2000. The court apparently continued the hearing on his section 995 motion, set another pretrial conference date of December 11, 2000, and ordered the defendant to appear. The defendant appeared in court on December 11, 2000. The court continued the hearing on his motion to dismiss to December 14, 2000, and ordered the defendant to appear on that date. The defendant appeared on the continued date and the court heard and denied his motion to dismiss. Thereafter, the court set a trial date of February 20, 2001, and ordered the defendant to appear.

On February 20, 2001, the court trailed the case to February 22, 2001. On February 22, 2001, defense counsel requested a continuance because of a family emergency. On both occasions the defendant was present in court as ordered. The court granted the requested continuance, set a trial date of April 16, 2001, and ordered the defendant to appear.

On April 16, 2001, the defendant was not present when the court called his case. The court and counsel had the following discussion:

"THE COURT: All right. In Jason Okezie, LA035868, Mr. Davis is here on behalf of defendant who is not here, apparently.

"MR. DAVIS: That's correct. And I've raised that poignantly with the court because he has never failed to appear in any proceeding ever. He is usually here early. All I'm asking is that if you issue a bench warrant give me half a day. I can tell you that I tried calling every number I know.

"THE COURT: Sure. Absolutely.

"MR. DAVIS: I'm concerned something has happened.

"THE COURT: No problem. What would you like me to do?

"MR. DAVIS: What's the longest you can give me? I have 3 other appearances this morning.

"THE COURT: Can you come back tomorrow?

"MR. DAVIS: Sure.

"THE COURT: Okay. We'll just issue and hold it until tomorrow.

"MR. DAVIS: Okay. "THE COURT: But the—I'm not going back to no 60-day thing.

"MR. DAVIS: No.

"THE COURT: Right.

"MR. DAVIS: I just finished a fourweek trial in Orange County and, of course, I will—I'm not ready, but I'm ready.

"THE COURT: All right. We'll see you tomorrow. Issued and held.

"MR. DAVIS: Okay.

"MR. WALMARK [prosecutor]: Are you finding good cause at this juncture regarding—because of the bail issue?

"THE COURT: Well, I haven't—in light—the good cause is he hasn't missed in the past. There is no reason to think otherwise yet. Tomorrow is another day.

"MR. WALMARK: Okay.

"MR. DAVIS: I concur in all respects."

The court's minutes for the day states "the defendant fails to appear, with sufficient excuse." The order further states the case is trailed until the next day and directs the defendant to appear.

The defendant did not appear the next day on April 17, 2001. The court declared bail forfeited and issued a no-bail bench warrant. Notice of bail forfeiture was mailed to Ranger the same day.

On July 30, 2001, Ranger filed a motion to vacate the forfeiture and to exonerate the bond. Ranger argued by failing to declare a forfeiture on the defendant's first nonappearance, the court lost jurisdiction to declare a forfeiture the next day. Judge John S. Fisher denied Ranger's motion on August 29, 2001. Ranger filed a notice of appeal from the court's order.²

After the statutory period elapsed to exonerate the bond Judge Dale S. Fischer entered summary judgment against Ranger on the bond. Ranger separately appealed from the judgment.³

DISCUSSION

I. THE RECORD REFLECTS THE TRIAL COURT HAD A RATIONAL BASIS FOR BELIEVING A SUFFICIENT EXCUSE MAY EXIST FOR THE DEFENDANT'S FAILURE TO APPEAR TO WARRANT CONTINUING THE CASE UNTIL THE NEXT DAY WITHOUT DECLARING A FORFEITURE OF BAIL.

Ranger contends the bond must be exonerated as a matter of law, claiming the trial court lost jurisdiction to declare a forfeiture by failing to do so at the defendant's first nonappearance as required by section 1305, subdivision (a) for declaring forfeiture of a bond.⁴ In Ranger's view the defendant's absence was without sufficient excuse because his counsel offered no explanation for his absence, and because counsel had not communicated with his client, could not have had any information regarding the defendant's whereabouts.

In reviewing the applicable bail statute we are mindful of the general rules governing the interpretation of bail bond statutes: "The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. Thus, Penal Code sections 1305 and 1306 dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture. [¶] The standard of review, therefore, compels us to protect the surety, and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody, in order to obtain the corporate bond. Sections 1305 and 1306 are said to be `jurisdictional prescriptions.' Failure to follow the jurisdictional prescriptions in sections 1305 and 1306 renders a summary judgment on the bail bond void."⁵

Section 1305.1⁶ nevertheless allows a court to excuse a bailee's nonappearance at a required hearing if the court believes sufficient excuse exists to do so.⁷ Section 1305.1 provides: "If the defendant fails to appear for arraignment, trial, judgment, or upon any other occasion when his or her appearance is lawfully required, but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant.

"If, after the court has made the order, the defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant's arrest may be ordered issued."

"The theory behind this exception is that `[i]f bail forfeiture is required immediately upon the first nonappearance of a defendant, no matter how valid his reason for nonappearance be, such defendant would be subjected not only to having his bail forfeited but the additional penalty of possibly being required to pay another premium for its reinstatement.' (People v. Surety Ins. Co. (1976) 55 Cal.App.3d 197, 202 .) Accordingly, the court can continue a hearing and still retain its jurisdiction to declare a forfeiture at a later time as long as it has a reason to believe that a sufficient excuse exists for the nonappearance. (People v. American. Bankers Ins. Co. (1989) 215 Cal. App.3d 1363, 1367 .) 'In most situations involving a section 1305, subdivision (b) [now section 1305.1] determination the only reasons before the trial court are the evidence or representations furnished by defendant's counsel. The cases demonstrate that the courts have cooperated with defense counsels' requests and have liberally relied on their representations.' (People v. National Automobile & Cas. Ins. Co. (1977) 75 Cal. App.3d 302, 306 .)"⁸

Because each case presents its own unique set of circumstances the issue whether the showing of excuse is sufficient is decided on a case-by-case basis.⁹ The determination whether an excuse is sufficient is a matter within the trial court's discretion.¹⁰

Reasons found insufficient have included justifications for defense counsel's, as distinguished from the defendant's, absence.¹¹ And of course, silent records provide no grounds to justify continuing a hearing without declaring a forfeiture of bail when the defendant fails to appear.¹²

Sufficient excuses have...