People v. Stuyvesant Ins. Co.

• Decision Date: 03 May 1968
• Citation: 68 Cal.Rptr. 389,261 Cal.App.2d 773
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. STUYVESANT INSURANCE COMPANY, (Louis Stern), Defendant and Appellant. Civ. 30971.

Page 389

68 Cal.Rptr. 389

261 Cal.App.2d 773

PEOPLE of the State of California, Plaintiff and Respondent, v. STUYVESANT INSURANCE COMPANY, (Louis Stern), Defendant and Appellant.

Civ. 30971.

Court of Appeal, Second District, Division 5, California.

May 3, 1968.

As Modified June 3, 1968.

[261 Cal.App.2d 775] Edward I. Gritz, Los Angeles, for bond and appellant.

Harold W. Kennedy and John D. Maharg, County Counsel, and Martin E. Weekes, Deputy County Counsel, for plaintiff and respondent.

AISO, Associate Justice pro tem. ^*

Stuyvesant Insurance Company (hereinafter, 'Stuyvesant') appeals from an order denying its motion to set aside an order declaring forfeiture of the bail which it had posted on behalf of defendant Louis Stern in the principal criminal action. Raised for the first time, insofar as we are aware, is the question whether a trial court under the guise of taking a motion to vacate a bail forfeiture 'under submission' can prolong the jurisdictional period in which the bail must make a showing for relief.

FACTUAL AND PROCEDURAL BACKGROUND ¹

Defendant Louis Stern was charged with sundry felonies in a seven-count information. He was released on bail on July 16, 1964, appellant Stuyvesant Insurance Company having posted its bond number 43484 in the face amount of $27,500.

On October 27, 1964, in Department West A (master calendar department of the Santa Monica Branch of the Superior Court of Los angeles County) before Judge Mervyn A. Aggeler, defendant Stern pleaded 'nolo contendere' to Count VI of the information, as amended, charging him with grand theft of personal property of the value of $28,000 (Pen.Code § 487, subd. 1.) A pre-sentence probation officer's report was ordered and further proceedings (including disposition of the other counts ² and determination of the prior felony convictions charged against the defendant) were continued to January 12, 1965 in Department West A. Defendant Stern was permitted to remain on the bail theretofore posted.

On November 18, 1964, Deputy District Attorney Richard W. Hecht (hereinafter 'Hecht') appeared in Department West B, before Judge Edward R. Brand and moved for revocation of defendant Stern's bail. He informed the court that Stern had shot three persons outside of a Palm Springs tavern. Judge Brand made an ex parte order revoking bail. A bench warrant with no bail fixed was ordered to issue. Judge Brand's order was silent as to any forfeiture of bail.

Defendant Stern fled to Europe in November of 1964. He was in Tel-Aviv on November 28 and went to London on December 29, 1964. Thereafter Stern traveled between Spain, England, Israel and Portugal until he was arrested in London in early November 1965 by members of the Scotland Yard, accompanied by F.B.I. Agent Eldon McCrary attached to the United States Embassy in London. Stern's first appearance in court subsequent to his flight was on March 15, 1966 following his extradition. On that date, he appeared in Department West B and was sentenced to state prison by Judge Brand.

In returning to a more detailed chronology of events after November 18, 1964, the minute orders insofar as they are relevant to any issue raised upon this appeal will be quoted in detail. Stuyvesant's contentions upon appeal include a claim that the transfer of the bail forfeiture question for ultimate determination to Judge Arthur L. Alarcon, presiding in Department 100 (the criminal master calendar department of the central district) was error in that the matter was under submission before Judge Mervyn A. Aggeler of the Santa Monica Branch Court.

January 12, 1965. Department West A. Mervyn A. Aggeler, Judge. 'Deputy District Attorney R Immerman and the Defendants' counsel, Paul Caruso, present. Sam Brody appears as counsel for Bond Styv (sic) Insurance Company. Defendant Rocco Passanante: (a codefendant) Defendant's motion to have bail revocation of November 18, 1964 set aside and bench warrant recalled, is denied. Each: Bail forfeited. Bench Warrant issued. No bail.'

April 1, 1965. The law firm of Brody, Grayson & Green filed a notice of motion entitled, 'NOTICE OF MOTION TO SET ASIDE FORFEITURE, APPLICATION FOR ORDER SHORTENING TIME, ORDER SHORTENING TIME AND POINTS AND AUTHORITIES.' Hearing thereon was set for April 6, 1965, in Department West A. The notice, dated March 31, 1965, showed service on District Attorney Evelle J. Younger and upon defendant's attorney Caruso. No affidavit or declaration setting forth any facts was attached to the notice of motion or filed. Under the portion labelled, 'Points and Authorities,' it was contended that Judge Brand's November 18, 1964 order revoking bail and causing bench warrant to issue was in error (citing Pen.Code § 1271) ³ and that the order of January 12, 1965 ordering bail forfeiture was likewise in error (citing Pen.Code § 1310). ⁴

April 6, 1965. Department West A. Mervyn A. Aggeler, Judge. 'Joseph Vodnoy appears for bond. Matter is submitted. Ruling on motion set for June 8, 1965, 10 A M.'

April 13, 1965. Hecht filed a memorandum in opposition to the motion to set aside the bail forfeiture, which was never withdrawn.

June 8, 1965. Department West A. Mervyn A. Aggeler, Judge. 'Deputy District

Attorney W Ritzi present. Motion of bonding company, to vacate bail forfeiture is resubmitted, and set for hearing on June 29, 1965, 10 A M. Sam Broady (sic) appears for bonding company.'

June 29, 1965. Department West A. Mervyn A. Aggeler, Judge. 'Deputy District Attorney R. Hecht present. Bonding Company's motion to set aside bail forfeiture is re-submitted and set for hearing on July 27 1965 at 10 A M, in West A.'

July 27, 1965. Department West A. Kurtz Kauffman, Judge. 'Deputy District Attorney R. Hecht, present. Motion to vacate bail forfeiture. Pursuant to stipulation, this matter is re-submitted and set for hearing on October 26, 1965, 9 A M.J. Vodnoy appears for bonding company.'

October 26, 1965. Department West A. Mervyn A. Aggeler, Judge. 'Motion to vacate bail forfeiture. Saul Grayson appears for Bond. Pursuant to stipulation this motion heretofore submitted is now ordered re-submitted. Matter is set for further proceedings on January 25, 1966 at 10 A.M. in Department West A.' Hecht's appearance is also shown.

January 25, 1966. Department West A. David W. Williams, Judge. 'Motion to set aside bail forfeiture, heretofore submitted is at request of Attorney for Bond, re submitted (sic) and set for hearing on February 21, 1966 at 9 A M in Department West A.' It shows the appearance of P. Caruso only.

March 10, 1966. Department 100. Arthur L. Alarcon, Judge. 'By order of Presiding Judge Lloyd Nix, motion to set aside bail forfeiture is transferred to Department 100 on March 15, 1966 at 3 P.M. Clerk is directed to notify counsel (Deputy District Attorney R. Hecht and S. Broady (sic), representing Stuyvesant Insurance Company, are notified).'

March 15, 1966. Department West B. Edward R. Brand, Judge. 'Defendant returns to court following extradition. Count 2 (sic): Probation denied. Sentenced to State Prison. Other counts dismissed. Remanded.' Appearances of Hecht and Paul Caruso are recorded.

March 15, 1966. Department 100. Arthur L. Alarcon, Judge. Appearances by Hecht and E. Gritz for bonding company. 'Order setting motion set aside. Forfeiture on calendar in West A on March 21, 1966 is vacated. Motion is set in Department 100 March 24, 1966 at 2:00 P.M. Pursuant to stipulation, Defendant need not be present on March 24, 1966.' No opposition by Gritz is recorded.

March 24, 1966. Department 100. Arthur L. Alarcon, Judge. Appearance of J. Leavy for district attorney is recorded. 'E Gritz by J Vodnoy for bonding company, present. On joint motion of People and bonding company, motion to vacate bail forfeiture is continued to April 12, 1966 at 2 P.M.'

April 11, 1966. Harold W. Kennedy, County Counsel of Los Angeles County by Martin E. Weekes, Deputy County Counsel filed a memorandum of points and authorities in opposition to the bonding company's motion to set aside the bail forfeiture.

April 12, 1966. Department 100. Arthur L. Alarcon, Judge. 'On calendar for motion of bonding company to set aside and vacate bail forfeiture of January 12, 1965. Samuel Brody for Stuyvesant Insurance Company and Deputy County Counsel Martin Weekes for the County of Los Angeles, present. Motion of bonding company to transfer hearing to West District before Judge Aggeler is denied. Motion of bonding company for one day continuance to file a writ of prohibition is denied. Richard W Hecht, Abe Phillips, J Miller Leavy, Elvyn Holt and Samuel Brody are sworn and testify for the bonding company. Bonding company exhibit A (statement dated 7/23/65) is received into evidence. Issue is argued and submitted. Court finds it has no jurisdiction, there being no evidence of compliance with provisions of Section 1305 Penal Code. ⁵ Motion to set aside bail forfeiture is denied. On request of District Attorney, Court orders reporter to prepare a transcript (original and two copies) of these proceedings. County Counsel is directed to prepare findings within three weeks.'

The reporter's transcript of the hearing on April 12, 1966 before Judge Alarcon supplies further details. The testimony elicited from the bonding company's witnesses Hecht, Abe Phillips and Samuel Brody established the following facts without contradiction. Neither on January 12, 1965 nor within 90 days thereafter did defendant Stern appear in court. No evidence oral or written was ever produced that during that period defendant Stern had died or was unable to appear in court by reason of illness or insanity or by reason of detention by any civil or military authorities. Stuyvesant likewise produced no evidence until the April 12, 1966 hearing that defendant Stern's failure to appear was without its connivance.

On April 12, 1966 hearing, it was brought out that attorney Brody had a conversation with a Mae Stern, wife or girl...