People v. Swink

• Decision Date: 19 January 1984
• Citation: 198 Cal.Rptr. 290,150 Cal.App.3d 1076
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Zola B. SWINK, Defendant and Appellant. Civ. 28641.

Page 290

198 Cal.Rptr. 290

150 Cal.App.3d 1076

The PEOPLE, Plaintiff and Respondent, v. Zola B. SWINK, Defendant and Appellant.

Civ. 28641.

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

Jan. 19, 1984.

Lightner & Castro and Christopher J. Schatz, San Diego, for defendant and appellant.

Lloyd M. Harmon, Jr., County Counsel, and Barbara B. Baird, Deputy County Counsel, San Diego, for plaintiff and respondent.

WORK, Associate Justice.

Zola B. Swink appeals an order denying her motion for discharge of forfeiture of cash bail she had posted to guarantee the municipal court appearance of an acquaintance. She contends the trial court erred because (1) failure to conform to the procedural requirements of former Penal Code ¹ section 1305 compels discharge; (2) the forfeiture in this manner violated her right to due process of law (5th, 14th Amends. to U.S. Const. and Cal. Const., art. I, §§ 7, 15); (3) the municipal court should be estopped from relying on the filing time limits of section 1305; and (4) general principles of contract law require discharge of the forfeiture. We reverse because Swink was denied procedural due process in that the notice she received was not reasonably calculated to inform her of the underlying statutory procedural scheme to obtain a discharge of forfeiture, especially the governing jurisdictional period of limitations.

Factual and Procedural Background

On November 21, 1981, Swink deposited $5,000 in cash in lieu of a bail bond pursuant to section 1295, to guarantee defendant Mario Linarez' appearance. When Linarez failed to appear for his preliminary hearing, cash bail was forfeited and a bench warrant issued. The court mailed a notice to Swink informing her of the forfeiture, stating, "bail will remain forfeited until the defendant appears." Her husband, Warren, understood this statement to mean the bail would be reinstated and returned whenever defendant returned to court, and, requiring no action on their part to protect their interests in the $5,000 until that time.

Regarding the notice, the clerk failed to execute an affidavit of proof of service by mail. However, a minute entry in the court's file states: "2/3/82 bailor notified of bail forfeiture. A. Ramirez, Deputy Clerk." On August 13, 1982, more than 180 days following notice of forfeiture pursuant to section 1307, the cash bail was paid over to the County Treasurer. Ten days later, Linarez appeared in court.

Section 1305 permits a forfeiture to be set aside only if a defendant appears in court within 180 days ² following the forfeiture. Swink was never told she had only six months after the forfeiture to get her money back pursuant to section 1305. ³ Upon learning Linarez had returned and been sentenced, the Swinks asked the El Cajon Municipal Court when their cash bail funds would be returned. To their surprise, they were told they were too late.

SWINK WAS DENIED DUE PROCESS, AS THE NOTICE SHE RECEIVED PURSUANT TO SECTION 1305 WAS CONSTITUTIONALLY DEFICIENT

Swink contends the notice sent pursuant to section 1305 ⁴ denied her procedural due process, because it not only did not tell her of the procedural and time limitations on her right to set aside the forfeiture, but the misleading statement, the "bail will remain forfeited until the defendant appears," caused her and her husband to take no action until Linarez returned to court. She does not dispute section 1305 provides her a right to a hearing to set aside the forfeiture. She contends, however, that even though section 1305 directs notice be given to the surety or depositor of the declaration of forfeiture and further provides for a hearing process to determine the propriety of such a "taking," such a notice is meaningless to a lay surety unless it informs that person of the right to participate in the hearing process. ⁵ Consequently, the issue before us is whether due process required the court to inform the surety or depositor of the statutory procedures for setting aside the forfeiture and time limitations in its notice of forfeiture. ⁶

Procedural due process requires an individual be accorded notice and some form of hearing before he is deprived of a protected property or liberty interest. (Kash Enterprises, Inc. v. City of Los Angeles, 19 Cal.3d 294, 308, 138 Cal.Rptr. 53, 562 P.2d 1302.) In other words, "before a person is deprived of his life, liberty or property he must be given notice of the proceedings against him [citations], he must be given an opportunity to defend himself [citations], and the propriety of the deprivation must be resolved in a manner consistent with essential fairness. [Citations.]" (Gray v. Whitmore, 17 Cal.App.3d 1, 21, 94 Cal.Rptr. 904.) Procedural due process requires "fair play." (Mihans v. Municipal Court, 7 Cal.App.3d 479, 484, 87 Cal.Rptr. 17.)

Although the fundamental requisite of due process of law is the opportunity to be heard, this right is meaningless unless one knows the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865.) "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " (Mathews v. Eldridge (1976) 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18, quoting Armstrong v. Manzo (1965) 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62), and "[a]n elementary and fundamental requirement of due process is any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations.] The notice must be of such a nature as reasonably to convey the required information.... [p] The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." (Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. at pp. 314-315, 70 S.Ct. at p. 657.)

Due process, unlike other legal rules, is not a technical concept, fixed in content unrelated to time, place and circumstances. Rather, it is flexible enough to provide such procedural protections as the particular situation requires. (Mathews v. Eldridge, supra, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18; Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484; Cafeteria Workers v. McElroy (1961) 367 U.S. 886 "More precisely, ... identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the physical administrative burdens that the additional or substitute procedure requirement would entail." (Mathews v. Eldridge, supra, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18.)

                895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230.)   Thus, to resolve whether this notice was constitutionally sufficient requires us to analyze the respective affected governmental and private interests
                

In summary, "[t]he elements required to be included in the notice are to be tailored to the circumstances of the case and depend upon an appropriate accommodation of the competing private and governmental interests involved. The elements to be considered include the likelihood of eliciting a response and the practical difficulties of time and cost. [Citation.]" (Wilson v. Health & Hospital Corp. of Marion Cty. (7th Cir.1980) 620 F.2d 1201, 1214.) Here, it is apparent Mullane and the due process clause require a more substantive and informative notice designed "to apprise the affected individual of, and permit adequate preparation for, an impending 'hearing.' [Fn. omitted.]" (Memphis Light, Gas & Water Div. v. Craft (1978) 436 U.S. 1, 14, 98 S.Ct. 1554, 1562, 56 L.Ed.2d 30; Transco Sec., Inc. of Ohio v. Freeman (6th Cir.1981) 639 F.2d 318, 323.) In Craft, the Supreme Court held the public utility's notice to customers it was terminating gas and electric services failed to satisfy due process because the notices did not inform the customers of the process for contesting terminations. Contrary to the County Counsel's position, the Craft holding has been extended to situations where the hearing procedures are set forth within municipal ordinances and statutory law. (See e.g., Finberg v. Sullivan (3d Cir.1980) 634 F.2d 50; Wilson v. Health & Hospital Corp. of Marion Cty., supra, 620 F.2d 1201; Deary v. Guardian Loan Co., Inc. (S.D.N.Y.1982) 534 F.Supp. 1178; Philadelphia Welfare Rights Org'n v. O'Bannon (E.D.Pa.1981) 525 F.Supp. 1055.)

The notice here is constitutionally deficient because it fails to tell Swink of the statutory procedure to set aside the declaration of forfeiture, including the time period within which to do so. (See generally Philadelphia Welfare Rights Org'n v. O'Bannon, supra, 525 F.Supp. 1055, 1061.) It merely refers to the declaration of forfeiture without telling her of the pending action (i.e., the perfection of the forfeiture (see generally People v. Beverly Bail Bonds, supra, 134 Cal.App.3d 906, 909-910, 185 Cal.Rptr. 36; People v. Surety Insurance Co., supra, 82 Cal.App.3d 229, 236, 147 Cal.Rptr. 65; section 1305)), the underlying statutory scheme governing forfeitures, or that there were jurisdictional time limits. ⁷ Moreover, it implies the absence of time limitations and the automatic discharge of the forfeiture upon defendant's appearance. ⁸

The interests balancing mandated by Mathews v. Eldridge, supra, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, shows the Swinks' interest in recouping their deposit...