People v. United Bonding Ins. Co.

• Decision Date: 02 November 1971
• Citation: 489 P.2d 1385,5 Cal.3d 898,98 Cal.Rptr. 57
• Court: California Supreme Court
• Parties: , 489 P.2d 1385 The PEOPLE, Plaintiff and Respondent, v. UNITED BONDING INSURANCE COMPANY et al., Defendants and Appellants. Sac. 7901. In Bank

Page 57

98 Cal.Rptr. 57

5 Cal.3d 898, 489 P.2d 1385

The PEOPLE, Plaintiff and Respondent, v. UNITED BONDING INSURANCE COMPANY et al., Defendants and Appellants.

Sac. 7901.

Supreme Court of California,

In Bank.

Nov. 2, 1971.

As Modified Dec. 1, 1971.

MacDonell, Bell & Sandberg, and Thomas W. Bell, Jr., Sacramento, for defendants and appellants.

Richard W. Dickenson, County Counsel, Alvan E. Norris, Asst. Dist. Atty., and Jerry D. Hall, Deputy County Counsel, for plaintiff and respondent.

WRIGHT, Chief Justice.

United Bonding Insurance Company and Victor J. Pimper, its agent, appeal from an order denying a motion to vacate the forfeiture of United's bail bond posted to secure the release from custody of Douglas McArthur Mock, in criminal proceedings then pending against him and six codefendants. ¹ We have determined that the motion should have been granted and we reverse.

Mock was charged by indictment on June 29 and arraigned on June 30, 1967. ² He entered pleas of not guilty to the charges and, after various pretrial motions and proceedings, trial was set for January 8, 1968. On that date Mock failed to appear. The public defender, who theretofore had represented Mock, stated that he knew of no reason why Mock was not present. There was then pending before the court the public defender's motion to be relieved of his representation of Mock and certain of the other codefendants on the ground of a conflict in interest between the codefendants, and the motion was subsequently granted. The court stated at that time and in that connection that other counsel would be appointed for Mock as soon as he could be notified and appeared before the court. The court was then advised that Mock's whereabouts were unknown and that he might have fled. The court issued a bench warrant for Mock's appearance, ³ but did not order a forfeiture of the bond previously posted to secure his release.

When the cause was called for trial on April 16, 1968, Mock was again absent and, apparently, no contact had been made with him. On May 14, while proceedings in the trial court involving his codefendants were still pending, the court made the following order: 'The defendant Douglas McArthur Mock having failed to appear in Court on January 8, 1968, as ordered by the Court, Bail is now ordered forfeited, pursuant to Section 1305 of the Penal Code. * * *' On that same day the clerk gave notice of the forfeiture to United and its agent, (appellants herein hereinafter designated 'United'), in the manner prescribed by Penal Code section 1305. ⁴

On June 4 United filed a notice of motion for an order setting aside the May 14 order of forfeiture, and for exoneration of the bail bond. On June 13, before argument on the motion and without notice to the parties the court entered what purports to be a Nunc pro tunc order, effective as of the date of its initial order of forfeiture (May 14), reciting that Mock's failure to appear on January 8 'was without sufficient and without any excuse.' ⁵ Again notice was given on the same date as the order in the manner required by section 1305. United's motion to set aside the forfeiture was eventually denied on September 24, 1968, and the instant appeal is from that order of denial.

United claims that because the provisions of section 1305 are jurisdictional, a failure on the part of the court to comply therewith in ordering a forfeiture in reliance on that section renders the order null and void. '(W)here a statute requires a court to exercise its jurisdiction in a particular manner, follow a particular procedure, or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.' (Burtnett v. King (1949) 33 Cal.2d 805, 807, 205 P.2d 657, 658.) Illustrative of an application of the foregoing rule to section 1305 is the undisputed holding that a surety must appear within 180 days after the date of the entry of the order of forfeiture or after the date of the mailing of notice thereof, where such mailing is required, or suffer the court's loss of jurisdiction to discharge the forfeiture. (See People v. Black (1961) 55 Cal.2d 275, 10 Cal.Rptr. 459, 358 P.2d 915.) The primary question in the instant case, however, is whether there is a jurisdictional although not express time limit within which an order of forfeiture must be made After a bailee's default. If there is such a time limit which, in the instant case, has been exceeded then the effectiveness of the Nunc pro tunc order need not be considered for either of two reasons: (1) the order purports only to amend and correct a defect in the earlier order of forfeiture and does not purport to advance its effective date; and (2) a jurisdictional time limit which has been exceeded cannot be defeated by the simple device of a Nunc pro tunc order (People v. Black, supra, 55 Cal.2d 275, 277, 10 Cal.Rptr. 459, 358 P.2d 915; Osmont v. All Persons (1913) 165 Cal. 587, 591, 133 P. 480).

There are conflicting appellate decisions as to when, with respect to a bailee's default, an order of forfeiture must be entered, but no court has squarely faced the issue. In Los Angeles County v. Metropolitan Cas. Ins. Co. (1933) 135 Cal.App. 26, 26 P.2d 699, the court was called upon to determine when the cause of action for a civil judgment upon a forfeiture accrued (Pen.Code, § 1306), ⁶ and held that it accrued only upon the expiration of the statutory period commencing with the order of forfeiture and during which the forfeiture may be excused. In that case almost five years had elapsed between the time the defendant failed to appear and the order of forfeiture. An action pursuant to section 1306, although commenced by Los Angeles County beyond the applicable limitation period if measured from the time of the defendant's default, was nevertheless held to lie as it was brought well within the period when measured from the time of the order of forfeiture. Without discussing jurisdictional or other issues related to when the order of forfeiture must be entered, the court stated that the statute (Pen.Code, § 1305) 'places no limitation upon the time within which such forfeiture shall be entered.' (135 Cal.App. at p. 28, 26 P.2d at p. 700.) In People v. Burton (1956) 146 Cal.App.2d Supp. 878, 305 P.2d 302, the appellate department of the superior court, following the lead of the Los Angeles County case but again without discussing jurisdictional issues, dealt with forfeitures which had been declared as long as a year after the bailee's failure to appear, and resolved the cause on other unrelated issues which presumed the validity of the forfeitures.

Contrary to the implications in the foregoing cases are inferences which may be drawn from People v. National Automobile & Cas. Co. (1969) 276 Cal.App.2d 480, 80 Cal.Rptr. 790. In that case the court was called upon to determine whether the trial court was compelled to declare a forfeiture immediately upon the failure of a bailee to appear. The court stated: 'The statute (Penal Code section 1305) does not require that bail must be forfeited each time a defendant does not appear in court. * * * The statute recites two necessary prerequisites before a court must order forfeiture: (1) that the nonappearance of the defendant be 'without sufficient excuse,' and (2) that the nonappearance must be 'for arraignment or for trial and judgment, or upon Any other occasion when his presence in court is lawfully required * * *. " The court noted that although no excuse was given for the defendant's failure to appear, a declaration of forfeiture was withheld on counsel's reassurances respecting his client's intentions and the hearing was continued for 11 days. It was then concluded 'that the court acted within its broad discretion under the 'without sufficient excuse' requirement of the statute. Certainly, there is no automatic forfeiture by operation of law.' (276 Cal.App.2d at pp. 483--484, 80 Cal.Rptr. at p. 793.)

Implicit in the appellate court's resolution of the issues in National Automobile is the proposition that the trial court may exercise its sound discretion in determining whether a defendant's failure to appear was 'without sufficient excuse.' In that case the court was confronted with reassurances by defendant's counsel which apparently suggested to the court that the failure to appear was excusable and, certainly, it cannot be said that the acceptance of the excuse constituted an abuse of discretion. No forfeiture was thus required.

There are sound reasons, however, implicit in the pertinent statutory provisions for holding that a forfeiture of a bail bond, where required, must be timely declared. The law traditionally disfavors forfeitures and statutes imposing them are to be strictly construed. (See 4 Witkin, Summary of Cal.Law (7th ed. 1960) p. 2799; 22 Cal.Jur.2d 504.) In the instant case the statute purports to afford the surety an opportunity to escape the harsh results of a forfeiture. When a declaration of forfeiture has been made the clerk of the court must 'promptly * * * mail notice of the forfeiture to the surety.' If such notice is not delivered for a period of 30 days, the surety is to be 'released from all obligations under the bond.' Moreover, the surety has 180 days after notice of forfeiture within which to appear with the defendant, excuse the defendant's neglect to have appeared earlier, and thereby become entitled to a discharge of the forfeiture 'upon such terms as may be just.' (Pen.Code, § 1305.) If a surety is to be afforded the protections provided by these provisions he must be advised at an early date of the fact of the forfeiture in order that he may institute procedures to locate and compel the appearance of the bailee. Should the surety not have an early opportunity to institute these endeavors the possibility of discharging the forfeiture will be severely prejudiced, and it is manifest that he will suffer such prejudice whether there is an undue delay in...