People v. Wilcox

• Citation: 53 Cal.2d 651,2 Cal.Rptr. 754,349 P.2d 522
• Decision Date: 19 February 1960
• Docket Number: Cr. 6578
• Court: United States State Supreme Court (California)
• Parties: , 349 P.2d 522, 78 A.L.R.2d 1174 PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Daniel WILCOX et al., Respondents.

Page 754

2 Cal.Rptr. 754

53 Cal.2d 651, 349 P.2d 522, 78 A.L.R.2d 1174

PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Daniel WILCOX et al., Respondents.

Cr. 6578.

Supreme Court of California, In Bank.

Feb. 19, 1960.

Harold W. Kennedy, County Counsel, and Robert W. Garcin, Deputy County Counsel, Los Angeles, for appellant.

Thomas H. Sawyer, for respondents.

WHITE, Justice.

The People appeal from an order of the trial court reinstating a forfeited bail bond and the subsequent exoneration of the same.

The circumstances under which the bond was posted, forfeited and reinstated are as follows: the Grand Jury of Los Angeles County returned an indictment wherein one Robert Daniel Wilcox (hereinafter referred to as the defendant) was accused of the crime of issuing checks without sufficient funds, a felony. Pen.Code, § 476a. Defendant entered a plea of not guilty and bail was fixed in the sum of $1,000. Respondent Anchor Casualty Company is defendant's surety on said bail bond. Trial was set for June 20, 1958. The defendant did not personally appear on that date, but an appearance was made in his behalf by the public defender. The defendant's bail was thereupon ordered forfeited and a bench warrant was issued for his arrest. At that time the court appointed its medical examiner 'to examine the physical condition of the defendant and to report to the court.' Proceedings were continued to June 23, 1958.

On June 23 the court-appointed medical examiner filed a four-page report, stating among other things, that the defendant was then under the care of a Dr. Donald E. Hine for thyrotoxicosis; that the defendant's condition was critical; that any emotional strain might prove fatal, and that in the opinion of the examiner, the defendant was 'in no way attempting to malinger or evade prosecution.' The examiner recommended that the defendant be permitted to remain under medical care 'in the interest of his life and health.' There is also in the record a letter from Dr. Hine substantiating the medical examiner's report. The trial court, at the June 23 hearing, continued the trial to August 25, 1958, and ordered the bench warrant to be withheld until that date.

On August 25, when defendant again failed to appear the cause was continued to September 22, 1958, for trial, and the bench warrant was again ordered withheld.

On September 18, prior to the aforesaid date scheduled for the trial, the defendant's surety filed its notice of motion for an order vacating and setting aside the former order of forfeiture, and exonerating the bond. The affidavits of the attorney for the surety, filed in support of the motion, stated that the defendant's failure to appear was without knowledge, consent, connivance or collusion of the surety; that the defendant was unable to appear by reason of his illness; that he was then confined in a hospital in Pennsylvania, and that his condition would not permit his appearance. The notice recited that the motion would be made on the ground that the failure of the defendant to appear 'was excusable and was without connivance or collusion of his bail.'

On September 22, the date set for trial as aforesaid, both the surety's motion and the trial were ordered off calendar. The bench warrant, theretofore issued and withheld, was ordered to issue. On October 8, 1958, the surety filed a notice of motion for the restoration of its motion to the calendar. It also filed affidavits of the defendant and of an attending physician at the Veterans Administration Hospital in Philadelphia, Pennsylvania. The substance of these affidavits is that the defendant did not wilfully fail to appear; that he was unable to appear since June 20, 1958, by reason of serious illness; that he was compelled to travel to Pennsylvania for his medical treatment because of financial inability to obtain the same treatment near his place of residence; that he was confined in the aforementioned hospital, and would be for some time, and that his present condition of health prevented his attendance in court.

On October 15, 1959, counsel for all parties being present, the court, after hearing, granted the surety's motions, vacated the forfeiture of bail, reinstated and exonerated the bond. The People appeal from this order.

A preliminary question relates to the appealability of the order. Section 1238 of the Penal Code, which sets out orders from which the People may appeal in criminal matters, does not include an order setting aside a forfeiture of bail. Nor does section 963 of the Code of Civil Procedure specifically mention such an order as appealable. However, that section provides in subdivision 1 for an appeal from a 'final judgment entered in an action.' In Howe v. Key System Transit Co., 198 Cal. 525, at page 531, 246 P. 39, at page 41, the court stated that the right of appeal from orders not within the express provisions of section 963 has been sustained upon the theory that where, in effect, an order is a final judgment against a party in a collateral proceeding growing out of the action it 'is so far independent of the suit itself as to be substantially a final decree for the purpose of an appeal, although there has been no final decree in the suit. (Citations.)' See also, Kneeland v. Ethicon Suture Laboratories, 113 Cal.App.2d 335, 248 P.2d 447. That test is met in the present case. The forfeiture of bail is an independent, collateral matter, civil in nature, and the effect of an order on a motion to set aside such a forfeiture is substantially a final determination at the trial court level of issues affecting the surety, aside from the principal matter before the court. The situation is not to be compared to that following an order of forfeiture, as in that case the affected parties may still seek the further relief of the trial court by a motion to set aside the forfeiture (Pen.Code, § 1305), and are not entitled to an appeal until such relief has been sought. People v. Hodges, 205 Cal. 476, 271 P. 897; People v. Oppenheimer, 147 Cal.App.2d Supp. 827, 305 P.2d 306. But appeals, after the denial of a motion to set aside a forfeiture, have been entertained without question of the appealability of such orders. See People v. Calvert, 129 Cal.App.2d 693, 277 P.2d 834; People v. Niccoli, 102 Cal.App.2d 814, 228 P.2d 827; People v. Kersten, 60 Cal.App.2d 624, 141 P.2d 512. No distinction should be drawn when the motion to set aside is granted, because in either event the determination is then final and collateral to the principal issue.

It is claimed by the People that the trial court abused its discretion in vacating the order of forfeiture on the ground that the showing was insufficient to afford a basis for affirmative relief. The motion was made pursuant to section 1305 of the Penal Code. That section provides in pertinent parts that where the defendant fails to appear 'without sufficient excuse * * * the undertaking of bail * * * must thereupon be declared forfeited. But if at any time within 90 days after such entry in the minutes, the defendant and his bail appear, and satisfactorily excuse the defendant's neglect or show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just. * * *'

No proof was offered on the part of the People, and it must therefore be assumed that their contention is that the showing made was insufficient as a matter of law. The record fails to show that at the time of the forfeiture any document or proof of the defendant's condition was before the court. Between the time of forfeiture and revocation of that order, the court received its own medical examiner's report, the affidavits of the attorney for the surety, the affidavits of the defendant and his attending physician. These documents contained reasons tending to excuse the defendant's failure to appear. They affirmatively show the inability of the defendant to personally appear by reason of his continuing illness. They further show that the defendant's absences were without the connivance of the surety.

An abuse of discretion is said by the People to be indicated because, it is claimed, there was no showing that the defendant was unable to attend for the full period involved. On the contrary, on each proof submitted to the court after...