People v. Houle

153 Cal.App.2d Supp. 894 (1957) THE PEOPLE, Respondent,

v.

DAVID J. HOULE et al., Appellants.

California Court of Appeals.

Aug. 5, 1957. A. A. George for Appellants.

Robert M. Wash, County Counsel (Fresno), for Respondent.

DeWOLF, J.

Because the facts and law involved in each of the two above named appeals, Numbers 49 and 50, are identical, it is ordered that they be consolidated for the purpose of this opinion and judgment.

The undisputed facts are as follows:

The defendant was arrested on two separate complaints charging traffic violations. On November 15, 1956, a bail bondsman secured his release by posting two separate bonds, one a $75 surety bond and another, a $100 surety bond. At the time the defendant was released on bail he was ordered to appear in court on November 21, 1956. The defendant failed to appear in court on November 21, 1956, and the court thereupon ordered that each of the two bonds be forfeited. His failure to appear on the day his bonds were forfeited was without excuse. Defendant continued at liberty on bail until December 7, 1956, at which time he was arrested in the city [153 Cal.App.2d Supp. 895] of Stockton, California, and from December 7, 1956, was continuously in the custody of the civil authorities of this state, either in Stockton or in the state prison at San Quentin until, and after, February 15, 1957, the date on which the appellant filed his motion in the Fresno Municipal Court to set aside each of the orders forfeiting each of the two bonds mentioned.

The respondent concedes that the failure of the defendant to appear in court on November 21, 1956, was not due to any connivance on the part of the bail and that the bondsmen at all times have cooperated with the authorities in attempting to apprehend the defendant.

Section 1305 of the Penal Code provides certain grounds which authorize a court to set aside an order declaring a forfeiture of a bond. That section reads as follows:

"If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court is lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes and the undertaking of bail, or the money deposited instead of bail, as the case may be, 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. If within 90 days after such entry in the minutes, it be made to appear to the satisfaction of the court that the defendant is dead or is physically unable, by reason of illness or insanity, or by reason of detention by civil or military authorities, to appear in court at any time during said 90 days, and 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."