People v. Surety Insurance

California Court of Appeal Oct 1, 1973 No. Civ. 40962Published

Before: Kingsley

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Holding. The court held that a trial court loses jurisdiction to declare a bail bond forfeiture if it fails to declare such forfeiture immediately upon a defendant's unexcused nonappearance and fails to reflect an excused nonappearance in the court minutes.

Issues

Whether a court retains jurisdiction to declare a bail bond forfeiture when it fails to declare the forfeiture at the time of the defendant's initial nonappearance.
Whether an excused nonappearance must be expressly reflected in the court minutes to preserve the court's jurisdiction to declare a forfeiture at a later date.

Disposition. reversed

Quotations verified verbatim against the opinion

“An excused nonappearance, accordingly, should be expressly reflected in the minutes.”

“The surety should be able to rely on the entries in the clerk’s minutes”

Opinion

KINGSLEY, J.

This appeal is from an order denying a surety’s motion to be relieved from a bail bond forfeiture. Defendant Levine did not appear on the date (Nov. 8, 1971) when his case was set for trial. His counsel reported information that Levine was detained in New York by federal authorities and requested a continuance until November 18th “to get it straightened out.” A bench warrant was issued but ordered held and the

[446]

case was continued as requested. The clerk’s minutes for November 8, 1971, show only that “Defendant fails to appear . . . Bench Warrant issued.” There is no entry either forfeiting bail or reciting that appearance was excused. On November 18, 1971, Levine still not appearing, an order of forfeiture was entered. Thereafter the surety moved to vacate the forfeiture. That motion was denied and the present appeal followed. For the reasons set forth below, we reverse the order.

The applicable statute is section 1305 of the Penal Code which, in pertinent part, provides:

“If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial . . . the court must direct the fact to be entered upon its minutes and the undertaking of bail . . . must thereupon be declared forfeited, and, if the amount of the forfeiture exceeds fifty dollars ($50), the clerk of the court shall, promptly upon entering the fact of such failure to appear in the minutes, mail notice of the forfeiture to the surety on the bond. . . . If the clerk fails to mail such notice within 30 days after such entry, the surety . . . shall be released from all obligations under the bond.

“But if at any time within 180 days . . . after mailing such notice of forfeiture, 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 shall direct the forfeiture of the undertaking ... to be discharged upon such terms as may be just, . . .”

The surety relies on the decision of the Supreme Court in

People v. Surety Insurance

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KINGSLEY, J.

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