People v. Allied Fidelity Insurance

Opinion

THOMPSON, J.

The issue presented by this appeal is whether the trial court properly denied the motion of Allied Fidelity Insurance Company (Allied) to vacate forfeiture of bail and exonerate the bond posted by it to secure the release from custody of Carlos Chacon (Chacon), in criminal proceedings then pending against him. For reasons to follow, we have concluded that the trial court’s decision denying Allied’s motion should be affirmed.

Facts

Allied posted a bail bond in the amount of $25,000 on November 19, 1981, for Chacon, who was charged with a violation of Penal Code section

[285]

487, subdivision 2, grand theft person. On December 7, 1981, Chacon failed to appear for trial in superior court and Allied’s bond was ordered forfeited. A notice of order forfeiting bail was mailed to Allied on December 14, 1981.

Thereafter, on May 25, 1982, Allied filed a motion to vacate forfeiture and exonerate bond, which was set for hearing on June 16, 1982. The motion was made on the ground that Allied was entitled to rescind its obligation under the posted bond on the basis of fraud and failure of consideration.

To support its motion, Allied alleged that on November 12, 1981, a man, who identified himself as Charles Edward Davis, approached V. C. Van Pool, a bondsman for Allied, in his office to obtain bail for Chacon. The alleged Mr. Davis provided Van Pool with several items of identification, namely, a California driver’s license, a social security card and credit cards, all in the name of Charles Edward Davis. The alleged Mr. Davis informed Van Pool that “he was a widower and owned a piece of property wherein the equity was more than $35,000.00.” The alleged Mr. Davis filled out an application and a trust deed, covering his property. Van Pool told him that he could do nothing until a property check was completed the following day and then he would call him. The alleged Mr. Davis departed.

The next day Van Pool “called Title Insurance Company and ran [a check] on the property; the property came back as represented.” He then called the alleged Mr. Davis who came to his office. The alleged Mr. Davis paid the 10 percent premium and was given the bail bond by Van Pool to deliver to the county jail. Van Pool told him that Chacon had to be in his office within 24 hours to sign the application and other papers.