People v. Wilshire Insurance

Opinion

EVANS, J.

Wilshire Insurance Company and Eldon Wilson, doing business as Action Bail Bonds, its agent, appeal from an order denying a

[816]

motion to vacate forfeiture of Wilshire’s bail bonds posted to secure the release from custody of Sebastian Angel Martinez in criminal proceedings then pending against him. We have determined the order and judgment appealed from must be affirmed.

Martinez was charged by indictment on October 26, 1971, and arraigned November 2, 1971.

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He entered pleas of not guilty to the charges, and after various pretrial motions and proceedings, trial was set for May 2, 1972. Bail was fixed at $25,000, and the defendant released on bond. On the date of trial, Martinez failed to appear. His trial attorney stated he knew of no reason why Martinez was not present. The court ordered that bail posted by appellant Wilshire Insurance Company be forfeited and a bench warrant issue. Formal notice of forfeiture of bail as required by section 1305 of the Penal Code was given to the named surety, Wilshire Insurance Company, and its agent, Action Bail Bonds. The 180-day period prescribed by section 1305 of the Penal Code,

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within which an order of forfeiture may be set aside, ended October 30, 1972. This date is not in dispute'.

On October 30, 1972, counsel for appellants telephoned the clerk of the court and requested that a hearing be set for November 2, 1972, on an oral motion for stay of execution of final forfeiture of the bonds. This telephone request was confirmed by letter, and on November 2, 1972, the court convened to consider the informal motion. The matter was then continued to November 9, 1972. Thereafter, the motion was continued at the request of appellants for two more weeks to permit an investigation in Mexico concerning the possible death of the defendant Martinez. On

[817]