People v. Earhart

Opinion

DEVINE, P. J.

This appeal has to do with the construction of a statute which deals with the forfeiture of bail, namely, Penal Code section 1305, subdivision (a). The appeal is from an • order denying a motion to set aside forfeiture of bail.

[842]

On August 6, 1969, a bail bond in the amount of $2,500 was filed in the Superior Court of the State of California in and for the County of Humboldt. The named surety was National Automobile and Casualty Insurance Co., a California corporation. Its name and address are set forth on the bond. The name and address of the bail agency, as stamped on the bond, are Thrifty Bail Bonds, 901 Fourth Street, Eureka, California. The bail was for defendant Kathryn A. McGraw. On November 17, 1969, defendant failed to appear, an order forfeiting bail was made, and a bench warrant was issued. The warrant recited the facts of nonappearance and of forfeiture of bail. This document was mailed to National Automobile and Casualty Insurance Co., 639 South Spring Street, Los Angeles, California. Notice of forfeiture was not mailed to George H. Earhart, appellant, the bail agent and owner of Thrifty Bail Bonds, whose address is 901 Fourth Street, Eureka, California, Mr. Earhart was not informed of the forfeiture or of the defendant’s failure to appear until July 9, 1970. On July 9, 1970, the court recited in a minute order that 180 days having elapsed since the forfeiture on November 17, 1969, and service by mail on the surety having been made on' that date, and said forfeiture not having been set aside, summary judgment was entered against the surety in the amount of $2,500 pursuant to section 1306 of the Penal Code. A motion to set aside the forfeiture was heard on July 31, 1970, and was denied on September 21, 1970. Notice of appeal was duly filed.

Two questions are presented on appeal: the first, whether the mailing of notice to the surety without mailing of a copy of the notice to the bail agent caused the release of the surety from obligations under the bond; and the second, whether motion for relief from the forfeiture must have been made by the surety within 180 days after the entry of forfeiture in the minutes.

Release of the Surety

The relevant part of the statute on this subject 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, 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