People v. United Bonding Co.

Opinion

CALDECOTT, J.

This is an appeal from an order of the superior court denying appellant bonding company’s motion to set aside bail forfeiture and exonerate the bail.

In the criminal proceeding the defendant, Gwendolyn Lee Scoma (herein referred to as defendant) was charged with a violation of Health and Safety Code section 11530 and failed to make a scheduled appearance in court. A bench warrant was issued for her arrest, and her bail was ordered forfeited. Through the efforts of the bail bondsman the defendant personally appeared in court on July 11, 1967, with her attorney. At that time she moved to set aside the bail forfeiture. Her attorney stated to the court: “[Actually, she had no legal excuse to offer the Court. She panicked.” The motion was denied.

A prior motion of the defendant to set aside the information under Penal Code section 995 was granted at this time. The defendant was released by the court and has not been seen since.

[870]

On November 27, 1967, the appellant appeared in court and moved under Penal Code section 1305 to set aside the bail forfeiture on the ground of noncollusion. There does not appear to be any question as to the adequacy of appellant’s testimony to qualify for relief under Penal Code section 1305. The only issue raised was the nonappearance of the defendant at this hearing. Appellant testified .that after a diligent search defendant could not be located. The motion was denied and appellant filed this appeal.

The sole issue raised by this appeal is whether Penal Code section 1305 requires that both the bondsman and the defendant be present in court at the hearing.

Penal Code section 1305 provides in part as follows: “But if at any time within 180 days after such entry in the minutes [of the fact of defendant’s default and the forfeiture of bail] . . .' 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 or the deposit to be discharged upon such terms as may be just.”