People v. American Bankers Insurance

California Court of Appeal Jul 19, 1990 No. B042436Published

Before: Abbe

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Holding. The court held that a trial court does not lose jurisdiction to enter summary judgment on a forfeited bail bond if a motion for relief under Penal Code section 1305 is pending at the expiration of the 90-day period, even if the motion is ultimately denied.

Issues

Whether the trial court lost jurisdiction to enter summary judgment because it was not entered within 90 days of the expiration of the 180-day exoneration period.
Whether the defendant's reappearance during the pendency of a motion to vacate forfeiture based on death requires automatic exoneration of the bond.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under such circumstances it would be improper to hold that the trial court lost jurisdiction to enter summary judgment because it did not do so within the 90-day period after the period of exoneration had ended.”

Opinion

ABBE, J.

Elias Aguirre Aguirre (Aguirre) was out on bail pending a trial on charges against him in San Luis Obispo County of possession for sale

[225]

and sale of illegal drugs. A $25,000 bail bond had been posted for Aguirre by appellant American Bankers Insurance Company (American). Aguirre failed to appear in court as ordered on January 29, 1988. A bench warrant was issued for his arrest and the bail bond was forfeited. A notice of forfeiture was mailed to American on February 2, 1988.

Penal Code

section 1305, subdivision (a) authorizes a forfeiture of bail and establishes a 180-day period during which the forfeiture may be set aside or the period tolled. The 180-day period here terminated on July 31, 1988, if not tolled.

Section 1306, subdivision (a) provides in part: “When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture, regardless of the amount of the bail, shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound . . . .”

Section 1306, subdivision (b) provides: “If, because of the failure of any court to promptly perform the duties enjoined upon it pursuant to this section, summary judgment is not entered within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated.”

The 90-day period after July 31, 1988, ended on October 29, 1988.

On August 1, 1988, the county clerk sent a letter to American advising it that the 180-day period had elapsed since the bond was forfeited and notified American summary judgment would be entered against it unless the amount of the bond was paid by August 16, 1988.

On August 4, 1988, American moved to vacate the forfeiture and exonerate the bond on the ground that Aguirre was permanently unable to appear due to his death prior to the end of the 180-day period. The motion was set for hearing on August 29. The bail agent attached a declaration to the motion that he had “received information that on July 12, 1988, Elias Aguirre Aguirre passed away in Chihuahua, Mexico.”

People v. American Bankers Insurance

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ABBE, J.

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