People v. Ross

California Court of Appeal Oct 22, 1963 No. Civ. 27458Published

Before: Wood

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Holding. The court held that a bail forfeiture order in a misdemeanor case was void because the defendant was not required to be personally present at trial and did not neglect to appear, meaning the 90-day statutory limit for setting aside the forfeiture did not apply. Consequently, the trial court's order vacating the forfeiture was valid, and the subsequent denial of a motion for a nunc pro tunc order was affirmed as unnecessary.

Issues

Whether a court has authority to forfeit bail in a misdemeanor case when the defendant is not personally present at trial.
Whether the 90-day limitation period in Penal Code section 1305 applies to a bail forfeiture order that is void on its face.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The defendant Pope was not in default for failure to appear at the trial and the court was without authority to forfeit her hail.”

“It follows from the foregoing, that the order was void on its face and the 90-day limit for setting aside the forfeiture does not apply.”

“The order of February 18, 1963, setting aside the forfeiture and exonerating the bail bond was a valid order.”

WOOD, P. J.

The Appellate Department of the Superior Court of Los Angeles County certified this ease for transfer to this court.

Defendants Ross, LaRue, and Pope were accused in a complaint filed by the City Attorney of Los Angeles with violating section 415 of the Penal Code, a misdemeanor (disturbing the peace). Defendants were arraigned and were released on bail—$105 each as to Ross and LaRue, and $525 as to Pope. The case was set for trial on October 17, 1962, and on that day the motion of Pope for a separate trial was granted, and the case as to her was continued to November 14,1962. The case as to the two other defendants was submitted on the arrest report. Ross was adjudged not guilty. The case as to LaRue was continued to November 14.

On November 14, 1962, when the case was called for trial the defendant LaRue was present; and the defendant Pope was not present but was represented by counsel. The court made an order forfeiting defendant Pope’s bail of $525. It was ordered that the bench warrant for Pope which was then issued be held until November 26. The complaint, as to LaRue, was dismissed for lack of prosecution.

On November 26, when defendant Pope and her counsel were in court regarding the bail forfeiture, the date of trial was continued to December 12, and the defendant was released on her own recognizance.

On December 12 the complaint, as to Pope, was dismissed for lack of prosecution.

On February 18, 1963, on motion of an attorney representing the bonding company (appellant herein), the court made an order setting aside the bail forfeiture, and made an order

[445]

exonerating bail. (This was 94 days after the order forfeiting bail. Section 1305 of the Penal Code provides, in part, that within 90 days after an order forfeiting bail the court may under certain circumstances set aside the forfeiture order.)

On March 12, 1963, the bonding company (appellant herein), pursuant to notice, made a motion for a

nunc pro tunc

order to set aside bail forfeiture and to exonerate bail. The motion was denied.

People v. Ross

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WOOD, P. J.

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