People v. United Bonding Insurance

BISHOP, J. pro tem.

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The United Bonding Insurance Company, facing the possibility of the entry of two summary judgments for a total of $3,850 against it, based on two forfeited bail bonds that it had issued, moved to have the forfeitures set aside. The trial court granted the motion, conditioned upon the payment by the bonding company of a total of $2,000. The bonding company, unhappy because of

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the size of the payment made a condition, appealed. We are affirming the order.

A defendant in two felony cases that had been consolidated for trial was at liberty on the two bail bonds furnished by our appellant. The trial had progressed to the point where the defendant had been found guilty on one charge and the People had rested in the second case when the noon recess was taken. All parties were instructed to return by 1:30 p.m., but the defendant failed to show up and the two bail bonds were forfeited. The court instructed the district attorney to make a diligent search for the defendant, ordered the issuance of a bench warrant, and put the trial temporarily off calendar. Defense counsel was directed to appear for further proceedings a week later. The foregoing events occurred on December 6,1963.

A week later, on December 13, defense counsel being present, the eases were called and so was the defendant, but he did not appear. Evidence was taken that convinced the trial court that there had been an ‘1 exercise of reasonable diligence to procure the presence of the defendant” and, as authorized by section 1193 of the Penal Code, it sentenced him, in his absence, to the state penitentiary. The trial on the other charge was continued.

At sometime between December 6 and March 3 the defendant was apprehended. On the latter date, just nine days before section 1306 of the Penal Code, as then in effect, required entry of summary judgments upon the forfeited bail bonds, the bail bond company filed a notice of motion to vacate the forfeitures and exonerate the bonds. The notice stated that the motion would be made on the ground that the failure of the defendant to appear was excusable and was without the connivance or collusion of the bail, and would be “based upon the papers and files of the above action.”

The motion was, with the consent of the deputy district attorney, heard at the time set, the same day that the notice was filed. The authority for the order sought was section 1305 of the Penal Code which then provided: “. . . if at any time within 90 days after such entry in the minutes [of defendant’s failure to appear], 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 may direct the forfeiture of the undertaking ... to be discharged upon such terms as may be just. ...”