People v. Rolley

California Court of Appeal Dec 20, 1963 No. Crim. 4354Published

Before: Draper

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Holding. The court held that a surety is entitled to relief from bail forfeiture under Penal Code section 1305 if the defendant is arrested by other authorities within the 90-day period, even if the defendant was not in custody for the entire duration of that period.

Issues

Whether a surety may be relieved of bail forfeiture if a defendant is detained by other authorities after the initial failure to appear but within the 90-day statutory period.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The purpose of the statute indicates that the latter construction is the better.”

“Such statutes are intended to provide the bail with an incentive to secure the arrest of the defaulting defendant”

“The circumstance that the arresting authority also had ground to prosecute and detain him should not deprive the bail of all benefits of substantially assuring his ultimate return for trial here.”

DRAPER, P. J.

This appeal requires construction of an ambiguous code section governing relief from forfeiture of bail (Pen. Code, § 1305). Following Rolley’s indictment and arrest, bail bond of $4,200 was posted by the surety company which is respondent here. Rolley failed to appear for trial December 21, 1962, and on that day his bail was ordered forfeited. He was arrested by federal authorities in Albuquerque, New Mexico, February 9, 1963, and remains in federal custody. Motion to discharge the forfeiture was made February 28. The trial record is not clear, but it is now agreed that the motion was made by respondent surety. The trial court granted the motion and set aside the forfeiture of bail. The People appeal.

The order is appealable

(People

Wilcox,

53 Cal.2d 651, 654-655 [2 Cal.Rptr. 754, 349 P.2d 522]).

Section 1305 of the 1872 code was simple and direct. It required forfeiture of bail on defendant’s unexcused failure to appear and limited the time within which the forfeiture could be discharged upon showing of satisfactory excuse for non-appearance. Only the requirement of forfeiture remains

[641]

unchanged. Each amendment (Stats. 1905, ch. 539, p. 701; Stats. 1927, ch. 735, p. 1386; Stats. 1945, ch. 1303, p. 2454; Stats. 1955, ch. 1421, p. 2590; Stats. 1961, ch. 942, p. 2574) has added language to broaden the surety’s right to vacate the order of forfeiture.

By 1962, several grounds for relief from forfeiture were allowed on application made within 90 days after the minute entry reciting defendant’s failure to appear. The section’s second sentence allowed such relief if both the defendant and his bail appear, excuse the failure to appear or show that it “was not with the connivance of the bail.” Alternatively, the third sentence allowed relief, without appearance of the defendant, within the same 90-day period, on a showing that defendant “is physically unable, by reason ... of detention by civil or military authorities, to appear in court at any time during said 90 days. ”

People v. Rolley

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DRAPER, P. J.

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