People v. Durbin

California Court of Appeal Aug 2, 1963 No. Civ. 6969, 6970Published

Before: Griffin

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Holding. The court held that Penal Code section 1305 grants trial judges discretion to determine whether to set aside a bail forfeiture, and that the trial court erred by failing to exercise this discretion, instead erroneously believing it was bound by a prior case.

Issues

Whether Penal Code section 1305 mandates an automatic right to set aside a bail forfeiture within 90 days if the defendant is in custody.
Whether the trial court failed to exercise its discretion in denying the motion to set aside the bail forfeiture.

Disposition. reversed

Quotations verified verbatim against the opinion

“The word “may” is used and not “must,” clearly denoting a discretion on the part of the judge exercising jurisdiction over the proceeding.”

“The judgments are reversed and the trial court is directed to exercise such discretionary power and render judgment accordingly.”

GRIFFIN, P. J.

It was stipulated that these two actions might be consolidated on appeal.

Defendant-appellant Lee Durbin was charged in San Diego County in an information (CR 3144) filed July 13, 1961, with the crime of burglary (two counts) and six prior convictions of felony (our number 4 Civil No. 6969). He was released on bail furnished by petitioners and appellants United Bonding Insurance Company and George M. Martin, doing business as A AAA Bonding Company. Arraignment was set for September 13, 1961. Defendant failed to appear. His bail was ordered forfeited on that date. On December 12, 1961, appellants, including Durbin, filed a motion to set aside the bail forfeiture. On February 27, 1962, after hearing, the motion was denied. Appellants appeal from the order denying said motion. On March 6, 1962, a summary judgment was entered against the sureties for $10,500.

In our case number 4 Civil No. 6970 defendant Durbin was charged in an information (CR 3214) with one count of attempted grand theft and six prior convictions of a felony. He was released on bail and arraignment was set for August 17, 1961. He failed to appear on that date and his bail was then ordered forfeited. On November 15, 1961, appellants filed a motion to set aside this forfeiture. After hearing, it was denied on February 27, 1962, and on March 6, 1962, a summary judgment -was entered against the surety for $15,-750. Appellants appeal from the order denying the motion to set aside the forfeiture.

Bail was forfeited in case number 4 Civil No. 6970 on August 17, 1961. Defendant Durbin purportedly left the jurisdiction of the state either before or about the time set for his appearance. At least his whereabouts were unknown to the bail and to the court. He was arrested in Longview, Texas on August 19, 1961, and he escaped that day or the next and his whereabouts were again unknown. On September 5, 1961, he was arrested in Natchez, Mississippi on a bunko charge and released by the authorities on September 12, 1961. He was again at liberty to appear in the San Diego County courts but failed to do so.

It appears that on September 14, 1961, a complaint was sought by the District Attorney of San Diego County in the federal courts, charging Durbin with flight to avoid prosecu

[853]

People v. Durbin

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GRIFFIN, P. J.

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