People v. Harco National Insurance

Opinion

ROTHSCHILD, J.

Harco National Insurance Company appeals from an order denying its motion to set aside a summary judgment forfeiting bail issued when Francisco Gonzalez, a criminal defendant for whom Harco issued a bail bond, failed to appear at his arraignment. (Pen. Code, §§ 1305-1308; all further section references are to the Penal Code.) Harco

[933]

contends that the trial court erred in forfeiting the bond and denying its motion. We agree, reverse the order and the underlying judgment, and remand for the court to grant the motion, vacate the forfeiture, and exonerate the bond.

1

FACTS

Harco issued a $30,000 bail bond guaranteeing Gonzalez’s appearance at his September 26, 2003 initial arraignment. On September 26, a Friday, neither Gonzalez nor his attorney, Edward Pacheco, appeared. The trial court stated: “Apparently, Mr. Pacheco has contacted the court and . . . indicated that he cannot appear today and requested that any bench warrant issued be held, [ft] . . . [ft] The bench warrant is issued and held until this coming Monday, September the 29th, pursuant to counsel’s request.”

Pacheco, but not Gonzalez, appeared on September 29. Pacheco said he could not find Gonzalez. This colloquy followed: “The Court: Did he post a $30,000 bond? Did he ever check in? If I am not mistaken, he was supposed to be here on 9/26. [ft] Someone appeared for you; isn’t that true? [ft] Mr. Pacheco: Yeah, I think somebody stood in and trailed it until today, [ft] The Court: So I had a bench warrant held until today, [ft] Mr. Pacheco: I am still in that trial, and . . . [m]y office is moving, so everything was out of the office. We had no phone service or anything for the weekend, [ft] The Court: That still doesn’t explain Mr. Gonzalez’s failure-to-appear—not only on 9/26, but here we are, 9/29. [ft] Mr. Pacheco: Let me make a call. I will be right back, [ft] The Court: All right, but I am not intending to hold the warrant again.”

After a brief recess, the court recalled the case and, speaking to Pacheco, stated: “As I indicated earlier, [Gonzalez] was not here on Friday. Somebody representing you because you were in trial asked if I would hold the warrant to see if they could get him in here today. I said I would, [ft] He is not here. You have had no contact with him. So, at this time, I will forfeit his bond and issue a bench warrant for his arrest.”