People v. American Surety Insurance

Opinion

BEDSWORTH, J.

American Surety Insurance Company (American Surety) appeals from judgment for the People forfeiting bail after a motion to set aside the forfeiture was denied. It argues the trial court lost jurisdiction to forfeit bail when the case was not called on the date set for arraignment by the jailer, and there was no jurisdiction on a later arraignment date set by the district attorney. We agree and reverse.

[1439]

FACTS

On September 26, 2007, American Surety posted a $20,000 bail bond for the release of Abel Perez on drug possession charges. Perez was ordered to appear on November 1, 2007. There is no record of what transpired on that day—nothing to indicate whether the case was on calendar, whether it was called, or whether Perez was present.

On November 9, 2007, a complaint was filed, along with an arraignment letter from the district attorney to Perez. The letter, entitled “Notice of Complaint Filed” and dated November 8, 2007, said a complaint had been filed and “you are hereby notified to appear” to enter a plea on November 29, 2007. No proof of service appears in the record, nor any other evidence the letter was mailed or received.

Perez failed to appear and the court declared bail forfeited. Notice of the order was sent to American Surety. The court denied a motion to vacate the forfeiture and entered summary judgment on the forfeited bond.

DISCUSSION

American Surety argues the court lacked jurisdiction to order forfeiture of bail because no court order directed Perez to appear for arraignment on November 29, 2007, and the district attorney’s letter was not a substitute. We have to agree.

A jailer may accept bail from an arrestee and set the time and place for his appearance. (Pen. Code, § 1269b, subd. (a).)

1

If an arrestee “fails to appear at the time and in the court so ordered upon his or her release from custody, Sections 1305 and 1306 apply.” (§ 1269b, subd. (h).) Section 1305, subdivision (a) provides: “A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: [][] (1) Arraignment, [f] . . . [f] (4) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. HI ... HO However, the court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligations under the bond if the case is dismissed or if no complaint is filed within 15 days from the date of arraignment.”