County of Santa Barbara v. American Surety CA2/6

Filed 11/14/13 County of Santa Barbara v. American Surety CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

COUNTY OF SANTA BARBARA, 2d Civil No. B238601 (Super. Ct. No. 1363847) Plaintiff and Respondent, (Santa Barbara County)

v.

AMERICAN SURETY COMPANY,

Defendant and Appellant.

American Surety Company (American) appeals from an order denying its motion to vacate a $1 million bail forfeiture and exonerate two $500,000 bail bonds that were posted on behalf of Randall Rudy Quaid and Evegenia Helena Quaid (Randy and Evi, respectively) after they fled to Canada. (Pen. Code, § 1305.)1 American claims that the bail bonds are void ab initio because the Quaids were not released from "custody" in exchange for the posted bond amount. We reverse and remand with directions to enter a new order to vacate Randy's bail forfeiture and exonerate his $500,000 bail bond. Bail was forfeited nunc pro tunc in violation of section 1305, subdivision (a). The order denying

1 All statutory references are to the Penal Code unless otherwise stated.

American's motion to vacate Evi's bail forfeiture and exonerate her $500,000 bail bond is affirmed. FACTS On September 18, 2010, the Quaids were arrested for felony vandalism (§ 594, subd. (b)(1)) after they allegedly entered a private residence and destroyed property in excess of $5,000 in value. American's agent, Biker Bail Bonds, posted $50,000 bail each for the Quaids' release on September 19, 2010. Failure to Appear: Bench Warrant When the Quaids failed to appear at the October 18, 2010 arraignment, the trial court issued $50,000 bench warrants. (§ 979.) Quaids' attorney, Robert Sanger, requested a continuance. Granting that request, the trial court continued the arraignment to October 26, 2010. Although the minute order states that the September 19, 2010 bail was "forfeited," the court did not declare the forfeiture in open court (§1305, subd. (a)).2 Several days later, it was learned that the Quaids were in Canada and detained by Canadian immigration officials. On October 22, 2010, based on their nonappearance and flight risk, the trial court granted the prosecution's motion to increase their bail to $500,000 each. $500,000 Bail Bonds On October 26, 2010, attorney Sanger appeared and stated that he had spoken to the Quaids. At counsel's request, the trial court continued the arraignment to November 2, 2010, and ordered the $50,000 bench warrants to remain outstanding. After the hearing, American's agent, Santa Barbara Bail Bonds, posted a $500,000 bail bond on each bench warrant. On November 2, 2010, the Quaids failed to appear. The trial court ordered Evi's $500,000 bail forfeited. It recalled Randy's bench warrant and 2 On June 20, 2011, the trial court granted American's motion to vacate the forfeiture and exonerate the $50,000 bail bonds because the forfeiture was not declared in open court as required by section 1305, subdivision (a)(1).