People v. American Surety Co. CA1/5

Filed 7/21/14 P. v. American Surety Co. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A138831 v. AMERICAN SURETY COMPANY, (Solano County Super. Ct. No. FCS041768) Defendant and Appellant.

American Surety Company appeals from an order denying its motion to vacate the court’s forfeiture of bail. It contends the court lost jurisdiction over the bail bond because it failed to order the forfeiture clearly in open court. We will affirm the order.

I. FACTS AND PROCEDURAL HISTORY On October 27, 2010, American Surety Company (American), through Toler Bail Bonds (Toler), posted a $50,000 bail bond for the release of a defendant from custody in an underlying criminal matter. On April 18, 2012, the defendant failed to appear in court for judgment and sentencing. The court stated that the bailiff had received information that the defendant “is in the hospital somewhere, or going to the hospital,” but the court added, “somehow I am just not surprised that she is not here today for sentencing.” The defendant’s attorney explained that the bailiff told him that “a tall elderly woman with a cane” said

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the defendant was in the hospital. Neither defense counsel nor the court had any further information. The court therefore ordered the forfeiture of her bail bond and the issuance of a bench warrant. The court stated: “[W]hat I’m going to do is this: I’m going to order that her bond be forfeited and I’m going to order a warrant for her. I will order a new warrant on a no bail status pending judgment and sentence.” The following discussion then ensued between the judge, the court clerk, and counsel: “THE COURT: . . . If you wish, Mr. Semansky [defense counsel], I will set this out a few days to give you a chance to get her in here. [¶] [DEFENSE COUNSEL]: I will try, your Honor. Thank you. [¶] THE CLERK: So you are staying the warrant? [¶] THE COURT: Yes, I will stay the warrant. [¶] [DEFENSE COUNSEL]: Today is the 18th. Could we do Wednesday afternoon, or Thursday, or the 27th? The 24th I could do it in the morning. [¶] THE COURT: We’ll put it over to the 24th. [¶] [PROSECUTOR]: Your Honor, I am in a seminar from the 24th to the 27th. [¶] THE COURT: Well, can you have someone else appear? This is an indicated sentence. [¶] [PROSECUTOR]: That’s fine. [¶] THE CLERK: April 24th, 8:30.” The court then changed its mind about staying the issuance of the warrant. “THE COURT: What I’m going to do, I am not going to stay the warrant. It takes a while to process, and I am sure she won’t be picked up on it before then. If she is, she is. [¶] [DEFENSE COUNSEL]: I’m sorry, your Honor, I was talking to the interpreter. Would you repeat your last sentence? [¶] THE COURT: I said I am not going to stay a warrant at this time. We don’t really have any idea what is going on here with [the defendant]. However, it does take a number of days to process, and so I will permit her to come in on her own accord on the 24th. If she is not here at that time, then a no bail warrant—she’ll will [sic] be picked up on that. [¶] [DEFENSE COUNSEL]: I appreciate that. Thank you, Judge.” (Italics added.) The resulting minute order confirmed that bail was forfeited and a bench warrant was ordered.