Police arrested defendant on charges of driving under the influence (DUI) (Veh.
Code, § 23152, subd. (a)), obtaining a subsequent DUI charge within 10 years of previous
DUI conviction (Veh. Code, § 23550.5, subd. (a)), and driving when privilege is
suspended or revoked. (Veh. Code, § 14601.1, subd. (a).) Fidelity, though its bail agent,
posted a bail bond for defendant's release from custody. The following month, defendant
appeared in court for arraignment. The trial court ordered defendant released on bail with
conditions to: (1) not drive during the pendency of the case; (2) attend three Alcoholics
Anonymous (AA) meetings per week; and (3) abstain from alcohol. Defendant later
appeared for his preliminary hearing. At the hearing, the trial court noted that defendant
was facing arraignment on a misdemeanor driving case and heard argument from counsel
about a "SCRAM" monitoring system which monitors alcohol consumption
transdermally and immediately sends a report to the court should defendant consume any
alcohol. Instead of raising bail, as an additional condition of the defendant's continued
1 Undesignated statutory references are to the Penal Code. 2
release on the posted bail amount, the court required that defendant enroll in the SCRAM
monitoring system within 48 hours.
Defendant failed to appear for trial. The trial court ordered a bench warrant and
forfeited the bail bond. The court sent notice of forfeiture to Fidelity. The court later
granted an extension of time for defendant to appear. Ultimately, the trial court granted
summary judgment on the bond and entered a judgment on the defaulted bond against
Fidelity. The court later denied Fidelity's motion to set aside the summary judgment,
ruling that "the Defendant in this matter was lawfully required to appear because the
Court expressly ordered the Defendant to appear," that "[t]he public safety conditions
imposed by the Court did not materially alter the chances of the Defendant's flight risk,"
and therefore Fidelity "failed to meet its burden." Fidelity timely appealed.
DISCUSSION
I. LEGAL PRINCIPLES
A bail bond is a contract between the government and the surety. Under this
contract, the surety acts as guarantor of the criminal defendant's appearance in court and
risks forfeiture of the bond if the defendant fails to appear. (People v. American
Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) "When a defendant who posts
bail fails to appear at a scheduled hearing, the forfeiture of bail implicates not just the
defendant's required presence, but constitutes a 'breach of this contract' between the
surety and the government. [Citation.] Ultimately, if the defendant's nonappearance is
without sufficient excuse, it is the surety who 'must suffer the consequences.' " (People v.
Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709.)
3
Statutes govern the forfeiture and exoneration of bail. (§ 1305 et seq.) When a
defendant who has been released on bail fails to appear in court as required without a
sufficient excuse, the trial court is required to declare bail forfeited. (§ 1305, subd.
(a)(1).) Within 30 days of the forfeiture, the court clerk must serve notice of the
forfeiture on the surety and its bail agent, and, if the bond amount exceeds $400, the
notice of forfeiture must be served by mail. (§ 1305, subd. (b)(1).) The surety has 185
days from the date the notice of forfeiture is mailed (180 days plus five days for service
by mail) to obtain relief from the forfeiture on any of the grounds set forth in section
1305. (§ 1305, subd. (b)(1); People v. United States Fire Ins. Co. (2015) 242
Cal.App.4th 991, 999.) The 185-day period is known as either the "exoneration period"
or the "appearance period." (People v. United States Fire Ins. Co., at p. 1000.) The trial
court may extend the original 185-day appearance period up to 180 additional days, on
motion supported by a showing of good cause. (§ 1305.4.) If the surety fails to obtain
relief from the forfeiture within the appearance period, including extensions, the court
shall enter summary judgment against the surety on the bond, plus costs. (§ 1306, subd.
(a).)
An order denying a motion to set aside the forfeiture of a bail bond is appealable.
(People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1382.) We normally review an
order denying a motion to set aside the forfeiture of a bail bond for abuse of discretion.
(County of Los Angeles v. American Contractors Indemnity Co. (2011) 198 Cal.App.4th
175, 178.) When, however, the issue is one of statutory construction or contract
interpretation, and the evidence is undisputed, we review the order de novo. (Ibid.)
4
II. ANALYSIS
Fidelity argues it did not enter into a bail bond contract that included conditioning
defendant's release upon defendant's attendance at three AA meetings per week and his
adherence to the restrictions of a SCRAM device. Fidelity asserts that the court's act of
placing additional conditions and government control upon defendant's release materially
altered the bail bond contract to increase its risks. Additionally, it asserts that the court's
failure to provide notice of the additional conditions voided the bail bond contract
between it and the court. Accordingly, it claims that the subsequent bail forfeiture and
summary judgment are void and must be set aside.
Section 1305 sets forth the statutory grounds for vacating forfeiture and
exonerating a bond. (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 5.) Section
1305, however, does not set forth the exclusive bases for vacating a forfeiture. (People v.
Bankers Ins. Co. (2016) 247 Cal.App.4th 1004, 1011.) Rather, courts must consider the
bonding language and "whether the government's actions materially increased the risk
that the surety had accepted." (Ibid.) "[I]f the government materially increases the risk to
the surety beyond the express terms of the bond without notice to the surety or the
surety's consent, the government violates its contract with the surety, and the surety is
entitled to vacation of the forfeiture and exoneration of the bond." (Ibid.) The surety has
the burden of showing, with competent evidence, that a forfeiture of its bail should be set
aside. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 725.)
Accordingly, the surety has the burden of showing that the bail conditions materially
increased its risks.
5
In determining the limits of the surety's risk, we look to the provisions of the bond
itself, along with applicable statutes. (People v. North Beach Bonding Co. (1974) 36
Cal.App.3d 663, 668, disapproved on other grounds in People v. Safety National
Casualty Corp., supra, 62 Cal.4th at p. 716, fn. 5.) We apply the de novo standard of
review because the issues turn on the terms of the bail contract and the relevant evidence
is not in dispute. (County of Los Angeles v. American Contractors Indemnity Co., supra,
198 Cal.App.4th at p. 178.) The bond issued by Fidelity provides in relevant part:
"Now, the INTERNATIONAL FIDELITY INSURANCE COMPANY, a New Jersey corporation, hereby undertakes that the above-named defendant will appear in the above-named court on the date set forth to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her and all duly authorized amendments thereof, in whatever court may be prosecuted, and will at all times hold him/herself amenable to the orders and process of the court, and if convicted, will appear for pronouncement of judgment or grant of probation; or if he/she fails to perform either of these conditions, that the INTERNATIONAL FIDELITY INSURANCE COMPANY, a New Jersey corporation, will pay the People of the State of California, the sum of [$100,000]." (Italics added.)
The trial court has discretion to "set bail on the terms and conditions [it] deems
appropriate." (§ 1269c.) Specifically, the trial court has the power to impose reasonable
bail conditions intended to ensure public safety. (Gray v. Superior Court (2005) 125
Cal.App.4th 629, 642.) The question presented is whether the court's act of conditioning
bail on defendant not driving during the pendency of the case, attending three AA
meetings per week, abstaining from alcohol, and adhering to the restrictions of a SCRAM
device materially increased the risk to Fidelity beyond that contemplated by the express
6
language of the bond. As we shall explain, Fidelity has not established that these
conditions materially increased its risk.
As a preliminary matter, we reject Fidelity's argument that the trial court was
required to provide it notice before imposing any bail conditions and that the failure to
provide notice rendered the bail contract void. Fidelity cited no California authority to
support its argument that it was entitled to such notice and nothing in any of the bail
statutes (§§ 1268-1320) required the court or the People provide a surety notice of bail
conditions. Rather, Fidelity relied on inapposite out-of-state authority, namely: State v.
Sedam (2005) 34 Kan.App.2d 624 [122 P.3d 829] (Kansas); United States v. King (7th
Cir. 2003) 349 F.3d 964 (King) and United States v. Gambino (1992) 809 F.Supp. 1048
(Gambino).
In Kansas, the court vacated a judgment against the surety finding that the trial
court's order subjecting defendant to supervision while on bail, including urinalysis and
weekly check-ins, without notice to the surety amounted to a material change to the bond.
(Kansas, supra, 122 P.3d at p. 831.) There, however, the bond expressly provided: "If
the amount of the bond required for the person's appearance or the other conditions are
modified from the above amount or conditions, then this bond is null and void, and a new
bond in the required amount and/or with the modified other conditions must be posted at
the time." (Id. at p. 830.) In contrast, the bond at issue does not contain an express
modification clause; rather, it acknowledged and agreed that defendant would be
amenable to the trial court's orders and contained no requirement that the surety be given
7
notice of those orders. If Fidelity desired notice of the imposition of bail conditions, it
could have negotiated such a provision in the bail contract.
"Accordingly, a surety is discharged from its liability under the bail bond agreement if
the government, without the surety's consent or knowledge, materially increases the
surety's risks." (Western, at p. 322.) Here, even assuming Fidelity was entitled to notice
of the change in bail conditions, Fidelity should not be discharged from its liability as it
has not established the changed conditions significantly increased defendant's risk of
flight.
8
Under the bail bond, Fidelity accepted responsibility for ensuring that defendant
would appear on a number of DUI related charges, including driving with a suspended or
revoked license. The bail bond reflected that defendant was charged with driving under
the influence with a suspended or revoked license; thus, Fidelity necessarily knew
defendant could not legally drive regardless of conditioning bail on defendant not driving
during the pendency of the case. Accordingly, the no driving condition did not materially
increase Fidelity's risk.
Fidelity has not presented any evidence showing how the conditions requiring
defendant to attend three AA meetings per week, abstain from alcohol, or adhere to the
restrictions of a SCRAM device materially increased defendant's flight risk. " 'The object
of bail and its forfeiture is to insure the attendance of the accused and his obedience to
the orders and judgment of the court.' " (People v. Safety National Casualty Corp. (2016)
62 Cal.4th 703, 709.) Here, the conditions imposed by the trial court are unrelated to
future court appearances. (Contra, Reese, supra, 76 U.S. at p. 22 [allowing a defendant to
leave country without notice to the surety materially increased risks on a surety relating
to defendant's future court appearances]; Western, supra, 213 Cal.App.4th at pp. 323-324
[same].) Fidelity has not presented any evidence (or persuasive argument) showing how
these conditions undermined the primary object of bail—defendant's continuing
appearance. Nothing in the record compels a finding that these conditions increased
Fidelity's risk to the extent that the bail contract was void as a matter of law. Thus, the
9
court did not err by denying Fidelity's motion to set aside the summary judgment.2 As
another court noted, Fidelity could have monitored defendant's case and surrendered him
to custody if it believed that the bail conditions increased defendant's risk of flight.
(People v. Bankers Ins. Co., supra, 181 Cal.App.4th at p. 6.)
DISPOSITION
The order denying Fidelity's motion to vacate the forfeiture and exonerate the
bond and the summary judgment on the bond are affirmed. The People shall recover
their costs on appeal. (Cal. Rules of Court, rule 8.278.)
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
2 For the first time in its reply brief, Fidelity argues that the bail conditions were unauthorized by law as they waived defendant's constitutional rights. Waiting until the reply brief to make an argument forfeits the argument. (People v. Bonilla (2007) 41 Cal.4th 313, 349-350.) Accordingly, we deem the argument forfeited and decline to address it. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [" 'points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before' "].) 10
Filed 5/2/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D070060
Plaintiff and Respondent, (Super. Ct. No. 37-2015-00028283- v. CU-EN-CTL)
INTERNATIONAL FIDELITY INSURANCE CO., ORDER CERTIFYING OPINION FOR PUBLICATION Defendant and Appellant.
THE COURT:
The opinion in this case filed April 21, 2017, was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a)
for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), AND
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
HUFFMAN, Acting P. J.
Copies to: All parties
2
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court's imposition of additional bail conditions, such as alcohol monitoring and meeting attendance, did not materially increase the surety's risk of flight or void the bail bond contract. Consequently, the surety was not entitled to have the bond forfeiture set aside.
Issues
Whether the trial court's imposition of additional bail conditions without notice to the surety materially increased the surety's risk and voided the bail bond contract.
Whether the surety met its burden of showing that the specific bail conditions imposed significantly increased the defendant's risk of flight.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Fidelity has not established that these conditions materially increased its risk.”
“Fidelity has not presented any evidence showing how the conditions requiring defendant to attend three AA meetings per week, abstain from alcohol, or adhere to the restrictions of a SCRAM device materially increased defendant's flight risk.”