People v. Accredited Surety & Casualty Co.

Filed 8/30/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A150209 v. ACCREDITED SURETY & CASUALTY (Alameda County COMPANY, Super. Ct. No. 135346) Defendant and Appellant.

When bail is forfeited because an out-of-custody defendant fails to appear, the surety is entitled to an automatic exoneration of bail by operation of law if the defendant appears within 185 days from the mailing of a notice of forfeiture. (Pen. Code, § 1305, subds. (b)(1), (c)(1).)1 Here defendant appeared voluntarily to recall a bench warrant, but—when the case was continued to the afternoon session to secure the bail bondsman’s attendance—he failed to appear that afternoon. The trial court did not treat the defendant’s morning appearance as sufficient to exonerate the bail and entered summary judgment against the surety. The surety appeals from the order denying its motion to set aside summary judgment, to vacate the forfeiture and to exonerate the bail. We agree with the surety that, upon defendant’s appearance, the bail was exonerated by operation of law and reverse. FACTUAL AND PROCEDURAL BACKGROUND Defendant John Adams (defendant) was charged with unlawful driving or taking of an automobile (Veh. Code, § 10851, subd. (a)). When defendant failed to appear for a

1 Unless otherwise stated, all statutory citations herein are to the Penal Code.

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hearing, the trial court issued a bench warrant and set bail at $50,000. Defendant was arrested on the warrant. On December 28, 2015, Accredited Surety (Accredited), through its agent, Chad Conley Bail Bonds, posted bail in the amount of $50,000, and defendant was released from custody. Defendant appeared at two post-release hearings and was ordered to appear on February 18, 2016, for assignment of counsel. When he failed to appear, the court declared the bond forfeited, and issued a bench warrant. On February 22, 2016, the clerk of the trial court mailed notice of bail forfeiture to Accredited which gave Accredited 185 days—up to and including August 25, 2016—to move to vacate the forfeiture and to exonerate the bond. The matter was on calendar, on August 11, 2016, to recall the bench warrant. Defendant appeared at 10 a.m., but the bail bondsman did not. Defendant asked, and the court agreed, to pass the matter to later in the morning. Defendant again appeared, without the bondsman, and the court continued the matter to 2 p.m. When the defendant appeared at the morning session, the court did not vacate the order of forfeiture and did not exonerate the bond. Defendant did not appear in the afternoon, and the court ordered “the bench warrant to remain.” Upon the expiration of the exoneration period, the trial court entered summary judgment on the bond and sent Accredited notice of entry. Accredited moved to set aside summary judgment, arguing that the bail was exonerated by operation of law when defendant appeared on August 11, 2016. (§ 1305, subd. (c)(1).) The court heard and denied the motion, and Accredited appealed. DISCUSSION I. Legal Principles “The forfeiture of bail and related proceedings are a matter of statutory procedure governed by [Penal Code] sections 1305 through 1308.” (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709 (Safety National).) “When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (Pen. Code, § 1305, subd. (a).) The surety that posted the bond then has a statutory ‘appearance’ period in which either to produce the accused in court and have the forfeiture set aside, or to demonstrate other