Filed 12/23/19 P. v. Financial Casualty & Surety, Inc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FINANCIAL CASUALTY & SURETY, INC.,

Defendant and Appellant.

D074439

(Super. Ct. No. 37-2017-00035946- CU-EN-NC )

APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed.

Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, and Jennifer M. Stone, Deputy County Counsel, for Plaintiff and Respondent.

Financial Casualty & Surety, Inc. (Surety), which posted a bail bond on behalf of criminal defendant Nicholas R. Verboom, appeals following the superior court’s denial of its motion to set aside summary judgment and to exonerate the bail bond following the defendant’s failure to appear. Surety contends that the superior court lacked jurisdiction to forfeit the bond because the court (1) failed to enter an order forfeiting the bond at an earlier hearing at which the defendant was not present; and (2) materially altered the bail contract by adding conditions to the defendant’s continued release on bail without notice to or consent by Surety. We conclude Surety’s claims lack merit and determine the court did not err in denying Surety’s motion. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The defendant was arrested and charged with drunk driving on December 26, 2015, criminal case number CN354008 (the first case). At that time, he had previously been convicted of at least nine felonies, including possessing marijuana for sale, providing marijuana to a minor under 14, recklessly evading arrest, and multiple drunk driving convictions. At arraignment, bail was set at $100,000. Bail Hotline Bail Bonds, as agent for the Surety, posted the bond for his release. The bond contract provided that the Surety:

“[H]ereby undertakes that the above-named defendant will appear in the above-named court on the date above, set forth to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her and as duly authorized amendments thereof, … , and will at all times hold him/herself amenable to the orders and process of the court . . .”

The defendant appeared at subsequent hearings on February 10, 2016, and March 11, 2016, with a preliminary examination set for May 3, 2016. At the time set for the preliminary examination, the defendant requested a continuance, and the trial court conditioned the defendant’s continued release on: abstaining from alcohol, not driving without a license or insurance, and not using nonprescription controlled substances. The continuance was granted with the defendant ordered to appear on June 9, 2016.

While the first case was pending, the defendant was charged in a different criminal case initiated on May 11, 2016, criminal case number CN359301 (the second case). A hearing for the second case took place on May 17, 2016. The defendant was not present. The superior court ordered the bail forfeited as to the second case. With respect to the first case, the trial court observed: “File ending—008, looks like the prelim is set for 6/9. No action. In file ending—that’s it. Verboom.” And the superior court entered a minute order in the first case acknowledging that the defendant remained at liberty on the bond in that case with a future preliminary examination set for June 9, 2016.

The defendant subsequently failed to appear at the preliminary examination in the first case on June 9, 2016, and the bond was ordered forfeited. The superior court mailed the notice of forfeiture that same day.

The superior court granted Surety’s motion to extend the appearance period to July 3, 2017. Following expiration of the appearance period, it entered summary judgment against Surety on the bond on September 20, 2017.

Surety filed a motion to set aside summary judgment, discharge forfeiture and exonerate bond on two theories: that the superior court lost jurisdiction over the bond when it failed to forfeit the bond in the first case at the May 17, 2016 hearing held for the second case, and that the conditions of continued release imposed by the superior court materially altered the bond contract. Surety subsequently filed a transcript of the May 17, 2016 hearing in support of its motion. The People opposed the motion, and Surety filed a reply.

The superior court heard Surety’s motion on June 8, 2018, and denied relief. Surety timely appealed.

DISCUSSION

I

THE SUPERIOR COURT’S FAILURE TO DECLARE A FORFEITURE IN THE FIRST CASE AT THE MAY 17, 2016 HEARING

A. 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 (Safety National).)

Under Penal Code section 1305, subdivision (a)(1), “[w]hen a defendant facing criminal charges is released on bail and fails to appear as ordered or as otherwise required and does not have a sufficient excuse, a trial court must declare the bail bond forfeited.” (Safety National, supra, 62 Cal.4th at p. 707.) Further, when, as here, the amount of the bond or money or property deposited exceeds $400, the clerk of the court also must mail notice of the forfeiture to the surety. (§ 1305, subd. (b)(1).) “When [a] trial court fail[s] to declare bail forfeited in open court, no forfeiture occur[s], the bond [is] exonerated, and the court no longer ha[s] jurisdiction to declare a forfeiture” on a later date. (People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 553; see People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1555 [the trial court “erred in not forfeiting the bail when defendant failed to appear for trial without sufficient excuse. It follows that the court was without jurisdiction to forfeit the bail several days later . . . .”].) Put simply, “[i]f the court fails to declare a forfeiture at the time of the defendant’s unexcused absence, it is without jurisdiction to do so later.” (Safety National, at p. 710.)

As the party seeking to set aside an order forfeiting bail, Surety “has the burden to ‘establish by competent evidence that its case falls within the four corners of these statutory requirements.’ ” (County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1027 (Fairmont).)

“We normally review an order denying a motion to set aside the forfeiture of a bail bond for abuse of discretion. . . . When, however, the issue is one of statutory construction or contract interpretation, and the evidence is undisputed, we review the order de novo.” (People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456, 461 (International Fidelity), citation omitted.)

B. Analysis

Here, Surety asserts the superior court lost jurisdiction over the bond on May 17, 2016, when it did not order the bail forfeited under section 1305, subdivision (a), after the defendant purportedly failed to appear at a hearing in the second case. To this end, Surety asserts, absent the execution of a section 977 waiver (which allows a criminal defendant to waive his presence at some hearings), the defendant’s personal appearance at the May 17, 2016 hearing, as to the first case, was mandatory. However, Surety’s argument overlooks the absence of any court order requiring the defendant to be present at the May 17, 2016 hearing for the first case. Moreover, Surety does not point to any evidence that was before the superior court showing that the defendant had notice, actual or otherwise, of a mandatory appearance in the first case on May 17, 2016.

The minute order of May 17, 2016, does not state what type of hearing occurred that day. None of the pre-printed boxes corresponding to hearings enumerated by section 1305, subdivision (a) or section 977, subdivision (b) are checked. Nor does Surety argue that the May 17, 2016 hearing was among the types specifically enumerated in those sections. The “failure to appear” box and the “Case called for” boxes also are unchecked. The superior court merely checked the box that the future date for “PE 6-9-16” was “CONFIRMED” with the defendant ordered to appear for the preliminary examination on that date. In addition, the transcript of the May 17, 2016 hearing for the second case makes clear that the trial court judge explicitly stated “no action” was being taken on the first case.

For the most part, Surety simply ignores this portion of the record. Moreover, it offers no applicable authority to support its position that a defendant’s apparent failure to appear in one criminal case necessitates a declaration of forfeiture in a wholly separate case for which there is no indication in the record that the defendant was required to appear. Nevertheless, Surety contends the instant action is analogous to Safety National, supra, 62 Cal.4th 703, and under that case, the superior court here lost jurisdiction under the subject bond by failing to declare it forfeited at the May 17 hearing. We do not share Surety’s broad reading of Safety National.

In Safety National, the defendant (Bent), who was released on bail, was present when the trial court set a date for the pretrial hearing. Bent did not appear at the hearing, and the court ordered that bail be forfeited. The surety moved to vacate the bail forfeiture on the ground the trial court lacked jurisdiction to declare a forfeiture, in that Bent had not been ordered to appear at the pretrial hearing. The trial court denied the motion, but the appellate court reversed, holding that section 977, subdivision (b)(1) did not create an obligation to appear at the pretrial hearing for purposes of bail forfeiture proceedings. (Safety National, supra, 62 Cal.4th at pp. 708-709.)

The Supreme Court began its analysis of the issue by observing that “[t]he forfeiture of bail and related proceedings are a matter of statutory procedure governed by sections 1305 through 1308. [Citation.] ‘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.’ [Citation.] ‘While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature.’ [Citation.] In that regard, the bail bond itself is a ‘ “contract between the surety and the government whereby the surety acts as a guarantor of the defendant’s appearance in court under the risk of forfeiture of the bond.” ‘ [Citation.] 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.’ [Citation.]” (Safety National, supra, 62 Cal.4th at p. 709.)

Section 1305, subdivision (a) requires the trial court to declare a bail forfeiture ” ‘if, without sufficient excuse, a defendant fails to appear for any of the following: [¶] (1) Arraignment. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. [¶] (5) To surrender himself or herself in execution of the judgment after appeal.’ ” (Safety National, supra, 62 Cal.4th at p. 710, original italics.) A defendant’s failure to appear at one of these proceedings and the lack of sufficient excuse are “jurisdictional prerequisites[,]” which “must be met before the trial court may declare a forfeiture.” (Ibid.)

“For purposes of section 1305[, subdivision](a), a defendant’s presence may be deemed ‘lawfully required’ when a specific court order commands his or her appearance at a date and time certain [citations], or when a defendant has actual notice of a mandatory appearance—even without a court order—because he or she was present when the date and time of the appearance was set [citation]. [Citation.]” (Safety National, supra, 62 Cal.4th at p. 710.) Appearance at pretrial hearing is not mandatory under section 1305, subdivision (a). The question before the court was whether a defendant’s “appearance at a scheduled pretrial hearing could be ‘lawfully required’ by another provision of law, namely, section 977[, subdivision] (b)(1).” (Safety National, at p. 710.)

Section 977 protects a defendant’s constitutional right to be present at the proceedings against him. (Safety National, supra, 62 Cal.4th at p. 711.) At the time in question, “section 977[, subdivision] (b)(1) provided: ‘In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . .’ [Citation.]” (Id. at pp. 710-711, fn. omitted.)

The surety contended that the requirement that the accused be present ” ‘at all other proceedings’ ” “does not compel a defendant to appear—and consequently, does not mandate a waiver of personal presence—at noncritical proceedings, i.e., where the defendant’s fundamental constitutional rights are not at stake. [Citations.]” (Safety National, supra, 62 Cal.4th at p. 711.) The People claimed, however, that the language of section 977, subdivision (b)(1) “makes no such distinction, but instead makes clear that a felony defendant’s presence is required at every scheduled pretrial hearing unless he or she has executed a written waiver; there is no basis to ‘exempt hearings where jurisdiction over a bail bond is at issue.’ ” (Safety National, at pp. 711-712.)

Our high court “agree[d] with the People that the statutory term ‘at all other proceedings’ does not distinguish between critical and noncritical proceedings. (§ 977[, subd.] (b)(1).) To the contrary, the broadly phrased term suggests the provision’s reach is inclusive, i.e., subsuming those court proceedings not specifically listed in section 977.” (Safety National, supra, 62 Cal.4th at p. 712.) The court examined the legislative history of section 977 and case law analyzing the section. (Safety National, at pp. 712-714.) It then noted that “[n]owhere is the obligatory nature of a defendant’s presence at court proceedings more apparent than in the bail bond context. The very purpose of bail and its forfeiture is to ensure the defendant’s attendance and obedience to the orders and judgment of the court. [Citations.] ‘ “In general the state and surety agree that if the state will release the defendant from custody, the surety will undertake that the defendant will appear personally and at a specified time and place . . . . If the defendant fails to appear at the proper time and place, the surety becomes the absolute debtor of the state for the amount of the bond.’ ” [Citation.] Put another way, ‘every forfeiture involves the conduct of the [defendant] bailee rather than the surety. That is the nature of the agreement between the state and the bondsman. The state relinquishes custody of the bailee to the bondsman in return for the assurance that a certain sum will be paid by the surety because of the conduct of nonappearance by the bailee.’ [Citations.] Thus, when a defendant has posted bail, both the defendant and the surety have assumed the responsibility and obligation to ensure his or her presence at all requisite court proceedings, such as those covered by section 977[, subdivision] (b)(1).” (Safety National, at pp. 714-715, italics omitted.)

The Supreme Court saw no basis for limiting section 977’s application to only critical proceedings. Case law established that “section 977 may require a defendant’s presence at a specific court proceeding, even if the Constitution would allow the proceeding to continue in his or her absence. [Citation.] Section 977[, subdivision] (b)(1), though designed to implement a defendant’s right to be present, also serves an important public interest. The efficient functioning of the criminal justice system is enhanced by compelling a defendant’s appearance at critical portions of his or her case, and by requiring the court-authorized written waiver at other covered proceedings to foreclose any doubt whether to proceed in the defendant’s absence. (§ 977[, subd. (b)].) Similarly, in the bail bond context, a defendant’s required presence serves another purpose beyond guaranteeing the right to be present: ‘[T]he broad definition of bail implies its purpose to be that of a tool to assure the ability of society to protect itself by lawfully conducted criminal prosecution.’ [Citation.] In other words, construed together section 977[, subdivision] (b)(1) and section 1305 ‘are not only compatible with the constitutional guarantee of due process, but also constitute an appropriate legislative design to assure the orderly administration of the judicial process.’ [Citation.]” (Safety National, supra, 62 Cal.4th at pp. 715-716.) The court thus concluded “that for purposes of section 1305, a defendant’s presence at an ‘other proceeding[]’ under section 977[, subdivision] (b)(1) constitutes a ‘lawfully required’ appearance for which his or her unexcused absence may justify the forfeiture of bail.” (Safety National, at p. 716, fn. omitted.)

The court further concluded that a pretrial hearing constitutes one of the ” ‘other proceedings’ ” at which a defendant’s presence is required under section 977, subdivision (b)(1). (Safety National, supra, 62 Cal.4th at p. 716.) Because the defendant did not appear at the pretrial hearing, did not execute a written waiver of his right to be present, and had no sufficient excuse for his absence under section 1305, the court concluded his absence from the pretrial hearing justified a bail forfeiture. (Safety National, at p. 717.)

Safety National does not support Surety’s position in the instant matter. As we explain in detail above, that case addressed a defendant’s failure to appear at a hearing involving his only case. Here, Surety is urging us to apply Safety National to a situation where the defendant did not appear at a hearing on the second case, but the first case was apparently mentioned. There is no indication in the record that the defendant had notice that he was to appear in the first case at the May 17, 2016 hearing. Further, it does not appear that anything occurred at the May 17 hearing relating to the first case except that the court mentioned that case and noted the upcoming preliminary hearing date. And Surety does not argue the May 17, 2016 hearing was one that is enumerated in sections 977 or 1305. Indeed, Surety does not offer any explanation regarding what type of hearing the May 17 hearing was in the context of the first case.

In summary, Surety “has the burden to ‘establish by competent evidence that its case falls within the four corners of [the subject] statutory requirements.’ ” (Fairmont, supra, 164 Cal.App.4th at p. 1027.) Here, it has failed to meet its burden. Accordingly, Surety has not shown that the superior court lost jurisdiction when it did not declare bail forfeited as to the first case at the May 17, 2016 hearing.

II

THE ADDITONAL CONDITIONS ADDED TO BAIL

In the instant matter, under section 1269c, the superior court set bail for the defendant on December 30, 2015 in the amount of $100,000 with no additional conditions. The related bond posted on January 9, 2016 in the amount of $100,000 had no conditions attached to it at the time of the posting. On May 3, 2016, when the defendant appeared for the third time in the first case, the court added the following conditions to the defendant’s release: the defendant (1) had to abstain from alcohol; (2) not use or possess any controlled substance without a valid prescription; and (3) was not to drive without a valid license and insurance.

Surety maintains these added conditions voided the subject bond contract, and thus, the superior court erred in denying its motion to set aside summary judgment, discharge forfeiture, and exonerate bail. In support for its contention, Surety makes a variety of arguments, most without any supporting authority and some that border on nonsensical. We conclude none of Surety’s arguments have merit.

Surety argues that a superior court cannot add more conditions of release after bail is set without good cause. We disagree.

The superior court has discretion to “set bail on the terms and conditions [it] deems appropriate.” (§ 1269c.) Specifically, the superior 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.) Although Surety acknowledges this California authority, it claims that after the amount of bail has been set, no additional conditions may be added absent good cause. In support of his position, he relies on In re Annis (2005) 127 Cal.App.4th 1190 and In re Alberto (2002) 102 Cal.App.4th 421. Yet, neither of these cases dealt with additional conditions. Rather, both cases stand for the proposition that the superior court cannot increase or decrease the amount of bail, once set, unless good cause exists or there is a change in circumstance. (See In re Annis, at pp. 1195-1196; In re Alberto, at p. 430.) As such, these cases are no help to Surety. ” ‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’ ” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680, quoting Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195.) Without any authority to support Surety’s argument that a court can only impose additional bail conditions with good cause, we reject this argument.

In addition, Surety maintains that the additional release conditions violated sections 701 through 714. It claims these statutes bar the use of an appearance bond to secure the defendant’s good behavior. However, these statutes do not relate to the imposition of bail or related conditions of release. Instead, the statutes address special peace bond proceedings against someone threatening to commit a crime. (See §§ 701-714.) Surety does not explain how these statutes apply to the instant matter. Thus, we reject this argument as well.

Surety also claims that the superior court was required to provide notice before imposing any bail conditions and that the failure to provide notice rendered the bail bond contract void. Surety provides no California authority to support its argument that it was entitled to such notice, and nothing in any of the bail statutes (§§ 1268-1320) buttresses its position. Thus, we summarily reject this argument. In addition, California law suggests that a court can add conditions to a defendant’s bail, without a surety’s consent, so long as the conditions do not materially increase the surety’s risks. (See International Fidelity, supra, 11 Cal.App.5th at pp. 463-464.)

Finally, Surety insists that the bail bond was exonerated because the superior court materially altered its terms, without Surety’s consent, when it added the three additional conditions.

In the context of a bail bond, case law establishes that ” ‘[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.’ ” (International Fidelity, supra, 11 Cal.App.5th at p. 461.) “When the recognizance of bail is accepted, an implied covenant on the part of the government exists that it will not ‘take any proceedings with the principal which will increase the risks of the sureties or affect their remedy against him.’ ” (Id. at p. 463.) “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.” (People v. Western Ins. Co. (2013) 213 Cal.App.4th 316, 322 (Western); see People v. Bankers Ins. Co. (2016) 247 Cal.App.4th 1004, 1011 (Bankers) [“We agree . . . that, if 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.”].)

“[T]he surety has the burden of showing that the bail conditions materially increased its risks.” (International Fidelity, supra, 11 Cal.App.5th at p. 461.) The question of whether the government materially increased a surety’s risk beyond what it accepted in the bond is an issue of contract interpretation that we review de novo. (Bankers, supra, 247 Cal.App.4th at p. 1011.)

The undertaking set forth in the bail bond was that Surety would guarantee the defendant’s appearance in court. Accordingly, our inquiry in assessing whether the additional conditions materially increased Surety’s risk is whether the “changed conditions significantly increased defendant’s risk of flight.” (International Fidelity, supra, 11 Cal.App.5th at p. 463; see Safety National, supra, 62 Cal.4th at p. 709 [” ‘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.’ “].) Applying this standard, case law has held that when a court changes the conditions of bail to allow a defendant to travel outside the country, that change materially alters a surety’s risk that the defendant will not appear in court. (Western, supra, 213 Cal.App.4th at p. 325 [“permitting [defendant] to leave the United States materially increased [surety’s] risk under the bail bond agreement”].) In contrast, in International Fidelity, the court concluded that the addition of alcohol-related bail conditions did not “undermine[] the primary object of bail—defendant’s continuing appearance.” (International Fidelity, supra, 11 Cal.App.5th at p. 464.)

International Fidelity is the more comparable authority on the issue of whether the additional conditions materially increased Surety’s risk. Although the additional conditions may have to some extent impacted the defendant while he was released on bail, just as the alcohol-related conditions in International Fidelity impacted the defendant there, nothing about the additional conditions here made it more likely that the defendant would fail to appear for future court hearings. Surety has presented no persuasive authority or argument to the contrary. Indeed, it all but concedes that it has not done so. Accordingly, we conclude that the additional conditions did not serve to exonerate the bond by materially increasing Surety’s risk.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.