Filed 6/1/20 County of Santa Barbara v. Financial Casualty etc. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

FINANCIAL CASUALTY & SURETY, INC.,

Defendant and Appellant.

2d Civil No. B295279

(Super. Ct. No. 18CV03809)

(Santa Barbara County)

Financial Casualty & Surety, Inc. (Surety) appeals an order denying its motion to set aside a summary judgment, discharge forfeiture, and exonerate the bail bond. Surety contends (1) the trial court did not have jurisdiction to forfeit bail because the defendant appeared in court through counsel; and (2) the $40,000 bond was void. We affirm.

FACTS AND PROCEDURAL HISTORY

In August 2017, Surety filed a bail bond (FCS10-1776544) for $10,000 for the release of Peter John Sun (defendant) following his arrest for misdemeanor violations of Health and Safety Code sections 11377, subdivision (a) and 11364, subdivision (a); Vehicle Code section 14601.1, subdivision (a); and Business and Professions Code section 4060. The trial court ordered defendant to appear in court for arraignment in September 2017. He did not appear. The court ordered the $10,000 bond forfeited and issued a bench warrant for his arrest with bail set at $20,000 (Pen. Code, § 979).

Surety filed another bail bond (FSC50-1779655) for $20,000. Defendant was ordered to appear in court for arraignment in October 2017. He did not appear, and the court ordered the bond forfeited. The court issued a bench warrant with bail set at $40,000 (§ 979).

Surety filed a third bail bond (FSC50-1787667) for $40,000. Defendant was ordered to appear in court in November 2017. He appeared at the hearing and the bench warrant was recalled. The trial court continued the hearing and ordered defendant to appear in December 2017. He did not appear at that hearing. The court ordered the bail bond forfeited.

The trial court issued a notice of forfeiture on the $40,000 bond. Surety did not file a request for relief within the 180-day time period allowed pursuant to section 1305. The court entered summary judgment on the bail bond forfeiture.

A month later, Surety filed a motion to set aside summary judgment, discharge forfeiture, and exonerate bail. It argued that the bail bond was void because it was set in excess of the amount in the bail schedule. The trial court denied the motion.

DISCUSSION

“When a defendant released on bail fails to appear as required, the trial court must declare a forfeiture of the bail bond in open court.” (People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 999; see § 1305, subd. (a).) After notice is served, “the surety has a 180-day period, plus five days for service by mail (i.e., 185 days), within which to obtain relief from the forfeiture on certain statutory grounds.” (United States Fire Ins. Co., at p. 999; see § 1305, subds. (b)-(e).) When the time to obtain relief “has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture shall enter a summary judgment” against the surety in the amount of the bail bond plus costs. (§ 1306, subd. (a).)

An order denying a motion to vacate summary judgment on a bail bond forfeiture is an appealable order. (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.) We review the order on a motion to vacate a bond forfeiture for abuse of discretion. (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 5.) But where the material facts are undisputed and the issue implicates constitutional rights, we review the order de novo. (In re Taylor (2015) 60 Cal.4th 1019, 1035.)

Appearance through Counsel

Surety contends the trial court did not have jurisdiction to forfeit bail because defendant appeared in court through his counsel (§ 977, subd. (a)(1)). County of Santa Barbara argues that Surety forfeited its claim on appeal because it did not raise the issue below. We agree the claim is forfeited. Surety did not object to the bail bond forfeiture on the ground that defendant “appear[ed] by counsel” pursuant to section 977, subdivision (a)(1). (See People v. Stowell (2003) 31 Cal.4th 1107, 1114.)

In any event, we reject Surety’s contention on the merits. Section 977, subdivision (a)(1) provides that in “cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only.” However, “if the defendant has not authorized his counsel to proceed in his absence and fails to personally appear at trial, the court, in its discretion, may . . . order bail forfeited.” (People v. American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, 746.) Here, the record does not reflect counsel’s “representation that he or she [was] authorized to proceed in the defendant’s absence.” (Id. at p. 748.) “Unless the [record] reflects some facts supporting defense counsel’s authority to represent his or her client, such as representations by counsel to that effect, the appeal is subject to the conclusive presumption that the trial court received substantial evidence to support its action.” (Ibid.)

Void Bond

Surety contends the $40,000 bail bond order is void because the bail amount is excessive and was set without a hearing on his ability to pay. These contentions lack merit.

First, Surety does not demonstrate the bail amount is excessive. In setting bail, the trial court considers factors such as the protection of the public, the seriousness of the offense, the prior criminal record, and the probability of the defendant appearing at trial. (§ 1275, subd. (a)(1).)

Here, the trial court originally set bail at $10,000. The bail increased to $20,000 when defendant failed to appear, and then increased to $40,000 when defendant failed to appear a second time. In light of defendant’s repeated failures to appear in court, the court reasonably increased the bail amount. Surety does not demonstrate the amount is excessive.

Surety argues the trial court unconstitutionally set bail because it did not consider defendant’s ability to pay. (In re Humphrey (2018) 19 Cal.App.5th 1006, 1044, review granted May 23, 2018, S247278.) But, even if the trial court erred in setting the amount of bail, the bond is not void. (People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891, 899 (Accredited Surety).)

Procedural defects in setting bail “‘are considered as waived by the surety when it assumes its obligation as such at the time of the execution of the bond.’ [Citations.]” (Accredited Surety, supra, 34 Cal.App.5th at p. 898.) “[N]oncompliance with the procedural requirements for setting bail ‘have no legal effect on the forfeiture of bail upon [the] defendant’s failure to appear for sentencing.’ [Citation.]” (Ibid.) This is because the procedural requirements set forth in the statutes governing bail setting are “not intended to protect the surety on the bail bond. . . . Failure to comply with the procedural requirements of setting bail is not among the statutory grounds for exoneration of the bail bond.” (Id. at pp. 898-899.)

Here, Surety waived any claim of procedural defects in setting bail when it assumed the $40,000 bail bond obligation. Thus, any failure of the trial court to comply with procedural requirements “intended to safeguard the defendant’s constitutional rights, [do] not render the subsequently issued bond void.” (Accredited Surety, supra, 34 Cal.App.5th at p. 899.)

Surety argues for the first time in the reply brief that the bail contract is unenforceable because it is unconscionable. Because the argument is untimely, we disregard it. (WorldMark, The Club v. Wyndham Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1030, fn. 7.)

DISPOSITION

The judgment is affirmed. County of Santa Barbara shall recover its costs on appeal.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

Pauline Maxwell, Judge

Superior Court County of Santa Barbara

______________________________

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

Michael C. Ghizzoni, County Counsel, Maria Salido Novatt, Deputy County Counsel, for Plaintiff and Respondent.