Filed 12/20/19 P. v. Accredited Surety & Casualty Company CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ACCREDITED SURETY & CASUALTY COMPANY,

Defendant and Appellant.

F078117

(Super. Ct. No. 16CR-06663F)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Jeanne Schechter, Judge.

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

James N. Fincher, County Counsel, and Janinda Gunawardene, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

In this bail bond case, a surety contends the trial court erroneously denied its motion to vacate forfeiture and exonerate bail. The surety argues the bail bond was not an enforceable contract because the surety and the government made a mutual mistake about the identity of the criminal defendant who was released from custody. The surety also contends the amount of bail was unconstitutionally calculated based solely on a bail schedule. As a result, the surety contends bail was excessive and its forfeiture would constitute an excessive penalty. Based on these contentions, the surety concludes the forfeiture cannot be enforced and bail must be exonerated.

Generally, the forfeiture of bail and related proceedings are governed by Penal Code sections 1305 through 1308. Nothing in those statutes provides for the exoneration of bail when the wrong name of the criminal defendant is given to the surety that posts the bail bond. In the absence of a controlling bail statute, the principles governing contract formation and mutual mistake apply and determine the enforceability of the bail bond contract.

As explained below, we conclude the trial court did not err in determining the surety failed to establish a mutual mistake of material fact. The surety presented no evidence of one of the elements of mutual mistake. (See Civ. Code, § 1568.) In addition, we conclude the surety has not established a violation of the criminal defendant’s constitutional rights. The criminal defendant relied on the bail schedule to obtain a release before appearing in court and never raised a challenge to the amount of bail in his subsequent court appearances despite having the opportunity to do so.

We therefore affirm the summary judgment granted on the bond.

FACTS & PROCEEDINGS

In October 2016, the Merced County Sheriff’s Department arrested a Hispanic male who was identified in a booking card and criminal complaint as Agustin Nunez-Cervantes (defendant). The booking card described defendant as having a date of birth in January 1992 and being five feet four inches tall and weighing 130 pounds. Defendant and six other men were charged with (1) possessing over a pound of marijuana for sale, (2) unlawfully transporting the marijuana into California, (3) possessing three .223-caliber AR-15 rifles equipped with 30-round magazines and one .308-caliber rifle with a 20-round magazine and (4) carrying a loaded firearm in a vehicle while in a public place.

On October 10, 2016, Accredited Surety & Casualty Company, through its agent, Mark Garcia Bail Bonds (collectively, Surety), posted a bail bond (No. AH-00873589) in the amount of $100,000 for the release of defendant. The bail bond gave defendant’s name as Agustin Cervantes Nunez (instead of Agustin Nunez-Cervantes) and required him to appear in court on November 4, 2016. Defendant was present at that hearing and a public defender was appointed to represent him. The minute order from the hearing stated, “The Court finds the defendant’s name as charged to be correct.” Defendant also was present at three subsequent hearings. At the January 2017 hearing, the court agreed to continue the matter for defendant to contact an immigration attorney.

On March 3, 2017, defendant failed to appear for the scheduled hearing. The trial court ordered the forfeiture of bail and issued a bench warrant. On March 9, 2017, a deputy clerk of court filed a notice of bail bond forfeiture and served the notice by mail on Surety.

After receiving the notice, Surety retained an investigator to locate defendant. The investigator discovered (1) defendant’s true name was Carlos Mauleon; (2) he was the brother-in-law of a man named Agustin Nunez-Cervantes; and (3) the two men had exchanged identification documents when they came into the United States from Mexico. The investigator supported the claim about defendant’s true identity with a copy of a photograph of Carlos Mauleon obtained from a Facebook page.

In September 2017, Surety filed a motion to extend the period for returning defendant to custody and exonerating bail pursuant to section 1305.4. In October 2017, based on the parties’ stipulation, the trial court granted the motion and ordered the appearance period extended to April 9, 2018.

In April 2018, Surety filed a motion to vacate forfeiture and exonerate bail. Surety argued (1) the failure of the jail to properly identify defendant rendered the bail contract void and (2) bail was based on an unconstitutional order. Surety stated it had subpoenaed records relating to the calculation of bail and believed the records would confirm bail was set without complying with the requirements set forth in statutes and the California Constitution. The hearing on the motion was continued a few times and eventually set for August 14, 2018. On August 10, 2018, Surety filed a reply to respondent’s opposition. The reply included subpoenaed documents obtained from the sheriff’s department relating to the arrest and October 7, 2016, booking of defendant. One of the documents was the booking card, which included a photograph of defendant.

At the August 14, 2018, hearing, counsel presented arguments, but no testimony or documents were introduced. The court denied the motion and signed an order to that effect. A copy of the order, which appears to have been prepared by counsel for respondent before the hearing, is not included in the appellate record. Ten days later, summary judgment on the forfeited bond was filed along with a notice of entry of summary judgment. Surety timely appealed.

DISCUSSION

I. MUTUAL MISTAKE AS TO DEFENDANT’S NAME

A. Appellant’s Burden to Establish Prejudicial Error

“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court.…’ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant [has failed to carry its burden] and the decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)

These basic rules of appellate practice apply when a bonding company or bail agent challenge a summary judgment entered on a bail bond or an order denying a motion to vacate forfeiture and exonerate bail. (E.g., People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891, 899–900 (Accredited ‘19); People v. Indiana Lumbermens Mutual Ins. Co. (2011) 194 Cal.App.4th 45, 52.)

B. Standard of Review

Ordinarily, appellate courts review an order denying a motion to vacate the forfeiture of a bail bond under an abuse of discretion standard. (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.) The abuse of discretion standard is not a single, unified standard. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) The deference it calls for varies according to the particular determination by the trial court under review. (Ibid.) When the appellate court is deciding only legal issues, it conducts an independent review. (People v. International Fidelity Ins. Co., supra, at p. 592.) Questions of statutory interpretation are legal issues and, thus, subject to independent review. (Ibid.) Similarly, the application of a statutory provision to undisputed facts is subject to independent review. (Ibid.) In contrast, when there are factual disputes, the trial court’s express and implied findings of fact will be upheld if those findings are supported by substantial evidence. (People v. Accredited Surety Casualty Company (2014) 230 Cal.App.4th 548, 555.)

C. Legal Principles Defining Mutual Mistake

Surety’s claim of mutual mistake challenges the formation of an enforceable contract and, more specifically, asserts the essential element of mutual consent is missing. Accordingly, our overview of the relevant legal principles begins with the rules defining the formation of a contract and then addresses the rules governing mutual mistake.

Under California law, the elements to the formation of an enforceable contract are (1) parties capable of contracting, (2) the consent of those parties, (3) a lawful object, and (4) adequate consideration. (Civ. Code, § 1550.) The consent of the parties must be (1) free, (2) mutual, and (3) communicated by each to the other. (Civ. Code, § 1565.) Generally, “[c]onsent is not mutual, unless the parties all agree upon the same thing in the same sense.” (Civ. Code, § 1580.) “An apparent consent is not real or free when obtained through” mistake, fraud or duress. (Civ. Code, § 1567.) “Consent is deemed to have been obtained through [mistake] only when it would not have been given had such cause not existed.” (Civ. Code, § 1568.)

The Civil Code also contains many of the principles governing mistake in the contractual setting. Generally, mistakes can relate to two types of subject matter. “Mistake may be either of fact or law.” (Civ. Code, § 1576.) This appeal involves a mistake of fact. “Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in: [¶] 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or, [¶] 2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed.” (Civ. Code, § 1577.) Here, the error about defendant’s name can be described as an unconscious ignorance of a present fact—that is, the name given to defendant in the court documents was incorrect. “Generally a mistake of fact occurs when a person understands the facts to be other than they are.” (Reid v. Landon (1958) 166 Cal.App.2d 476, 483.)

CACI No. 331 addresses bilateral (i.e., mutual) mistake as an affirmative defense in a contract action by stating:

“[Name of defendant] claims that there was no contract because both parties were mistaken about [insert description of mistake]. To succeed, [name of defendant] must prove both of the following: [¶] 1. That both parties were mistaken about [insert description of mistake]; and [¶] 2. That [name of defendant] would not have agreed to enter into this contract if [he/she/it] had known about the mistake.

“If you decide that [name of defendant] has proved both of the above, then no contract was created.”

The Directions for Use to CACI No. 331 explain why materiality is not addressed in the instruction:

“This instruction does not contain the requirement that the mistake be material to the contract because the materiality of a representation is a question of law. (Merced County Mutual Fire Insurance Co. v. State of California (1991) 233 Cal.App.3d 765, 772.) Accordingly, the judge

would decide whether an alleged mistake was material, and that mistake would be inserted into this instruction.”

This jury instruction illustrates that the existence of a mutual mistake of fact may present both issues of fact and law. The resolution of the issues of fact pertaining to mutual mistake are subject to review under the substantial evidence test. (E.g., First American Title Ins. & Trust Co. v. Cook (1970) 12 Cal.App.3d 592, [trial court found inclusion of compound interest provision in contract was the result of a mistake of fact by all parties; findings were supported by substantial evidence and the judgment was affirmed].) The application of the substantial evidence test to a trial court’s findings about mutual mistake is consistent with the principle that the determination of mutual consent is a question of fact reviewed on appeal under the substantial evidence standard. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266, 1269.)

The consequences of a mistake during the formation of a contract also is addressed by the Civil Code. “A consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties in the manner prescribed by” the Civil Code’s chapter on rescission. (Civ. Code, § 1566.) “If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake,” that party may rescind the contract. (Civ. Code, § 1689, subd. (b)(1).) “When both parties understand the [material] facts other than they are, the mistake necessarily is mutual and thus becomes a basis for rescission.” (Crocker-Anglo Nat’l Bank v. Kuchman (1964) 224 Cal.App.2d 490, 496; cf. State v. Rodriguez (Minn.App. 2009) 775 N.W.2d 907, 912 [surety’s mistake about defendant’s identity was unilateral, not mutual].)

D. Application of Law to the Facts Presented

1. Issues Presented

The record shows the government and Surety were mistaken about defendant’s name. Consequently, there are two remaining issues relating to whether a mutual mistake of a material fact existed and prevented the formation of an enforceable contract. The first issue is whether Surety demonstrated its consent to the bail bond “would not have been given had [it known defendant’s name was incorrect].” (Civ. Code, § 1568.) This issue can be rephrased as whether Surety proved that it “would not have agreed to enter into this contract if [it] had known [defendant’s name was incorrect].” (CACI No. 331.) The second issue is whether Surety demonstrated the mistake about defendant’s name was material to the formation of the bail bond.

2. Surety’s Evidence

Having reviewed the record on appeal, we have located no evidence addressing whether Surety would have posted the bail bond if it had known about the mistake in defendant’s name. The reporter’s transcript of the August 14, 2018, hearing includes no testimony from witnesses addressing the issue. In addition, the only declaration contained in the clerk’s transcript (as augmented) is the April 3, 2018, declaration of the investigator hired by Surety. That declaration does not address what Surety and its bail agent would have done if they had known defendant’s name was incorrect.

The trial court reached the same conclusion about the absence of evidence on this question of fact. At the August 14, 2018, hearing, the court stated: “Here there was a false identification presented. And I haven’t really seen any evidence on how a proper identification of the defendant would have been crucial to the decision to provide bail.”

3. Application of Civil Code Section 1568

Surety’s appellate briefs have not acknowledged the existence of the requirement set forth in Civil Code section 1568 or the trial court’s statement about the lack of evidence on whether Surety would have posted the bail bond if it had known defendant’s name was incorrect. Consequently, Surety has failed to carry its burden of demonstrating the trial court erred in determining Surety failed to prove this element of mutual mistake. Stated another way, Surety has not shown the trial court was compelled as a matter of law to find Surety would not have given its consent and posted the bail bond had the mistake not existed. (Civ. Code, § 1568.)

4. Surety’s Other Arguments

Surety argues this court should follow the case of State v. Turner (La.App. 2004) 893 So.2d 900 (Turner), in which the Court of Appeal of Louisiana affirmed an order granting a motion to set aside a judgment of bond forfeiture. The court identified the applicable rule of Louisiana law, which holds “a ‘surety should not be penalized for failing to produce the defendant timely when that failure was due to a reasonable reliance on false information provided by representatives of the state.’ ” (Id. at p. 903.) The court next addressed the relevant facts, stating it was undisputed the defendant released on bail had falsely identified himself as his younger brother at the time of his arrest and the sheriff’s office did nothing to verify his identification. The court stated the surety “then relied on this information in issuing its appearance bond. We find that this reliance was reasonable.” (Ibid.) We will not follow Turner because its rationale is not based on the application of the contract principles governing mutual mistake of material fact. Also, California has not adopted the Louisiana rule of reasonable reliance applied in Turner.

Surety also argues: “The State has a duty to properly identify criminal defendants placed into their custody. Contrary to the ruling of the trial court, it is the responsibility of the State, not the bail agent to properly identify criminal defendants.” We reject this argument for two reasons. First, assuming a duty to properly identify criminal defendants exists, the existence of that duty does not necessarily establish the elements of mutual mistake. Specifically, the duty does not establish Surety’s consent to the bail bond “would not have been given had [the mistake about defendant’s name] not existed.” (Civ. Code, § 1568.) Similarly, it does not establish the mistake about defendant’s name was material to the formation of the bail bond.

Second, Surety’s view of the state’s duty is contrary to principles of law previously adopted by this court:

“The state does not owe a surety ‘a duty of disclosure in the absence of active concealment or misrepresentation or a showing that the [s]tate had exclusive knowledge of facts that were not known to or reasonably discoverable by the surety.’ (People v. Accredited Surety & Casualty Co., Inc. (2004) 125 Cal.App.4th 1, 5.)” (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 8.)

Therefore, Surety’s theory that the government breached a duty of proper identification fails to demonstrate the trial court erred when it determined Surety presented no evidence to prove the element of mutual mistake set forth in Civil Code section 1568.

Surety also presents arguments based on the idea that bail is a three-party contract. This approach is contrary to precedent established by the Supreme Court, which treats a bail bond as a contract between the surety and the government. (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709; People v. Bankers Ins. Co., supra, 181 Cal.App.4th at p. 6 [“bail bond is a contract between the government and the surety”].) Therefore, a further discussion of Surety’s arguments about a mutual mistake with respect to the formation of a tripartite contract is unnecessary.

II. BAIL SET ACCORDING TO BAIL SCHEDULE WAS CONSTITUTIONAL

A. Surety’s Claim of Unconstitutionality

Surety contends the amount of bail was unconstitutionally calculated and its forfeiture constitutes an excessive and, therefore, unenforceable penalty. Surety argues the amount of bail was based on the county’s bail schedule, which arbitrarily assigns bail amounts to a list of offenses without regard to individualized factors necessary to assure bail complies with due process.

Surety supports its contention that setting bail in accordance with a bail schedule is unconstitutional by citing In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278 (Humphrey). The Supreme Court has not set a date for oral argument, although briefing has been completed.

B. Overview of Bail Schedules and Humphrey

1. Statutes

Section 1269b addresses a range of bail-related subjects. Subdivision (a) provides that specified jail personnel have the authority to (1) “approve and accept bail in the amount fixed by the warrant of arrest, schedule of bail, or order admitting to bail in cash or surety bond …, [(2)] to issue and sign an order for the release of the arrested person, and [(3)] to set a time and place for the appearance of the arrested person before the appropriate court and give notice thereof.” (§ 1269b, subd. (a).) Our Supreme Court recently summarized this statute as follows:

“As contemplated, section 1269b(a) offers an arrested person held in custody—one who has not yet been arraigned—an expeditious process by which specified jail personnel, an authorized sheriff’s or police department employee, or a court clerk may accept bail (in an amount previously fixed by warrant of arrest or countywide bail schedule); issue an order for the arrested person’s release; and set a time and place for the next appearance, which is often the arraignment hearing. This administrative procedure is in lieu of the individualized, but somewhat cumbersome, written court approval set out under section 1269a, which requires a ‘written order of a competent court or magistrate admitting the defendant to bail’ delivered to the officer having custody of the defendant.” (County of Los Angeles v. Financial Casualty & Surety, Inc. (2018) 5 Cal.5th 309, 315, italics added.)

The method for establishing the amount of bail is set forth in subdivision (b) of section 1269b. “If [an] appearance [before a judge] has not been made, the bail shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail for the county in which the defendant is required to appear, previously fixed and approved as provided in subdivisions (c) and (d).” (§ 1269b, subd. (b).) Subdivision (c) of section 1269b provides, “It is the duty of the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions.” Subdivision (e) of section 1269b, requires that the judges who set the countywide schedule of bail “consider the seriousness of the offense charged.” To summarize, the statute allows persons arrested to post the amount of bail listed in the bail schedule and obtain their release before appearing in court. (Dant v. Superior Court (1998) 61 Cal.App.4th 380, 386.)

Subdivision (b) of section 1269b also provides, “If a defendant has appeared before a judge of the court on the charge contained in the complaint, indictment, or information, the bail shall be in the amount fixed by the judge at the time of the appearance.” (Italics added.) Section 1269c authorizes a reduction of the amount of bail provided in the schedule by providing, in part, that a defendant “may make application to the magistrate for release on bail lower than that provided in the schedule of bail or on his or her own recognizance. The magistrate or commissioner to whom the application is made is authorized to set bail in an amount that he or she deems sufficient to ensure the defendant’s appearance or to ensure the protection of a victim, … and to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate, or he or she may authorize the defendant’s release on his or her own recognizance. If, after the application is made, no order changing the amount of bail is issued within eight hours after booking, the defendant shall be entitled to be released on posting the amount of bail set forth in the applicable bail schedule.”

2. Humphrey

In January 2018, about 10 months after defendant failed to appear and bail was forfeited, the First Appellate District filed is decision in Humphrey. In that case, 63-year-old Kenneth Humphrey was arrested and charged with three felonies and one misdemeanor for following a 79-year-old man into his apartment, threatening him, and stealing $5 and a bottle of cologne. (Humphrey, supra, 19 Cal.App.5th at pp. 1016–1017.) Eight days after the arrest, Humphrey appeared at his arraignment and sought release on his own recognizance without financial conditions based on his advanced age, community ties, unemployment and financial condition, the minimal property loss he was charged with causing, the absence of a criminal record for more than 14 years, and his prior history of never missing a court appearance. (Id. at p. 1017.) The prosecutor requested bail in the amount of $600,000 as prescribed by the bail schedule. (Ibid.) The court mentioned some of the factors raised by Humphrey and stated that, “given the seriousness of this crime, the vulnerability of the victim, as well as the recommendation from pretrial services,” it would not release Humphrey on his own recognizance or any kind of supervised release and would set bail at $600,000. (Id. at pp. 1017–1018.)

About six weeks after his arraignment, Humphrey filed a motion for a formal bail hearing pursuant to section 1270.2 and requested release on his own recognizance or a reduction in bail, claiming the bail set was unreasonable, beyond his means and excessive in violation of the Eighth Amendment. (Humphrey, supra, 19 Cal.App.5th at p. 1018.) Humphrey argued due process entitled him to an individualized determination after he was afforded an opportunity to present evidence relating to factors that might affect the trial court’s determination. (Ibid.) The hearing on Humphrey’s bail motion occurred two days after he filed his motion and five days before the date set for the preliminary hearing. (Id. at p. 1020.) At the hearing, the court reduced the bail amount to $350,000. (Id. at p. 1021.) Humphrey filed a petition for writ of habeas corpus. (Id. at p. 1022.) The First Appellate District issued an order to show cause and ultimately reversed the bail determination and remanded the matter for further proceedings. (Id. at pp. 1022, 1049.)

The First Appellate District explained its decision to reverse the bail determination by (1) noting Humphrey had not made a facial challenge to the use of the bail schedule and (2) stating bail schedules served useful purposes by (a) providing a measure of the relative seriousness of the listed offense, (b) “providing a means for individuals arrested without a warrant to obtain immediate release without waiting to appear before a judge,” and (c) providing “a starting point for the setting of bail by a judge issuing an arrest warrant or for a court setting bail provisionally in order to allow time for assessment of a defendant’s financial resources and less restrictive alternative conditions by the pretrial services agency .…” (Humphrey, supra, 19 Cal.App.5th at pp. 1043–1044.) The court then identified the principles relevant to the facts before it by stating that “unquestioning reliance upon the bail schedule without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process for a decision that may result in pretrial detention. Once the trial court determines public and victim safety do not require pretrial detention and a defendant should be admitted to bail, the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant’s appearance at trial or a court ordered hearing.” (Id. at p. 1044, italics added.) Applying these principles, the court determined the trial court erred in setting bail at $350,000 and concluded Humphrey was “entitled to a new bail hearing at which he is afforded the opportunity to provide evidence and argument, and the court considers his financial resources and other relevant circumstances, as well as alternatives to money bail. If the court determines that petitioner is unable to afford the amount of money bail it finds necessary to ensure petitioner’s future court appearances, it may set bail at that amount only upon a determination by clear and convincing evidence that no less restrictive alternative will satisfy that purpose. The court’s findings and reasons must be stated on the record or otherwise preserved.” (Id. at p. 1048.)

C. Analysis of Surety’s Claim

On the threshold question of standing, we assume for purposes of this appeal that Surety has standing to assert a violation of defendant’s constitutional rights in connection with the setting of bail. This assumption is consistent with the conclusion in Accredited ‘19, supra, 34 Cal.App.5th 891, that the surety, as a party to the bond contract, had standing to raise claims challenging the contract’s validity, including a claim “based on a theory that the constitutional violation rendered the contract itself void.” (Id. at pp. 896–897.)

On the question of whether Surety has established a constitutional violation in this case, we note the present facts are very different from those in Humphrey. Here, defendant was arrested on October 7, 2016, and posted bail on October 10, 2016. Thus, the application of the bail schedule to defendant served the useful function of providing him a means to “obtain immediate release without waiting to appear before a judge.” (Humphrey, supra, 19 Cal.App.5th at p. 1043.) Unlike Humphrey, the trial court in the instant case never addressed the question of the amount of bail. Therefore, the court did not ignore relevant factors and thereby violate defendant’s constitutional rights. As a result, Surety cannot establish the court violated the principles of constitutional law adopted and applied in Humphrey.

Because the trial court did not make a decision that violated defendant’s constitutional rights, the question is narrowed to whether other government officials violated defendant’s constitutional right to due process by using the bail schedule to establish the amount of bail. We conclude use of the bail schedule before a defendant has appeared in court does not constitute a violation of the defendant’s constitutional rights. The essence of due process is notice and the opportunity to be heard “ ‘at a meaningful time and in a meaningful manner.’ ” (Mathews v. Eldridge (1976) 424 U.S. 319, 333.) In the context of bail hearings, Humphrey establishes the opportunity to be heard in a “meaningful manner” requires the trial court to consider the defendant’s financial resources and other factors and to make specific findings when setting bail. Humphrey did not hold that due process demands a consideration of a defendant’s individualized circumstances when a defendant is released prior to appearing in court.

Furthermore, we conclude California’s bail statutes provide defendants with an opportunity to be heard at a meaningful time and in a meaningful manner. Here, defendant chose to post the amount of bail set forth in the bail schedule before his first appearance in court. In addition, after posting bail, defendant chose not to raise any issues related to the amount of bail despite having the opportunity to do so. As a result, we conclude defendant was not deprived of his constitutional right to due process.

Accordingly, we reject Surety’s implied argument that using the bail schedule to set bail and obtain the release of a defendant before he or she appears in court is an automatic or per se violation of a defendant’s constitutional rights. Nothing in the reasoning adopted in Humphrey justifies the conclusion that all defendants who have obtained their release using the expeditious process have had their constitutional rights violated. The amount listed in the bail schedule may be too large, too small or appropriate, depending on the defendant’s circumstances. As a result, even if defendants had a constitutional right to an immediate determination of bail based on their own circumstances, it does not logically follow that all uses of the bail schedule would result in setting bail unconstitutionally high. Therefore, we conclude use of the bail schedule to determine the amount of bail before the defendant appears in court is not per se unconstitutional.

Surety also contends the government should have the burden of proving the amount of bail was not excessive. Surety cites Galen v. County of Los Angeles (9th Cir. 2007) 477 F.3d 652, which defined constitutionally excessive bail as being “greater than necessary to achieve the purposes for which bail is imposed.” (Id. at p. 661.) We reject Surety’s argument about the allocation of the burden of proof. As the party moving to vacate the forfeiture and exonerate bail, Surety is assigned the burden of proof by Evidence Code section 500. (See Evid. Code, § 115 [definition of burden of proof].) Surety has not cited a statute, rule of court, or judicial decision providing otherwise and, therefore, has not demonstrated an exception to this general rule applies. Consequently, we conclude Surety has the burden of proving the amount of bail was excessive. (Evid. Code, § 500.)

In analyzing whether Surety carried its burden of proof, we note Surety presented very little evidence about defendant’s circumstances. The declaration of the investigator retained by Surety stated he discovered that defendant and his brother were in Michoacán, Mexico cultivating marijuana on a farm and “this area is heavily influenced by the Mexican Cartels and my agents were not allowed to cross a certain area.” This information does not address the individualized factors relevant to setting bail and, thus, does not demonstrate the amount of bail required of defendant under the bail schedule was excessive.

In summary, Surety has not established the use of the bail schedule in this case resulted in a violation of defendant’s constitutional rights. Therefore, assuming for purposes of this appeal that such a constitutional violation would be grounds for invalidating the bail bond contract, Surety has not demonstrated the bail bond is void and bail should be exonerated.

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.