County of Los Angeles v. Continental Heritage Ins. Co.

Filed 7/27/07 County of Los Angeles v. Continental Heritage Ins. Co. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court for Los Angeles County, Richard A. Stone and Craig D. Karlan, Judges. Affirmed.

Law Offices G. Marshall Hann and G. Marshall Hann for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Doraine F. Meyer, Principal Deputy County Counsel, for Plaintiff and Respondent.

Continental Insurance Co. appeals from a summary judgment on forfeited bond after the trial court denied its motion to vacate the forfeiture and exonerate the bond. Citing Penal Code section 1305,[1] Continental contends the trial court lost jurisdiction to declare the forfeiture when the criminal defendant-bailee, Elam Yousefi, previously failed to appear at a pretrial hearing. In denying Continentals motion, the trial court found that Yousefi had not been required to appear at that previous hearing, and therefore jurisdiction had not been lost. Substantial evidence supports the trial courts finding. Accordingly, we affirm the judgment.

BACKGROUND

Yousefi and her criminal codefendant, Mohamad Mesdaghi, were arraigned on March 30, 2004, and were ordered to appear on April 29, 2004 for pretrial. Both defendants appeared at the April 29 hearing, during which Mesdaghis attorney informed the court that he was in the process of completing a psychological evaluation of his client, and asked that the case be put over to May 25, 2004 for a further pretrial. The prosecutor noted that Yousefi had posted bail. She argued that Yousefi was a flight risk, and asked that certain conditions be placed on her release. The court ordered her to surrender her passport, and ordered both Yousefi and Mesdaghi to return to court on May 25 for pretrial, with a trial date of June 16, 2004.

Both Yousefi and Mesdaghi appeared at the May 25 hearing.[2] The hearing began with a discussion of the trial date, with counsel for the defendants and the prosecutor requesting that the trial date be moved to July 26. Mesdaghis counsel informed the court that he had a doubt about his clients competency and asked for a section 1368 proceeding. Stating on the record that doubt has been declared under section 1368, the trial court set a date for further proceedings related to that issue -- June 23, 2004 -- and then turned to address Yousefi regarding the new trial date. After a discussion off the record, the court obtained Yousefis acquiescence to the July 26 trial date. The trial court then addressed all counsel to set a hearing date before trial, the purpose of which the court explained was [j]ust to know that everybodys going to be ready. In setting the date, the court said, July 15th, 2004, for last pretrial. Youre ordered to return on that date. July 15th, 2004, 8:30. Thank you.

The record on appeal does not include a reporters transcript or any minute order from the June 23, 2004 hearing on the section 1368 issue relating to Mesdaghi, so we are unable to determine what happened at that hearing. However, at the start of the next hearing, on July 15, Mesdahgis attorney stated that Yousefis attorney left because he just -- hes not scheduled to appear today. His client -- The court interrupted, asking, Its just Mr. Mesdaghi? Mesdaghis attorney confirmed that was correct, and the prosecutor did not respond. The court then asked counsel what he wanted to do regarding the section 1368 proceedings. After a discussion off the record, the court announced that both sides agreed to submit the section 1368 issue to the court for its determination on the trial date, July 26, 2004.

Yousefi appeared on July 26, 2004. The court began the session by addressing the section 1368 issue regarding Mesdaghi. The court stated, Now, proceedings have been adjourned on this particular matter pursuant to 1368 for the court to receive two reports from therapists, both sides having previously waived their right to a trial, the right to confront and cross-examine the witnesses with regard to 1368 hearings. After questioning Mesdaghi, the trial court found him competent to stand trial. The court then accepted Mesdaghis no contest plea and took a time waiver from Yousefi, set a new trial date, and ordered her to appear on August 30, 2004.

Yousefi did not appear on August 30, 2004. Her attorney informed the trial court that Yousefis family told him that Yousefi had not come home the previous night. The court declared the bond forfeited.[3]

In March 2006, Continental moved to vacate forfeiture, reinstate and exonerate bail on the ground that the trial court lost jurisdiction to declare forfeiture when it failed to do so when Yousefi did not appear at the July 15, 2004 hearing. The motion was heard before a different judge than the judge who had presided over the earlier proceedings.[4] After reviewing the transcripts of the May 25, 2004, July 15, 2004, and August 30, 2004 hearings, the court found that Yousefi was not required to appear on July 15, 2004, that she did appear on July 26, 2004, and that the court therefore had jurisdiction to declare forfeiture on August 30, 2004 when Yousefi failed to appear as ordered. The court entered summary judgment on the forfeited bond, from which Continental appeals.

DISCUSSION

The law is clear that a trial court must immediately declare bail forfeited if, without sufficient excuse, a defendant fails to appear for any court proceeding prior to the pronouncement of judgment if the defendants presence in court is lawfully required. ( 1305, subd. (a)(4), italics added; see also People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 904-906; County of Los Angeles v. Ranger Ins. Co. (1996) 48 Cal.App.4th 992, 995.) If the court fails to declare bail forfeited upon the defendants nonappearance without sufficient excuse, it loses jurisdiction to do so at a later time. (People v. United Bonding Ins. Co., supra, 5 Cal.3d at p. 907; County of Los Angeles v. Ranger Ins. Co., supra, 48 Cal.App.4th at p. 995.)

The question presented in this case is whether Yousefi was required to appear at the July 15, 2004 proceeding. The trial court found that she was not. Substantial evidence supports the trial courts finding.

As the trial court noted, the transcript of the May 25 hearing is somewhat ambiguous regarding who was ordered to appear on July 15. The record on appeal does not include the minute order from the May 25 hearing (in fact, it does not include any minute orders from any of the proceedings at issue), which might have helped to resolve the ambiguity. But it is clear from the transcript of the July 15 proceeding that all parties believed that Yousefi was not required to appear: Mesdaghis attorney stated that Yousefis attorney had left because he was not scheduled to appear, the prosecutor did not contradict that assertion, and the only issue discussed at the hearing related to the section 1368 proceedings for Mesdaghi.

Indeed, Continental conceded at the hearing on the motion to vacate forfeiture that Yousefi was excused from appearing on July 15. But Continental argued to the trial court, and argues here, that the court did not have jurisdiction to excuse Yousefis appearance because Yousefi did not execute a waiver as required by section 977, subdivision (b)(1). Continentals reliance on section 977 is misplaced. Section 977 is designed to implement a criminal defendants due process right to be present at trial and other proceedings. (People v. Classified Ins. Corp. (1985) 164 Cal.App.3d 341, 345; People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 669.) But as the Supreme Court has explained, a criminal defendant does not have a right to be present at every hearing held in the course of a trial. [Citation.] A defendants presence is required if it bears a reasonable and substantial relation to his full opportunity to defend against the charges. [Citation.] (People v. Hines (1997) 15 Cal.4th 997, 1039.) In this case, the July 15 hearing had no relation to Yousefis case at all. The entire hearing concerned section 1368 issues related to her codefendant. Hence, Yousefis right to be present, as protected by section 977, was not implicated with regard to that hearing.

Additional support for the trial courts determination that Yousefi was not required to appear at the July 15 hearing comes from the courts comment at the start of the July 26 hearing that proceedings have been adjourned on this particular matter pursuant to 1368. From this comment, we deduce that the court had ordered a hearing into Mesdaghis mental competence and complied with the command of section 1368, subdivision (c), that all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined. In light of the suspension of all proceedings in the criminal prosecution until the court determined Mesdaghis competence on July 26, the July 15 hearing could not have been a proceeding in the criminal prosecution that required Yousefis presence.

Because there was substantial evidence to support the trial courts finding that Yousefi was not required to appear at the July 15 hearing, the court did not lose jurisdiction to declare bail forfeited when Yousefi failed to appear as ordered on August 30. In affirming the summary judgment on the forfeited bond, we are not unmindful that the law disfavors forfeitures and requires strict construction of statutes imposing forfeitures. But we note the purpose of the statute requiring an immediate declaration of forfeiture when a defendant fails to appear without sufficient excuse: to advise the surety of the defendants nonappearance as early as possible in order that [the surety] may institute procedures to locate and compel the appearance of the bailee. (People v. United Bonding Ins. Co., supra, 5 Cal.3d at p. 906.) As the Supreme Court explained, Should the surety not have an early opportunity to institute these endeavors the possibility of discharging the forfeiture will be severely prejudiced. (Ibid.) In this case, Continental suffered no prejudice from not having an early opportunity to institute procedures to locate Yousefi and compel her appearance as a result of her nonappearance on July 15, because she appeared as ordered on July

DISPOSITION

The judgment is affirmed. County of Los Angeles shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1] Further statutory references are to the Penal Code unless otherwise indicated.

[2] The reporters transcript on appeal does not include the transcript for the May 25, 2004 hearing due to a clerical error by Continental in its designation of the record. There is, however, a transcript of that hearing in the clerks transcript, because it was attached to Continentals motion to vacate forfeiture.

[3] It appears that Yousefi, who had dual United States and French citizenship, fled to France in August or September 2004, and may have returned to Los Angeles in November 2005.

[4] Judge Richard A. Stone, sitting in Division 002 in Beverly Hills, presided over the proceedings in 2004. Judge Craig D. Karlan, sitting in the same Division, heard Continentals motion in 2006.