P. v. Continental Heritage Ins. Co.
Filed 6/10/13 P. v. Continental Heritage Ins. Co. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
CONTINENTAL HERITAGE INSURANCE COMPANY,
Defendant and
Appellant.
G047091
(Super. Ct.
No. 10HF1185)
O P I N I O
N
Appeal from an order of
the Superior Court
of
County, Craig E. Robison, Judge. Affirmed.
Law Offices of Brendan
Pegg and Brendan Pegg for Defendant and Appellant.
Nicholas S. Chrisos, County
Counsel and Mark Batarse, Deputy
County Counsel, for Plaintiff and Respondent.
* * *
In
July 2010, Alireza Al Sazefari was arrested on felony
Continental Heritage Insurance Company issued him a bail bond for
$150,000. Al Sazefari was personally
present for his arraignment on those charges on Monday, November 15, 2010, but his retained defense
counsel was not present. At that hearing
Al Sazefari was specifically ordered by the trial judge to surrender his
Iranian and American passports to the prosecutor for safekeeping within 48
hours, but because his counsel was absent, the arraignment itself was continued
to December 20, 2010.
Al Sazefari failed to
surrender his passports, so the prosecutor’s office notified the trial judge’s
staff about it. Upon receiving this
message the judge decided he was not going to take “unilateral†action, but
rather scheduled a hearing for the afternoon of Thursday, November 18, 2010, so
that Al Sazefari’s lawyer could have notice and be present. No one, however, appears to have notified Al
Sazefari.
At the Thursday
afternoon hearing, the prosecutor asked the trial judge to revoke Al Sazefari’s
bail in light of his noncompliance with the order to surrender the
passports. The trial judge, however,
declined, “because the defendant was not ordered by the court to be here.†The judge also kept the December 20
arraignment date.
But when Al Sazefari did
not show up at the December 20 arraignment, the court ordered the bail bond
forfeited. More than 16 months later, in
April 2012, Continental Heritage filed a motion
to vacate that forfeiture. The court
denied the motion and this appeal ensued.
Continental Heritage
makes this argument: Under Penal Code
section 977, subdivision (b)(1),
name="_ftnref2" title="">[2]
Al Sazefari was lawfully required to be present in court at the November 18, 2010 hearing. It made no difference that the trial court
did not specifically order him to be present, section 977 required him to show
up anyway. (See People v. Sacramento Bail Bonds (1989) 210 Cal.App.3d 118
[holding no formal court order needed to have been given defendant to require
his presence at a trial status conference since it was required under section
977]; accord, People v. Jimenez (1995)
38 Cal.App.4th 795 [defendant was lawfully required to appear at a
specifically ordered to do so].) And,
since People v. United Bonding Ins.
Co. (1971) 5 Cal.3d 898, 907, holds that whenever a trial court does not
declare a bail bond forfeited at the first opportunity to do so, the trial
court thereafter loses all jurisdiction
to order a forfeiture again, the December 20 forfeiture was itself void.
In
response, the County of Orange,
respondent in this appeal,
name="_ftnref3" title="">[3]
invites us to wade into an intra-appellate court dispute over the applicability
of section 977 to bail bond proceedings.
Briefly, that dispute finds Sacramento
Bail Bonds and Jimenez on one
side, positing that section 977 means a defendant is lawfully required to be
present at any felony hearing
(unless, under the terms of subdivision (b)(1), the presence is otherwise
excused by a written waiver with permission of the court). On the other side is People v. Classified Ins. Corp. (1985) 164 Cal.App.3d 341,
which stands for the need for a “specific court order commanding†a defendant’s
presence at hearing to trigger a bail forfeiture. (See id.
at p. 344 [“Appellant contends that before a court can forfeit bail a
defendant’s appearance must be required by a specific court order commanding
his appearance at a date and time certain.
We agree.â€]; see also People v.
National Auto. & Cas. Ins. Co. (1977) 77 Cal.App.3d Supp. 7, 9 [no
bail forfeiture where misdemeanor defendant failed to appear on date the bail
bond itself indicated he was to appear].)
But
there is no need in this appeal to choose sides in the Sacramento Bail versus
Classified Insurance split over the proper scope of section 977. Even assuming, for sake of argument, that
under section 977 the defendant in this case was lawfully required to have been
physically present at the November
18, 2010 hearing, the trial court did not err in denying
Continental Heritage’s motion to vacate.
The
core bail forfeiture statute is section 1305.
Subdivision (a) of section 1305 lists five categories of proceedings or
events which require bail forfeiture, including the catch-all: “Any other occasion prior to the
pronouncement of judgment if the defendant’s presence in court is lawfully
required.†(§ 1305, subd.
(a)(4).) It is the phrase “lawfully
required†in subdivision (a)(4) of section 1305 that is the ultimate origin of
the disagreement between the Sacramento
Bail and the Classified Insurance
courts over the applicability of section 977 to bail cases.
However,
there is no disagreement anywhere about the trial court’s discretion to decline
to declare a forfeiture of bail. In
1993, the Legislature added section 1305.1 to the Penal Code, which explicitly
adopted “rational basis†language contained in United Bonding. (See
Cal.App.4th 945, 951, fn. 6 (“Ranger
108â€).)
title="">[4] The statutory language provides, as did the
case, that if a trial court has a rational basis to conclude a defendant has a
sufficient excuse for not appearing, forfeiture is not required. (E.g., People
v. Ranger Ins. Co. (2005) 135 Cal.App.4th 820, 824 (“
defendant’s sister’s statement which indicated defendant may have misunderstood
need to stick around for pretrial conference].)
In
the case before us, a rational basis for the trial court to conclude the
defendant had a sufficient excuse not to show up at the November 18 hearing
readily presents itself. The November 18
hearing was ad hoc, set in response to the district attorney’s ex parte request
the trial court to do something about the defendant’s disobedience to a court
order he surrender his two passports.
Defendant himself received no
notice of the hearing. We conclude
that constitutes a rational basis for not forfeiting bail. Declaring bail forfeiture for failure to
appear at a hearing about which the defendant has received no notice probably
violates due process. It
belief there exists a sufficient excuse for the defendant’s nonappearance.
We
therefore conclude there was a rational basis for the trial court’s order, and
its discretion was properly exercised.
The order denying the request to vacate the forfeiture order is
affirmed. Respondent County of Orange
will recover its costs on appeal.
BEDSWORTH,
J.
WE CONCUR:
O’LEARY, P.
J.
IKOLA, J.
name="_ftn1" title=""> [1] The order denying the motion to
vacate was made on June 7, 2012. The
notice of appeal was filed two weeks later on June 21, 2012 and is taken from
the denial order of June 7. Even though
a summary judgment formally providing that the County of Orange could recover
the amount of the forfeited bail was filed in the interim, on June 18, 2012,
the order denying the motion to vacate is appealable in its own right. (People
v. Wilcox (1960) 53 Cal.2d 651, 654-655 [“The forfeiture of bail is an
independent, collateral matter, civil in nature, and the effect of an order on
a motion to set aside such a forfeiture is substantially a final determination
at the trial court level of issues affecting the surety, aside from the
principal matter before the court. . . .
But appeals, after the denial of a motion to set aside a forfeiture,
have been entertained without question of the appealability of such orders.â€].)
name="_ftn2" title=""> [2] All statutory references in this
opinion are to the Penal Code. Section
977, subdivision (b)(1) provides: “In
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, as provided by paragraph (2). If the accused agrees, the initial court
appearance, arraignment, and plea may be by video, as provided by subdivision
(c).†(Italics added.)
In
this case there is no dispute that Al Sazefari had not obtained leave of court
pursuant to section 977, subdivision (b)(1) to execute the waiver of his
“right†to be personally present.
