Filed 3/20/18 P. v. Financial Casualty & Surety, Inc. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

FINANCIAL CASUALTY & SURETY, INC.,

Defendant and Appellant.

F074254

(Super. Ct. No. BCV-16-100872)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.
Law Office John Rorabaugh, John M. Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant.
Mark L. Nations, Interim County Counsel, and Emily Watts Blenner, Deputy County Counsel for Plaintiff and Respondent.
-ooOoo-



In this bail forfeiture action, appellant, Financial Casualty & Surety, Inc. (Financial Casualty), posted a bond for the release of criminal defendant Andre Jackson, Jr. (Jackson). Thereafter, the prosecution amended the information to add an additional felony violation and an enhancement. When Jackson failed to appear, the trial court ordered the bond forfeited. According to Financial Casualty, the amendments materially altered the bail contract and materially increased the risk of nonappearance. Therefore, Financial Casualty contends, the trial court should have exonerated the bond.
The trial court did not err. Accordingly, we affirm the judgment.
BACKGROUND
The district attorney filed a six-count felony information against Jackson. This information alleged violations of Health and Safety Code sections 11351.5 (possession of cocaine base for sale), 11358 (marijuana cultivation), and 11359 (possession of marijuana for sale). The information further charged Jackson with two counts of violating Penal Code section 29800, subdivision (a)(1) (felon in possession of a firearm) and one count of violating Penal Code section 4573.6 (possession of cocaine in jail). The information also alleged a personal gun use enhancement and prior felony convictions.
Financial Casualty’s agent posted a $75,000 bond for Jackson’s release. The bond provided that Financial Casualty “hereby undertakes that the above-named defendant will appear … 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 .…”
Thereafter, the district attorney filed an amended information. This information alleged an additional felony violation of Penal Code section 30305, subdivision (a)(1) (felon in possession of ammunition). Neither Financial Casualty nor its bail agent received notification of the amended information.
Following this amendment, Jackson appeared seven times in court as ordered. However, Jackson failed to appear at the next hearing and the trial court ordered the bond forfeited. Thereafter, the trial court entered summary judgment against Financial Casualty.
Financial Casualty filed a motion to set aside the summary judgment on the ground that the district attorney added additional charges without giving Financial Casualty notice and the right to re-evaluate its risks. The trial court denied the motion.
DISCUSSION
We normally review an order denying a motion to vacate the forfeiture of a bail bond for abuse of discretion. (People v. International Fidelity Ins. Co. (2010) 185 Cal.App.4th 1391, 1395 (International Fidelity).) However, where, as here, the issue is one of statutory construction or contract interpretation and the evidence is not in dispute, we apply the de novo standard of review. (Ibid.)
A bail bond is a contract between the government and the surety with the surety’s liability being limited to the contract’s terms. (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 6 (Bankers).) Financial Casualty argues that the new charge and enhancements in the amended information materially altered the bail bond contract and thus exonerated the bond. According to Financial Casualty, the acts alleged in the original information did not support the additional charge because “ammunition is a wholly separate item from firearms, and the charge requires different operative facts to prove.”
As noted above, Financial Casualty undertook that Jackson would “appear … to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him” and any duly authorized amendments to such accusatory pleading. The trial court granted the district attorney’s motion to amend the information. Accordingly, the amendment was “duly authorized.” Thus, the question is whether the ammunition possession charge was based on the same acts that supported the drug and firearm possession charges. If so, the bond is not exonerated.
“One set of facts may give rise to many different criminal charges or enhancements, some of which might not be fully developed at the time the complaint, an amendment thereto, or even the original information is filed.” (International Fidelity, supra, 185 Cal.App.4th at p. 1397.) As long as those charges or enhancements arise out of the same alleged facts upon which the bond was issued, there is no exoneration. (Id. at pp. 1397-1398.)
For example, in International Fidelity, the original complaint charged the defendant with attempted murder, second degree robbery, and aggravated assault against one victim. Later amendments added second degree robbery charges against two other victims. (International Fidelity, supra, 185 Cal.App.4th at pp. 1393-1394.) Despite the additional victims, the court found the charges in the amended information were based on the acts supporting the original complaint. (Id. at p. 1396.) Similarly, in Bankers, supra, the addition of a false compartment activity charge in violation of Health and Safety Code section 11366.8 did not exonerate a bond given to secure the defendant’s appearance for two drug possession charges. (Bankers, supra, 181 Cal.App.4th at pp. 3 5.)
Here, the bail bond secured Jackson’s appearance on the drug possession and firearm possession charges. The information alleged that Jackson “willfully and unlawfully” possessed the drugs and firearms on July 9, 2013. The amended information added the charge that Jackson “willfully and unlawfully” possessed ammunition on July 9, 2013. Thus, all charges arose out of Jackson having various unlawful items in his possession at one time, i.e., on July 9, 2013. Accordingly, the same facts supported all charges. Financial Casualty has not demonstrated otherwise.
Financial Casualty further argues the amendment to the information voided the bail contract because that amendment materially increased Financial Casualty’s risk. According to Financial Casualty, the additional charge increased Jackson’s criminal exposure and thus increased the flight risk. Whether this amendment materially increased Financial Casualty’s risk beyond what it had accepted in the bond is an issue of contract interpretation that we review de novo. (People v. Bankers Ins. Co. (2016) 247 Cal.App.4th 1004, 1011.)
It is undisputed that, before the amendment, the potential prison term was significant. Respondent asserts Jackson was facing up to 28 years 4 months in prison. Financial Casualty does not challenge this number. The parties also agree that the additional exposure based on the amendment was 16 months. Thus, the amendment increased the possible prison term by approximately 4.7 percent.
Contrary to Financial Casualty’s characterization, this change did not significantly increase the seriousness of the case and cause a corresponding increase in the flight risk. The potential increase in the prison term was proportionally minor. Further, the record belies Financial Casualty’s claim that the amendment materially increased its risk that Jackson would not appear. Jackson appeared in court seven times after the court granted the motion to amend the information on February 5, 2014. Jackson did not fail to appear until July 3, 2014.
In sum, the amendment to the information neither materially altered the bail agreement nor materially increased the risk to Financial Casualty. Therefore, the trial court properly denied Financial Casualty’s motion to set aside the summary judgment and exonerate the bond.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.