Court of Appeal, Fifth District, California.
THE PEOPLE, Plaintiff and Respondent, v. HENRY HOVANESIAN, Defendant; BANKERS INSURANCE COMPANY, Real Party in Interest and Appellant.
Decided: March 12, 2010
Nunez & Bernstein and E. Alan Nunez for Real Party in Interest and Appellant. Kevin B. Briggs, County Counsel, and Justin B. Atkinson, Deputy County Counsel, for Plaintiff and Respondent. Bankers Insurance Company (Bankers) appeals from an order denying its motion to set aside a forfeiture and exonerate its bail bond. It argues the bail bond was void because it was for less than the amount set as bail and its risk materially increased when an amended complaint was filed with additional charges. We disagree and affirm. FACTUAL AND PROCEDURAL HISTORIES On February 6, 2007, the Fresno County District Attorney filed its original complaint against Henry Hovanesian and four other defendants. Hovanesian was charged in seven counts with: (1) two counts of identity theft against two separate victims occurring on or about December 26, 2006, through January 30, 2007, and January 30, 2007, through January 31, 2007 (Pen.Code, § 530.5, subd. (a) 1 ); (2) one count of grand theft by the fraudulent use of access card or account occurring on or about January 30, 2007 (§ 484g, subd. (a)); and (3) four counts of second degree commercial burglary occurring on or about January 30, 2007 (§§ 459, 460, subd. (b)). The trial court ordered bail set in the amount of $105,000 and issued an arrest warrant. Hovanesian was arrested on February 8, 2007. That same day, Bankers' agent posted a $105,000 bond for the release of Hovanesian from custody. The bond stated that Hovanesian had been ordered to appear in court on February 20, 2007, on charges under “PC 530 5AF” and “PC 459/460B.” Bankers specifically undertook “that [Hovanesian] will appear in the above named court on the date above set forth to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her and all duly authorized amendments thereof․” Hovanesian appeared for arraignment on February 20, 2007, when he was given a copy of the complaint, and a pre-preliminary hearing on March 6, 2007. Minutes of both hearings state that he remained on surety bond. On March 28, 2007, the district attorney filed a first amended complaint, which added the following 14 counts against Hovanesian: (1) six counts of identity theft against six separate victims, three of which occurred on or about December 26, 2006, through December 28, 2006, one on or about December 23, 2006, one on or about January 16, 2007, and another one or about February 6, 2007 (§ 530.5, subd. (a)); (2) six counts of grand theft by the fraudulent use of access card or account occurring on the same dates (§ 484g, subd. (a)); and (3) two counts of possession of an assault weapon (§ 12280, subd. (b)). That same day, Hovanesian appeared at a hearing before the Honorable Wayne Ellison, where he received a copy of the amended complaint. Judge Ellison denied the prosecutor's oral motion to increase bail. Hovanesian remained on surety bond. On July 3, 2007, Hovanesian appeared for the preliminary hearing before the Honorable James Quaschnick. After partial testimony of one witness, Hovanesian waived the preliminary hearing. Judge Quaschnick ordered Hovanesian held to answer on July 18, 2007. Judge Quaschnick signed a written order on a preprinted form, dated July 3, 2007. On the order a box is checked next to a paragraph which states that after Hovanesian appeared in person with counsel and waived a preliminary examination, the court ordered Hovanesian held to answer to the offenses stated in the complaint. In the middle of the preprinted form is a statement that “Defendant is cited to appear in the Superior Court of California, County of Fresno,” with the date,”7-18-07,” time, “1:30 p.m.” and department, “11,” handwritten in the blanks provided. At the bottom of the order is a preprinted statement: “It is further ordered that the defendant be:” with four options listed. The option checked states: “Admitted to bail in the sum of $365,000.00, and is committed to the custody of the Sheriff of the County of Fresno, State of California, until the defendant gives such bail. (PC 875)” The original minute order for the hearing, however, is silent regarding any increase in bail and states that Hovanesian remained on surety bond. Following the preliminary hearing, Hovanesian appeared in court seven times between July 18, 2007, and January 22, 2008. The docket report, of which we have taken judicial notice at the county's request, states the Honorable W. Kent Hamlin presided at each hearing and following each one, Hovanesian remained on surety bond. At the January 22, 2008, hearing, Judge Hamlin denied Hovanesian's motion requesting release on his own recognizance and, pursuant to a plea agreement, Hovanesian pled no contest to six of the counts, with the remaining counts dismissed. Hovanesian failed to appear at the March 25, 2008, sentencing hearing before Judge Hamlin. Accordingly, Judge Hamlin declared the bail bond forfeited and issued a no bail bench warrant for Hovanesian. Notice of the forfeiture of bail in the amount of $105,000 was mailed to Bankers and its agent that same day. On June 19, 2008, an amended minute order was entered which states that (1) a hearing was held that day for “Chambers Work” with Judge Quaschnick presiding, (2) the court ordered bail set in the amount of $365,000, (3) the “[p]resent bail posted is insufficient to secure the appearance of the defendant. Defendant must post an additional amount of bail of $260,000.00[,]” and (4) “Nunc Pro Tunc entry(s) made on this date for 07/03/2007.” No court reporter was noted as being present. The amended minute order was mailed to the parties, as well as to Bankers and its agent, on June 20, 2008. On August 27, 2008, Bankers filed a motion to vacate the forfeiture and exonerate the bond. It argued the trial court lost jurisdiction over the bond when the prosecution filed a complaint alleging acts not part of the original bail contract, without notice to it, which significantly increased the original bail amount. Bankers asserted the court recognized the additional risk when it increased bail from $105,000 to $365,000, without notice or opportunity to be heard by Bankers or its agent. According to the docket report, a stipulation to vacate the forfeiture and exonerate bail was filed on September 9, 2008. On September 12, 2008, after the clerk's office forwarded the case to him for consideration of the stipulation, Judge Hamlin ordered preparation of the July 3, 2007, preliminary hearing transcript. On September 26, 2008, Bankers filed a supplemental memorandum of points and authorities in which it requested the court extend the time on the bond to allow for Hovanesian's return to custody. The hearing on Bankers' motion to exonerate began on October 7, 2008, before Judge Hamlin, who continued the hearing to the following day so it could be heard before Judge Quaschnick. At the conclusion of the October 8 hearing, Judge Quaschnick took the matter under submission. In his written ruling issued on October 29, 2008, Judge Quaschnick pointed out that the June 19, 2008, amended minute order showed he was the judicial officer, no court reporter was noted as being present, and an original minute order of June 19, 2008, did not appear to be in the file. He explained he was “at a loss” as to why he would become involved in this matter, as his only contact with the case was presiding over the July 3, 2007, preliminary hearing. He did not “have an independent recollection of the June 19, 2008 ‘hearing’ nor the reason for it,” nor did he have “an independent recollection of the amended order of June 19, 2008, making the order nunc pro tunc to the date of July 3, 2007, particularly if there had already been a forfeiture of the bond and a ‘no bail bench warrant’ issued on March 25, 2008, by another judicial officer of the same court.” Judge Quaschnick acknowledged the July 3, 2007, order holding Hovanesian to answer to the offenses stated in the complaint and further ordering him admitted to bail in the amount of $365,000 and committed to the sheriff's custody. Judge Quaschnick noted, however, that (1) Hovanesian “was obviously not taken into custody,” and (2) there was nothing in the preliminary hearing transcript ordering an increase in bail and remanding Hovanesian to custody. It appeared to Judge Quaschnick that the July 3, 2007, order was made out of Hovanesian's presence. Judge Quaschnick concluded that both the July 3, 2007, order increasing the bail to $365,000 and remanding Hovanesian to custody, and the June 19, 2008, order, were invalid orders and ordered they be set aside. He explained: “A nunc pro tunc order may not be used to correct a judicial error, its sole province is to make the record speak the truth, not alter that truth-Theriot v. Superior Court (1963) 221 C[al.]A[pp.]2d 174, 179[.][¶] As to the order increasing the bail amount on July 3, 2007, it is well established as a general rule, the superior court judge may not overrule another superior court judge. ‘For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court’ (In re Alberto (2002) 102 C[al.]A[pp.]4th 421, 427).[¶] ‘There is little debate that in a criminal cause the court generally has the authority to correct its own prejudgment errors.’ (In re Alberto (2002) 102 C [al.]A[pp.]4th 421, 426). Therefore the court in determining the order of July 3, 2007, and the order of June 19, 2008, as being [ ] invalid orders, both orders being set aside leaves the order of March 28, 2008, by Judge Hamlin in full force and effect.” In the county's opposition, filed on November 5, 2008, the county explained that based on the orders which apparently raised Hovanesian's bail and remanded him to custody, it was willing to stipulate to exoneration of the bond, but the stipulation was not approved because the two orders were found invalid. Accordingly, the county now opposed Bankers' motion to vacate forfeiture and exonerate the bond. The county, however, did not oppose Bankers' motion to extend time on the bond. At a November 12, 2008, hearing before Judge Hamlin, the motion to exonerate the bond was denied and the motion to extend time granted to March 25, 2009. Bankers' timely appeal from the order denying the motion to vacate forfeiture and exonerate bail followed. DISCUSSION Bankers contends the trial court erred in denying its motion to vacate the forfeiture and exonerate the bond because (1) the trial court lost jurisdiction over the bond when the court ordered the bail increased on July 3, 2007, and (2) even if bail was not increased, the filing of additional charges in the first amended complaint materially increased the risk, thereby exonerating the bond. “When a criminal defendant fails to appear for any occasion where his presence is required, a trial court must declare a bail bond forfeited. (Pen.Code, § 1305, subd. (a).) There are statutory grounds for vacating forfeiture and exonerating a bond. (Pen.Code, § 1305, subds.(c), (d), (f) & (g).) At any time, a surety may surrender a defendant and exonerate a bond under Penal Code section 1300, subdivision (a).” (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 2 (Bankers).) Here, when Hovanesian failed to appear at the sentencing hearing, the trial court was required to declare the bond forfeited under section 1305, subdivision (a). We review an order denying a motion to vacate the forfeiture of a bail bond under an abuse of discretion standard of review. (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195.) We first address Bankers' contention that the $105,000 bond was rendered void and the trial court lost jurisdiction over the bond when Judge Quaschnick ordered bail increased on July 3, 2007. The county concedes that if the trial court actually had increased the bail amount, it “would have been forced to take [Hovanesian] into custody until he posted the higher amount, thus exonerating the $105,000 bond.” The county, however, contends the bond was not exonerated because the trial court never actually increased the bail amount and never took Hovanesian into custody. We need not decide whether the July 3, 2007, order purporting to increase bail or the June 16, 2008, nunc pro tunc order were valid orders because even if they were, the increase in bail alone is insufficient to exonerate the bond. An order authorizing reduced bail or requiring increased bail by a new bond will not of itself discharge a surety from liability under an existing bond; the surety remains liable until the new bond is furnished. (National Automobile Ins. Co. v. Superior Court (1929) 96 Cal.App. 412, 414-415 (National).) In National, the defendant was released on a $2,500 bond following his arrest, but the trial court reduced the bail to $1,500 following the preliminary examination and ordered the defendant committed to the sheriff's custody until such bail was given. The defendant, however, was neither taken into custody nor did he furnish the new bail. When he failed to appear at his arraignment, the trial court declared the $2,500 bond forfeited. (Id. at p. 413.) Noting the well-established rule that a bond is exonerated when a defendant is convicted, surrendered by the surety and actually taken into custody, none of which had occurred, the appellate court rejected the surety's contention that the bond was exonerated when the bail was decreased. (Id. at pp. 413-415.) Citing a New York case, in which that court held the mere increase of the amount of bail from the $1,000 bond originally posted to $1,500 did not exonerate the original bond until a new bond was furnished when the defendant had not been taken into custody, the court in National concluded the $2,500 bond was not exonerated when the bail was decreased. (National, supra, 96 Cal.App. at p. 414.) The court explained the surety failed to perform the condition of the bond that the defendant appear and answer the charge in court and hold himself amenable to the court's orders, and the surety had the right to surrender the defendant when the court issued the order decreasing bail, which did not purport to exonerate the previous bond. The court further explained: “As a result of [the court's order] such exoneration could have been secured through the execution of a new bond in the sum of $1,500. Until such bond be given, however, we think the one first provided was in full force and effect.” (Id. at p. 415.) Applying National here, even assuming the July 3, 2007, order increased the bail amount, the increase did not exonerate the bond, as the increased bond was never given and Hovanesian was never taken into custody. While the order states that Hovanesian is committed to the sheriff's custody until the increased bail is given, actual assumption of custody by the sheriff is necessary for the automatic exoneration of bail. (People v. Scott (1960) 184 Cal.App.2d 792, 794.) Bankers asserts the bond is exonerated because a bond in an amount different from the trial court's order setting bail is void, citing County of Merced v. Shaffer (1919) 40 Cal.App. 163 (Merced). That case involved an action to reform a bail bond and enter judgment on the bond as reformed. Bail for two defendants had been set at $500 each. A single bail bond was posted, but it was defective, as it promised the defendants, not the sureties, would pay the bail if the defendants failed to appear. It also promised to pay $1,000 if either accused failed to appear, contrary to the order that set bail at $500 for each defendant. The court held the bail bond unenforceable: “The bond executed by the defendants herein [the sureties] was ․ not only not binding upon them because they did not agree to pay anything themselves, but it was absolutely void because it was in an amount in excess of the order of the court.” (Id. at p. 168.) Merced does not help Bankers. That the sureties there never promised to pay was sufficient ground to refuse enforcement; we do not find persuasive dicta that the bond was also void. Moreover, in Merced the bond issued was in an amount greater than the amount the court ordered. In contrast here, when the $105,000 bond was issued, it conformed to the trial court's order. Even with the July 3, 2007, order stating that Hovanesian was admitted to bail in the sum of $365,000, the bond remained at an amount below that. Merely increasing the bail would not void the bond that was already in place pursuant to a valid court order. Bankers' reliance on Kiperman v. Klenshetyn (2005) 133 Cal.App.4th 934 (Kiperman) is also misplaced. There, the trial court remanded into custody a defendant previously free on bail when it increased the defendant's bail after the People filed new charges against him. (Kiperman, supra, 133 Cal.App.4th at p. 936.) Following the defendant's return to custody, the trial court ordered the bonding company to refund the premium paid for the bail bond. (Id. at pp. 936, 939.) The appellate court concluded the trial court lacked authority to order a refund because it was the trial court, not the bonding company, which returned the defendant to custody. (Id. at p. 940.) In so concluding, the court explained: “Once bail was raised to a figure greater than the amount posted, the trial court had no choice but to remand the defendant, because a person may not be released on bond for an amount less than the amount of the bail ordered by the court. (See [Merced, supra,] 40 Cal.App. [at] pp. 167-168.) Upon remand of the defendant because of the higher bail, the first bond in the amount of $250,000 was exonerated by operation of law. This is so because the responsibilities of a surety are based upon the surety's custody of the person bailed (People v. McReynolds (1894) 102 Cal. 308, 311-312), and [the surety] could no longer have custody over the defendant who had been remanded.” (Kiperman, supra, 133 Cal.App.4th at p. 939.) Despite the Kiperman court's statement, in dicta, that a person may not be released on bond for an amount less than the amount of the bail ordered by the court, in Kiperman it was the actual assumption of custody of the defendant that exonerated the bond. Here, Hovanesian was never actually taken into custody. Accordingly, there was no exoneration of the bond by operation of law, despite the order increasing bail. As in National, when the bail was increased, Bankers had the right to surrender Hovanesian. Until he was taken into custody or a higher bond posted, the $105,000 bond remained in full force and effect. We next consider Bankers' contention that the bond has exonerated because its risk materially increased when the first amended complaint was filed that included additional charges. We recently rejected a similar argument in Bankers, supra, 181 Cal.App.4th 1. There, the defendant was released on bond before the complaint was filed, with the amount determined based on a countywide bail schedule. When the complaint was filed, it included charges that warranted a higher bail based on the bail schedule. The trial court, however, never ordered the bail increased. When the defendant failed to appear at a hearing, the trial court declared the bond forfeited. The surety later sought discharge of the forfeiture, contending the filing of the complaint exonerated the bond because the complaint unilaterally changed the bond's conditions. (Bankers, supra, 181 Cal.App.4th at pp. 1-2.) Noting that the bond's language expressly stated the surety “undertook to guarantee [the defendant]'s appearance on ‘any charge in any accusatory pleading based upon the acts supporting the complaint’ and ‘all duly authorized amendments thereof,’ ” we concluded the bond encompassed the charges that ultimately were included in the complaint, since “the ‘undertaking provision’ in the instant bail bond appears designed to deal with situations where new accusatory pleadings are filed after the original complaint.” (Bankers, supra, 181 Cal.App.4th at pp. 3-4.) Here, the bond's language is the same as the bond in Bankers, i.e., the undertaking provision states that Hovanesian “will appear in the above named court on the date above set forth to answer any charge in any accusatory plea[d]ing based upon the acts supporting the complaint filed against him/her and all duly authorized amendments thereof[.]” Thus, the bond expressly contemplates the filing of amended complaints. Although the first amended complaint here added charges that were of a different character than those contained in the original complaint, since the amended complaint included weapons charges in addition to identity theft and grand theft charges, Bankers guaranteed Hovanesian's appearance on any charges in the accusatory pleading and authorized amendments. Moreover, we note that Hovanesian continued to make his court appearances after the first amended complaint was filed. By the time he failed to appear for sentencing a year later, he previously had pled no contest to six of the 21 counts in the first amended complaint, with the remaining counts dismissed. Bankers has not shown that at the time the bond was forfeited at sentencing, the risk remained increased from when Bankers executed the bond. Since it is not clear that the risk had increased materially when the bond was forfeited, we cannot say the trial court abused its discretion in refusing to exonerate the bond on that basis. DISPOSITION The order denying Bankers' motion to vacate the forfeiture and exonerate the bond is affirmed.