PEOPLE v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA et al, Defendants and Appellants.

No. F009563.

Decided: January 31, 1989

James B. Oliver, Visalia, for defendants and appellants. Lita O'Neill Blatner, County Counsel, Robert L. Felts, Principal Atty., Visalia, for plaintiff and respondent.

OPINION

INTRODUCTION

The issue of first impression raised by this appeal is whether a trial court must obtain the consent of a bonding company before reinstating bail under Penal Code section 1305, subdivision (a).1

FACTS

On January 22, 1987, Sally Huerta failed to appear in the Tulare County Superior Court for a court-ordered hearing.   The clerk's minute order indicates that no good cause existed for Huerta's nonappearance.   The minute order states:

“No good cause appearing for the non-appearance of the defendant, Bench Warrant shall issue and bail will be forfeited.   Issuance of the bench warrant is stayed to January 29, 1987 at 8:30 a.m. in Department # 6.   If defendant is not present at that time, bench warrant will issue and bail will not be reinstated.”

On January 29, 1987, Huerta was again absent.   Her attorney submitted a letter from Huerta's physician.   The trial court found good cause for this nonappearance and, at the request of Huerta's attorney, continued the hearing on the bench warrant to February 20, 1987, at 8:30 a.m.   The clerk's minutes then state that “[b]ail forfeiture and bench warrant remain as ordered and stayed to Feb. 20, 1987.”

A notice of forfeiture of bail was duly mailed to American Bankers Insurance Company of Florida (the surety) and to Andy Moreno Bail Bonds (the bail agent) on February 3, 1987, and proof of service by mail was duly executed and filed by the clerk of the court on that date, all pursuant to section 1305, subdivision (a).

On February 20, 1987, Huerta appeared in court with her attorney.   The court ordered bail reinstated, the bench warrant recalled, and the bond forfeiture set aside.   The court specifically found that there was good cause for Huerta's nonappearance at the hearing on January 22.   The court continued the hearing originally scheduled for January 22 to March 10, 1987.

A minute order containing the findings and orders made at the February 20th hearing was immediately prepared and copies were mailed to appellants, providing them with written notice of the court's reinstatement of the bail bond.

Huerta did not appear in court on March 10.   The court found that no good cause existed for her failure to appear and ordered forfeiture of bail and issuance of a bench warrant.

A notice of forfeiture of bail was duly mailed to appellants on March 12, 1987, and proof of service by mail was filed by the clerk of the court on that date.

American and Moreno noticed a motion to vacate the forfeiture of March 10 and exonerate the bond.   The court held a hearing on October 8, 1987, and denied the motion on October 29, 1987.

Appellants appeal and argue that the March 10 forfeiture was illegal since American's consent should have been obtained by the court before the bond was reinstated on February 20.   This is the sole issue presented by appellants.

DISCUSSION

DOES SECTION 1305, SUBDIVISION (a) REQUIRE A TRIAL COURT TO OBTAIN A BONDING COMPANY'S CONSENT BEFORE REINSTATING A BOND?

Appellants appeal on the theory that the surety must consent to a trial court's order reinstating bail before a trial court has the power to reinstate bail.2  They claim that section 1305, subdivision (a) now authorizes a bail bonding company to determine whether it will continue its risk with a particular defendant after the defendant has failed to appear.   According to appellants, the trial court must seek permission from the bonding company to reinstate bail on a defendant after the defendant has failed to appear, even where good cause for the nonappearance is shown.

Appellants claim support for their contention in the second paragraph of section 1305, subdivision (a) from the following sentence:  “The court may order the bail reinstated and the defendant released again on the same bond after notice to the bail, provided that the bail has not surrendered the defendant.”

Appellants contend that a surety is entitled to notice of reinstatement before reinstatement can occur and that a court cannot compel the bail to accept responsibility on the same bond if that is not the bail's choice.

In analyzing this issue, we are governed both by general rules of statutory construction and by special considerations surrounding the law of forfeitures.   The terms used in a statute are to be given their commonly accepted meaning as understood by people of ordinary intelligence.  (People v. Davis (1968) 68 Cal.2d 481, 483, 67 Cal.Rptr. 547, 439 P.2d 651;  Los Angeles v. Silver (1979) 98 Cal.App.3d 745, 751, 159 Cal.Rptr. 762.)   Each of the provisions of a statute is to be construed with the fair import of its terms to effectuate the object of the statute and to promote justice.   A specific provision should be construed with reference to the entire statutory system of which it is a part.  (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 487, 489, 134 Cal.Rptr. 630, 556 P.2d 1081;  Pen.Code, § 4.)

Appellants' proposed construction of the subject sentence in the second paragraph of section 1305, subdivision (a) is taken out of context.3  The second paragraph of section 1305, subdivision (a) applies once a court has declared a forfeiture and the defendant is a fugitive.   In lieu of forfeiting bail, the bonding company has 180 days to find the defendant and surrender him or her to the court.   The purpose of promptly notifying the bonding company of forfeiture is to give it the opportunity to find the defendant within the 180–day time limit set forth in the second paragraph.   (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906, 98 Cal.Rptr. 57, 489 P.2d 1385.)

The plain meaning of the sentence authorizing the court to reinstate bail is to permit a court to reinstate bail upon a defendant's surrender to the court within 180 days if three conditions are met.   First, the court must have given the bonding company notice of the defendant's nonappearance within 30 days pursuant to the first paragraph of section 1305, subdivision (a).   Second, the bonding company itself must not have surrendered the defendant.   Third, the bonding company must be notified of the court's reinstatement of the bail bond within a reasonable period of time.

Reading the operative sentence within the context of the entire statutory scheme, it is clear that the discretion lies completely with the trial court to decide whether to reinstate the bond.   Nothing in section 1305 gives the bonding company power to determine the issue of reinstatement.   Nothing in the operative sentence gives the bonding company the power to determine whether it will reinstate bail.

Furthermore, there is no procedure within the bail bond's statutory scheme that authorizes the bonding company to inform the trial court that it will not permit reinstatement of the bond.   Had the Legislature intended to leave discretion to prevent reinstatement of a bond with the bonding company, it would have said so expressly within the statute and would have created a procedural mechanism to effectuate that policy.   No such language or mechanism exists within the current statutory scheme.

This court is also bound by the special policies surrounding the law of forfeitures.   These are succinctly stated as follows in People v. Souza, supra, 156 Cal.App.3d 834, 841, 203 Cal.Rptr. 80:

“We recognize forfeitures are traditionally disfavored and that Penal Code section 1305 must be strictly construed in favor of the surety to preserve the surety's incentive to apprehend an absconding defendant.  (People v. Surety Insurance Co. (1982) 136 Cal.App.3d 556, 561[, 186 Cal.Rptr. 385]․)  We also are aware of the 1963 amendments to section 1305, which make relief from default mandatory on a showing of the required conditions and which signify the ‘ “․ continuing legislative trend toward broader relief from forfeiture of bail.” ’  (People v. United Bonding Co. (1970) 3 Cal.App.3d 868, 870[, 84 Cal.Rptr. 66] ․;  People v. Rolley (1963) 223 Cal.App.2d 639, 642[, 35 Cal.Rptr. 803]․)  Nevertheless, the creation of new grounds for relief from forfeiture is in the exclusive purview of the Legislature.   For the trial court to accept any bases for relief from a forfeiture other than those specified in the statute is in excess of the court's jurisdiction.  (People v. Stuyvesant Ins. Co. (1963) 216 Cal.App.2d 380, 382[, 31 Cal.Rptr. 208]․)”

Even given the strong policy disfavoring forfeitures, there is nothing in section 1305 that supports the appellants' construction of that section.   To read the operative sentence in the second paragraph as appellants propose would amount to judicial creation of a new ground for relief from forfeiture.   Exercise of such power lies within the exclusive purview of the Legislature.   Such action is in excess of this court's jurisdiction.

The effect of appellants' interpretation would be to deny the trial court discretion to decide an issue that lies exclusively within its province.   Appellants' proposed construction of section 1305 is not supported by the section itself nor by the policy surrounding the forfeiture of bail bonds.

The judgment is affirmed.   Each party should bear its costs on appeal.

FOOTNOTES

1.   All statutory references are to the Penal Code.

2.   A summary judgment against a bonding company is an unappealable consent judgment.   Appellate courts, however, have created an exception.   An order denying a motion to vacate a forfeiture is an appealable ruling.   (People v. Souza (1984) 156 Cal.App.3d 834, 837, fn. 2, 203 Cal.Rptr. 80.)   The bonding company in this action has perfected a valid appeal from the trial court's denial of its motion to vacate forfeiture.

3.   The second paragraph of section 1305, subdivision (a) states in relevant part:“But if at any time within 180 days after such entry in the minutes or, if mailing of notice of forfeiture is required, within 180 days after mailing such notice of forfeiture, the defendant appears, and satisfactorily excuse the defendant's neglect or show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail, the court shall, under terms as may be just and that are equal with respect to all forms of pretrial release, direct the forfeiture of the undertaking or the deposit to be set aside and the bail or the money deposited instead of bail exonerated immediately.   The court may order the bail reinstated and the defendant released again on the same bond after notice to the bail, provided that the bail has not surrendered the defendant.   If at any time within 180 days after such entry in the minutes or mailing as the case may be, the bail should surrender the defendant to the court or to custody, the court shall under terms as may be just direct the forfeiture of the undertaking or the deposit to be set aside and the bail or the money deposited instead of bail exonerated immediately.”

BAXTER, Associate Justice.

HAMLIN, Acting P.J., and STONE (WM. A.), J., concur.