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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. RANGER INSURANCE COMPANY, Defendant and Appellant.

No. F015962.

Decided: August 11, 1992

E. Alan Nunez, Nunez & Bernstein, Fresno, for defendant and appellant. Lita O'Neill Blatner, County Counsel, Robert L. Felts, Asst. County Counsel, Visalia, for plaintiff and respondent.


Ranger Insurance Company (Ranger) appeals from an order denying its motion to vacate forfeiture of a surety bond and to exonerate the bond.   We reverse.

On December 19, 1989, Ranger, through its agent, B.L. McWilliams Bail Bonds, posted bond of $10,000 to secure the release of Jesus Noberto Zavala.   Zavala subsequently failed to appear in court on July 24, 1990, at the time scheduled for judgment.   Zavala's attorney likewise failed to appear.   The court ordered a bench warrant to issue but stayed the warrant and continued the case until the following day without ordering forfeiture of the bond.

Zavala also failed to appear on July 25, and defense counsel was unable to provide any explanation for his absence.   The court thereupon ordered the bench warrant to issue.   The clerk's minutes indicate the court also declared a forfeiture of Zavala's bond, but no express statement to that effect appears in the transcript of the hearing.

Notice of forfeiture was mailed to both Ranger and McWilliams Bail Bonds the same day.   On January 17, 1991, Ranger filed a motion to vacate the forfeiture and exonerate bond.   The motion was subsequently denied and Ranger appeals.


 If a bailed defendant fails, without sufficient excuse, to appear in court when lawfully required to do so, the trial court is normally required to enter the nonappearance in the minutes and immediately declare a forfeiture of the bond.  (Pen.Code, § 1305, subd. (a);  People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906, 98 Cal.Rptr. 57, 489 P.2d 1385.)   Failure to declare immediate forfeiture deprives the court of jurisdiction to declare a forfeiture at a later date.  (Id. at p. 907, 98 Cal.Rptr. 57, 489 P.2d 1385.)

Penal Code section 1305, subdivision (b) 1 provides a limited exception to this general rule.   It permits the court to continue the case for a reasonable period without ordering forfeiture or issuing a bench warrant if it “has reason to believe that sufficient excuse may exist” for the defendant's failure to appear.2

 However, the law disfavors forfeiture, including forfeiture of bail.   Therefore, section 1305 must be strictly construed in favor of the surety to require prompt declaration of forfeiture when a defendant's nonappearance is unexcused.  (People v. United Bonding Ins. Co., supra, 5 Cal.3d at p. 906, 98 Cal.Rptr. 57, 489 P.2d 1385.)   Furthermore, a defendant's unexplained failure to appear is presumed to be without sufficient excuse, and the burden of overcoming the presumption rests with the defendant.  (Id. at p. 907, 98 Cal.Rptr. 57, 489 P.2d 1385.)

Continuance on July 24, 1990.

In this instance, the trial court continued Zavala's case until July 25 “because this was an interpreter matter.   There may have been some difficulty in the dates.”   No further explanation appears on the record for the court's action.

The primary issue on appeal is whether the trial court, by failing to declare an immediate forfeiture of Zavala's bond when he failed to appear on July 24, lost jurisdiction to declare a forfeiture the following day.   In particular, the question is whether the trial court had “reason to believe” the defendant's nonappearance might be excused without any explanation on the record by either the defendant or his attorney to account for the defendant's absence.

Several previous decisions have considered the scope of the court's discretion under section 1305, subdivision (b).   However, none has involved the precise situation presented here.   In each of these earlier cases where the court found a continuance to be justified, the trial court had before it some extrinsic information concerning the defendant's absence.

In People v. Wilshire Ins. Co. (1975) 53 Cal.App.3d 256, 125 Cal.Rptr. 529, upon which respondent primarily relies, the trial court granted a continuance upon a representation by defense counsel that the defendant was in custody in another jurisdiction.   The appellate court affirmed, holding counsel's statement was sufficient to support a finding the nonappearance was excused.   (Id. at p. 261, 125 Cal.Rptr. 529.)   Likewise, in People v. Surety Ins. Co. (1976) 55 Cal.App.3d 197, 127 Cal.Rptr. 451, a continuance was held to be justified because defense counsel informed the court the defendant was out of town for treatment of a severe medical problem.  (See also People v. National Automobile & Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 142 Cal.Rptr. 98.)

However, the trial court has no authority to grant a continuance unless it has been presented with some information which might excuse the defendant's nonappearance.   In People v. Surety Ins. Co. (1984) 160 Cal.App.3d 963, 206 Cal.Rptr. 836, defense counsel offered no explanation for the defendant's nonappearance, but promised to “endeavor to have him brought in” four days later.  (Id. at p. 965, 206 Cal.Rptr. 836.)   The appellate court held counsel's promise did not support the continuance granted by the trial court.   The court concluded:  “The absence of any statements or actions by defendant or his counsel, from which it could be implied that defendant had justification for his absence, compels the conclusion that the trial court did not have reason to believe that sufficient excuse may have existed for defendant's failure to appear or surrender himself.”  (Id. at p. 969, 206 Cal.Rptr. 836.)

In People v. Surety Ins. Co. (1985) 165 Cal.App.3d 22, 211 Cal.Rptr. 204, neither the defendant nor her attorney appeared for judgment.   Nevertheless, the trial court granted a continuance based on a letter indicating the attorney's father had recently passed away, even though the court noted the letter did not excuse the defendant's absence.   In holding the trial court lacked jurisdiction to subsequently declare a forfeiture, this court declared that a finding of excuse must have some basis in fact.  “The test is not mere possibility of sufficient excuse, but some rational basis for belief of sufficient excuse.”  (Id. at p. 28, 211 Cal.Rptr. 204.)

Finally, in People v. American Bankers Ins. Co. (1989) 215 Cal.App.3d 1363, 264 Cal.Rptr. 152, the defendant (and apparently his attorney) failed to appear for sentencing.   The trial court granted a continuance without any explanation on the record for its decision.   Respondent argued the appellate court must presume from a silent record that the trial court made an appropriate finding of excuse based on sufficient facts.   The court rejected this argument and held instead that such an implied finding must be supported on the record by some evidentiary basis.  (Id. at p. 1370, 264 Cal.Rptr. 152.) 3

 In the present case, as noted, neither the defendant nor his attorney appeared at the scheduled July 24, 1990, hearing, and there was nothing in the record to explain their absence.  Section 1305, subdivision (b), authorizes the court to grant a continuance only when it has reason to believe the defendant's nonappearance may be excused.   This belief must have some reasonable basis in fact, and must be supported by the record.   Although the trial court apparently felt the defendant may have been confused about the date of the hearing, there is nothing in the record to indicate the court's belief was based on anything other than mere speculation.

In this circumstance, a continuance was not justified and a forfeiture should have been declared immediately.   The court's failure to declare a forfeiture on July 24 deprived it of jurisdiction to declare a forfeiture on the following day.   Therefore, the order denying Ranger's motion to vacate forfeiture and exonerate bond must be reversed.


The order denying appellant's motion to vacate forfeiture and exonerate bond is reversed and the trial court is directed to vacate the forfeiture and exonerate the undertaking.   Appellant to have its costs.


1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Section 1305, subdivision (b), provided in its entirety:“If, without sufficient excuse, the defendant neglects to appear for arraignment, trial, judgment, or upon any other occasion when his or her presence is lawfully required, or to surrender himself or herself in execution of the judgment, but the court has reason to believe that sufficient excuse may exist for his or her neglect to appear or surrender himself or herself, the court may continue the case for such period as it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant.”

3.   In County of Los Angeles v. Surety Ins. Co. (1985) 165 Cal.App.3d 948, 212 Cal.Rptr. 69, the court's minutes expressly stated it had reason to believe the defendant's absence from a hearing was excused.   However, the hearing transcript was not included in the record on appeal, so there was no indication of the basis for the trial court's conclusion.   In that circumstance, the appellate court found itself bound to accept the accuracy of the minute order.   In the present case, however, there is an available transcript which shows the court was presented with no facts which would support a continuance.

BEST, Presiding Justice.

DIBIASO and FRANSON,* JJ., concur.

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