PEOPLE v. BEA HERNANDEZ BAIL BONDS

Reset A A Font size: Print

Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. BEA HERNANDEZ BAIL BONDS and Insurance Company of the West, Defendants and Appellants.

Civ. 58522.

Decided: July 23, 1981

Porras & Wong and Ernest Porras, Los Angeles, for defendants and appellants. John K. Van de Kamp, Dist. Atty., Harry B. Sondheim, Head, Appellate Division, and Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and respondent.

INTRODUCTION

This is an appeal from a denial of a motion brought by Bea Hernandez Bail Bonds and Insurance Company of the West (hereinafter collectively referred to as the Surety) pursuant to Penal Code section 1305, subdivision (a) (hereinafter section 1305(a)), to toll the 180-day statutory period allegedly due to the temporary disability of defendant Larry N. Apodaca (hereinafter defendant and/or Apodaca) by reason of his detention by military authorities.1

BACKGROUND

On January 16, 1979, an information was filed charging defendant Apodaca with burglary of the residence of Elidia Lopez on or about December 21, 1978, in violation of Penal Code section 459, a felony and the same date the defendant was arraigned and Deputy Public Defender L. Read was appointed to represent him.   The record indicates that the bail set at $2,000 had been posted by the Surety and that “Defendant was ordered to return” on February 26, 1979, for trial.

On February 26, 1979, the date set for trial, the minute order reflects that defendant Apodaca was personally present and represented by Deputy Public Defender L. Tipton who appeared in place of defense counsel L. Read because of his (Read's) illness.   The minute order shows that “on defense motion” the trial was trailed (continued) to February 28, 1979, and the defendant was personally instructed to return on that date with bail to remain in effect.

On February 28, 1979, the minute order shows that “defendant fails to appear without sufficient excuse” and the bail was forfeited and a bench warrant was ordered issued.

On March 7, 1979, the notice of the forfeiture was mailed to the Surety and bail agent.

On August 16, 1979,, the Surety filed its “Notice of Motion and Motion to Vacate Forfeiture and Reinstate Bond” dated June 19, 1979, to be heard on August 31, 1979.   Attached to the above notice of motion is a “Declaration of Bail Agent” Ed Martinez dated August 16, 1979.2

Attached also to the above notice of motion filed on August 16, is an offer of reassumption of the Surety's obligations should the bail bond remain in full force and effect along with a “Declaration of Non-Collusion in Support of Motion to Vacate Forfeiture and Reinstate Bond” dated June 19, 1979, and a copy of a United States Army roster indicating that defendant Apodaca went on active duty on February 28, 1979.

On August 31, 1979, the trial court denied the Surety's motion to vacate the bail forfeiture and to reinstate the bond.   The minute order of August 31, in denying the motion merely states:  “Motion is denied.   Bail forfeiture stands” and makes no reference to the Surety's alternative request to toll the 180-day period (see fn. 2, ante.).   The record on appeal does not include a reporter's transcript of the hearing conducted on this date.

On September 4, 1979, the Surety filed a “Notice of Motion and Motion for Tolling of Statutory Period due to Temporary Disability, pursuant to Penal Code Section 1305(a)” to be heard on September 21, 1979.

Attached to the foregoing notice of motion is another Declaration of Non-Collusion and another Declaration of bail agent Mike Hernandez dated September 4, 1979.3

Also attached is a form “Statements for Enlistment” indicating the form is “to be completed by applicants enlisting for this enlistment option” which shows “the day of [defendant's] enlistment in the Regular Army is scheduled for 28 FEB 79 ․ for 3 years ․” The document was signed by defendant Apodaca on May 26, 1978, and contains a statement that if he willfully failed to report on the date specified (Feb. 28, 1979) he would be subject to apprehension and disciplinary action, i. e., desertion or AWOL.   The statement also indicated that defendant Apodaca had read and understood its contents.   Attached also is a copy of Active Duty Order No:  108–33 dated 26 May 1978 from the Department of Defense stating that the reporting date for active duty was February 28, 1979.   Attached also is a letter dated June 25, 1979, addressed “TO WHOM IT MAY CONCERN” from Platoon Sergeant Trent L. Jackson stating that defendant Apodaca was a private and enrolled in Airframe Structural Repairman's course at Fort Eustis, Virginia.

On September 21, 1979 the court denied the foregoing motion to toll the 180-day statutory period pursuant to section 1305(a) on the merits on the ground that the defendant's absence did not constitute a temporary disability.4

On October 17, 1979, the Surety filed its notice of appeal.

ISSUE

On appeal the Surety contends that the trial court erred in denying its motion to toll the 180–day statutory period because of defendant Apodaca's temporary disability by reason of his detention by military authorities pursuant to section 1305(a).

 However, the determinative issue as presented by the record and as argued by counsel is whether or not a motion to toll the 180-day period provided by section 1305(a) because of a defendant's temporary disability by reason of detention by military authorities must be brought and heard within the 180-day period for the trial court to have jurisdiction.   In other words is the court still vested with jurisdiction if a motion to toll for reasons of temporary disability is heard within 30 days following the 180-day period.

DISCUSSION

Section 1305(a) in relevant part provides as follows:

“If within 180 days after such entry in the minutes or mailing as the case may be, it is made to appear to the satisfaction of the court that the defendant is dead or is otherwise permanently unable to appear in court due to illness, insanity, or detention by civil or military authorities, and that the absence of the defendant was not with the connivance of the bail, the court shall direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.   If within 180 days after such entry in the minutes or mailing as the case may be, it is made to appear to the satisfaction of the court that the defendant is temporarily disabled by reason of illness, insanity, or detention by civil or military authorities and is therefore unable to appear in court at any time during the remainder of such 180 days, and that the absence of the defendant has not been with the connivance of the bail, then the period of time during which the disability continues shall not be deemed part of such 180 days.   Upon a finding by the court that a reasonable period of time is necessary in order to return the defendant to court upon the termination of the disability, then such period of time, as fixed by the court shall not be deemed part of such 180 days.   (Emphasis added.)

“Unless waived by the district attorney or other prosecuting attorney, no order discharging the forfeiture of the undertaking or deposit shall be made without opportunity for hearing and the filing of a notice of motion for such order setting forth the basis for relief, with proof of service upon the district attorney or other prosecuting attorney at least 10 days prior to the time set for hearing of the motion and otherwise in compliance with the provisions of Section 1010 of the Code of Civil Procedure.   Such notice may be given by the surety insurer, its bail agent, the surety, or depositor of money, any of whom may give such notice and appear either in person or by attorney.   Such notice of motion must be filed within 180 days after such entry in the minutes or mailing as the case may be, and must be heard and determined within 30 days after the expiration of such 180 days, unless the court for good cause shown, shall extend the time for hearing and determination.”  (Italics added.)

We conclude that the plain language of section 1305(a) and the legislative history of the addition of the 30 days after the expiration of the 180-day rule in 1969 by SB 1295 indicates that the Legislature intended that the 30-day period relates to relief from forfeiture only and is not applicable to the hearing of a motion to toll the 180-day statutory period because of a temporary disability.   Our reasoning follows:

First :  The Legislature in the first quoted paragraph above of section 1305(a) is confined to the temporary disability situation and specifically states that “[i]f within 180 days after such entry in the minutes or mailing as the case may be [of the notice of forfeiture], it is made to appear to the satisfaction of the court that the defendant is temporarily disabled by reason of ․ detention by ․ military authorities and is therefore unable to appear in court at any time during the remainder of such 180 days ․, then the period of time during which the disability continues shall not be deemed part of such 180 days.”

 “Where language is clear and unambiguous ․ ‘there is no need for construction and the courts should not indulge in it.’  (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148].”  (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 866, 167 Cal.Rptr. 820, 616 P.2d 802.)

Accordingly, employing “the ordinary meaning of language used and ․ assum [ing] that the Legislature knew what it was saying and meant what it said” (Pac. Gas & E. Co. v. Shasta Dam, etc. Res. (1955) 135 Cal.App.2d 463, 468, 287 P.2d 841), we conclude in the case at bench that defendant Apodaca's motion to toll the 180-day period before us must have not only been made but also heard within the 180-day period.   Logic says that if the matter was heard after the 180-day period and not “within” and “during” that 180-day period there is no “remainder” of the 180-day period to toll.

Second :  The statutory language upon which Surety relies granting an additional 30-day period within which the hearing may be conducted appears in a separate paragraph from that in which the temporary disability situation is addressed.   Moreover, a careful reading of that paragraph specifically refers to a motion directed at an “order discharging the forfeiture of undertaking or deposit” and makes no mention of a motion to toll the 180-day period.

Furthermore, in our research of the legislative history of the 1969 amendment (SB 1295) which extended the court's jurisdiction for a 30-day period to entertain motions after the expiration of the 180-day rule we were only able to uncover the “Bill Digest” before the Assembly Committee on Criminal Procedure.   The “subject” of the “Bill Digest” was listed as “Bail Forfeiture.”   No mention was made in the “Bill Description” of motions to toll the 180-day period by reason of temporary disability.5

 In order to grant relief to the Surety in the instant case this court would have to rewrite the paragraph pertaining to the 30-day extension as amended in 1969 by SB 1295 to include hearings on motions to toll the 180-day period by reason of temporary disability which presently only refers to motions and orders discharging the forfeiture of the undertaking or deposit.   This we refuse to do.

The Surety's reliance on People v. Resolute Ins. Co. (1975) 46 Cal.App.3d 249, 120 Cal.Rptr. 17;  People v. Argonaut Ins. Co. (1976) 58 Cal.App.3d Supp. 9, 129 Cal.Rptr. 766, and People v. Ramirez (1976) 64 Cal.App.3d 391, 134 Cal.Rptr. 511 is misplaced in that all three cases are factually distinguishable and do not address the specific issue presented by the case at bench.

The Resolute, Argonaut and Ramirez cases did not directly address or discuss in depth the specific issue raised, briefed and argued in the instant case, i. e., whether or not section 1305(a) vests jurisdiction with the trial court to hear and decide a motion to toll the 180-day statutory period by reason of “temporary disability” within the 30-day period following the expiration of the 180-day period.   To the extent that language in the above cases may be construed to support the Surety's position in the instant case we disagree for the reasons hereinbefore stated.

Arguably an amendment to section 1305(a) vesting the trial court with jurisdiction to hear motions to toll the 180-day period during the following 30-day period might very well be advisable and compatible with the basic purpose of bail in criminal cases which is to ensure the personal attendance of the defendant on the court at all times when his attendance may be lawfully required with “no suggestion of revenue to the Government nor punishment to the Surety”.6  (See Sawyer v. Barbour (1956) 142 Cal.App.2d 827, 300 P.2d 187;  People v. Ramirez (1976) 64 Cal.App.3d 391, 134 Cal.Rptr. 511;  People v. Wilcox (1960) 53 Cal.2d 651, 2 Cal.Rptr. 754, 349 P.2d 522;  Witkin, Cal.Crim.Procedure (1963) Nature and Purpose of Bail, § 148, p. 141.)   Such an amendment would also be in accord with the general proposition that the law abhors a forfeiture.   Furthermore, there may be situations in which section 1305(a) may not provide sufficient time for a Surety's motion to toll the 180 days and to be heard within the 180-day period where the temporary disability becomes apparent close to the end of that period.   However, “the [SURETY'S] REMEDY, IF ONE IS REQUIRED, LIES NOt wIth a tortured judicial construction of the plain words of the statute, but with the Legislature.”  (People v. Argonaut Ins. Co., supra, 58 Cal.App.3d Supp. 9, 13, 129 Cal.Rptr. 766.)   By reason of the foregoing we need not address, on the merits, the trial court's denial of the Surety's motion to toll the 180-day filed on September 4, 1979, which was not heard and decided until September 21, 1979, after the running of the 180-day statutory period.7

DISPOSITION

The order (judgment) denying the motion to toll the 180-day period appealed from is reversed and the trial court is directed on remand to dismiss the action on the ground of lack of jurisdiction.

FOOTNOTES

1.   On February 19, 1981, we filed our original opinion which affirmed the trial court's order denying the Surety's motion on jurisdictional grounds.  Cal.App., 172 Cal.Rptr. 16.   On March 17, 1981, we granted Surety's petition for a rehearing which was argued on June 22, 1981.

2.   The declaration of Ed Martinez reads as follows:“Ed Martinez, under penalty of perjury declares as follows:“That he is the BAIL AGENT in the above entitled action whose bail was ordered forfeited on FEBRUARY 28, 1979, by reason of defendant's failure to appear on that date;  On 2–28–79 the defendant had to report to the United States Army on a Delayed Entry Program that he had enlisted into 6 months prior to 2–28–79.   On 2–26–79, the defendant was to make the court aware of his enlistment but because of the illness of his public defender the case was trailed to 2–28–79, the day he entered the Army.   On 2–28–79 he was shipped to Fort Jackson, South Carolina for basic training.“We have been unable to bring the defendant before this court as he is now stationed permanently to the 101st Airborne, Fort Campbell, Kentucky.   We are making this motion so that the Court exonerate bail or have time (180 days) on the bail forfeiture tolled.  (per Section 1305 of the California Penal Code).“That declarant did not willfully disobey the orders of the above Court;  that defendant's failure to appear as aforesaid was without the knowledge or consent of the bail.“WHEREFORE, declarant prays that the order forfeiting the bail be vacated and the said bond reinstated.“I certify and declare under penalty of perjury that the foregoing is true and correct.“Executed at Los Angeles, California, on August 16th, 1979.“/s/ Ed Martinez” 

3.   The declaration of Mike Hernandez reads as follows:“I, MIKE HERNANDEZ, declare:“That on May 26th, 1978, the defendant, LARRY N. APODACA, enlisted in the United States Army Reserve Control Group (Delayed Entry) for 3 years active duty, such starting date to begin on February 28, 1979.   See attached Exhibit ‘A’.“That on February 26, 1979, the defendant was ordered to appear in the above-entitled court, and that due to the illness of his Public Defender his case was trailed to February 28, 1979.“That on February 28, 1979, at 6:00 a. m., the defendant reported for induction to the Department of Defense Armed Forces Examinig [sic] and Entrance Station, Los Angeles, California, whereupon he was shipped to Fort Jackson, South Carolina, for basic training.   See Attached Exhibit ‘B’.“That after completion of Basic training, defendant was sent to Fort Eustis, Virginia, for further training as an helicopter mechanic.   See Exhibit ‘C’.“That on or about August 29th, 1979, I spoke with Sgt. McCullen at Fort Eustis, Virginia, about trying to bring defendant to court.   I was informed that defendant's class had left to Fort Campbell, Kentucky and that I should call after September 3, 1979, as he would be permanently assigned to the 101st Air Mobile Unit, Fort Campbell, Kentucky.“That on September 4th, 1979, I was informed that defendant is still being registered, and that after the defendant has been completely processed, I can make arrangements with his company Commander to have the defendant returned to California for trial.“I declare under penalty of perjury that the foregoing is true and correct.“Executed on this 4th, Day of September, 1979, at Los Angeles, California.“/s/ Mike Hernandez” 

4.   The reporter's transcript contains the following colloquy between the court and counsel at the time of the September 21, 1979, hearing:THE COURT:  “Counsel, I am not going to say this period of time because I do not consider this a temporary disability.“It looks to me like this man intentionally placed himself into a position where he could not respond to the court, so your motion is denied.“MR. PORRAS [counsel for Surety]:  Your Honor, I don't see how that could have been so because he—he had enlisted in the service long in advance of being picked up.“THE COURT:  Beg your pardon?“MR. PORRAS:  He had enlisted—early entry program into the service long before this matter came up.“He enlisted back in around June of 1978, and his induction into the service wasn't to begin—“THE COURT:  The only thing I can conclude, counsel, is that the service is not going to take a person with a felony proceeding pending against him.“MR. PORRAS:  I am not sure if the authorities knew of that.“THE COURT:  That is correct, they probably didn't.“MR. PORRAS:  It would still be our contention that regardless of whether or not that is true—“THE COURT:  Regardless, I do not consider this to be any disability whatsoever.“I would rather have him desert the service and get back here.”

5.   The “Bill Description ” appearing in the “Bill Digest” states:“Existing law provides that if a defendant neglects to appear in court without sufficient excuse, bail must be forfeited.“This bill adds language to the statute that would allow a court to continue a case for a reasonable period when it has reason to believe that sufficient excuse might exist.   This would allow the court to avoid a bail forfeiture in those cases where it has reason to believe a failure to appear is excusable, but where it does not have sufficient evidence before it to state as a matter of law that the absence is excusable.”

6.   A practical exception to this policy is made in handling traffic offenses where the bail is commonly fixed in the amount intended as a fine where forfeiture of the deposit by nonappearance is the normal procedure.

7.   Nor do we address on the merits, the trial court's denial of Surety's motion filed on August 16, 1979, and heard on August 31, 1979, since we construe the notice of appeal to be directed solely at the September 21, 1979, hearing and denial and a reporter's transcript of the August 31, 1979 hearing was not made a part of this record on appeal.

L. THAXTON HANSON, Associate Justice.

SPENCER, P. J., and LILLIE, J., concur.