PEOPLE v. DURBIN (1965)

Lee Durbin was charged with felonies in two cases; was released on bail; and failed to appear for arraignment. His bail was forfeited. Within 90 days after such forfeiture he and his sureties, United Bonding Insurance Co., and George H. Martin, moved the court, in each case, under the provisions of § 1305 of the Penal Code, to set aside the forfeitures. The motions were denied on Feb. 27, 1962. Thereupon, Durbin and his sureties appealed from the orders of denial, which were reversed by this court on August 2, 1963, upon the ground that the trial court did not exercise the discretionary power conferred by § 1305, with direction to the latter court to exercise such discretionary power and render judgment accordingly. (People v. Durbin, 218 Cal.App.2d 851, 855, 32 Cal.Rptr. 573.) Thereafter, i. e., on Nov. 7, 1963, the motions came on for further hearing at which time the trial court, indicating it was exercising its discretion in the premises, again denied the motions. In the meantime § 1305 had been amended (Stats.1963, c. 2014, p. 4113, § 1), by providing that under circumstances applicable to these cases, ‘the court shall direct the forfeiture of the undertaking * * * to be discharged * * *’, whereas previously it had provided that under such circumstances ‘the court may direct the forfeiture * * * to be discharged * * *.’

Appellants contend that § 1305 as amended applied to the proceedings theretofore instituted by them seeking discharge of the forfeitures theretofore incurred and, under the circumstances of this case, required the court to enter an order discharging those forfeitures. Respondent contends that the amendment does not apply to the instant proceedings and the determination of the court in the premises was subject to the exercise of a legal discretion as directed by the decision in People v. Durbin, supra, 218 Cal.App.2d 851, 855, 32 Cal.Rptr. 573. Each of the parties considered the question thus presented in light of the rule that an amendment to a statute is not given retroactive operation unless it is made to appear that such was the legislative intent. (Pen.Code § 3; Di Genova v. State Board of Education, 57 Cal.2d 167, 174, 18 Cal.Rptr. 369, 367 P.2d 865; Aetna Cas. & Surety Co. v. Industrial Acc. Com., 30 Cal.2d 388, 393, 182 P.2d 159.) Ano express declaration concerning such intent is present in the instant 182 P.2d 159.) No express declaration concerning whether the 1963 amendment applied to a previously instituted proceeding to set aside a bail forfeiture.

A distinction has been made between legislation that is purely ‘procedural’ in effect and that which is purely ‘substantive’ in effect as a guide in determining its applicability to a particular situation. In Aetna Cas. & Surety Co. v. Industrial Acc. Com., supra, 30 Cal.2d 388, 394, 182 P.2d 159, 162, the court said:

‘If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive because the legal effect of past events would be changed, and the statute will be construed to operate only in futuro unless the legislative intent to the contrary clearly appears.’

In the case at bench, the 1963 amendment does more than merely prescribe a procedural change. In substance, it confers upon a person depositing bail the right to the discharge of his undertaking even though it has been forfeited if, within 90 days after declaration of forfeiture, he shows that the defendant for whose release the undertaking had been given ‘is physically unable * * * by reason of detention by civil or military authorities, to appear in court at any time during said 90 days, and that the absence of the defendant was not with the connivance of the bail * * *.’ Prior to the amendment, whether an undertaking would be discharged under these circumstances, was a matter subject to the court's discretion. The intent of statutes authorizing the discharge of an undertaking upon the return to custody within a designated time of a defendant who failed to appear as required, is ‘to provide the bail with an incentive to secure the arrest of the defaulting defendant.’ (People v. Rolley, 223 Cal.App.2d 639, 641, 35 Cal.Rptr. 803.) Where such a defendant is detained by civil authorities, the provisions of § 1305 are ‘designed to avoid penalizing the bail who has in fact procured a defaulting defendant's arrest, but who is prevented from effecting his immediate return because the arresting authorities detain the defendant beyond the 90-day period.’ (People v. Rolley, supra, 223 Cal.App.2d 639, 641, 35 Cal.rptr. 803.) The proceedings to effect the discharge of a forfeiture under such circumstances must be commenced within 90 days after entry of the order declaring the forfeiture. The law applicable to the right of the bail to obtain such a discharge is the law in operation at the time the proceeding to obtain such is commenced. The 1963 amendment to § 1305 materially changed the substance of the proceeding to obtain the discharge of such a forfeited undertaking. Prior to the amendment the bail instituting such a proceeding was required to present a case which not only would establish that the absence of the defendant was without his connivance and that the defendant was detained by civil authorities, but also would persuade the court in the exercise of its discretion that the forfeiture should be discharged. A pertinent circumstance in this regard would be the activity of the bail to locate and secure the arrest of the defaulting defendant. Under the 1963 amendment, the bail is not required to present a case motivating the exercise of the court's discretion in his favor. That amendment substantially affected the rights and obligations of the parties to the proceeding. To apply the 1963 amendment to the instant proceeding is tantamount to conferring upon appellant a right to a discharge of the forfeitures theretofore incurred which they did not have at the time they instituted the instant proceedings and the court initially passed upon their application. The contention of respondent must be sustained. The foregoing conclusions are supported by the decisions in Di Genova v. State Board of Education, supra, 57 Cal.2d 167, 174, 18 Cal.Rptr. 369, 367 P.2d 865; State of California, etc. v. Industrial Acc. Com., 48 Cal.2d 355, 361, 310 P.2d 1, and Aetna Cas. & Surety Co. v. Industrial Acc. Com., supra, 30 Cal.2d 388, 393, 394, 182 P.2d 159.

If the 1963 amendment were applied to these proceedings, it not only would substantially affect existing rights and obligations but also would amount to a termination of the authority of the court to exercise its discretion following invocation of that authority. By analogy to the decisions in In re Cate, 207 Cal. 443, 448, 249 P. 131, and Architectural Tile Co. v. Superior Court, 108 Cal.App. 369, 371, 291 P. 586, it must be concluded that this was not the legislative intent.

Appellants also contend that in denying their motion the trial court again failed to exercise the discretion conferred upon it and, in any event, abused that discretion. Each of these contentions is without merit. The former is based upon a strained construction of the language used by the trial judge when making the subject orders. The latter disregards the fact that there is no showing of abuse of discretion. It does not appear that appellant sureties made any effort to locate Durbin after his failure to appear for arraignment, or to bring him before the court, which clearly was contrary to the design of the statute as it then existed.

The orders are affirmed.

COUGHLIN, Justice.

GERALD BROWN, P. J., and WHELAN, J., concur.