PEOPLE v. ALLIED FIDELITY INSURANCE COMPANY (1984)

The People appeal from an order vacating the forfeiture of the bail bond and exonerating the bond.

Allied Fidelity Insurance Company (Allied) acting by and through its bonding agency Plotkin Bail Bonds (Plotkin) posted a bail bond in the amount of $12,500 on behalf of Joseph M. Ashley (Ashley), the named defendant in Los Angeles Superior Court case number A801951.

Said bond was forfeited on September 17, 1982, when Ashley failed to appear.   Notice of order forfeiting bail was thereafter mailed on September 24, 1982.

On December 13, 1982, Plotkin, on behalf of Allied, filed a notice of motion and motion to vacate forfeiture and exonerate bond.   In support of said motion, the bondsperson declared that defendant Ashley was “in custody in State of Pennsylvania.”

With the hearing on the motion being continued, and the time inconsistently tolled a number of times, Plotkin filed three additional moving papers therein alleging as the ground for each respective motion that it was impossible for defendant Ashley to appear because he was imprisoned in Pennsylvania.

From the bail surety's moving papers, it appears that Ashley was arrested in Pennsylvania on October 7, 1982.   He was thereafter sentenced on February 1, 1983.   His earliest possible release date was June 26, 1983, and his latest possible release date was October 8, 1984.   On July 20, 1983, Ashley received an additional Pennsylvania sentence which was to have expired on September 26, 1983.

Also disclosed in the bail surety's moving papers is the possibility that Ashley would be extradited from Pennsylvania to New Mexico where he was wanted for forgery and bad checks.

On September 8, 1983, Allied's motion to vacate the forfeiture of the bail bond and exonerate the bond was heard and granted.   This appeal followed.

The People contend (1) that neither Ashley's detention in Pennsylvania nor his anticipated extradition from Pennsylvania to New Mexico for contemplated further detention entitles the bail surety to an order vacating the forfeiture of the bail bond and (2) that the People's refusal to obtain Ashley's extradition from Pennsylvania does not entitle the bail surety to any relief.

 We do not reach the merits of these contentions since we shall hold that the trial court was without jurisdiction to rule on Allied's motion to vacate the forfeiture of the bail bond and exonerate the bond.

In pertinent part, Penal Code section 1305,¹ subdivision (a) provides:  “If within 180 days after ․ mailing [of the notice of forfeiture] ․, it is made to appear to the satisfaction of the court that the defendant is ․ permanently unable to appear in court due to ․ 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 ․ mailing [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 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.”

Section 1305, subdivision (a) further provides in pertinent part:  “Such notice of motion [to set aside forfeiture] 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.”

Notice of the order of forfeiture was mailed on September 24, 1982.   Allied's motion was not heard until September 8, 1983, more than 30 days after expiration of the 180-day period (April 22, 1983).

On December 15, 1982, January 26, 1983, and March 10, 1983, the hearing on Allied's motion to set aside the forfeiture was inconsistently continued and the time tolled, respectively, to March 30, 1983, March 10, 1983, and September 8, 1983.   Neither the reason for continuance nor the reason for tolling the time appear on any of these minute orders.

At the hearing on Allied's motion, the bonding company's attorney notes:  “The matter has been tolled from time-to-time to afford the district attorney's office an opportunity to determine whether or not they want to extradite him.”

 Assuming this is true, the record contains no evidence establishing good cause to extend the time for hearing and determination beyond the 180 plus 30-day period.   Nor was the tolling of the statutory period authorized under section 1305 in the absence of a finding by the trial court that Ashley was temporarily disabled and unable to appear in court within 180 days after forfeiture.

Since the provisions of section 1305 are jurisdictional (People v. United Bonding Ins. Co. (1969) 272 Cal.App.2d 441, 445, 77 Cal.Rptr. 310), we conclude that the trial court had no jurisdiction to rule on the motion.

The September 8, 1983, order vacating the forfeiture of bond and exonerating the bond is reversed.

FOOTNOTES

1.   All statutory references herein are to the Penal Code.

McCLOSKY, Associate Justice.

WOODS, P.J., and ARGUELLES, J., concur.