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People v. American Surety Insurance Co.

November 9, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
AMERICAN SURETY INSURANCE COMPANY, DEFENDANT AND APPELLANT.



Appeal from a judgment of the Superior Court of Orange County, Douglas Hatchimonji, Judge. Reversed and remanded with directions. (Super. Ct. No. 07NF4008).

The opinion of the court was delivered by: Bedsworth, J.

CERTIFIED FOR PUBLICATION

OPINION

American Surety Insurance Company (American Surety) appeals from judgment for the People forfeiting bail after a motion to set aside the forfeiture was denied. It argues the trial court lost jurisdiction to forfeit bail when the case was not called on the date set for arraignment by the jailer, and there was no jurisdiction on a later arraignment date set by the district attorney. We agree and reverse.

FACTS

On September 26, 2007, American Surety posted a $20,000 bail bond for the release of Abel Perez on drug possession charges. Perez was ordered to appear on November 1, 2007. There is no record of what transpired on that day -- nothing to indicate whether the case was on calendar, whether it was called, or whether Perez was present.

On November 9, 2007, a complaint was filed, along with an arraignment letter from the district attorney to Perez. The letter, entitled "Notice of Complaint Filed" and dated November 8, 2007, said a complaint had been filed and "you are hereby notified to appear" to enter a plea on November 29, 2007. No proof of service appears in the record, nor any other evidence the letter was mailed or received.

Perez failed to appear and the court declared bail forfeited. Notice of the order was sent to American Surety. The court denied a motion to vacate the forfeiture and entered summary judgment on the forfeited bond.

DISCUSSION

American Surety argues the court lacked jurisdiction to order forfeiture of bail because no court order directed Perez to appear for arraignment on November 29, 2007, and the district attorney‟s letter was not a substitute. We have to agree.

A jailer may accept bail from an arrestee and set the time and place for his appearance. (Pen. Code, § 1269b, subd. (a).)*fn1 If an arrestee "fails to appear at the time and in the court so ordered upon his or her release from custody, Sections 1305 and 1306 apply." (§ 1269b, subd. (h).) Section 1305, subdivision (a) provides: "A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: [¶] (1) Arraignment. [¶] . . . [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant‟s presence in court is lawfully required. [¶] . . . [¶] However, the court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligations under the bond if the case is dismissed or if no complaint is filed within 15 days from the date of arraignment."

This case is governed by People v. Ranger Ins. Co. (2006) 145 Cal.App.4th 23, which held an arraignment letter was not a substitute for a court order to appear for arraignment. There, one Cook was released on bail and ordered to appear on January 22, 2004. Twice the police department sent Cook a "Notice Regarding Arraignment Date" that said no complaint had yet been filed and directed her to appear on a later date, the second time setting the appearance for March 25, 2004. A complaint was filed on March 18, 2004. (Id. at pp. 25-26.) Cook appeared on March 25, entered a not guilty plea, and was ordered to appear for a preliminary hearing on April 29. When she did not show up, bail was forfeited, the surety notified, and subsequently summary judgment was entered against the surety on the forfeited bond.

The court held jurisdiction to forfeit bail was lost when no complaint was filed within 15 days after the arraignment date set by the jailer, so the surety was exonerated. It rejected the People‟s argument the complaint had been filed within 15 days of arraignment on the date set in the notice based on the theory the police department notice was a court order, explaining, "But that is not what they [the notices] are, and no sleight of hand can transform them into something they are not. At best, the notices provided good cause for Cook‟s failure to appear on January 22 [the arraignment date set by the jailer], at which time the court could have continued the case for a reasonable time "without ordering a forfeiture of bail or issuing a bench warrant‟ and retained jurisdiction to forfeit the bond if Cook later failed to appear. [Citations.]" (Id. at p. 30.)

We conclude the same rule must apply here. There was no court order continuing the appearance date set by the jailer, and the district attorney‟s notice to appear was not a substitute.*fn2 Without an order to appear, the court lacked jurisdiction to forfeit bail for failure to appear for arraignment "without sufficient excuse." (ยง 1305, subd. (a)(1).) Jurisdiction to forfeit bail is statutory and the statutory mandate was not satisfied here. Whether this is a result of an oversight in documenting an order continuing the appearance, an ...


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