APPEAL from an order of the Superior Court of Fresno County. Rosendo Pena, Judge. (Super. Ct. No. F07906351).
The opinion of the court was delivered by: Gomes, J.
CERTIFIED FOR PUBLICATION
Bankers Insurance Company (Bankers) appeals from an order denying its motion to set aside the summary judgment entered against it, discharge a forfeiture and exonerate its bail bond.*fn1 We find no error and affirm.
FACTUAL AND PROCEDURAL HISTORIES
On August 15, 2007, Bankers' agent posted a $17,500 bond for the release of Jaime Villa (Villa) from custody. The bond stated that Villa had been ordered to appear in court on August 27, 2007, on charges under Health and Safety Code sections 11378 and 11379.*fn2 Bankers specifically undertook "that [Villa] will appear in the above named court on the date above set forth to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her and all duly authorized amendments thereof, . . ."
The case was called on August 17, 2007, but dropped from the calendar without any action being taken. Minutes of the hearing note that Villa was not in custody and was bonded for August 27, 2007. On August 18, the Fresno County District Attorney filed a criminal complaint against Villa charging him with possession for sale of one ounce or more of methamphetamine (Health & Saf. Code, § 11378*fn3 (count 1)), transport for sale of one ounce or more of methamphetamine (§ 11379, subd. (a) (count 2)), and false compartment activity (§ 11366.8, subd. (a) (count 3)).
Villa appeared at the August 27, 2007 arraignment and August 29, 2007 pre-preliminary hearing. Bail was not mentioned at either hearing, although the minutes for each hearing note that Villa remained on surety bond. Despite being ordered to attend a hearing on September 12, 2007, Villa failed to appear. The trial court issued a bench warrant, set bail at $230,000 and ordered the bond forfeited. Notice of forfeiture was mailed to Bankers on September 13, 2007.
On March 14, 2008, Bankers filed a motion requesting an extension of time on forfeiture pursuant to Penal Code section 1305.4. The trial court entered summary judgment against Bankers on October 7, 2008, in the principal sum of $17,500 plus costs and interest, after finding that 185 days had elapsed and the forfeiture had not been set aside.
On November 6, 2008, Bankers filed a motion to set aside the summary judgment, discharge the forfeiture, and set aside the bond. It argued the trial court lost jurisdiction over the bond when the jail released Villa on insufficient bail pursuant to the bail schedule. Pointing out that pursuant to Penal Code section 1269b, the superior court adopted a countywide bail schedule which an officer authorized to release a defendant uses to fix bail, Bankers asserted the jail erroneously determined Villa's bail to be $17,500 when the charges in the complaint warranted bail of $115,000 pursuant to the bail schedule. According to Bankers, the jail's mistake in improperly setting Villa's bail pursuant to the bail schedule prevented it from properly evaluating its risk in posting bail, thereby rendering the bond void.
The motion was denied on December 4, 2008. Bankers filed a notice of appeal on January 5, 2009, which stated it was appealing the order or judgment entered on September 12, 2007, following "Bond Forfeiture, bond was not set at scheduled amount ($115,000) Defendant Absconded."*fn4
Bankers contends that when the state changes the conditions of a bail bond without the surety's consent, the surety is discharged. In Bankers' view, the complaint filed against Villa changed the conditions of his bond and it is therefore entitled to have the bond exonerated. We disagree.
Ordinarily we review an order denying a motion to vacate the forfeiture of a bail bond under an abuse of discretion standard of review. (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195.) While the People accordingly urge us to review for abuse of discretion, Bankers contends the particular question at issue here - whether the filing of the complaint materially increased Bankers' risk resulting in exoneration of the bond - calls for de novo review. Bankers relies on People v. American Bankers Ins. Co. (1992) 4 Cal.App.4th 348, 350, in which this court reviewed an appeal from the trial court's granting of a motion to set aside a summary judgment and exonerate the bond independently where the evidence was not in dispute and ...