APPEAL from a judgment of the Superior Court of Sutter County, Christopher R. Chandler, Judge. Reversed. (Super. Ct. Nos. CVCS082212, CRF071509).
The opinion of the court was delivered by: Sims, Acting P. J.
CERTIFIED FOR PUBLICATION
Appellant Bankers Insurance Company, acting through its agent Vita Bail Bonds, posted a bond on behalf of criminal defendant Luis Leon Vasquez. Vasquez failed to appear in court on January 22, 2008. The court minutes reflect that bail was ordered forfeited at that time. The reporter's transcript does not reflect a declaration of forfeiture in open court. Appellant appeals contending that the bond was not declared forfeited in open court as statutorily required and therefore, the bond should be exonerated. We agree and shall reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Appellant posted a $90,000 bail bond on behalf of Vasquez. On January 22, 2008, defendant failed to appear in court as ordered. The reporter's transcript*fn1 reflects Vasquez was not present in court, and had also failed to appear in court on a separate Yuba County case. Defense counsel stated he had had no contact with Vasquez since the previous court appearance on December 14, 2007. The court found "a willful failure to appear in both the felony and trailing misdemeanor cases and issue[d] warrants for [Vasquez's] arrest with no bail in case 1509 which is the felony and bail of 30,000 in the misdemeanor case 2582." After this statement by the court, the proceedings concluded. The reporter's transcript is certified as a full, true and correct transcript of the proceedings held on January 22, 2008.
The clerk's minutes also reflect the issuance of the no-bail warrant in the felony case and defense counsel's advisement regarding Vasquez's failure to appear in Yuba County. The clerk's minutes also have the "bail forfeited" box checked. Notice of forfeiture was mailed to the surety and the bail bond agent on January 24, 2008. The notice indicated the 185-day exoneration period would expire on July 28, 2008.
On July 22, 2008, appellant filed a motion to exonerate the bail bond, claiming the court had failed to declare the bond forfeited in open court as required by Penal Code section 1305, subdivision (a).*fn2
The County responded that both the notice and the proof of service of the motion were defective. On August 8, 2008, the motion to exonerate the bond was denied based on the defective proof of service and notice.
On August 18, 2008, appellant refiled the motion to exonerate the bond, setting the hearing date for September 12, 2008. This motion raised the same grounds as the July 22, 2008, motion, that bail had not been declared forfeited in open court. The County responded, claiming the January 22, 2008, reporter's transcript was only a "partial transcription" of the proceedings that day and was facially incomplete. The County also provided declarations from the court clerk and the assistant district attorney at the hearing. The court clerk declared she had no personal recollection of the hearing on January 22, 2008, and that it was her normal practice and habit not to check a box on the court minutes that bond was forfeited unless it was "actually ordered in open court by the judge." The deputy district attorney declared he had only a vague recollection of the court appearance, but had reviewed the notes he had taken in open court when the case was called. He had, among other things, written "bail forfeited" on his notes. While he could not remember the judge saying the words, he "would not have written [`]bail forfeited['] unless [the] Judge  used the words bail forfeited in open court." A copy of the notes was also attached to the declaration.
The court entered summary judgment on September 4, 2008.
Appellant filed supplemental points and authorities to its motion, requesting the summary judgment be set aside as void for lack of jurisdiction. The County opposed this request, raising procedural flaws and seeking to have the motion stricken.
At the hearing on September 12, 2008, the court suggested the motions should be heard by a different department, as it involved the resolution of a factual issue which included a declaration filed by that department's clerk. The parties agreed.
On September 19, 2008, following argument by both parties, the court tentatively ruled that the motion to exonerate was untimely, as it was filed after the expiration of the 185-day exoneration period. The court also found even if the motion had been timely filed, the declaration of bail forfeiture was made in open court. The court then adopted the tentative ruling. Notice of appeal was filed on October ...