APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. (Super.Ct.No. CIVDS909950)
The opinion of the court was delivered by: McKinster J.
CERTIFIED FOR PUBLICATION
Indiana Lumbermens Mutual Insurance Company (hereafter the surety) appeals an order denying its motion to set aside the forfeiture of a bail bond. It contends that the bond was exonerated by operation of law, pursuant to Penal Code section 1305, subdivision (a), and that the court lacked jurisdiction to order its forfeiture.*fn1
FACTUAL AND PROCEDURAL HISTORY
The case arose as follows. On September 16, 2008, the surety posted a bond in the amount of $50,000 warranting the appearance of Ivan Beltran Flores to answer felony charges of violating section 422 (criminal threats). Upon posting bail, Flores was ordered to appear in court on October 21, 2008. Flores appeared in court on October 21, 2008. No complaint had yet been filed. The trial court continued the arraignment to December 2, 2008. It ordered the current bond continued because exonerating the bond would cause financial hardship for Flores in that he would be required to pay an additional premium to post a new bond and might also result in his re-arrest when charges were filed.
The complaint was filed on November 14, 2008. Flores appeared and was arraigned on December 2, 2008. A pre-preliminary hearing was set for December 10, 2008, and a preliminary hearing for December 12, 2008. Flores did not appear on December 10. The court found that there was no sufficient, legal or justifiable excuse for his failure to appear. It issued a bench warrant and ordered the bond forfeited.
On July 10, 2009, summary judgment was entered against the surety. On August 10, 2009, the surety filed a motion to set aside the summary judgment, arguing that the court had no jurisdiction to forfeit the bond because the complaint was not filed within 15 days of the original date set for Flores's arraignment, as provided for in section 1305, subdivision (a) (hereafter section 1305(a)). On September 8, 2009, the court denied the motion.
The surety filed a timely notice of appeal.
THE COURT LOST JURISDICTION TO ORDER FORFEITURE OF THE BOND
Section 1305(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. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required. [¶] (5) To surrender himself or herself in execution of the judgment after appeal. [¶] 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." (Italics added.)
The surety contends that the bond was exonerated as a matter of law when no complaint had been filed within 15 days from October 21, 2008, the original date set for the arraignment. County counsel contends that the 15-day rule does not apply where the court has continued the arraignment to permit the prosecuting agency to file charges. This is a question of statutory interpretation, ...