APPEAL from a judgment of the Superior Court of Kings County. George L. Orndoff and Thomas DeSantos, Judges. (Super. Ct. No. 10C0299)
The opinion of the court was delivered by: Dawson, Acting P.J.
CERTIFIED FOR PUBLICATION
A surety on a bail bond is appealing an order denying its motion to set aside summary judgment, to discharge forfeiture, and to exonerate the bond. The surety contends its $65,000 bond was void. The People disagree. We agree with the surety and accordingly reverse.
On November 25, 2008, Bankers Insurance Company (Bankers) posted a $35,000 bond for the release of Jose Juan Enriquez from custody in Kings Superior Court case No. 10C0299.
On August 25, 2009, at a court appearance at which Enriquez was present, a deputy district attorney informed the court that Enriquez had outstanding warrants in four other driving-under-the-influence cases and requested that Enriquez be remanded to custody in case No. 10C0299. The trial court continued the case until September 1, 2009, asked that the other cases be pulled for the hearing on that date, and remanded Enriquez to the custody of the sheriff. The court stated: "Bail is going to be set at this time at $100,000." Subsequently, the court stated, "He does have a bail bond in this matter. How much is the bail bond--$35,000. I'll allow the $35,000 to remain. The additional amount is $65,000." The deputy district attorney responded, "That's fine, thank you, your Honor," and the proceedings were concluded.
Later on August 25, 2009, International Fidelity Insurance Company (International Fidelity), a New Jersey corporation, through its agent Kings County Bail Bonds, issued bond No. IS100K-16653 in the amount of $65,000. The bail bond stated that Enriquez was ordered to appear in his case on September 1, 2009, at 8:15 a.m.
On September 1, 2009, Enriquez's case was called and he was not present. The trial court ordered the forfeiture of the $35,000 bail bond posted by Bankers and the $65,000 bail bond posted by International Fidelity. The minute order contains the following notation:
"Court notes [Enriquez] was remanded on 8/25/09 with bail set at $100,000. [Enriquez] having originally posted bail bond #555038176-1 in the amount of $35,000 & additionally posted bail bond #IS100K-16653 in the amount of $65,000."
On September 3, 2009, a notice of forfeiture was sent to Bankers concerning its $35,000 bond. The appellate record does not contain a notice of forfeiture relating to International Fidelity's $65,000 bond, but International Fidelity does not contend it did not receive notice.
Bankers filed a motion to vacate forfeiture and exonerate bail bond, which was heard on January 7, 2010. On January 14, 2010, the trial court filed an order granting the motion. The order provided the following rationale: "The bail bond posted by [Bankers] was exonerated as a matter of law when [Enriquez] was remanded into custody [on August 25, 2009]. The bond could not be reinstated without notice to the surety. Since such notice was not given, the forfeiture of the bond is vacated."*fn1
On March 2, 2010, International Fidelity, through its agent Kings County Bail Bonds, filed a motion to extend the 185-day period provided by Penal Code section 1305, subdivision (b). The motion was opposed and, on March 23, 2010, the trial court filed an order granting a 60-day extension of time under Penal Code section 1305.4. The order stated the court found good cause for extending the period of time in which forfeiture may be vacated in the event of the defendant's surrender or arrest. As a result, the exoneration period (sometimes called the appearance period) was extended to May 24, 2010.
On August 19, 2010, the trial court granted summary judgment pursuant to Penal Code section 1306 against International Fidelity in the sum of $65,000. The court found the bail bond was declared forfeited, the forfeiture had not been set aside, and more than 185 days (as extended pursuant to § 1305.4) had elapsed ...