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The People v. Accredited Surety and Casualty Company

September 21, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ACCREDITED SURETY AND CASUALTY COMPANY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 1403124) APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge.

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

CERTIFIED FOR PUBLICATION

OPINION

In this bail forfeiture action, appellant, Accredited Surety and Casualty Company (Accredited), challenges the trial court's order denying a motion to vacate the forfeiture. Accredited's bail agent, A.J. Bail Bonds (A.J.), posted a bond for the release of the defendant and, when the defendant failed to appear, posted a second bond in an effort to substitute it for the first bond. However, this attempted substitution ultimately failed and the trial court ordered both bonds forfeited.

Accredited contends the trial court erred in refusing to vacate the forfeiture of the second bond because that bond was void as a matter of law. Accredited further argues that the court did not have jurisdiction to declare the forfeiture.

Accredited is correct. Accordingly, the judgment will be reversed.

BACKGROUND

In June 2009, Accredited, through its agent, A.J., posted a $70,000 bail bond to secure the release of the defendant. The defendant failed to appear as ordered on November 19, 2009, and the bail was declared forfeited. A notice of forfeiture was mailed to Accredited and to A.J. A bench warrant was issued and bail was increased to $70,500.

On May 18, 2010, with only five days remaining of the forfeiture period, A.J. posted a second bond, Accredited bond No. A100-00476092, in the amount of $70,500. A.J. was attempting to substitute this second bond for the first bond. The defendant had neither appeared in court nor been surrendered to custody. The bond indicated an appearance date of June 17, 2010. Based on the posting of this second bond, the court clerk set aside the forfeiture of the first bond, recalled the bench warrant and reinstated bail.

On May 27, 2010, the People filed a motion to determine the forfeiture status of the first bond. The People argued that at the time A.J. submitted the second bond, the court clerk was unaware as to the custody status of the defendant and that A.J engaged in this process of rewriting bonds in order to "start a new clock for forfeiture purposes on the second bond." In an earlier unrelated hearing on a bail bond motion with similar facts, the transcript of which the court took judicial notice, the owner of A.J., A.J. Pontillo, explained that he uses this "gimmick" in situations where he has posted bail for a defendant with a daily drug habit who fails to appear and who is afraid of being arrested. The posting of the second bond is "just another tool" that gives the defendant "a way to come in." Pontillo then has a "window to come in and surrender [the defendant] when he does show up for court."

The trial court found that the court clerk's exoneration of the first bond was "without color of law" and was void. The court therefore vacated the exoneration of the first bond and upheld the forfeiture. Thereafter, summary judgment was entered on the forfeiture of the first bond.*fn1

The defendant did not appear in court on June 17, 2010, the date indicated on the second bond, and the second bond was declared forfeited. Notice of forfeiture was mailed on June 25, 2010.

Accredited moved to vacate the forfeiture of the second bond on the grounds that the bond was void and the trial court had no jurisdiction to declare the bond forfeited. The trial court disagreed and denied the motion. The trial court found there was consideration for the second bond in that the bench warrant was withdrawn and Accredited charged the defendant a bond premium. The court ordered that Accredited was not relieved from its obligation on the ...


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