Filed 8/26/15 P. v. Financial Casualty & Surety CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B256578
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. SJ3930, SJ3931)
v.
FINANCIAL CASUALTY & SURETY,
INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Rupa S.
Goswami, Judge. Affirmed.
John M. Rorabaugh and E. Alan Nunez, for Defendant and Appellant.
Mark J. Saladino, County Counsel, Ruben Baeza, Jr., Assistant County Counsel,
and Debbie C. Carlos and Kevin J. Engelien, Deputy County Counsel for Plaintiff and
Respondent.
Defendant and appellant Financial Casualty & Surety, Inc. (Financial) appeals
from an order denying its motions to set aside bail bond forfeitures on the ground that the
trial court lacked jurisdiction to declare a forfeiture after purportedly placing defendant
Javier Carvente (Carvente) on probation. We affirm the trial court’s order.
BACKGROUND
Los Angeles Superior Court Case No. 9MP10053
On September 17, 2009, Carvente entered a no contest plea to violations of
Vehicle Code sections 14601.1, subdivision (a) and 23152, subdivision (b). He was
sentenced to summary probation and was ordered to participate in an 18-month alcohol
treatment or counseling program and to complete 10 days of community labor.
On December 17, 2009, Carvente’s probation was revoked and he was ordered to
return on February 16, 2010, for a probation violation hearing at which he failed to
appear.
Los Angeles Superior Court Case No. 5ZZ03303
On June 25, 2007, Carvente entered a no contest plea to a violation of Vehicle
Code section 23152, subdivision (b), was sentenced to summary probation, and was
ordered to participate in a nine-month alcohol program and to serve seven days in jail or
perform seven days of community labor. On March 25, 2008, Carvente’s probation was
revoked for failure to appear.
On September 4, 2009, Carvente was present in court, out on bail, and ordered to
perform two AA meetings a week pending his probation violation hearing. On
September 17, 2009, Carvente stipulated that he had violated probation, and the court
reinstated his probation with modified terms and exonerated bail. Carvente subsequently
failed to appear as ordered, and his probation was revoked on February 16, 2010.
Subsequent proceedings in both cases
On July 16, 2012, Financial posted bond No. FCS50-952184 for Carvente’s
release from custody in case No. 5ZZ03303 and bond No. FCS50-962588 for Carvente’s
release from custody in case No. 9MP10053.
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Carvente was present at a July 26, 2012 hearing at which the trial court noted that
probation had been revoked in both of Carvente’s cases since February 16, 2010. The
court stated that probation would remain revoked but granted Carvente’s motion to
continue the probation violation hearing for two months. The court then pointed out to
Carvente that he had the opportunity until the next hearing date to “do whatever you can”
toward completing his unfulfilled obligations to enroll in an alcohol program, to serve 48
hours of jail time, and to perform community labor, and that “the more you do, the better
off you are.” Carvente agreed to waive time on both cases, and he was ordered to return
on September 25, 2012. At the conclusion of the hearing, the trial court ordered the bond
posted in each of Carvente’s cases to remain standing.
Carvente was present in court at the September 25, 2012 hearing at which he
presented proof of enrollment in an alcohol program and a program for community labor.
The trial court would not reinstate Carvente’s probation because he had not enrolled in an
alcohol program until the day before the hearing, had not completed his community labor
obligations, and had not served the requisite jail time. Instead, the court observed, “So
what I would like to do, then, if it is agreeable to you, is continue the hearing on both of
these matters for two more months with a time waiver and we will continue the probation
violation. Your probation will remain revoked. The bond will still stand until you come
back, and we will see where you are two months from now. If you made progress then I
am most likely willing to reinstate then at that time, depending on how much progress
you made, including city jail time.” Carvente agreed to further continue the probation
violation hearing on both of his cases, and the trial court set the hearing date for
November 30, 2012. The court ordered the bond posted in each of Carvente’s cases to
remain standing.
Carvente failed to appear at the November 30, 2012 probation violation hearing.
The trial court ordered the bond posted in each case forfeited and issued a bench warrant.
Notice of the forfeitures was mailed on December 3, 2012.
Financial’s motion to vacate the forfeiture and exonerate the bonds was heard on
April 23, 2014. Financial argued that by providing Carvente with re-enrollment papers
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for alcohol and community labor programs at the July 26, 2012 hearing on Carvente’s
motion to continue the probation violation hearing, the court had effectively reinstated
Carvente’s probation, thereby exonerating the bond by operation of law. After hearing
argument from the parties, the trial court denied the motion, noting that it was “very clear
that the defendant was not on probation.” Financial filed separate appeals for the
forfeited bonds, and we ordered the two appeals consolidated.
DISCUSSION
I. Applicable law and standard of review
The purpose of bail and its forfeiture is to ensure a criminal defendant’s
appearance in court and adherence to court orders. (People v. Fairmont Specialty Group
(2009) 173 Cal.App.4th 146, 151.) A bail bond is a contract between the court and a
surety whereby the surety promises that a defendant released from custody will appear in
court when ordered. If the defendant fails to appear, the surety becomes a debtor for the
bond amount. (Ibid.) Bail is forfeited when a defendant fails to appear as ordered before
judgment is pronounced. (Pen. Code, § 1305, subd. (a).)
“While it is true that the law disfavors forfeitures, including forfeitures of bail
under the bail provisions of the Penal Code, it is the burden of the surety to show that a
forfeiture of its bail should be set aside. [Citation.]” (People v. American Surety Ins. Co.
(2001) 88 Cal.App.4th 762, 768.) An order denying a motion to set aside a bail forfeiture
is reviewed under the abuse of discretion standard. (People v. Legion Ins. Co. (2002) 102
Cal.App.4th 1192, 1195.) Under this standard, the trial court’s decision will be affirmed
on appeal unless it “‘“exceeds the bounds of reason, all circumstances being considered.
[Citation.]”’ [Citation.]” (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679-
680, quoting People v. Froehlig (1991) 1 Cal.App.4th 260, 265.)
Penal Code section 1195 provides in pertinent part: “If the defendant, who is on
bail, does appear for judgment and judgment is pronounced upon him or probation is
granted to him, then the bail shall be exonerated or, if money or property has been
deposited instead of bail, it must be returned to the defendant or to the person or persons
found by the court to have deposited said money or property on behalf of said defendant.”
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The statutory provisions are self-executing. Upon a trial court’s grant or reinstatement of
probation, bail is exonerated by operation of law. (People v. Safety National Casualty
Corp. (2007) 150 Cal.App.4th 11, 16-17 (Safety).)
II. Penal Code section 1195 does not apply
Financial argues that Carvente was “effectively” placed on “informal probation” at
the July 26, 2012 hearing at which the court provided Carvente with reenrollment papers
for his unfulfilled obligations to complete an alcohol program and to perform community
labor. The record is clear that Carvente’s probation remained revoked at the July 26,
2012 hearing and that the bonds posted in each of his cases were not exonerated. The
court did not reinstate Carvente’s probation on July 26, 2012, or any subsequent date, but
simply continued the date of the probation violation hearing. By doing so, the court
provided Carvente with additional time to comply with his probation conditions and
possibly avoid a formal revocation of his probation, though the court specifically did not
reinstate probation.
Financial argues that the instant case is “nearly identical” to Safety, in which the
bond was held to have been exonerated by a reinstatement of probation. The surety in
that case posted a bond for the release of a probationer named Post, who had been
arrested on a bench warrant after failing to appear in court to show that she had
completed volunteer work required as a condition of her probation. Post failed to appear
on the next court date, and the court declared the bail forfeited and issued a new bench
warrant. Post appeared one week later, on July 12, and the court withdrew the bench
warrant, set aside the bail forfeiture, and continued the matter for another week to allow
Post to show proof that she had enrolled in a volunteer program. The bail agent
submitted written notice that it did not object to the reinstatement of bail for 10 days, and
Post signed a statement on the minute order releasing her on her own recognizance.
When Post failed to appear on July 19, the court ordered bail forfeited. The surety’s
motion to set aside the summary judgment and exonerate the bail bond was subsequently
denied. (Safety, supra, 150 Cal.App.4th at pp. 13-14.)
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The appellate opinion in Safety does not indicate whether the trial court ever
revoked Post’s probation, or, if it did, whether the court ordered that probation remain
revoked. The appellate court concluded that “[a]t the July 12 hearing, the court continued
Post on probation when it ordered her to appear on July 19 to provide proof of enrollment
in the volunteer program. By returning Post to probation, the bail was exonerated by
operation of law. Consequently, the trial court’s order reinstating bail and its
pronouncement of forfeiture of bail when Post failed to appear at the next scheduled
hearing were void acts, as there was no obligation in existence that could be reinstated or
forfeited.” (Safety, supra, 150 Cal.App.4th at p. 17.)
Here, in contrast, the trial court consistently, repeatedly, and expressly stated that
Carvente’s probation remained revoked and that the court was not reinstating probation.
Safety is thus distinguishable.1
The trial court’s continuance of the probation violation hearing was not an
“effective” reinstatement of Carvente’s probation. The conditions for exoneration of the
bond under Penal Code section 1195 were not met, bail was not exonerated, and the trial
court did not abuse its discretion by denying Financial’s motion to set aside the forfeiture.
DISPOSITION
The order is affirmed. The County of Los Angeles is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J. ____________________________, J.
BOREN ASHMANN-GERST
1 Other cases cited by Financial do not involve Penal Code section 1195 and are
inapposite. (See People v. Orihuela (2004) 122 Cal.App.4th 70; People v. Superior
Court (Roam) (1999) 69 Cal.App.4th 1220; People v. Ormiston (2003) 105 Cal.App.4th
676.)
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