Filed 9/9/20 P. v. The North River Ins. Co. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075780
Plaintiff and Respondent,
v.
(Super. Ct. No. 37-2019-
THE NORTH RIVER INSURANCE
00015736-CU-EN-CTL)
COMPANY,
Defendant and Appellant;
BAD BOYS BAIL BONDS,
Real Party in Interest and Appellant.
APPEAL from a judgment and order of the Superior Court of San Diego
County, Theodore Weathers and Francis M. Devaney, Judges. Affirmed.
Jefferson T. Stamp for Defendant and Appellant The North River
Insurance, Company and Real Party in Interest and Appellant Bad Boys Bail
Bonds.
Thomas E. Montgomery, County Counsel, Jennifer M. Stone, Deputy
County Counsel, for Plaintiff and Respondent.
Defendant The North River Insurance Co. and its agent, defendant Bad
Boys Bail Bonds (collectively known as Surety), appeal from a summary
judgment and the denial of a motion to vacate forfeiture of and exonerate the
bail bond that was posted on behalf of criminal defendant Jose Sabas Suarez.
Surety contends that by setting a sentencing date for Suarez that was three
months after entry of his guilty plea to enable his counsel to obtain medical
documentation relevant to sentencing, the court changed the terms of
Suarez’s custody and release such that it materially increased the risks to
Surety, discharging its liability on the bond. We disagree. Suarez remained
released on bail in lieu of custody pending his formal sentencing date.
Moreover, the setting of reasonable court dates and the granting of
reasonable continuances are part of the normal course of criminal
proceedings and do not, without more, constitute grounds for discharge of a
surety. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2017 defendant Suarez was charged with importation
and possession for sale of methamphetamine. Surety posted a $170,000 bond
to secure his appearance at future court proceedings, and Suarez was
released on bail. Roughly one month later, as part of a plea agreement,
Suarez pleaded guilty to one count of violating Health and Safety Code
section 11379, subdivision (a). He entered a time waiver, and the court set
sentencing for January 9, 2018, nearly two months later than the due course
date.
Suarez represented to the court that he had been diagnosed with
cancer. Judge Devaney indicated that if Suarez could provide proof of that
diagnosis at sentencing, he would impose of a sentence of three years local
prison time. If Suarez could not substantiate the diagnosis, the sentence
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would be five years in local prison. The prosecutor explained that the
sentencing date was set “in part so that the medical documentation can be
provided.” Judge Devaney then advised Suarez: “You’ve got a long time
between now and sentencing. The purpose is to assist [defense counsel] in
getting those documents he needs. If you decide to get in trouble between
now and January 9, or you don’t show up on January 9, you initialed what is
called a Cruz[1] waiver on this which means this plea bargain is out the
window and we go back to square one and you could be very well sentenced to
the full seven years.”
Suarez failed to appear for sentencing on January 9. Judge Devaney
issued a bench warrant and ordered forfeiture of the bail bond. With the
initial 180-day period set to expire on July 16, 2018, Surety filed an extension
request. The court first granted a 90-day extension on August 13, then
granted another 90-day extension on November 9, giving Surety until
February 11, 2019 to produce Suarez.2 On that date, with Suarez still
unaccounted for, Surety filed a motion to vacate forfeiture and exonerate the
bond.3 The motion was denied on March 13. Approximately two weeks later,
the court entered summary judgment against Surety in the amount of
$170,000 plus costs.
1 People v. Cruz (1988) 44 Cal.3d 1247.
2 The second 90-day extension would have expired on Saturday,
February 9. By operation of law (Code Civ. Proc., § 12a, subd. (a)), it was
further extended until Monday, February 11.
3 In the motion papers, Surety represented that Suarez was residing in
Rosarito, Baja California, Mexico.
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DISCUSSION
A. General Principles Applicable to Bond Forfeiture Proceedings
“ ‘The object of bail and its forfeiture is to insure the attendance of the
accused and his obedience to the orders and judgment of the court.’
[Citation.] ‘While bail bond proceedings occur in connection with criminal
prosecutions, they are independent from and collateral to the prosecutions
and are civil in nature.’ [Citation.] In that regard, the bail bond itself is a
‘ “contract between the surety and the government whereby the surety acts as
a guarantor of the defendant’s appearance in court under the risk of
forfeiture of the bond.” ’ [Citation.] When a defendant who posts bail fails to
appear at a scheduled hearing, the forfeiture of bail implicates not just the
defendant’s required presence, but constitutes a ‘breach of this contract’
between the surety and the government. [Citation.] Ultimately, if the
defendant’s nonappearance is without sufficient excuse, it is the surety who
‘must suffer the consequences.’ [Citation.]” (People v. Safety National
Casualty Corp. (2016) 62 Cal.4th 703, 709.)
Penal Code sections 1305 to 1308 set forth specific statutory procedures
governing the forfeiture of bail bonds.4 Trial courts are required to strictly
comply with these procedures, and noncompliance is treated as a
jurisdictional defect. (People v. United States Fire Insurance Co. (2015) 242
Cal.App.4th 991, 998–999.) As a result, “appellate courts carefully review the
record to ensure strict statutory compliance.” (Id. at p. 999.) Except where
the facts are undisputed and the appeal involves a pure question of law, we
review the trial court’s order for abuse of discretion. (People v. Bankers Ins.
Co. (2010) 181 Cal.App.4th 1, 5.)
4 All subsequent statutory references are to the Penal Code.
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Section 1305, subdivision (a) requires the trial court to declare a
forfeiture of bail if a criminal defendant fails to appear for specified court
proceedings without a satisfactory explanation. If the bond amount was
greater than $400, the court clerk must mail notice of forfeiture to the surety,
which then gives the surety 185 days to bring the defendant to court. (§ 1305,
subds. (b)–(c); People v. American Contractors Indemnity Co. (2004) 33
Cal.4th 653, 658.) On a showing of good cause, the court may grant the
surety an extension of up to 180 additional days. (§ 1305.4.) If the defendant
is brought to court during that period, the forfeiture must be vacated and the
bond exonerated. (§ 1305, subd. (c)(1); People v. Tingcungco (2015) 237
Cal.App.4th 249, 253.) But if the surety fails to produce the defendant, the
court has 90 days within which to enter summary judgment against the
surety. (§ 1306, subds. (a) and (c); People v. American Contractors Indemnity
Co. (2015) 238 Cal.App.4th 1041, 1044.) Summary judgment in this context
is a consent judgment entered pursuant to the surety’s agreement included in
the bond. (County of Los Angeles v. Amwest Surety Ins. Co. (1983) 147
Cal.App.3d 961, 967; see § 1287, subd. (a) [undertaking must include consent
to entry of summary judgment upon forfeiture].)
B. Setting Suarez’s Sentencing Date Beyond the Due Course Date Did Not
Prevent Surety from Surrendering Him If It Chose to Do So.
Subdivision (a) of section 1300 provides that “[a]t any time before the
forfeiture of their undertaking, . . . the bail . . . may surrender the defendant”
and thereby exonerate the bond. As the court explained in Kiperman v.
Klenshetyn (2005) 133 Cal.App.4th 934, this statute “permits the bonding
company to surrender a defendant into custody and terminate liability at any
time before forfeiture.” (Id. at p. 939.) Surety claims that by setting Suarez’s
sentencing date nearly three months after his plea was taken—and almost
two months after the due course no-time-waiver date—the trial court
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deprived Surety of constructive custody and prevented surrender of the
defendant pursuant to section 1300. Accordingly, it argues, the bond must be
exonerated and the forfeiture vacated.
Suarez was entitled to a separate sentencing hearing, and the court
undoubtedly weighed a variety of factors in selecting the date. Setting the
defendant’s sentencing date either one month after his plea—as would have
been the due course date—or nearly three months following the plea did not
change Suarez’s status as being constructively in the custody of his surety.
In either instance, Surety retained its statutory right to surrender Suarez to
custody and obtain exoneration of the bond. Of course, had it done so without
any fault on Suarez’s part, it would have been required to refund the bond
premium. (§ 1300, subd. (b).) Surety makes no showing that it was somehow
precluded from surrendering Suarez had it chosen to do so.
Surety incorrectly characterizes the order setting a sentencing hearing
as “effectively stay[ing] the imprisonment of the criminal defendant.” There
was no stay, effective or otherwise. (Compare People v. American Surety Ins.
Co. (2001) 88 Cal.App.4th 762, 767 [court announced an indicated or
anticipated sentence] with People v. North Beach Bonding Co. (1974) 36
Cal.App.3d 663, 675 [court actually sentenced the defendant but stayed
execution of sentence].) Contrary to Surety’s argument, there was no “central
provision of the plea agreement” guaranteeing Suarez three months of
freedom before sentencing. Judge Devaney expressly stated that the time
before the January 9 sentencing was for Suarez’s counsel to obtain the
necessary medical documentation. In no way did the court’s order at the
change of plea hearing alter Suarez’s custody status. The order clearly
indicates that Suarez remained released “on bail” pending sentencing.
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C. Setting Suarez’s Sentencing Date Beyond the Due Course Date Did Not
Materially Increase Surety’s Risk So As to Discharge Its Liability.
Surety asserts that it “is discharged from its liability under the bail
bond agreement if the government, without the surety’s consent or
knowledge, materially increases the surety’s risks.” (People v. Western Ins.
Co. (2013) 213 Cal.App.4th 316, 322.) This is but an application of the
broader principle that the government will not do anything to interfere with
the terms of the contract that governs the relationship between the surety
and the defendant. (Ibid.) Here Surety claims the trial court’s setting of
Suarez’s sentencing hearing nearly three months after the entry of his guilty
plea materially increased the risk of his nonappearance by allowing him “to
get a head start in absconding to Mexico.”
The crucial point here is that government action will discharge a surety
only where it materially increases the risk of the defendant’s nonappearance.
Future court dates are set for a variety of reasons and time waivers by
defendants are common. (See People v. Cunningham (2001) 25 Cal.4th 926,
1044 [“time limits on the pronouncement of sentence provided by section 1191
are not jurisdictional, but may be waived by the parties”].) Indeed, but for
the willingness of counsel and most defendants to be flexible with regard to
dates, the processing of criminal cases would quickly grind to a halt. Regular
participants in the criminal justice system—including sureties—understand
that reasonable flexibility is part of the process. Moreover, as the deputy
district attorney commented here, the need for time to allow defense counsel
to obtain medical documentation was only “part” of the reason for selecting
the January 9 sentencing date. Given the approaching holiday period, more
flexibility in setting hearing dates could be expected.
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Setting Suarez’s sentencing date for January 9 did not materially
increase the risk that he would fail to appear. Presumably Suarez knew at
the time of his plea whether medical documentation to support his claim
could be obtained. If the potential of two additional years of local prison was
the motivation for fleeing California, he could have left as easily in October or
early November as in December or early January. Indeed, Surety makes no
showing as to when Suarez actually absconded, nor does it offer any reason to
believe that it was the extra time—between November 16 and January 9—
that permitted Suarez to escape.
Surety relies on United States v. Aguilar (N.D.Cal. 1993) 813 F.Supp.
727, but the facts of that case are readily distinguishable. In Aguilar, the
sureties posted bail conditioned on the defendant not traveling outside the
Northern District of California. Unknown to the sureties, the government
entered into a plea deal that contemplated the defendant’s cooperation in a
Southern California criminal investigation and the court approved travel
outside the District. When the defendant later failed to appear for
sentencing, the sureties moved to discharge their liability on the bond and
the district court agreed. (Id. at p. 728.)
Aguilar involved an express condition on the sureties’ obligation that
was violated by the government. Here, in contrast, there was no express
condition. Surety did not agree to post bail conditioned on Suarez being
sentenced within a set number of days of the entry of his guilty plea. In the
absence of such an express condition, it can be assumed that sentencing will
be within a reasonable period of time, and there is no showing here that the
trial court abused its discretion in concluding the January 9 date was
reasonable.
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DISPOSITION
The summary judgment against Surety and the corresponding denial of
its motion to vacate forfeiture of the bond are affirmed. Respondent is
entitled to its costs on appeal.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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