Filed 10/29/20 P. v. Financial Casualty & Surety, Inc. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B295899
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. OSJ2102)
v.
FINANCIAL CASUALTY &
SURETY, INC.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Victoria B. Wilson, Judge. Affirmed.
Law Office of John Rorabaugh, John Mark Rorabaugh and
Crystal L. Rorabaugh for Defendant and Appellant.
Mary C. Wickham, County Counsel, Adrian G. Gragas,
Assistant County Counsel, and Kelsey C. Nau, Deputy County
Counsel, for Plaintiff and Respondent.
_____________________________
In this bail forfeiture case, Financial Casualty & Surety,
Inc. appeals an order denying its motion to vacate forfeiture,
exonerate bail, and set aside summary judgment. Financial
Casualty contends the trial court failed to conduct a
constitutionally sufficient process when setting Edgar Javier
Gonzalez’s bail, and therefore the bond is void. Financial
Casualty also argues, for the first time on appeal, that it would
be unconscionable to enforce the bail contract. We affirm.
BACKGROUND
In April 2014, Mr. Gonzalez was charged by felony
complaint with two counts of making criminal threats (Pen. Code,
§ 422, subd. (a), counts 1 & 2), and one count of child abuse under
circumstances likely to cause great bodily harm or death (§ 273a,
subd. (a), count 3). The complaint also included personal firearm
use and strike allegations. Mr. Gonzalez was released on a
$100,000 bond (which is not at issue in this appeal), but failed to
appear for his May 16, 2014 preliminary hearing. The trial court
declared the bond forfeited, and issued a no bail warrant for
Mr. Gonzalez’s arrest.
Mr. Gonzalez failed to appear at several subsequent
hearings. He finally appeared on January 4, 2016, and the bench
warrant was recalled. The court confirmed that bail was
previously set at $100,000, and re-set bail at $325,000.
Mr. Gonzalez was remanded into custody, and did not object to
the amount of bail. He retained private counsel in February
2016.
Mr. Gonzalez remained in custody until the preliminary
hearing, which was held on May 31, 2016. At the preliminary
hearing, Mr. Gonzalez was held to answer on four counts, and an
amended felony complaint was filed, adding one count of
possession of a firearm by a felon (Pen. Code, § 29800,
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subd. (a)(1), count 4). Because of the addition of a new count, the
prosecutor requested that bail be increased. Mr. Gonzalez
requested that bail be lowered, arguing he has seven children, is
a self-employed small business owner, and that the statutory bail
amount “would create an undue burden [on] defendant.” No
evidence of his financial circumstances was introduced. The trial
court acknowledged defendant’s circumstances, but reasoned they
did not “mitigate against his failing to appear on the previous
bail in this case.” The court denied the request to reduce bail,
and increased bail to $360,000.
On June 2, 2016, Financial Casualty posted a bond for
Mr. Gonzalez’s release. Mr. Gonzalez failed to appear for his
June 14, 2016 arraignment on the amended complaint, and the
trial court forfeited bail. Summary judgment was entered on
March 19, 2018.
Financial Casualty filed a motion to set aside summary
judgment, arguing bail was unconstitutionally set, rendering the
bond void, because the trial court did not make any inquiry into
Mr. Gonzalez’s ability to pay, or whether there were other means
to secure his presence in court. Financial Casualty did not argue
the bail contract was unconscionable. The trial court denied the
motion by written order, and Financial Casualty filed a timely
notice of appeal.
DISCUSSION
Financial Casualty’s briefs are long on authority, and short
on case-specific analysis. Financial Casualty’s chief complaint
appears to be that California’s bail system, as a whole, is fatally
flawed. Specifically, Financial Casualty argues that increasing
Mr. Gonzalez’s bail to $360,000 based only on the bail schedule
was constitutionally deficient because the court failed to consider
his individual circumstances.
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Financial Casualty principally relies on In re Humphrey
(2018) 19 Cal.App.5th 1006, review granted May 23, 2018,
S247278. In Humphrey, the Court of Appeal held due process
requires a trial court to consider a defendant’s ability to pay, and
other individualized factors, when determining whether to set
bail. (Id. at pp. 1041, 1046.) Financial Casualty also relies on
briefs filed with the Supreme Court in Humphrey, and upon
Arevalo v. Hennessy (9th Cir. 2018) 882 F.3d 763, 764, arguing
that California has conceded that an individualized inquiry must
be made in setting bail to comport with due process.
Notwithstanding Humphrey, or the state’s apparent
concessions, it is well settled that “ ‘[d]efects and irregularities, if
any, in the proceedings preliminary to the taking of bail are
considered as waived by the surety when it assumes its
obligations as such at the time of the execution of the bond.’
[Citations.]” (People v. Accredited Surety & Casualty Co. (2019)
34 Cal.App.5th 891, 898 (Accredited).) Moreover, the “[f]ailure to
comply with the procedural requirements of Humphrey,
requirements intended to safeguard the defendant’s
constitutional rights, [does] not render the subsequently issued
bond void.” (Accredited, supra, at p. 899; see also People v. The
North River Ins. Co. (2020) 48 Cal.App.5th 226, 234-236 [finding
that failure to comply with Humphrey does not render a bond
void] (North River).)
Financial Casualty essentially argues that Accredited and
North River, supra, were wrongly decided. We see no reason to
depart from these cases, which plainly found the failure to make
an individualized inquiry does not render a bond void after it has
been executed, as is the case here. (Accredited, supra,
34 Cal.App.5th at p. 898; see also North River, 48 Cal.App.5th at
p. 234.) Moreover, it appears the trial court did consider
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Mr. Gonzalez’s circumstances, and found that any theoretical
hardship was outweighed by the risk evidenced by his previous
failures to appear.
Lastly, Financial Casualty argues that even if the bail
contract was properly formed, it would be unconscionable to
enforce it, reasoning it is a contract of adhesion between parties
with unequal bargaining power. We asked the parties to provide
letter briefs addressing whether this argument was forfeited by
Financial Casualty’s failure to raise it in the trial court. (Bhatt v.
State Dept. of Health Services (2005) 133 Cal.App.4th 923, 933.)
Financial Casualty urges we may address purely legal issues
based on undisputed facts for the first time on appeal. While this
is true, it remains firmly within our discretion whether we will
address new theories not presented to the trial court. (Bialo v.
Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73.) We see no
reason to do so here, especially since the parties submitted no
evidence in favor of or against a finding of unconscionability in
the trial court. This case does not present a purely legal issue
based on undisputed facts. Financial Casualty asks us to decide
a fact-intensive question without any facts in the record, which
would be improvident for us to do. (Armendariz v. Foundation
Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 99
[discussing unconscionability].)
DISPOSITION
The judgment is affirmed. Respondent may recover its
costs on appeal.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J. WILEY, J.
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