People v. Accredited Surety & Casualty Company, Inc.

Filed 5/7/21 Modified and Certified for Pub. 6/4/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F080431
Plaintiff and Respondent,
(Super. Ct. No. CR-18-000990)
v.

ACCREDITED SURETY & CASUALTY OPINION
COMPANY, INC.

Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh,
for Defendant and Appellant.
Thomas E. Boze, County Counsel, and Robert J. Taro, Assistant County Counsel,
for Plaintiff and Respondent.
-ooOoo-
A surety appeals from an order denying its motion to set aside summary judgment,
discharge the forfeiture, and exonerate bail. The surety contends the setting of the

* Before Franson, Acting P.J., Snauffer, J. and DeSantos, J.
amount of bail was unconstitutional and the forfeiture of the full amount of bail was
unconstitutional.
We conclude the statutory scheme under which the amount of the criminal
defendant’s bail was set and subsequently forfeited is not unconstitutional on its face.
We further conclude the statutory scheme, as applied to the circumstances of this case,
did not unconstitutionally impose an excessive fine or otherwise violate the constitutional
rights of the criminal defendant or the surety.
As a separate and independent ground for our decision, we assume a constitutional
violation occurred and address the consequences of the assumed violation. Other
appellate courts have held that a constitutional violation in setting the amount of a
criminal defendant’s bail “does not void the underlying bail bond.” (People v. Accredited
Surety & Casualty Co. (2019) 34 Cal.App.5th 891, 897 (Accredited ‘19); see People v.
The North River Ins. Co. (2020) 48 Cal.App.5th 226, 233–235 (North River ‘20).) We
join those decisions and conclude a violation of the criminal defendant’s constitutional
rights does not free the surety from its obligations under the bail bond.
We therefore affirm the summary judgment.
FACTS AND PROCEEDINGS
On April 25, 2018, Angel Adrian Quinonez was arrested for possession of a
controlled substance for sale and transportation of a controlled substance. (Health & Saf.
Code, §§ 11351, 11352.) The controlled substance was heroin.
On April 26, 2018, Mark Garcia Bail Bonds, as an agent for Accredited Surety &
Casualty Company, Inc. (collectively, Surety), signed and delivered bond number
AD-00969579 in the amount of $50,000 for the release of Quinonez. The next morning,
the superior court filed the bond and Quinonez was released. The bond listed the felony
charges and the misdemeanor of driving without holding a valid driver’s license in

2
violation of Vehicle Code section 12500, subdivision (a). The complaint setting forth the
felony and misdemeanor charges against Quinonez was filed on May 7, 2018.
The bond directed Quinonez to appear in court on May 25, 2018, at 1:30 p.m. The
bond stated Surety undertook to have Quinonez appear in court on the date stated to
answer the charges against him. The bond also provided: “If the forfeiture of this bond
be ordered by the court, judgment may be summarily made and entered forthwith against
[Surety] for the amount of its undertaking herein as provided by Sections 1305 and 1306
of the Penal Code.”
On May 25, 2018, Quinonez did not appear at the arraignment hearing. The court
declared the bond forfeited and a bench warrant was issued. Later in May, the clerk of
the superior court mailed notice of the forfeiture to Surety.
In November 2018, Surety filed a motion to extend the appearance period pursuant
to Penal Code1 section 1305.4. Respondent did not oppose the motion. In January 2019,
the trial court granted the motion and extended the appearance period to May 28, 2019.
Quinonez was not returned to custody on or before that date.
On August 1, 2019, less than 90 days after the expiration of the appearance period,
summary judgment on the bond was filed and notice of the entry of judgment was mailed
to Surety.
In September 2019, Surety filed a motion to set aside summary judgment,
discharge the forfeiture, and exonerate bail. The motion asserted the trial court lacked
jurisdiction to enter a summary judgment because the court’s setting of bail in the amount
of $50,000 was based on an unconstitutional, unenforceable order.
In October 2019, respondent filed an opposition to the motion to set aside, Surety
filed a reply, and the trial court held a hearing. Near the end of the hearing, the court
stated:

1 All further statutory references are to the Penal Code unless otherwise noted.

3
 “I think that under the current legal construct there are a couple of
situations.

“One is the defendant who comes to court has bail set at some
amount is not given a hearing as to the appropriate amount of bail. That is
one situation.

“Here we have a situation where the defendant could have waited
until he went to court and sought a bail review hearing; otherwise, he
availed himself of a duly-adopted bail schedule as provided under
[section] 1269b(a). I think under that situation the posting of bail was
appropriate. I think the bond that guaranteed his return was appropriately
posted.

“And I think as far as the early out under [section] 1269b, I think
that’s not affected by the Humphrey’s[2]decision, which is up on review at
this point anyway.”
In response to the court’s statement that the criminal defendant could have waited
for his court hearing and asked for a bail review, counsel for Surety acknowledged that
the court could have kept the defendant in custody longer but “I have not found many
judges that go beyond the bail schedule, but maybe that will change.” The court
responded by stating:

“Well, we do it routinely when we are asked. And I can’t speak for
other judges, but I think I know what they would say, and that is we look at
each case individually. And we look at the defendant’s ability to pay as
one of those things. We also look at the interest of the public and their
safety, and the likelihood that the person is going to show up, the likelihood
that he is going to re-offend. [¶] That’s what I look at. And when asked, I
do that on an individual basis.”

2 In re Humphrey (2018) 19 Cal.App.5th 1006, affirmed (2021) 11 Cal.5th 135.
The trial court correctly concluded the facts in Humphrey were different because
Quinonez was released within two days without appearing in court. In Humphrey, the
defendant was not released on bail because he could not afford it. At his arraignment, the
trial court set bail according to the bail schedule at $600,000 and, at a subsequent formal
bail hearing under section 1270.2, reduced it to $350,000. (Humprhey, supra, 11 Cal.5th
at pp. 144–145.) In effect, Mr. Humphrey was detained because of his indigency.
Quinonez suffered no such detention.

4
 The court denied the motion to set aside the summary judgment and filed a written
order to that effect later that day. Surety filed a timely appeal.
In October 2020, after Surety filed an appellant’s opening brief, this court sent the
parties a letter directing that the respondent’s brief and appellant’s reply brief address
specific issues relating to (1) the allocation of the burden of proof regarding the existence
or nonexistence of a constitutional violation in setting bail and (2) the distinction between
a facial challenge and an as-applied challenge to section 1269b’s early-out method of
obtaining a defendant’s release from custody.
DISCUSSION
Generally, in published opinions addressing the forfeiture or exoneration of a bail
bond, this court provides an overview of the contractual nature of bail bonds, the
statutory scheme governing the forfeiture of bail and related proceedings (§§ 1305–
1308), the principles applied when construing the bail statutes, and the standards of
appellate review. (E.g., People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th
991, 999–1000 [statutory framework]; People v. Accredited Surety Casualty Co. (2014)
230 Cal.App.4th 548, 555–557.) Such an overview is unnecessary in this unpublished
opinion because the parties are familiar with those principles and we need only set forth
the law governing the issue that resolves this appeal. (Cal. Const., art. VI, § 14 [appellate
decisions “shall be in writing with reasons stated”].)
I. CONSTITUTIONAL VIOLATION
A. Surety’s Contentions
Surety acknowledges section 1306 allows courts to enter a consent judgment on
the bail bond, subject to a surety’s right to file a motion under section 1305 to cure the
breach or challenge that judgment where the consent is exceeded. Surety also
acknowledges this statutory process was found constitutional in People v. Surety Ins. Co.
(1978) 82 Cal.App.3d 229. However, Surety argues that case “did not consider the

5
constitutionality of [the] sum-certain nature of the consent judgment.” Here, Surety
raises that issue and challenges the sum-certain aspect of the consent judgment entered on
the forfeited bail bond.
Surety’s argument asserts (1) the consent judgment entered on a bail bond operates
as a forfeiture or penalty, (2) the amount of any penalty imposed by the state government
is subject to the Excessive Fines Clause contained in the Eighth Amendment and applied
to the states through the Fourteenth Amendment, (3) under those constitutional
provisions, the government bears the burden of proving the amount forfeited is not
excessive, and (4) a constitutional violation occurred in this case because no proceeding
was conducted where the government carried this burden. (See Timbs v. Indiana (2019)
139 S.Ct. 682, 687 [Excessive Fines Clause is incorporated by the Due Process Clause of
the Fourteenth Amendment].) To establish a penalty is not excessive, Surety contends
the government must prove the amount of the forfeiture passes a proportionality test and
then provide the criminal defendant or his innocent indemnitors with an opportunity to
demonstrate an inability to pay the amount of the forfeiture.
Surety, recognizing its argument proposes significant modifications of the bail
scheme established by the Legislature, contends this court has the responsibility of saving
that scheme by imposing an additional procedural requirement to assure the forfeitures
are constitutional. Surety also recognizes acceptance of its arguments would cause the
bail bond contracts to be rewritten and refers to the principles of law governing the
enforcement of a contractual liquidated damages clause. Under California contract law, a
liquidated damages provision is valid if (1) fixing the amount of actual damages is
impracticable or extremely difficult, and (2) the amount selected represents a reasonable
endeavor to estimate fair compensation for the loss sustained. (Cellphone Termination
Fee Cases (2011) 193 Cal.App.4th 298, 322; see Civ. Code, § 1671 [validity of contract
liquidating the damages for its breach].)

6
 Surety argues its proposed procedure for determining the amount to be forfeited is
constitutionally mandated and is nothing new because it is being used in other
proceedings involving bonds. Surety cites rule 46(f)(2) of the Federal Rules of Criminal
Procedure, which permits a federal court to set aside a bail forfeiture in whole or in part if
“it appears that justice does not require bail forfeiture.” The six non-exclusive factors
identified by the Ninth Circuit to inform a court exercising this discretionary authority
include (1) the defendant’s willfulness in breaching a release condition; (2) the sureties’
participation in apprehending the defendant; (3) the cost, inconvenience, and prejudice
suffered by the government; (4) mitigating factors; (5) whether the surety is a
professional or a member of the family or a friend, and (6) the appropriateness of the
amount of the bond. (United States v. Amwest Surety Ins. Co. (9th Cir. 1995) 54 F.3d
601, 603, italics added.)
In addition, Surety refers to the California statutes that apply to bonds other than
bail bonds. In 1982, the Legislature clarified the law governing statutory bonds and
undertakings by enacting the Bond and Undertaking Law, which is codified in Code of
Civil Procedure sections 995.010 through 995.560. (Moore v. Ohio Casualty Ins. Co.
(1983) 140 Cal.App.3d 988, 995, fn. 9; see Stats. 1982, ch. 998, § 1, p. 3659.) The
Legislature specifically exempted bail bonds from the new statute. (Code Civ. Proc.,
§ 995.020, subd. (c) [“provisions of this chapter do not apply to a bail bond or an
undertaking of bail”].) The procedures established by the Bond and Undertaking Law
required the beneficiary to file a motion to enforce the bond. (Code Civ. Proc.,
§ 996.440.) The judgment obtained by the beneficiary against the principal and sureties
is not the amount of the bond but “shall be in an amount determined by the court.” (Code
Civ. Proc., § 996.460, subd. (b).) Surety also refers to Civil Code section 2809, which
states: “The obligation of a surety must be neither larger in amount nor in other respects

7
more burdensome than that of the principal; and if in its terms it exceeds it, it is reducible
in proportion to the principal obligation.”
B. Facial Validity of Statutory Scheme
Based on the facts of this case, which involve a defendant who relied on the
early-out provisions of section 1269b that set the amount of his bail according to the
county’s bail schedule, we interpret Surety’s arguments as being limited to the forfeiture
of bail bonds posted under the early-out method of release from custody. Stated another
way, Surety’s argument does not extend to cases where the amount of bail is set by the
trial court and is subject to the principles set forth in In re Humphrey, supra, 11 Cal.5th
135. Although Surety has avoided characterizing its arguments as a facial challenge,
Surety’s arguments and proposal for revising the sum-certain nature of bail forfeiture
proceedings strongly imply the asserted unconstitutionality resides within the existing
statutory scheme, not simply how it was applied to the bail bond posted for Quinonez.
Accordingly, we interpret Surety’s argument as including a facial challenge to the
statutory provisions governing the forfeiture of bail set under the early-out provisions of
section 1269b.
“A facial challenge to a legislative Act is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid.” (United States v. Salerno (1987) 481 U.S. 739, 745
[facial challenge to federal Bail Reform Act failed].) Here, Surety has not surmounted
this difficulty and demonstrated there are no circumstances in which the statutory scheme
is constitutional. Stated without a double negative, Surety has not shown the amount of
bail posted under the county’s bail bond schedule would always be excessive for
purposes of the Eighth Amendment. In short, sometimes the amount set would be too
small and sometimes the amount set would be just right. In those situations, the

8
Excessive Fines Clause would not be violated. Thus, Surety has not carried the heavy
burden of establishing a facial challenge to the constitutionality of a statutory scheme.
Furthermore, to the extent Surety’s argument is interpreted as asserting a violation
of the Due Process Clause rather than a violation of the Excessive Fines Clause, we
conclude the criminal defendant had meaningful opportunities to address the amount of
the bail bond by raising the issue at his initial court appearance and by motion. (See
§ 1270.2 [formal bail hearing].) The essence of due process is notice and the opportunity
to be heard “ ‘at a meaningful time and in a meaningful manner.’ ” (Mathews v. Eldridge
(1976) 424 U.S. 319, 333.) We conclude the criminal defendant had such opportunities
and, instead, chose the early-out method of release under section 1269b.
If Surety is contending its right to due process was violated, we conclude that
“there is under the Penal Code both notice to the surety and the opportunity to be heard
[citations] sufficient to satisfy the California constitutional due process requirements.”
(County of Los Angeles v. Amwest Surety Ins. Co. (1983) 147 Cal.App.3d 961, 967.)
Here, Surety had the opportunity to have its excessive fine theory heard as part of its
motion to set aside summary judgment, discharge the forfeiture, and exonerate bail.
Accordingly, the statutory scheme does not, on its face, violate the Due Process Clause.
C. Constitutional Violation Limited to the Facts of this Case
Next, we consider Surety’s argument as asserting a constitutional violation
occurred in the particular circumstances of this case. We first address this argument as
presented to the trial court and then address the version presented on appeal.
1. Arguments Made Below
In the trial court, Surety’s motion to set aside the summary judgment argued the
court should vacate the forfeiture and exonerate bail because, when setting bail, the court
failed to conduct reasonable inquiries to ensure the amount of bail was the minimum
necessary to ensure their interest and, as a result of the failure to conduct such inquiries,

9
the amount of bail was an unenforceable penalty. This argument is easily rejected
because the reason the trial court did not inquire into the amount of bail was that
Quinonez used the early-out method of release and posted the amount of bail set by the
county’s bail schedule. The trial court cannot be faulted for failing to conduct a
reasonableness inquiry when a defendant obtains his release before the court has an
opportunity to consider his case. Here, the court had little chance of intervening because
Quinonez was released the second day after his arrest.
Surety’s motion to set aside the summary judgment also argued the bail penalty
was based on an unconstitutional order, the bond was void as a result, and the trial court
was without jurisdiction to enforce the unconstitutional penalty. During the trial court
proceedings, Surety was asserting “a jurisdictional error was made in the formation of the
contract.” The foundation of this argument—that the amount of the bail bond was based
on an unconstitutional order—has not been established. No judicial officer entered an
order because Quinonez took advantage of the early-out method of release under
section 1269b and agreed to post the amount of bail listed in the county’s bail schedule.
The absence of an order from a judicial officer means the court did not commit a
jurisdictional error in the formation of the bail contract.
Surety’s motion to set aside the summary judgment also presented an argument
based on contract law, contending that because bail was set based on an unconstitutional
order that did not reasonably calculate the amount of bail, the bond was void as an
unenforceable liquidated damages provision. Surety supported this argument by
asserting “the mere fact that a defendant is somehow able to post bail and be released,
does not mean that bail was lawful or constitutionally set, or that it is not excessive.”
Again, the foundation for this argument was the existence of an unconstitutional order
setting bail. Bluntly stated, this argument is not well-tailored to the situation presented

10
when the criminal defendant obtains an early release under section 1269b and the amount
of bail is never addressed by a judicial officer.
2. Arguments on Appeal
The arguments presented in the trial court asserted a constitutional violation
occurred at the time the amount of bail was set. Surety’s arguments have evolved. In its
appellant’s reply brief and at oral argument, Surety distinguishes between setting the
amount of the bail bond, which occurs early in the process, and determining the amount
forfeited, which occurs after the criminal defendant has failed to appear in court. (See
§ 1305, subd. (a)(1) [forfeiture for nonappearance].)
The California statutes governing bail bond, unlike the statutes governing other
bonds, do not require the government to bring a motion addressing the amount of the
forfeiture. Therefore, for purposes of this appeal, we assume the government has the
burden of showing the amount of the forfeiture is reasonable under the circumstances
when a surety brings a motion to set aside the summary judgment that explicitly
challenges the forfeiture as an excessive fine. Here, Surety filed a motion and raised such
a challenge. As a result, we will consider whether the record contains sufficient evidence
to support an implied determination by the trial court that the government carried its
burden in this case. Before reviewing the sufficiency of the evidence, we examine the
nature of the burden of proof imposed on the government.
We conclude the government’s initial burden for proving the reasonableness of the
amount of the forfeiture must take into account the government’s access to information
when a criminal defendant relies on the early-out method of release and absconds before
any court proceedings are held in court. (See Evid. Code, § 500 [allocation of burden of
proof]; Masellis v. Law Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1086–
1088.) In such a situation, the government no longer has access to the criminal defendant
because the defendant has not performed his agreement and the surety has not performed

11
its agreement to surrender the defendant into custody. In comparison, the surety has, or
usually will have, the cooperation of the indemnitors in addressing the forfeiture of bail.
Also, when a surety raises an excessive fines argument, it is going back on its explicit
agreement for the entry of summary judgment “for the amount of its undertaking” if the
defendant does not appear for scheduled court dates. Based on these factors, we conclude
that if the government makes an adequate preliminary showing of the reasonableness of
the amount of bail, the burden shifts to the surety to establish that forfeiting the entire
amount results in an excessive fine.
Here, the record contains ample evidence to support the determination that the
government carried its initial burden of showing the amount of bail was reasonable.
First, we consider the criminal charges. They involved transporting heroin and
possessing it for sale. The nature of the crime supports the inference that the defendant
has access to funds and is not indigent. In comparison, a homeless person charged with
shoplifting at a grocery store supports the opposite inference. Second, we consider the
amount of time that passed between Quinonez’s arrest and when he obtained bail. The
day after his arrest, Surety executed the bail bond for $50,000 in exchange for a premium
of $5,000. Thus, the speed with which Quinonez posted bail indicated he had ready
access to the premium amount and sufficient cash or other collateral to convince Surety
to undertake the obligations in the $50,000 bail bond. Third, the docket shows no entries
indicating Quinonez attempted to have the amount of his bail reduced after he obtained
his release from jail. Fourth and most obvious, the amount of bail set was insufficient to
prevent Quinonez from absconding. This fact supports the inference that Quinonez
decided his best interests were served by forfeiting bail and avoiding prosecution on the
heroin charges.
Based on these facts, we conclude, as a matter of law, that the government carried
its initial burden of showing the amount of the forfeiture was not excessive under the

12
Eighth Amendment. As a result, the burden shifted to Surety to demonstrate the $50,000
forfeiture was excessive under the circumstances of this case. Surety presented no
evidence on the excessiveness of the forfeiture, instead relying on its argument that the
government failed to carry its burden. Therefore, we conclude that in the circumstance
presented, the forfeiture of the entire amount of the $50,000 bail bond did not violate the
Excessive Fines Clause or other constitutional provision.
II. CONSEQUENCES OF THE CONSTITUTIONAL VIOLATION
As a separate and independent ground for the affirmance of the trial court, we
assume that a constitutional violation occurred and address the consequences of that
constitutional violation. The consequences were discussed by the Third Appellate
District in Accredited ‘19 and more recently by the Second Appellate District in North
River ‘20. The Third Appellate District assumed a violation of the criminal defendant’s
constitutional rights and then concluded “that violation does not void the underlying bail
bond.” (Accredited ‘19, supra, 34 Cal.App.5th at p. 897.) Similarly, the Second
Appellate District concluded any noncompliance with constitutional requirements for
setting bail “would, at best, render the bail order voidable as to the defendant, not as to
the surety.” (North River ‘20, supra, 48 Cal.App.5th at p. 235.) We join these decisions
and adopt the legal principle that a constitutional violation in setting bail (which also sets
the amount of the forfeiture) does not render the bail bond unenforceable as to the surety.
Applying this principle to the facts of this case leads to the conclusion that the bail bond
is enforceable in its full amount and, therefore, the trial court correctly entered summary
judgment.
In summary, the Surety explicitly agreed to the forfeiture procedures set forth in
sections 1305 and 1306 and to the amount of the consent judgment. When such a
contract between a surety and the government is breached, the bond should be enforced.
(People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657–658.)

13
 DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.

14
Filed 6/4/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F080431
Plaintiff and Respondent,
(Super. Ct. No. CR-18-000990)
v.

ACCREDITED SURETY & CASUALTY ORDER MODIFYING OPINION
COMPANY, INC. AND GRANTING
PUBLICATION REQUESTS
Defendant and Appellant. [NO CHANGE IN JUDGMENT]

THE COURT:
It is ordered that the opinion filed herein on May 7, 2021, be modified as follows:
1. On page 4, delete the words “the court” from the second sentence of the
first paragraph and replace with the words “Judge Scott Steffen.”
2. On page 4, delete the words “The court” from the second sentence of the
sixth paragraph and replace with the words “Judge Steffen.”
3. On page 5, delete the first paragraph under DISCUSSION and replace with
the following:

Our published opinions addressing the forfeiture or exoneration of a bail
bond often include a general overview of the contractual nature of bail bonds, the
statutory scheme governing the forfeiture of bail and related proceedings
(§§ 1305–1308), the principles applied when construing the bail statutes, and the
standards of appellate review. (E.g., People v. United States Fire Ins. Co. (2015)
242 Cal.App.4th 991, 999–1000 [statutory framework]; People v. Accredited
 Surety Casualty Co. (2014) 230 Cal.App.4th 548, 555–557.) Such an overview
need not be repeated here. (See Cal. Const., art. VI, § 14 [appellate decisions
“shall be in writing with reasons stated”].)
4. On page 8, delete the words “not shown” from the third sentence of the last
paragraph and replace with the words “failed to show” so that the sentence reads as
follows:

Stated without a double negative, Surety has failed to show the amount of
bail posted under the county’s bail bond schedule would always be
excessive for purposes of the Eighth Amendment.
5. On page 11, delete the second and third full paragraphs under
2. Arguments on Appeal, and insert the following five paragraphs and footnote:

Under the statutory scheme currently governing bail bonds, the point
in the proceedings for the parties and the court to address a surety’s claims
that the forfeiture amount is unconstitutionality excessive is when the
surety brings a motion to set aside the summary judgment, discharge the
forfeiture, and exonerate bail. Here, Surety’s motion explicitly challenged
the forfeiture as an excessive fine. Thus, we conclude the issue was raised
in the trial court at the appropriate time.

A threshold issue to deciding Surety’s constitutional challenge is
which party has the burden of proof regarding the existence or nonexistence
of a constitutional violation. The starting point for analyzing the allocation
of the burden of proof is Evidence Code section 500, which provides:
“Except as otherwise provided by law, a party has the burden of proof as to
each fact the existence or nonexistence of which is essential to the claim for
relief or defense that he is asserting.” Under this statute’s general rule, the
burden of proof would be allocated to Surety as the moving party.
However, there are exceptions and, in certain circumstances, “courts may
alter the normal allocation of the burden of proof.” (Amaral v. Cintas
Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1188.) Here, the parties have
identified no law—that is, constitutional provision, statute, or judicial
decision (Evid. Code, § 160)—that provides for the allocation of the burden
of proof in the specific procedural context of a surety challenging the
constitutionality of the forfeiture of the entire amount of a bail bond set
pursuant to the early-out method authorized by section 1269b.
Consequently, we consider whether we should create a judicial exception to
the general rule and shift the allocation of the burden of proof from the
moving party.

2
 “In determining whether the normal allocation of the burden of proof
should be altered, the courts consider a number of factors: [1] the
knowledge of the parties concerning the particular fact, [2] the availability
of the evidence to the parties, [3] the most desirable result in terms of
public policy in the absence of proof of the particular fact, and [4] the
probability of the existence or nonexistence of the fact.” (Recommendation
Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep.
(1965) p. 89; see Lakin v. Watkins Associated Industries (1993) 6 Cal.4th
644, 660–661.) In this case, the parties did not address these factors in the
trial court, and Surety has not presented a factor-by-factor analysis in its
appellate briefs.

Due to the manner in which the allocation issue has been developed
in this appeal, we do not decide it. Instead, we assume for purposes of this
appeal that, when a surety brings a motion to set aside the summary
judgment that challenges the amount of the forfeiture as an excessive fine,
the government has the initial burden of showing the amount of the
forfeiture is reasonable under the circumstances.3 We further assume that if
the government makes an adequate initial showing of the reasonableness of
the amount of bail, the burden shifts to the surety to establish that forfeiting
the entire amount results in an excessive fine. (Cf. McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792, 802–804 [burden shifting framework
in employment discrimination action]; Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 354–356 [plaintiff’s initial burden to establish prima facie
case of discrimination; burden shifted to employer to rebut discrimination].)

These assumptions take into account the government’s access to
information when a criminal defendant relies on the early-out method of
release and absconds before any court proceedings are held in court. (See
Evid. Code, § 500 [allocation of burden of proof]; Masellis v. Law Office of
Leslie F. Jensen, supra, 50 Cal.App.5th at pp. 1086–1088.) In such a
situation, the government no longer has access to the criminal defendant
because the defendant has not performed his agreement and the surety has
not performed its agreement to surrender the defendant into custody. In

3 As a result of this assumption, this opinion does not establish precedent binding
superior courts on how to allocate the burden of proof. The question remains open and
superior courts may decide whether to follow the general rule or create an exception
based on the evidence, authorities and analysis presented in the case before them. (See
generally, Masellis v. Law Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1086–
1088 [specific approach adopted by California court for deciding whether to alter the
allocation of the burden of proof].)

3
 comparison, the surety has, or usually will have, the cooperation of the
indemnitors in addressing the forfeiture of bail. Also, a surety’s excessive
fines argument contradicts its explicit agreement for the entry of summary
judgment “for the amount of its undertaking” if the defendant does not
appear for scheduled court dates.
6. On page 12, delete the first sentence of the first full paragraph beginning
with “Here, the record contains …” and replace with the following two sentences:

Based on the foregoing assumptions about the burden of proof, we
consider whether the record contains sufficient evidence to support an
implied determination by the trial court that the government carried its
initial burden in this case. We conclude the record contains ample evidence
to support the determination that the government demonstrated the amount
of bail was reasonable under the circumstances.
7. On page 12, the sentence in the first full paragraph beginning with “First,
we consider …,” begins a new paragraph.

There is no change in the judgment.
As the nonpublished opinion filed on May 7, 2021, in this matter hereby meets the
standards for publication specified in the California Rules of Court, rule 8.1105(c), it is
ordered that the opinion be certified for publication in the Official Reports.

FRANSON, Acting P.J.
WE CONCUR:

SNAUFFER, J.

DE SANTOS, J.

4