Filed 6/7/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Civil No. B304678
(Super. Ct. No. 19CV05912)
Plaintiff and Respondent, (Santa Barbara County)
v.
AMERICAN SURETY
COMPANY,
Defendant and Appellant.
American Surety Company (American) appeals from
the order denying its motion to vacate the judgment forfeiting
bail. It contends that the court had no jurisdiction to continue
the proceedings without forfeiting bail when the defendant failed
to appear in court without presenting a sufficient excuse for his
absence. Because a court may continue criminal proceedings
without forfeiting bail if the court has reason to believe that a
sufficient excuse may exist for the failure to appear, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
American posted a $100,000 bail bond for Mengquan
Yu who was charged in a felony complaint. Yu appeared as
required for hearings in October and November 2018. On
December 6, Yu failed to appear at a hearing to set the
preliminary examination. The court accepted his counsel’s
representation that he was in Ventura County on a Welfare and
Institutions Code section 5150 hold. Counsel stated that he
hoped the section 5150 proceedings would be resolved by mid-
January. The court then continued the case to January 17, 2019,
continued the bail bond in effect, and issued and held a bench
warrant.
Yu did not appear on January 17. A different
attorney appeared on his behalf. He said that counsel of record
had been attempting to contact Yu but counsel of record could not
appear and report to the court because a road was unexpectedly
closed due to the weather. He stated that Yu “apparently was in
a 5150 hold in Ventura County.” He asked the court to “issue
and hold for a warrant while [counsel of record] gets in contact.”
He stated, “Just one more week, and we will make sure that we
get in touch with the client.” The court found good cause to
continue the bail bond, held the warrant, and continued the case
to January 24.
On January 24, Yu’s counsel of record appeared and
stated he lost contact with Yu, who was not present. The court
forfeited the bail bond and issued a bench warrant.
American filed a motion to vacate the forfeiture and
exonerate the bond, or alternatively, to extend the 180-day
forfeiture period. (Pen. Code, § 1305.4.)1 The trial court denied
the motion. On November 5, the court entered summary
judgment against the bond. (§ 1306.)
1All subsequent undesignated statutory references are to
the Penal Code.
2
American then filed a motion to the vacate summary
judgment and extend the forfeiture period. (§§ 1305.4, 1308.)
The court denied the motion.
DISCUSSION
Timeliness of appeal
The county contends the appeal is untimely because a
summary judgment must be appealed within 90 days of filing a
motion to vacate it. (Cal. Rules of Court, rule 8.108(c)(2).) We
reject this contention because American does not appeal from the
summary judgment. Instead, it appeals from the later denial of
the motion to vacate the judgment, which is independently
appealable. (§ 1308, subd. (a); People v. Granite State Insurance
Co. (2003) 114 Cal.App.4th 758, 760, 762.)
The county concedes that American timely appealed
the order denying the motion to vacate the judgment. But it
contends that American forfeited an appeal of that order because
it “does not present any argument regarding the trial court’s
decision denying the motion to vacate.” (See Benach v. County of
Los Angeles (2007) 149 Cal.App.4th 836, 852 [argument without
legal citation or application to facts abandoned].) This is
incorrect: American argues that the judgment should be vacated
because the trial court lost jurisdiction over the bond on January
17. Although American did not assert that ground in the trial
court, we will determine the merits because the case presents a
pure question of law regarding jurisdiction based on undisputed
facts. (People v. Lexington National Ins. Corp. (2010) 181
Cal.App.4th 1485, 1491-1492.)
Jurisdiction to continue bail bond
American contends the trial court lost jurisdiction
when it failed to forfeit bail on January 17, and as a result, the
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subsequent bail forfeiture was void and subject to collateral
attack at any time. We disagree.
We review denial of a motion to vacate a bail
forfeiture for abuse of discretion. (People v. Lexington National
Ins. Corp., supra, 181 Cal.App.4th at p. 1489.) “When a statutory
scheme, such as that pertaining to bail forfeiture, ‘requires a
court to exercise its jurisdiction in a particular manner, to follow
a particular procedure, or to act subject to certain limitations, an
act beyond those limits is in excess of its jurisdiction.’” (Ibid.)
American’s reliance on People v. Amwest Surety Ins.
Co. (2004) 125 Cal.App.4th 547 is misplaced. There, the trial
court lost jurisdiction by failing to declare the bond forfeited in
open court when the defendant failed to appear. Here, the trial
court exercised its discretion to continue the bond pursuant to
section 1305.1, which provides: “If the defendant fails to appear
for arraignment, trial, judgment, or upon any other occasion
when his or her appearance is lawfully required, but the court
has reason to believe that sufficient excuse may exist for the
failure to appear, the court may continue the case for a period it
deems reasonable to enable the defendant to appear without
ordering a forfeiture of bail or issuing a bench warrant. [¶] If,
after the court has made the order, the defendant, without
sufficient excuse, fails to appear on or before the continuance
date set by the court, the bail shall be forfeited and a warrant for
the defendant’s arrest may be ordered issued.” (Italics added.)
The court must forfeit bail when the defendant,
“without sufficient excuse,” fails to appear for a required court
appearance. (§ 1305, subd. (a)(1).) But because the court below
had “reason to believe that sufficient excuse may exist for the
failure to appear” when it continued the case, “the court did not
4
lose jurisdiction to later declare a forfeiture of bail when the
defendant failed to appear at the continued hearing date.”
(People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 953;
County of Yolo v. American Surety Co. (2019) 43 Cal.App.5th 520,
522.)
American contends that because the January 17
hearing was a continued hearing, the court lacked power to once
again continue the hearing for another week. Where, as here, the
court continues the case because sufficient excuse may exist, but
“the defendant, without sufficient excuse, fails to appear on or
before the continuance date set by the court, the bail shall be
forfeited.” (§ 1305.1, 2d par., italics added.) American contends
that this language provides a more rigorous standard when the
accused fails to appear at a continued hearing, when the accused
must actually present a “sufficient excuse,” not just a “reason to
believe that sufficient excuse may exist.” We are not persuaded.
The substance of the “reason to believe” language in
section 1305.1 originated in a former version of section 1305,
subdivision (b), as amended in 1969. (Sen. Bill No. 1295 (1969
Reg. Sess.) Stats. 1969, ch. 1194, § 2; People v. Surety Ins. Co.
(1985) 165 Cal.App.3d 22, 26-27.) When applying the previous
version of the statute, our Supreme Court interpreted “without
sufficient excuse” to mean “some rational basis for a belief at the
time of his nonappearance that there exists sufficient excuse
therefor.” (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898,
906; see People v. Frontier Pacific Ins. Co. (1998) 63 Cal.App.4th
889, 894 [language in United Bonding “remarkably similar” to
5
1969 amendment]; People v. Ranger Ins. Co., supra, 108
Cal.App.4th at p. 951, fn. 6.)2
In 1993, the Legislature moved the substance of the
“reason to believe” language from former section 1305 to the first
paragraph of new section 1305.1. (Assem. Bill No. 734 (1993-
1994 Reg. Sess.) Stats. 1993, ch. 524, § 4.) The legislation also
added the second paragraph of section 1305.1. The purpose of the
1993 legislation was to “recast[] the provisions relating to
forfeiture of bail in a more readable form” and “clarify the
convoluted prose of existing law pertaining to bail forfeitures.”
(Sen. Floor Analysis, 3d reading analysis of Assem. Bill No. 734
(1993-1994 Reg. Sess.) as amended Aug. 18, 1993.)3
Although the 1993 legislation “does contain elements
of substance” (Sen. Floor Analysis, supra), the language in
section 1305.1 is not among the substantive changes. And the
legislative history gives no indication that the Legislature sought
to restrict the court’s discretion to continue a bond when it “has
reason to believe that sufficient excuse may exist.” We therefore
conclude the same standard applies to failures to appear at both
the original appearance date and a continued date. The court
2 In enacting the 1969 amendment, “‘the Legislature
intended the very simple alternative of a reasonable continuance
without any specific minute order. Since the court is thus
specifically authorized by the amendment to postpone its
decision, it certainly retains jurisdiction to declare a forfeiture at
a later time.’” (People v. Surety Ins. Co. (1976) 55 Cal.App.3d
197, 201.)
3 [as of June 3, 2021],
archived at .
6
thus applied the correct standard on January 17 when it
determined that jurisdiction was not lost and continued the
hearing.
Abuse of discretion
The court has discretion to determine whether a
rational basis exists to believe there may be a sufficient excuse
for failing to appear. (People v. United Bonding Ins. Co., supra, 5
Cal.3d at pp. 906-907; People v. Ranger Ins. Co., supra, 108
Cal.App.4th at pp. 952-953.) The trial court did not abuse its
discretion here when it relied on representations of counsel.
(County of Yolo v. American Surety Co., supra, 43 Cal.App.5th at
p. 526; People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th
915, 924-925.) “‘“In most situations . . . the only reasons before
the trial court are the evidence or representations furnished by
defendant’s counsel. The cases demonstrate that the courts have
cooperated with defense counsels’ requests and have liberally
relied on their representations.” [Citation.]’” (People v. Ranger
Ins. Co., supra, 108 Cal.App.4th at p. 952.)
American recognizes the burden that forfeiture places
on both the surety and on family and friends who pledge their
homes and other assets to secure an accused’s release (County of
Los Angeles v. American Contractors Indemnity Co. (2007) 152
Cal.App.4th 661, 666), but nonetheless contends that the trial
court should have rejected counsel’s explanation and forfeited
bail on January 17. We disagree.
This case is unlike People v. United Bonding Ins. Co.,
supra, 5 Cal.3d at page 902, and People v. Harco National Ins.
Co. (2005) 135 Cal.App.4th 931, where no explanation was given
for the defendants’ absences. “‘Because each case presents its
own unique set of circumstances the issue whether the showing of
7
excuse is sufficient is decided on a case-by-case basis.’” (Harco, at
p. 934.)
On January 17, counsel represented that (1) Yu had
been on a 5150 hold in Ventura County,4 (2) counsel of record had
been attempting to contact him, (3) counsel of record could not
appear in court on that day because of a road closure due to
inclement weather, and (4) Yu had appeared at prior court
appearances. The trial court properly exercised its discretion
when it continued the bond for one week at counsel’s request.
(See People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 949
[counsel was “concerned something has happened” because
accused made prior appearances]; People v. Surety Ins. Co.,
supra, 55 Cal.App.3d at pp. 199, 201 [counsel represented
accused was receiving medical treatment].)5
4 Although Welfare and Institutions Code section 5150
authorizes a 72-hour hold, that detention may be followed by
referral for further treatment, certification for intensive
treatment, or appointment of a conservator or temporary
conservator. (Welf. & Inst. Code, §§ 5152, subd. (b), 5172, 5206.)
5 At the hearing on the motion to vacate summary
judgment, American argued that summary judgment was
untimely entered. We do not resolve that issue because
American abandoned it on appeal. (Provost v. Regents of
University of California (2011) 201 Cal.App.4th 1289, 1294
[issues not raised in a heading and not supported by legal
argument disregarded].)
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DISPOSITION
The judgment is affirmed. Respondent shall recover
its costs on appeal.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
9
Pauline Maxwell, Judge
Superior Court County of Santa Barbara
______________________________
Law Office of John Rorabaugh, John Mark
Rorabaugh and Crystal L. Rorabaugh for Defendant and
Appellant.
Michael C. Ghizzoni, County Counsel, Maria Salido
Novatt, Deputy County Counsel, for Plaintiff and Respondent.