Filed 6/22/22 P v. Bankers 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079054
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2021-00022474-
CU-EN-CTL)
BANKERS INSURANCE COMPANY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert O. Amador, Judge. Affirmed.
Law Office of John Rorabaugh and John Mark Rorabaugh for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Walter de Lorell, Senior Deputy
County Counsel, and Liberty M. Sacker, Deputy County Counsel for Plaintiff
and Respondent.
Bankers Insurance Company, acting through its agent All-Pro Bail
Bonds (collectively Surety), posted a bond to secure the pretrial release of
Martin Christopher Wiggins. Wiggins failed to appear as required at a
readiness hearing, and the court continued the hearing to the next court day.
When he again failed to appear at the continued hearing, the court declared
bail forfeited. Surety moved to set aside the forfeiture, arguing the court
lacked sufficient excuse to continue the original hearing and, as it did not
order forfeiture then, lacked jurisdiction to forfeit bail thereafter when
Wiggins did not appear at the continued hearing. Denying the motion, the
court entered summary judgment against Surety on the bond. Surety
appeals, reasserting the same claim.
Pursuant to Penal Code1 section 1305.1, the trial court had discretion
to continue the readiness hearing without forfeiting bail if it had “reason to
believe that sufficient excuse may exist for the failure to appear.” The record
permitted such a finding here: defense counsel stated he had “maintained
continual contact” with Wiggins throughout the pendency of the case and
suspected his client might have confused two hearing dates for which he had
been ordered to appear. Accordingly, the court did not lose jurisdiction to
forfeit bail at the continued readiness hearing when Wiggins again failed to
appear. Rejecting Surety’s arguments to the contrary, we affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Wiggins was arraigned by video on a felony complaint charging him
with residential burglary. He was ordered to appear at two upcoming
hearings—a February 14 readiness hearing and a February 20 preliminary
examination. The court remanded him to the sheriff’s custody and set bail at
1 Further undesignated statutory references are to the Penal Code.
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$50,000. A week later, Surety posted a $50,000 bail bond to secure his
release in exchange for guaranteeing his personal appearance at the
readiness hearing.
Wiggins did not appear at the February 14 hearing. Defense counsel
told the court that he had “maintained continual contact with [his client]
throughout the case,” had “spoken with him multiple times,” and suspected
he may have confused the two hearing dates. The court agreed to trail the
matter from the morning to its afternoon calendar to give counsel an
opportunity to call his client. The court called the matter again in the
afternoon session, where it continued the readiness hearing to the next court
day, February 18.
When Wiggins failed to appear on February 18, the court forfeited the
bond. It subsequently granted Surety’s request to extend the appearance
period by 180 days.
In February 2021, Surety filed a motion to vacate forfeiture and
exonerate bail. It argued that the trial court lost jurisdiction over the bond
when it failed to declare forfeiture at the readiness hearing on February 14,
2020. The People responded that the court had discretion to continue a
hearing without forfeiture if it had reason to believe a sufficient excuse for
nonappearance may exist. Because the record supported such a finding, the
People believed the court retained jurisdiction to order forfeiture at the
continued readiness hearing. As to Surety’s point that the court had no
separate reason to continue the hearing after trailing it to the afternoon
calendar, the district attorney argued that “[t]railing to the afternoon is
different than the actual continuance because the court is still in session that
day.”
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Agreeing with the People, the court denied Surety’s motion, explaining
it did not “find a sufficient difference between the morning and the
afternoon.” It later entered summary judgment against Surety on the bond.
DISCUSSION
Bail and forfeiture procedures aim to secure the accused’s presence in
court and obedience to court orders. (People v. Safety National Casualty
Corp. (2016) 62 Cal.4th 703, 709 (Safety National).) The bail bond reflects a
contract between the surety and the state in which the surety guarantees the
defendant’s appearance in court under risk of forfeiting the bond if a
defendant fails to appear without sufficient excuse. (Ibid.)
Sections 1305 to 1308 establish specific procedures governing bail
forfeiture. Trial courts must strictly comply with these procedures; any
noncompliance is treated as a jurisdictional defect. (People v. United States
Fire Ins. Co. (2015) 242 Cal.App.4th 991, 998−999.) “When a defendant
facing criminal charges is released on bail and fails to appear as ordered or as
otherwise required and does not have a sufficient excuse, a trial court must
declare the bail bond forfeited.” (Safety National, supra, 62 Cal.4th at p. 707;
see § 1305, subd. (a).)2
2 Upon forfeiture, the bond surety “has a statutory ‘appearance’ period in
which either to produce the accused in court and have the forfeiture set aside,
or to demonstrate other circumstances requiring the court to vacate the
forfeiture.” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th
653, 657−658; § 1305, subds. (b)–(c).) This 185-day period may be extended
by up to 180 additional days on a showing of good cause. (§ 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).) But if the surety
fails to produce the defendant, the court has 90 days within which to enter
summary judgment against the surety in the amount of the bond plus costs.
(§ 1306, subds. (a) & (c).)
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“If the court fails to declare a forfeiture at the time of the defendant’s
unexcused absence, it is without jurisdiction to do so later.” (Safety National,
supra, 62 Cal.4th at p. 710.) But under a narrow exception, a trial court may
“continue a case for a reasonable period without ordering a forfeiture of bail
or issuing a bench warrant, if it ‘has reason to believe that sufficient excuse
may exist’ for the defendant’s failure to appear.” (Ibid., citing § 1305.1.3)
This case turns on that exception. Wiggins failed to appear as required
at the February 14 readiness hearing, and the court continued that hearing
without declaring forfeiture. In Surety’s view, it thereby lost jurisdiction to
forfeit bail when Wiggins failed to appear at the continued hearing date.
A trial court must have some basis in fact reflected in the minutes or
reporter’s transcript to find sufficient excuse for a continuance under section
1305.1. (People v. Bankers Ins. Co. (2021) 69 Cal.App.5th 473, 478
(Bankers).) Because often “ ‘the only reasons before the trial court are the
evidence or representations furnished by defendant’s counsel,’ ” courts rely
“liberally” on representations by counsel. (Id. at p. 479.) Moreover, the
statute requires only that a court believe sufficient excuse may exist;
conclusive proof of an actual or valid excuse is not required. (People v.
Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 127, 135 (Financial
Casualty), citing People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 953
3 Section 1305.1 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.”
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(Ranger Insurance).) While a “silent” record does not permit the court to find
sufficient excuse to continue a hearing, “vague” representations by counsel
may. (Bankers, at p. 480; compare People v. North River Insurance Co. (2019)
37 Cal.App.5th 784, 797−798 (North River) [silent record provided “no
rational basis for the trial court’s implicit finding of sufficient excuse”] with
Ranger Insurance, at p. 953 [court properly relied on counsel’s representation
that defendant’s absence was so unusual that something must have
happened]. )
“We review a trial court’s finding of sufficient excuse for abuse of
discretion.” (Bankers, supra, 69 Cal.App.5th at p. 479; see Financial
Casualty, 14 Cal.App.5th at p. 134.) Construing the record, we assess
whether it “provides a rational basis for the trial court’s finding that
sufficient excuse may exist under the circumstances of this case.” (Bankers,
at p. 481.)
Our analysis is straightforward. Contrary to Surety’s claim, this is not
a silent record case. When Wiggins failed to appear at the February 14
readiness hearing, his counsel informed the court that he had been in
“continual” contact with him and “spoken with him multiple times.” Counsel
suspected that Wiggins may have confused the February 14 readiness
hearing with the February 20 preliminary examination at which he was also
ordered to appear. On this record, the court acted well within its discretion
in continuing the readiness hearing based on a rational finding that
“sufficient excuse may exist for the failure to appear.” (§ 1305.1.)
Financial Casualty is analogous, and Surety fails to distinguish it.
Defendant’s bail in that case was set $30,000. (Financial Casualty, supra, 14
Cal.App.5th at p. 131.) The court ordered the defendant to appear for an
eligibility report on Supervised Pretrial Release (S.P.R.) on February 18, as
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well as for a preliminary hearing on February 26. A surety posted a bond to
secure the defendant’s release. (Ibid.) When he failed to appear on February
18, counsel explained that he believed his client was procedurally confused
for two reasons—his case was referred for S.P.R. before he was bailed out,
and “two separate court dates had been set.” (Ibid.) Crediting possible
confusing circumstances, the court did not forfeit bail until later, when the
defendant failed to appear at the next scheduled hearing. (Ibid.) Rejecting
an argument along the same lines as the one advanced by Surety here, the
reviewing court explained that the trial court had acted within its discretion
in not forfeiting bail at the February 18 hearing. (Id. at p. 135.) It
reasonably credited counsel’s explanation that defendant failed to appear
“due to the possible confusing issuance of two separate court dates, and the
uncommon setting of bail and a referral to S.P.R.” to find sufficient excuse
may have existed to explain the nonappearance. (Ibid.)
Ranger Insurance, supra, 108 Cal.App.4th 945 is also instructive. The
defendant in that case appeared at multiple pretrial hearings but then failed
to appear at a continued trial date. When his case was called, his counsel
noted that defendant “has never failed to appear in any proceeding ever” and
was “usually here early.” (Id. at pp. 948−949.) Counsel stated he had tried
calling every number he had and was “ ‘concerned something has happened.’ ”
(Id. at p. 949.) The trial court deemed this sufficient, continuing the trial
date and commenting that the defendant “ ‘hasn’t missed in the past,’ ” and
there was “ ‘no reason to think otherwise yet.’ ” (Ibid.) This ruling was
upheld on appeal. (Id. at p. 953.)
Here, as in Ranger Insurance, the trial court could reasonably credit
counsel’s assertion that he had maintained continual contact with Wiggins,
suggesting something must have happened. (Ranger Insurance, supra, 108
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Cal.App.4th at p. 953.) It could likewise credit counsel’s suggestion along the
lines of that asserted in Financial Casualty that Wiggins may have confused
two upcoming hearing dates. (Financial Casualty, supra, 14 Cal.App.5th at
p. 135.) On this record, the court did not abuse its discretion in finding
sufficient excuse to continue the readiness hearing to the next court day
without forfeiting bail. As a result, it did not lose jurisdiction to declare
forfeiture on a later date when Wiggins failed to appear.
Surety suggests that while the record might have furnished sufficient
excuse to continue the hearing to the afternoon session, “no factual basis was
presented by the defendant or his representatives that provided a basis to
continue the afternoon hearing without the forfeiture of bail.” While Surety
is correct that “[a] nonappearance once excused does not constitute an excuse
for subsequent nonappearances” (People v. United Bonding Insurance Co.
(1971) 5 Cal.3d 898, 907), there was but a single continuance. Wiggins failed
to appear as lawfully required at the February 14 readiness hearing. The
case was called in the morning, and counsel offered comments that
potentially excused his nonappearance. By trailing the hearing to the
afternoon calendar, the court did not continue the readiness hearing. It was
only after calling the case again that afternoon did the court continue the
hearing. Thus, no separate factual basis was required to excuse Wiggins’s
failure to appear at the afternoon session.
We further reject Surety’s parallels to North River, supra, 37
Cal.App.5th 784. Defense counsel in that case offered no reason for
defendant’s nonappearance but merely asked that it “ ‘be excused.’ ” (Id. at
p. 789.) The trial judge did not respond on the record to the request; notation
in his hearing log stated, “ ‘[w]aived Δ.’ ” (Ibid.) Because this silent record
offered “no rational basis for the trial court’s implicit finding of sufficient
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excuse,” the defendant’s nonappearance was without sufficient excuse,
depriving the court of jurisdiction to declare a forfeiture at a later court date.
(Id. at p. 798.) In reaching this result, the North River court distinguished
Financial Casualty, noting that in that case the record (i.e., statements by
defense counsel) furnished a reasonable explanation for the defendant’s
nonappearance. (North River, at p. 798.)
Here by contrast, defense counsel offered a reasonable explanation for
Wiggins’s failure to appear on February 14: he had been in constant contact
with his client and believed Wiggins may have confused two hearing dates.
Although Surety rejects this proffer as “ ‘mere speculation,’ ” “[e]ven vague
assertions by defense counsel have been found to provide sufficient excuse.
For example, a statement by defense counsel that he did not know why a
defendant was not present, but the defendant had ‘ “never failed to appear in
any proceeding ever [and] is usually here early” ’ constituted sufficient
excuse.” (North River, supra, 37 Cal.App.5th at p. 797, citing Ranger
Insurance, supra, 108 Cal.App.4th at pp. 948−949, 953.) It is true that a
reviewing court may not speculate whole cloth as to a “mere possibility of
sufficient excuse” where the record “belies any basis in fact” for such a belief.
(People v. Surety Ins. Co. (1985) 165 Cal.App.3d 22, 28; see also People v.
Frontier Pacific Ins. Co. (1998) 63 Cal.App.4th 889, 895 [reviewing court
would not credit People’s “belated explanation for a silent record”].) But that
is not what happened.
The statute does not ask for certainty but merely a rational basis “to
believe that sufficient excuse may exist for the failure to appear.” (§ 1305.1,
italics added; Ranger Insurance, supra, 108 Cal.App.4th at p. 953.) The
record here furnished such rational basis. Consequently, by continuing the
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hearing, the trial court did not lose jurisdiction to later declare a forfeiture of
bail when Wiggins again failed to appear on February 18.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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