Filed 5/30/14 P. v. Daly CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 rul e 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant ,

v.
JAMES E. DA LY,
Defendant;
JAMES E. DALY et al.,

Real Parties in Interest and Appellants. H037241 (Monterey County Super. Ct. No. M77763)

James E. Daly a nd his wife, R

. Daly appeal from an order of the trial court denying their reques t to exonerate bail and set aside the motion for summary judgment

. S TATEMENT OF THE F ACTS AND C ASE In May 2004, Mr. Daly was charged with 22 counts of molesting his stepdaughter (Pen. Code, § 288, subdivision (a)). 1 Bail was set at $500,000 . Mr. Daly wa s the sole

owner of real property in Carmel Valley, California, and deposited the property as a bond for bail. Mr. Daly executed and recorded a promissory note in the amount of $500,000

1 All further statutory references are to the Penal Code.2

and deed of trust to secure the note in favor of the Monterey County Court Executive
Officer. Mr. Daly married his wife, Mrs. Daly, in May 20 04. In February 2005, Mr. Daly conveyed the real property to himself and Mrs. Daly as husband and wife, tenants in

common. Mr. Daly and his wife decided to sell the property to s ubstitute cash for the property bond, and to secure funds for his legal fees. In late March or early April 2005, an offer was made on the property. The sale closed on April 29, 2005, and the proceeds were approximately $617,000.
When escrow closed on A pril 29, 2005, the promissory note of $500,000 was paid in full to the Superior Court. 2 The trial in Mr. Daly ’s case began in March 2005. On Friday, April 8, 2005, both
sides rested their c ases. On that weekend, Mr. Daly fled to Ireland by way of Can ada.
On M onday, April 11, 2005, Mr. Daly failed to appear in court, and on Wedn esday, April 13, 2005, Mr. Daly was convicted in absentia on all counts.
After Mr. Daly abscon ded in mid

- April 2005, there was approximately $123,588.72 remaining in the escr ow account from the sale of the property. The distric t attorney prosecuting Mr. Daly served a search warrant on the title company that
maintained the escrow account to seize the remaining funds on the grounds that they would likely be used to f acilitate M r. Daly ’s escape.

2 Respondent argues in a cross

- appeal at the end of their response brief that Mrs. Daly lacks standing in this case, because “she has no leg al interest in the $500,000 bail money.” Although the original promissory note on the property bond was executed only by Mr. Daly as the sole owner of the property, at the time the bail was forfeited, the property was owned jointly between Mr. and Mrs. Da ly. As a result, the $500,000 in sale proceeds that was used to pay the promissory note was jointly owned between Mr. and Mrs. Daly. Mrs. Daly most certainly has a legal interest in the $500,000 bail money, and had standing to bring the motion to exonera te bail and vacate summary judgment.3

On April 18, 2005, the District Attorney mailed a “ Notice of Bail Forfeiture ” to
Mr. and Mrs. Daly . The notice of forfeiture read, in relevant part: “N otice is hereby given that the bail in the above

- entitled case was ordered forfeited by the C ourt due to the defendant’s failure to appear on the date shown below. Your contractual obligation to pay this property bond will become absolute on the 185 th day following the date of
forfeiture unless the C ourt orders the forfeiture set aside a nd the pro perty bond reinstated.” On January 10, 2006, a summary judgment was entered on the bail
forfeiture. After Mr. Daly left the country, his wife did not know where he was until he called her from Ireland. When Mrs. Daly received the call, she imm ediately reported it to investigators, along with information about Mr. Daly ’s credit card transactions. A federal warrant was issued for Mr. Daly ’s arrest on April 20, 2005. Meanwhile, Mrs. Daly retained an attorney and filed a motion for the release o f the remaining funds in the escrow account that were seized . The district attorney opposed the motion, despite the fact that Mr. Daly was in custody at the time. At the hearing on the motion, the trial court denied Mrs. Daly’s request fo r release of the funds. On October 1, 2005, Mr. Daly was arrested in Uruguay while traveling from
Buenos Aires. Despite the fact that Mr. Daly signed a waiver of extradition , Uruguayan authorities requi red formal extradition proceedings before Mr. Daly could be returned to the United States . Extradition was granted on February 13, 2007, and Mr. Daly was returned to Monterey County on March 7 or 8, 2007

. Mr. Daly was sentenced to prison on June 18, 2007. On March 2, 2011, Mr. and Mrs. Daly filed a motion to exonerate b ail and vacate the summary judgment on the ground that the trial court lacked jurisdiction to enter judgment due to faulty notice of the bail forfeiture. On June 24, 2011, the court determined that the notice met the requirements of due process, and denie d the motion.4 D ISCUSSION Mr. and Mrs. Daly (appellants) assert on appeal that the trial court erred in refusing to grant his motion to exonerate bail and set aside summary judgment. An order granting or denying a motion to vacate the forfeiture of a ba il bond and to declare an exoneration of the bond is appealable. ( People v. Wilcox (1960) 53 Cal.2d 651, 65 7 ( Wilcox ) .) Ordinarily, we review the order under an abuse of discretion standard, the trial court’s discretion subject to constraints imposed by the bail statutory
scheme. ( County of Orange v. Lexington Nat. Ins. Corp

. (2006) 140 Cal.App.4th 1488,
1491 .) “ ‘[W]hen a statute 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.’ [Citation.] ‘ “The law traditionally
disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus, Penal Code sections [1305 and 1306] deali ng with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture.” [¶] The standard of review, therefore, compels us to protect the surety, and more importantly the individual citizens who pled ge to the surety their property on behalf of persons seeking release from custody, in order to obtain the corporate bond.’ [Citation.]” ( Id . at p. 1492.) Revenue to the state via bail forfeiture should not be a consideration in a bail controversy. ( Wil cox, supra , 53 Cal.2d at p. 656 .) Here, appellants assert that the court lost jurisdiction to enter the summary judgment , because the notice of forfeiture sent to them was inadequate to satisfy due process standards

. Section 1305, subdivision (b) provides in part: “If the amount of the bond .

. . exceeds four hundred dollars ($400), the clerk of the court shall, within 30 days of the forfeiture, mail notice of the forfeiture to the surety

. . . .” Proper notice in compliance with this provision is a neces sary predicate to collection on the bond. The subdivision5

goes on to provide that the surety shall be released of all obligations under the bond if “[t]he clerk fails to mail the notice of forfeiture in accorda nce with this section within
30 days after th e entry of the forfeiture” or mails the notice to the wrong address. (§ 1305, subd. (b)(1)

- (3).) Appellants do not dispute that th e notice mailed on April 18, 2005 to them complied with the liter al terms o f the statute. Rather, appellants argue that the n otice was
ineffective because it failed to recite the statutory provisions under which it was issued
and under which relief from forfei ture may be obtained , including the time period within
which to do so

. Appellants assert that because they are private p arties acting as depositors of property to secure his bail, rather than professional bail agents or corporate sureties, they are entitled to more detailed notice of the procedures to seek relief from forfeiture. Moreover, appellants argue that without det ail, the notice he received was constitutionally defective, and did not comply with due process. Appellants rely on two California Court of Appeal bail bond forfeiture decisions People v. Swink (1984) 150 Cal.App.3d 1076 ( Swink ), and Minor v. Municipal Cou rt (1990) 219 Cal.App.3d 1541 ( Minor ) , as well as the principles established by the United States Supreme Court ( e.g., Memphis Light, Gas & Water Division v. Craft (1978) 436 U.S. 1 ( Craft )), for the proposition that because they are a private parties who provided bail, rather than a professional bail agent or surety, they is entitled to more detailed notice of the forfeiture procedures.
In Swink , an individual deposit ed cash in lieu of a bail bond. When the defendant failed to appear, the cash bail was forfeited and a not ice was sent to Swink , stating, “ ‘ bail will remain forfeited until the defendant appears. ’ ” ( Swink , 150 Cal.App.3d at p. 1078 .) Relying on a long line of Supreme Court decisions, including Craft, supra, 436 U.S. 1 , the court held th at the notice was “constitutionally deficient because it fail[ed] to tell
Swink of the statutory procedure to set aside the declaration of forfeiture , including the6

time period within which to do so.” The court pointed out that the notice failed to tell
S wink “of the pending action (i.e., the perfection of the forfeiture [citation] ), the underlying statutory scheme governing forfeitures , or that there were jurisdictional time limits. Moreover, it implies the absence of time limitations and the automatic di scharge
of the forfeiture upon defendant’ s appearance.” ( Id. at p. 1081, fns. omitted .) The court considered that the risk of erroneous deprivation of the bail depositor’ s interest in recouping the deposit “is substantial for those who are not profession al sureties or
bondsmen. ” ( Id. at p. 1082 , italics added.) Because of the constitutionally deficient notice, the court reversed an order denying Swink’s motion for discharge of the
forfeiture

. The Minor case is similar to Swink . In Minor , the private in dividual who posted
bail received a notice that stated, “ ‘ Pursuant to Section 1305 of the Penal Code, you are hereby notified of an order of the Court this date forfeiting bail

. . . . ’ ” ( Minor , supra , 219 Cal.App.3d at p. 15 50. ) The court recognized t hat the notice was distinguishable
from the notice in Swink , because it “did not affirmatively imply an absence of time limits
or that forfeiture would automatically be discharged should the defendant appear,” but
held that the notice nonetheless was const itutionally deficient. “Like the notice in Swink , it failed to tell of ‘the pending action (i.e., the perfection of the forfeiture

. . .), the underlying statutory scheme governing forfeitures , or that there were jurisdictional time limits.’ [Citation.] Reference to section 1305 alone, without any hint that relief from
forfeiture was available, let alone the time limits for seeking it, was deficient under any reasonable reading of Swink. ” ( Ibid. )
Swink and Minor clearly hold that a notice of bail forfei ture sent to lay individ uals that does not contain specific information about the statutory provisions under which the
forfeiture was issued and under which relief from forfeiture may be obtained , is constitutionally insufficient to maintain the forfeiture

.7

Appellants certainly qualify as “lay people,” and not professional bail agents or corporate sureties. 3 Under Swink and Minor , they would be entitled to a more detailed notice than what they actually received. Specifically, in order to be constitutional ly sound, the notice should have contained reference to the statutory provisions for the
forfeiture and for the relief from forfeiture , including the time period within which to do

so

. Respondent relies heavily on City of West Covina v. Perkins (1999) 5 25 U.S. 234 ( West Covina ) for the proposition that the minimal notice given to defendant and his wife
in this case was sufficient to satisfy due process

. In West Covina , the court stated, “when law enforcement agents seize property pursuant to a warrant , due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available reme dies for its return.” ( Id . at p. 240; emphasis added.) The West
Covi na court went on to state, “[n]o similar rational e justifies requiring individualized
notice of state

- law remedies which, like those at issue here, are established by published, generally available state statutes and case law. Once the property owner is informed that his property has been seized, he can turn to these public sources to learn about the remedial pro cedures available to him. The [c] ity need not take other steps to inform him of his options.” ( Id . at p. 241.) Respondent asserts that the “state

- law remedies” referred to by the West Covina c ourt, are akin to the bail forfeiture notice provisions, and that basic notice, as was provided in this case, was sufficient under West Covina to satisfy the
law. The significant problem with respondent’s argument is that West Covina was not addressing th e issue of notice for bail forfeiture; rather, the case involved a seizure of property pursuant to a search warrant in a criminal investigation . This is a wholly
different set of circumstances than bail forfeiture. First , the seizure of property pursuant

3 Mr. Daly is a physician, and Mrs. Daly is an artist.8

to a criminal search warrant is a temporary deprivat ion of the property, and the state has a legal obligation to return the property once there is no longer a lawful right to retain it.
B ail forfeiture, on the other hand, is a permanent loss of property of the surety. Second, in the seizure of the property under a search warrant, there are no jurisdictional t ime limits during which a property owner must engage in legal procedures for the return the property. An owner of seized property has time to inves tigate what remedies are available to him for return of the property. A surety, on the other hand, must act in a very specific manner within 185 days to preserve its rights to the property. Under the bail forfeiture statutory scheme, there is no time to investigate the remedies available ; hence the specific notice requirements. This is especially true for lay people , such as appellants , who, unlike professional sureties are likely unaware of the specific procedures they need to employ to set aside the fo rfeiture and protect their property.
Unlike West Covina , Swink and Minor dealt specifically with lay people acting as sureties and the notice required to be given to them in the event of bail forfeiture. Under
Swink and Minor , as lay people, appellants we re entitled to notice that contained statutory provisions under which the forfeiture was issued and under which relief from forfeiture could be obtained, including the time period within which to do so. The notice in this
case did not contain such informa tion. Respondent focuses on the fact that Mr. Daly himself is responsible for the
forfeiture because he ab sconded and remained on the lam , precluding him from arguing
he was entitled to more detailed noti ce of the forfeiture. Mr. Daly ’s “unclean hands,”

a ccording to respondent, make the notice requirements for lay people inapplicable to him

. In addition, respondent p oints to the fact that Mr. Daly was represented by counsel at all times during the pro ceedings. Presumably, Mr. Daly ’s counsel should have i nformed defendant of his right to exoneration of bail and the actions defendant could take to assert that right.9

The purpose of bail is to ensure the appearance of the defendant, not to generate revenue for the state or to punish the surety or the defend ant. (See Wilcox, supra , 53
Cal.2d at p p . 656

- 657 .) Respon dent’s insistence that Mr. Daly ’s flight during trial somehow abrogates the need for con stitutionally sound notice reveal s its motive to punish
defendant. Moreover, r espondent cites no authorit y for its position that a defendant’s conduct determines the extent of notice required . The question of whether notice of the forfeiture in this case was constitutionally sound so as to satisfy due process is completely unrelated to defendant’s actions

. Although it is true that Mr. Daly is responsible for the forfeiture in the first instance because he left the country during trial, he does not lose the right to due process and sufficient notice as a result. The fact that Mr. Daly was represented by

coun sel also has no impact on the question of whether the notice in this c ase was constitutionally sound. Finally, and of particular importance is the fact the Mrs. Daly also had a legal
inte rest in the property forfeited. Even if we found that Mr. Daly’s c onduct somehow made the forfeiture notice requirements inapplicable to him, as respondent asserts we should do, we cannot overlook the fact that Mrs. Daly was also a lay pers on who lost her
interest in the property when it was forfeited. 4 The bail statut ory scheme does not provide for apportionment or severability of forfeited funds to individuals based on conduct. Indeed, the bail scheme is not punitive. (See Wilcox, supra , 53 Cal.2d at
p p

. 656

- 657 .) Mrs. Daly, as a lay person, was entitled to the det ailed notice provisions
laid out in Swink and Minor, and the notice provided here violated her due process rights. We conclude that the failure to give proper notice of the forfeiture of bail on April 18, 2005, resulted in the court losing jurisdiction ov er the bond. The later

4 Following oral argument in this case, we requested supplemental briefing from the parties on the issue of whether Mrs. Daly’s interest in the forfeited bai l was serverable.10

declaration of forfeiture and summary judgment taken thereon was therefore void. ( Pe ople v. Wilshire Ins. Co (1975) 46 Cal.App.3d 216, 221.) T he trial court erred in denying appellants’ motion to exonerate the bond and vacate summ ary judgment.
D ISPOSITION The order denying the motion to vacate forfeiture and exonerate bond, and the order entering summary judgment on the bond are reversed. The cause is
remanded to the trial court with directions to vacate the forfeiture and exon erate the bond. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

______________________________________

RUSHING , P.J.

WE CONCUR:

____________________________________

PREMO, J

.

____________________________________

ELIA, J.