Filed 5/22/14 P. v. Financial Casualty & Surety CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Respondent,

v.
FINANCIAL CASUALTY & SURETY, INC.,
Appellant. B247264
(Los Angeles County Super. Ct. No. BA383044)

APPEAL from an order of the Superior Court of Lo s Angeles County. Jose I. Sandoval, Judge. Affirmed. John M. Rorabaugh for Appellant. John F. Krattli, County Counsel, Ruben Baeza, Jr., Assistan t County Counsel, Debbie C. Carlos, Associate Co unty Counsel, for Respondent.

________________ _______________2 Financial Casualty & Surety, Inc. (F CS) appeals from the trial court’s order denying its motion to vacate forfeitur e and exonerate bail. We affirm.
BACKGROUND On or about April 3, 2011, Roderick L ee Govan was arrested for carrying a loaded

firearm in violation of former Penal Code section 12031, subdivision (a)(1), 1 and placed in custody. On April 6, 2011, FCS, through its agent, posted a bail bond in the amount of $35,000 to secure Govan’s rele ase from custody. In an info rmation filed in this case on May 3, 2011, Govan was charged with one felony count under fo rmer section 12031, subdivision (a)(1). On August 30, 2011, Govan appeared at a pretrial conference/trial setting hearing.
The trial court heard and denied his motion to reduce the charge to a misdemeanor under section 17, subdivision (b). Du ring a recess, the parties reached a plea deal under which Govan would plead no contest to the felony charge, be pl aced on probation for three years with credit for time serv ed, and be required to perfor m 45 days of community labor with the California Department of Transporta tion (Caltrans). As the prosecutor stated on the record at the hearing, the pa rties also agreed to “put sent encing over for 18 months.” If, at that time, Govan comple ted the 45 days of Caltrans and had “not picked up any other new offenses,” the charge would be reduced to a misdemeanor at the sentencing hearing. The trial court clarified that Govan would “remain on misdemeanor probation for the remaining time at that point.” The prosecutor informed Gova n on the record: “If you have not completed 45 days of Caltrans, or if you have picked up any new cases, then you’ll be sentenced on this charge as a felony to three year s felony probation with
credit for time served a nd 45 days Caltrans.” The prosecutor further informed Govan on the record: “If you are sentenced on this case as a felony and you violate any of the terms and conditions of your probation, then the court will have the option of reinst ating you on probation and sentencing you to the remainder of time up to a year in county jail or to the state prison for either 16

1 Further statutory references are to the Penal Code.3 months, two or three years. [¶] . . . [¶] If you are sentenced on this case as a misdemeanor, and you violate any of the terms and conditions of probation, the maximum time the court could sentence you to is a year in the county jail.” Govan pleaded no contest to the felony charge at the August 30, 2011 pretrial conference/trial setting hearing. He gave up his right to be senten ced within 28 days, and agreed the sentencing could be continued for 18 months until Fe bruary 28, 2013. He also waived his rights under People v. Arbunkle (1978) 22 Cal.3d 749, agreeing he could be sentenced on February 28, 2013 by a different judge than th e one who took the plea. The
court ordered Govan to return to court in fi ve months, on January 30, 2012, “with proof of enrollment and participation in the Cal trans [sic] progra m.” The court also ordered
Govan’s “bail to stand.” Govan failed to appear at the hearing on January 30, 2012 to show proof of enrollment and participation in the Caltrans program. The trial court commented: “He’s not on probation yet because he hasn’t been se ntenced.” The trial court issued a bench warrant for Govan, ordered bail forfeited, an d issued a bail forfeitu re notice which the court sent to FCS and its agen t who posted the bail bond. On October 2, 2012, FCS filed a motion to vacate forfeiture and exonerate bail and a supporting memorandum of points and authorities. FCS contended the bond was exonerated by operation of la w on August 30, 2011 because the trial court placed Govan on probation on that date. The prosecu tion did not file a written opposition. The trial court held a hearing on FCS’s motion on October 19, 2012. Counsel for FCS and the prosecutor appeared. After hear ing oral argument, the court took the matter under submission. On October 23, 2012, th e court issued a minute order denying FCS’s motion, stating in pertinent part: “Here, becau se this court has yet to sentence defendant, there can be no statutory exoneration on the b ond. Counsel for the moving party [FCS] argues that the defendant was effectively on probation given the pre-conditions set by the court (45 days Cal trans [sic]) for his senten cing. Moving party cites neither case law nor statutory authority in support of that position.”4 FCS filed a timely appeal from the order denying its motion to vacate forfeiture
and exonerate bail. On August 8, 2013, while this appeal was pending, the trial court recalled the bench warrant. On August 28, 2013, the tria l court suspended imposition of sentence on the felony count and placed Govan on pr obation for three years with terms and conditions, including the performance of 45 days of Caltrans.
DISCUSSION
FCS contends the trial cour t erred in denying its motion to vacate forfeiture and exonerate bail. FCS argues the bond was exon erated by operation of law under section 1195 on August 30, 2011 because Govan “was released on probation” on that date. County Counsel responds, arguing the trial court did not err in denying FCS’s motion because Govan was not sentenced or placed on probation on August 30, 2011, therefore section 1195 was “not triggered,” bail wa s not exonerated, and the court properly forfeited bail on January 30, 2012 when Govan failed to appear. “Ordinarily, appellate courts review an order denying a motion to vacate the
forfeiture of a bail bond under an abuse of discretion standard. [Citation.] When the appellate court is deciding only legal issues , however, such as jurisdictional questions and matters of statutory interpretation, the abus e of discretion standard does not apply. [Citation.] When the facts are undisputed an d only legal issues are involved, appellate courts conduct an independent review.” ( People v. Internatio nal Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.) County Counsel, on behalf of the People, asserts the abuse of discretion standard applies. FCS argues “[ t]here are no disputed factual issues” and “[t]herefore the de novo standard of review applies.” We need not decide this issue
because the outcome would be the same re gardless of which standard we apply.
Pursuant to the terms of the bail bond at issue here, FCS undertook that Govan would appear in court at all times throug h pronouncement of judgment or grant of probation, and if Govan did not appea r, FCS would pay the People $35,000. Under section 1305, if a defendant fails to appear on an “occ asion prior to the pronouncement of judgment” when “the defe ndant’s presence in court is lawfully5 required,” the “court shall in open court declare forfeited the undertaking of bail . . . .” (§ 1305, subd. (a)(4).) Section 1195 provides, in pertinent part, “If the defendant, who is on bail, does appear for judgment and judgment is pronounced upon him or probation is granted to him, then the bail shall be exonerated . . . .” At the August 30, 2011 hearing during which the tr ial court took Govan’s no contest plea, the court did not pronounce ju dgment or place Govan on probation within the meaning of section 1195. The court orde red Govan to complete 45 days of Caltrans service, and continued the sentencing hearin g for 18 months. Govan personally waived his rights to be sentenced within 28 days a nd to be sentenced by th e same judge who took his plea. The court further ordered bail to st and and Govan to appear in five months on January 30, 2012 to show proo f of enrollment and participa tion in Caltrans. The court did not place Govan under the superv ision of a probation officer. FCS cites no authority indicating bail is exonerated under the circumstances presented in this case at the Au gust 30, 2011 hearing. Instea d, FCS cites a case in which the defendant failed to surrender after being sentenced to prison a nd granted a three-day stay of execution (see People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663),
and cases in which the defendants failed to co mply with terms and conditions after being formally placed on probation (see, e.g., People v. Safety National Casualty Corp. (2007) 150 Cal.App.4th 11, 13, 17; People v. Doe (1959) 172 Cal.App.2d Supp. 812, 814). FCS also compares this case to drug di version/deferred entry of judgment cases under section 1000 et seq., in which crim inal proceedings are suspended and bail is
exonerated when the trial court orders diversion. (See, e.g., People v. Ormiston (2003) 105 Cal.App.4th 676, 690.) “Diversion, howe ver, does not constitute a special custodial
status or other form of release of the defe ndant with a promise to appear at further proceedings, but rather a guilty plea and reso lution of the case in the nature of ‘“a specialized form of probation . . .”’ for a particular class of defendants.” ( Id . at p. 692; People v. Orihuela (2004) 122 Cal.App.4th 70, 73 [sam e].) The circumstances of this case are not analogous to drug diversion/de ferred entry of judgment cases. Here, criminal proceedings were not suspended on August 30, 2011. The trial court ordered6 Govan to appear five months later on Janu ary 30, 2011, in advance of the sentencing hearing, and ordered bail to stand. The trial court did not err in denying FCS’s motion to vacate forfeiture and exonerate bail. At the August 30, 2011 hearing at which th e trial court took Govan’s no contest plea, bail was not exonerated under section 1195 because judgment had not been pronounced and Govan had not be en placed on probation. Criminal proceedings were not suspended. The court ordered Govan to appear five months later. Accordingly, the court
ordered bail to stand. When Govan failed to appear at the January 30, 2012 hearing, the court properly ordered bail forfeited.
DISPOSITION The order is affirmed. Respond ent is entitled to costs on appeal.
NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

ROTHSCHILD, Acting P. J.

JOHNSON, J.