Filed 1/18/24 P. v. Allegheny Casualty Co. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ALLEGHENY CASUALTY COMPANY,

Defendant and Appellant. B320719; B320481

(Los Angeles County Super. Ct. No s . OSJ2579 ; OSJ2580 )

APPEAL S from order s of the Superior Court of Los Angeles County

, Natalie P. Stone , Judge. Affirmed. Law Office of John Rorabaugh and John Mark Rorabaugh
for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Richard P. Chastang, Assistant County Counsel, and Michael J. Gor d on, Deputy County Counsel, for Plaintiff and Respondent.

_______________

_________2 INTRODUCTION

Allegh e ny Casualty Company (Allegh e ny) appeals from two order s denying its motion s to vacate forfeiture and exonerate two bail bond s and from the subsequent summary judgment s entered against it. Allegheny contends the trial court lost jurisdiction
over the bond s by failing to declare a forfeiture pursuant to Penal Code section 1305, subdivision (a)

, 1 when defendant Sharon
Denise Huff failed to appear at a hearing in her criminal case on February 24, 2021

. We conclude the tr ial court did not abuse its
discretion in concluding that Huff was not ordered to personally

appear on that date

. Accordingly , we affirm the orders denying Allegheny ’ s motion s to vacate forfeiture and exonerate the bail
bond s, and the orders enter ing summ ary judgment

.

FACTUAL AND PROCEDURAL BACKGROUND

A

. Allegheny Posts a Bond t o Secure Huff ’ s Release f

rom Custody for Two Separate Incidents
In July 2018 Huff was charged by complaint in case
No. 8LB0765001 with one count of misdemeanor willful infliction of corporal injury resulting in a traumatic condition upon a

1 Statutory references are to the Penal Code unless otherwise noted

.3

victim 2 (§ 273.5, subd. (a).) 3 Huff plead ed no contest, and the trial court placed her on three years ’ probation, including the
condition that she obey all laws.
In April 2020 Huff was charged by complaint in case
No. NA114285 with one felony count of willful infliction of corporal injury resulting in a traumatic condition upon a victim (§ 273.5, subd. (a )), one felony count of assault upon the p erson of another with a deadly weapon or i nstrument other than a firearm (§ 245, subd. (a)(1)), and one misdemeanor count of a willful and knowing violation of a protective order or stay

- away court order (§ 166, subd. (c)(1).) The trial court set bail at $120,000. As a result of the new allegations against Huff, the trial court revoked probation in case No. 8LB0765001 and set Huff ’ s bail at $50,000. In June 2020 Allegheny , by and through its agent Sunrise Bail Bonds, posted bond No. ASIM

- 1801 in the

am ount of $120,000 for the release of Huff from custody in case
No. NA114285 , and posted bond No. AS50K

- 96045 in the amount of $50,000 in case No. 8LB0765001. Accordingly, there are two bonds in this case involving Huff totaling $170,000.
Both cases were c onsidered together by the trial court. Following several continuances, counsel for H u ff informed the
trial court 4 on January 21, 2021 that the “ case is ready to resolve ”
but that “ it ’ s just been difficult bringing Ms

. Huff into court due

2 We grant the People ’ s request to augment the record to include the complaint in case No. 8LB0765001. (Rules of Court, rule 8.155(a)(1) (A) .)

3 Section 273.5, subdivision (a)

, is a wobbler, and is punishable as either a felony or misdemeanor. ( People v. Villalba (2023) 89 Ca l.App.5th 659, 667.)

4 Judge Chet L. Taylor.4

to her age and h igh risk . My request would be to return for preliminary setting [i.e., the date for setting the preliminary hearing] on February 24th with the necessary time waiver. I ’ m going to try my very best to have her before the court

. ” The trial

court confir med that counsel was appearing under section 977, subdivision (b) , and continued the hearing. T he reporter ’ s transcript does not reflect the trial court ordered in open court
that H u ff was to appear at the next hearing date . But its minute
order en tered on January 21, 2021 states, “ [t] he court orders the defendant to appear on the next court date

, ” which was February 24, 2021. On February 2 4 , 2021 counsel for Huff appeared, stated that he filed a section 977, subdivision (b) waiver

, and requested

t he hearing be continued to April 13, 2021 because he was “ just trying to get Ms. Huff in the building so she can take the people ’ s offer. ” The trial court 5 indicated on the record that “ I think under Emergency Rule 5(c) 6 I can allow you to waive the 60

- day rule today based on the fact that you ’ re 977(b), ” and continued the matter to April 13, 2021. On April 13, 2021 counsel for Huff advised the court that

“ we ’ re ready to resolve this case. We have been for a very long time, but Ms. Huff

’ s medical needs have prevented her from coming into court along with the risk of COVID . . . . At this point, I would ask for another setting date so I can try to get her in.

. . .

5 Judge Debra A

. Cole.

6 Under Emergency Rule 5(c)(3) the court was required to

“ accept defense counsel ’ s representation that the defendant understands and agrees with waiving any right to appear unless the court has specific concerns in a particular matter about the validity of the waiver. ”5

This case has been ready to resolve for a long time. It ’ s just getting her in to court. She lives in Vegas right now because she ’ s getting medical attention there. ” In response, the People argued
that “ the People do want a [preliminary hearing] because we
want her to come to court

. . . . So at this point we either need to
set it f or prelim or I ’ d ask for a bench warrant or something
because she ’ s not coming to court even though we do want to
resolve the case. ” The trial court agreed with the People and set May 26, 2021 as the preliminary hearing date. T he trial court advised
Huff ’ s counsel that “ there is not going to be more time,
counsel.

. . . The defendant must be present on that court
date.

. . . Probation remains revoked. Bond to stand on that.
We ’ ll set it for probation violation hearing setting on that same day, May 26 , 2021

. ”

B. After Huff Fails To Appear, t he Trial Court Orders Bail Forfeited

, Denies the Motion s t o Discharge t he Forfeiture
Order a nd Exonerate Bail

, a nd Enters Summary Judgment On May 26, 2021 counsel for Huff appeared and notified
the trial court that he “ lost contact with her. ” The trial court
ordered bail forfeited in both cases because Huff did not appear
d espite the court’s April 13, 2021 order directing her to appear on May 26

. The court clerk mailed notice of the forfeiture order s to Allegheny and Sunrise Bail Bonds on June 4, 2021. On November 5, 2021 Allegheny moved to discharge the
forfeiture order s a nd exonerate bail

. In its motion s , Allegheny argued th at the trial court lost jurisdiction over each bond when it failed to declare a forfeiture on February 24, 2021. ( See § 1305, subd. (a)(1) (D) [ “ A court shall in open court declare forfeited the6

undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear ” on “ [a] ny other occasion prior to the pronouncement of judgment if the
defendant ’ s presence in court is lawfully required ” ].) Allegh eny filed supplemental briefs on January 25, 2022 arguing that “ [ t ] he mere presence of a 977 waiver is not an excuse for the
defendant ’ s failure to appear ” where the trial court ordered a defendant to appear. The record does not reflect the People filed

a n opposition brief to either motion , but the People were present

at the hearing on Allegheny’s motions

. 7 On March 11, 2022 the trial court 8 heard argument and
denied the motion s to vacate forfeiture and exonerate bail, and then subsequently entered summ ary judgment against Allegheny . (See § 1306, subd. (a) [“ When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has
declared the forfeiture shall enter a summar y judgment against
each bondsman named in the bond in the amount for which the
bondsman is bound

. ”]

. ) 9 The clerk ’ s notice of entry of judgment s

7 The People’s failure to file a written opposition did not relieve Allegheny of its burden as the moving party to show it was entitled to relief. “ Burden is upon t he bonding company seeking to set aside the forfeiture to establish by competent evidence that its case falls within the four corners of these statutory requirements.” ( People v. American Bankers Ins. Co. (1992) 4 Cal.App.4th 348, 354 ; accord

, People v. American Surety Ins. Co

. (1999) 75 Cal.App.4th 719, 726 .)

8 Judge Natalie P . Stone.

9 “ ‘ Summary judgment following a declaration of forfeiture is a consent judgment entered without a hearing pursuant to the terms of the bail bond. ’ ” ( People v. Financial Casualty & Surety,7

on the forfeited bond s and demand for payment w ere entered on March 15, 2022 (case Nos. OSJ2579 and OSJ2580)

. 10 Allegheny timely appealed

. Because both appeals raise the
identical issue , although as to two different bonds involving the

same person , we consider the appeals together.

DISCUSSION

A. Governing Law a nd Standard of Review
A bail bond “‘“ ‘ is a c ontract between the surety and the government whereby the surety acts as a guarantor of the
defendant ’ s appearance in court under the risk of forfeiture of the
bond. ’ ” ’” ( People v. Financial Casualty & Surety, Inc . (2016)

2 Cal.5th 35, 42.) When a person for whom a bail bond has been posted and against whom a criminal complaint has been filed fails to appear as required by law, the court must declare the bail
forfeited. (§ 1305, subd. (a); see County of Los Angeles v. Financial Casualty & Surety, Inc . (2018) 5 Cal.5th 309, 312; People v. American Contractors Indemnity Co . (2004) 33 Cal. 4th 653, 657.)

Inc . (2021) 73 Cal.App.5th 33, 37 , quoting People v. The North River Ins. Co. (2020) 53 Cal.App.5th 559 , 567.) “ The only issue in a challenge to the summary judgment is whether it was entered pursuant to the terms of the consent, which requires compliance with Penal Code sections 1305 and 1306. ” ( People v. American Contractors Indemnity Co. (2004) 238 Cal.App.4th 653, 1047 .)

10 “ While bail bond proceedings occur in connection with criminal prosecutions, they are inde pendent from and collateral to the prosecutions and are civil in nature. ” ( People v. American Contractors Indemnity Co.

, supra , 33 Cal.4th at p. 657.)8 Section 1305, one of the provisions governing bail forfeiture, provides: “ (a)(1) A court shall in open court declare forfeited the undertaking of bail o r the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: [¶] (A) Arraignment. [¶] (B) Trial. [¶] (C) Judgment. [¶] (D) Any other occasion prior to the pronouncement of judgme nt if the defendant’s presence in court is lawfully required. [¶] (E) To surrender himself or herself in execution of the judgment after appeal. ”
Once the court declares forfeiture as provided in
section 1305 the surety that posted the bond has 180 days (plus five days for mailing) after the clerk of court mails a notice of
forfeiture to move to vacate forfeiture and exonerate the bond. (§ 1305, subd. (c)(1); People v. Lexington National Ins. Co. (2007) 147 Cal.App.4th 1192, 1198 [ “‘ When the bail has served i ts purpose, the surety will be “ exonerated, ” i.e., released from the obligation. Exoneration norm ally occurs on termination of the proceedings in some manner or on return of the defendant to custody

. ’ ” ].) Upon a showing of good cause, the court m ay extend
this appearance period by no more than 180 days from the date
the trial court orders the extension. (§ 1305.4; People v. Financial Casualty & Surety, Inc

., supra , 2 Cal.5 th at p. 44.) If the forfeiture has not been set aside by the end of the

ap pearance period, including any extension, “ the court which has declared the forfeiture shall enter a summary judgment against
each bondsman named in the bond in the amount for which the
bondsman is bound. ” (§ 1306, subd. (a); People v. American
Contractor s Indemnity Co. , supra, 33 Cal.4th at p. 657 [ “The surety that posted the bond

. . . has a statutory ‘ appearance ’ period in which either to produce the accused in court and have9

the forfeiture set aside, or to demonstrate other circumstances requiring the court to vacate the forfeiture. If the forfeiture is not set aside by the end of the appearance period, the court is required to enter summary judgment against the surety.” ].) If the trial court does not declare a forfeiture when required by section 1305, it loses jurisdiction over the bail bond and lacks authority to e nter summary judgment against the bail bond company. ( See People v. Amwest Surety Ins. Co . (2004)
125 Cal.App.4th 547, 550 [“We conclude the trial court’s failure to declare a forfeiture in open court, as mandated by section 1305, subdivision (a), resulted in the court’s loss of jurisdiction over the
bail bond. Because the court did not have fundamental j urisdiction when it entered the summary judgment, the judgment was necessarily void, and subject to collateral attack at any time

. ”]; accord, People v. United Bonding Ins. Co . (1971)
5 Cal.3d 898, 907 [“ It follows from the foregoing that the court ’ s failur e to declare a forfeiture upon a nonappearance without sufficient excuse, either where no excuse is offered or where the finding of an excuse constitutes an abuse of discretion, deprives the court of jurisdiction to later declare a forfeiture

. ”] ; see also § 1305, subd. (a)(1)(D) .) We strictly construe the applicable forfeiture statutes in favor of the surety in order to avoid the “harsh results” of forfeiture. ( People v. International Fidelity Ins.
Co . (2018) 20 Cal.App.5th 345, 354; People v. The North R iver
Ins. Co . (2018) 31 Cal.App.5th 797, 804.)
A trial court ’ s order granting or denying a motion to vacate
the forfeiture of a bail bond is reviewed for abuse of discretion. (See People v. Bankers Ins. Co . (2010) 182 Cal.App.4th 582, 586

- 588 [applying ab use of discretion standard to “a record in conflict”10

where reporter’s transcript and clerk’s minutes differed on whether forfeiture was ordered in open court].)

B. The Trial Court Properly Denied Allegheny’s Motions
B ecause H u ff Was Not Required t o Personally Appear o n February 24, 2021 Allegheny argues H u ff was ordered to appear personally in court on February 24, 2021 by the trial court ’ s January 21, 2021
minute order. In Allegheny ’s view, the trial court ’ s failure to
declare a forfeiture o n Feb ruary 24, 2021 resulted in the court’s loss of jurisdiction over the bail bond and the summary judgment against it on March 11, 2022

. We are unpersuaded. The t rial
court did not err in ruling that

, notwithstanding the January 21,
2021 minute order, Huff had not been ordered to appear personally at the preliminary hearing setting date on February 24, 2021

.

1. Huff W

as N ot R equired B

y S tatute T

o B e P resent for
the P reliminary H

earing S etting D ate and A ppeared
T hrough C

ounsel “‘[S] ection 977 requires a defendant to be present at the five fundamental proceedings and entitles [her] to be present at all
others. ’” ( People v. Gutierrez (2003) 29 Cal.4th 1196, 1203, quoting People v. Ochoa (2001) 26 Cal.4th 398, 435 .) Section 977,
subdi vision ( b ) (1)

, provides: “ Except as provided in
subdivision (c), in all cases in which a felony is charged, the accused shall be physically present at the [1] arraignment, [2] at the time of plea, [3] during the preliminary hearing, [4] during those portions of the trial when evidence is taken before the trier of fact, and [5] at the time of the imposition of sentence. The11

accused shall be physically or remotely present at all other proceedings unless they waive their right to be physically or remotely present, with leave of court and with approval by
defendant ’ s counsel. ” Subdivision (b)(2) of section 977 further provides that

,

“ [t] he waiver of a defendant ’ s right to be physically or remotely
present m ay be in writing and filed with the court or, with the

court ’ s consent, may be entered personally by the defendant or by
the defendant ’ s counsel of record. ” ( People v. Safety National Casualty Corp . (2016) 62 Cal.4th 703, 716 [ “ with respect to ‘ all
other proceedings ’ at which the defendant seeks to be absent, the standard waiver form set out in section 977, subdivision (b)(2) contemplates a situation where a defendant is absent from

court ” ].) In this case, February 24, 2021 was the date for the setting
of the preliminary hearing. A preliminary hearing setting date is not one of the five mandatory hearings where a defendant is required to be present. ( See § 977, subd. (a); People v. Safety National Casualty Corp

. , supra, 62 Cal.4th at p. 716 [ “ The five mandatory proceedings described in the preceding sentence of section 977(b)(1) (arraignment, plea, preliminary hearing, trial, sentencing) reflect the Legislature ’ s concern that the felony defendant be present at case

- related proceedings that occur in
open court

. ” ] .) Further, there is no dispute that Huff’s counsel
had entered a valid section 977 waiver excusing Huff’s absence at that hearing

. H u ff ’ s appearance c ould only be mandatory if she had been ordered to appear personally in court on February 2 4, 2021 . As explained in People v. Ranger Ins. Co . (1992) 6 Cal.App.4th 1301,
1304 : “ A defendant ’ s presence is ‘ lawfully required ’ when there is12

‘ a specific court order commanding his appearance at a date and
time certain ’ [citation] or when a defendant has notice because he or she is present when the date and time for a mandatory appearance are set, even though the court did not specifically order his or her personal presence .” Accordingly, we turn to whether Huff had been ordered to appear at the preliminary hearing setting date.

2. Under the Circumstances Presented, t he R eporter’s
T ranscript W

as Entitled to “

Greater Credence” T

han the January 21, 2021 M inute O rder
T he minute order of January 21, 2021 states that

, “ [t] he
court orders the defe ndant to appear on the next court date

. ” But

t hat is not the end of the analysis. As further explained below, i n determining whether the minute order accurately reflected the proceedings for purposes of a bail forfeiture motion, the trial court could pro perly examine the reporter’s transcript (which does not order Huff’s personal appearance) to determine whether Huff was ordered to appear in court on the date in question

. In this context, a trial court is entitled to resolve a conflict
between the clerk’s minute order and the court reporter’s transcript to determine which is “entitled to greater credence.” ( People v. Bankers Ins. Co

. (2010) 182 Cal.App.4th 582, 58 6; id. at p. 58 8 [“ We have a record in conflict on that issue, with a
reporter ’ s transcript, which does not indicate any bail forfeiture
and clerk ’ s minutes, which do ”; resolving conflict in favor of reporter’s transcript ]; see People v. Thompson (2009)

180 Cal.App.4th 974, 978 [“ When the record is in conflict and cannot be harmonized, “ ‘. . . that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to13

greater credence .” ’” ]; In re Evans (1945) 70 Cal.App.2d 213, 216 [“ whether the recitals in the clerk ’ s minutes should prevail as against con trary statements in the reporter ’ s transcript, must depend upon the circumstances of each particular case ”]; People v. Smith (1983) 33 Cal.3d 596, 599 [same].)
The trial court’s order denying Allegheny’s motion s to vacate forfeiture and exonerate the bail bond s does not explain
its reasoning. But w hen the trial court denied Alleg heny’s
motion s, it necessarily determined Huff had not been ordered to

appea r on February 24, 2021. Th e trial court did not err

. Aside
from the January 2021 minute order, there was nothing in the
record before the trial court indicating that Huff had been ordered to appear at the February 24, 2021 preliminary hearing setting date . The reporter’s transcript for January 21, 2021 does

not indica te t he trial court verbally ordered H u ff to appear personally at the next hearing date ; that is, the trial court did not make such an order in open court with counsel present

. Further, as noted by the People, the January 21, 2021 transcript “includes what app ears to be the entirety of the hearing

. . . including the court calling the matter, the initial [] stated appearances by the parties, a short discussion about the status of the case, a request to continue the setting hearing to the next month, the court

co ntinuing the hearing to February 24, 2021, and farewell
statements.” As in People v. Bankers Ins. Co

. , supra, 182 Cal.App.4th at p. 58 7
, “ There is nothing which suggests the reporter ’ s transcript is in any way incomplete

. ” And Allegheny does not dispute the reporter’s transcript is complete. Under this scenario, the trial court reasonably concluded
that where there is a conflict between the minute order and the reporter’s transcript

, that “the reporter’s transcript [was] entitled14

to greater credence” than the clerk’s minute order. ( People v.
Bankers Ins. Co

. , supra, 182 Cal.App.4th at p. 586; see In re P.A. (2012) 211 Cal.App.4th 23, 30, fn. 4 [“‘[c]onflicts between the
reporter ’ s and cle rk ’ s transcripts are generally presumed to be clerical in nature and resolved in favor of the reporter ’ s transcript unless the particular circumstances dictate otherwise’”] ; see also
In re T.G. (2020) 58 Cal.App.5th 275, 298 fn. 20 [ “ T hroughout our
review of the record in these appeals, however, we have encountered minute orders that include findings that were not made or, on occasion, are in direct conflict with the statements as reported in the hearing transcripts. Even under better
circumstances the rec ord of the court ’ s oral pronouncements prevails over conflicting minute orders

. ” ].) Allegheny contends “ the record is not in conflict

, ” and that “[n] othing in the record conflicts with th [e] order to appear ,” but it does not persuasively explain why the trial court abused its discretion in ruling otherwise in light of the reporter’s transcript. Allegheny further contends that “the minutes are ‘no less a part of the record than the transcript of the oral proceedings,’ and

. . . are generally more accessible than a reporter ’ s transcript.” ( People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 713
fn. 3.) But as People v. Bank ers Ins. Co

. at page 587 to 588 observed, “the court in Allegheny was faced with a situation in which there was no reporter’s transcript because no court reporter was present at the forfeiture of bail proceeding. The
clerk’s minutes reflected bail had bee n declared forfeited, but not that the declaration had been made in open court. . . . Thus, our case is distinguishable from Allegheny. We do not have a record silent on the issue of whether the declaration was made in open
court. We have a record in con flict on that issue, with a15

reporter’s transcript, which does not indicate bail forfeiture and clerk’s minutes, which do.” As we explained above, the trial court
here was entitled to resolve the conflict in the record between the reporter’s transcript and the minute order on the issue of
whether Huff was ordered on January 21, 2021 to appear at the February 26 hearing and determine the reporter’s transcript was entitled to greater credence. Indeed, t he trial court could reasonably have concluded the
Januar y 21, 2021 minute order was simply incorrect

. 11 By way of

contrast , the trial court on April 13, 2021 unequivocally stated on the record that “[t]he defendant must be present” at the next hearing on May 26, 2021. This affirmative statement, which is

cons istent with the April 13, 2021 minute order requiring her to appear, was sufficient to “lawfully require” Huff’s presence at the next hearing date. (See People v. Lexington National Ins. Corp. (2016) 1 Cal.App.5th 1144, 1149.) Thus, when Huff failed to appear on May 26, 2021 only then did the trial court order
forfeiture of the bond s

.

C. The Trial Court Properly Entered the Summary Judgments
A gainst Allegheny As outlined above, t he trial cour t did not abuse its discretion in concluding H u ff was not ordered to personally

11 The record before us reflects that at least one other minute order was erroneous. The February 24, 2021 minute order states that

, “ Defendant is present in court. ” But the reporter ’ s transcript clearly indicates Huff was not present and her counsel

was “ appearing 977(b) for defendant. ” In deciding the underlying motions, the trial court wa s entitled to resolve such conflicts in favor of the reporter’s transcript

.16

appear at the preliminary hearing setting date on February 24,
2021 . Accordingly, the trial court properly denied Allegheny ’ s motion s to discharge forfeiture and exonerate bai l

, and properly

enter ed summary judgment against Allegheny in each matter

. ( See § 1306, subd. (a); People v. American Contractors Indemnity
Co. , supra , 33 Cal.4th at p. 657 ; People v. American Contractors Indemnity Co.

, supra, 238 Cal.App.4th at p. 1047 ; People v. Financial Casualty & Surety, Inc . (2017) 10 Cal.App.5th 369, 378 [ “ If the forfeiture is not vacated, the trial court must then enter summary judgment against the surety for ‘ the amount of the bond plus costs

. ’” ].)

DIS POSITION

We affirm the orders of summary judgment and the trial

court ’ s order s denying Allegheny ’ s motion s to discharge forfeiture
and exonerate bail. The People are awarded their costs on appeal.

MARTINEZ, J.
We concur:

SEGAL, Acting P. J. EVENSON, J. *

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.