Filed 3/15/24 P. v. The North River Insurance Company 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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,

Plaintiff and Respondent,

v.

THE NORTH RIVER INSURANCE

COMPANY,

Defendant and Appellant,

BAD BOYS BAIL BONDS,

Real Party in Interest and 

Appellant.

 D081654

 (Super. Ct. No. 37-2022-

00042770-CU-EN-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Maureen F. Hallahan and Laura W. Halgren, Judges. Affirmed.

Jefferson T. Stamp for Defendant and Appellant and Real Party in 

Interest and Appellant.

Claudia G. Silva, County Counsel, and B. George Seikaly, Deputy 

County Counsel, for Plaintiff and Respondent.
2

MEMORANDUM OPINION

Bad Boys Bail Bonds (Bail Agent) and The North River Insurance

Company (Surety) posted two bail bonds guaranteeing a criminal defendant’s 

court appearances. On appeal, they contest the trial court’s denial of their 

motion to vacate the forfeiture of one of those bonds and the subsequent 

summary judgment on that bond. We resolve this matter by memorandum 

opinion and affirm. (See generally People v. Garcia (2002) 97 Cal.App.4th 

847.)

I.

At the defendant’s March 2021 arraignment, the court ordered him to 

appear at an April preliminary hearing. The bond at issue was executed 

several weeks later and required the defendant to appear at the April 

hearing. 

At the April hearing, the court accepted defense counsel’s appearance 

under Penal Code section 977 on her client’s behalf. At defense counsel’s

request, the court continued the preliminary hearing and set a May readiness 

hearing. The court acknowledged defense counsel had section “977

authority,” and counsel agreed. In the minutes, checkboxes reflect the 

defendant was “not present,” rather than “failed to appear,” and he was 

ordered to appear for the May hearing. 

At the May hearing, the court declared the “bond is forfeited” since 

“[t]he defendant was ordered to be here today . . . and . . . he’s not here.” The 

minutes reflect the defendant was “not present” and “failed to appear.” 

Bail Agent moved to vacate the forfeiture of the bond, claiming that, as 

relevant here, because the defendant failed to appear at the April hearing 

and no sufficient excuse was offered for his nonappearance, the trial court 

lost jurisdiction over the bond when it failed to declare forfeiture at that time. 
3

The People opposed. The trial court denied the motion, reasoning: “The 

defense counsel appeared [under section] 977, and . . . under the Emergency 

Rule[s Related to COVID-19] and Penal Code [section] 977, the [c]ourt 

accepted that representation and was not, in my view, under obligation to, on 

that date, forfeit the bond.” The trial court subsequently issued a summary 

judgment on the forfeiture of the bail bond. 

II.

Bail Agent and Surety challenge the trial court’s denial of the motion to 

vacate and the subsequent summary judgment on the same ground raised in 

the trial court. For the reasons below, we disagree with Bail Agent and 

Surety’s premise that the defendant failed to appear at the April hearing.

A.

Generally, “[a] court shall in open court declare forfeited” a bail bond 

“if, without sufficient excuse, a defendant fails to appear” for a proceeding at 

which “the defendant’s presence in court is lawfully required.” (Pen. Code, 

§ 1305, subd. (a)(1)(D).) A court that fails to declare forfeiture in accordance 

with section 1305 loses jurisdiction over the bail bond, which in turn is

“exonerated by operation of law.” (People v. Amwest Surety Ins. Co. (2004) 

125 Cal.App.4th 547, 554.)

Penal Code section 977 sets forth the general requirements as to when 

a criminal defendant is required to appear in court. At the time of the 

hearings at issue, the defendant was required to “be personally present . . . 

during the preliminary hearing” and “at all other proceedings unless he or 

she . . . execute[s] . . . a written waiver of his or her right to be personally 

present.” (Former Pen. Code, § 977, subd. (b)(1).) 

On April 6, 2020, however, after the COVID-19 pandemic precipitated a 

state of emergency, the Judicial Council of California drafted and adopted, as 
4

ordered by the governor, the Emergency Rules Related to COVID-19 to keep 

the courts functioning during unprecedented lockdowns. (See Cal. Rules of 

Court, appendix I, Emergency Rules Related to COVID-19 (Rules); see also 

E.P. v. Superior Court (2020) 59 Cal.App.5th 52, 54-55 (E.P.).) “Personal 

appearance waivers of defendants during [the] health emergency” applied 

“[n]otwithstanding any other law, including Penal Code section[ ] . . . 977,” 

except in circumstances not relevant here. (Rules, emergency rule 5(a)

(Rule 5).) Rule 5 provided “the court must allow a defendant to waive his or 

her appearance and permit counsel to appear on his or her behalf.” 

(Rule 5(b)(2).) 

Although forfeiture is disfavored, the surety bears the burden of 

showing a bail forfeiture should be set aside. (People v. American Surety Ins. 

Co. (2001) 88 Cal.App.4th 762, 768.) We review the denial of a motion to set 

aside a bail forfeiture for abuse of discretion. (People v. Lexington National 

Ins. Corp. (2016) 1 Cal.App.5th 1144, 1147.) Under this standard, we review 

the trial court’s findings of fact for substantial evidence, its conclusions of law

de novo, and its application of the law to the facts for an abuse of discretion. 

(County of Yolo v. American Surety Co. (2019) 43 Cal.App.5th 520, 524.) 

B.

Bail Agent and Surety’s argument depends entirely on their view that 

the defendant failed to appear at the April hearing, as the bond forfeiture 

procedure set forth in section 1305 applies only when a defendant “fails to 

appear.” (Pen. Code, § 1305, subd. (a)(1).) But we agree with the People that

the criminal defendant appeared through his counsel at the April hearing as 

allowed by Rule 5. 

Rule 5 by its own terms applies “[n]otwithstanding any other law, 

including Penal Code section[ ] . . . 977.” (Rule 5(a).) The rule was in effect 
5

at the time of the April hearing. (Rule 5(f).) Accordingly, we are 

unpersuaded by Bail Agent and Surety’s argument that the defendant’s 

appearance through counsel for the April preliminary hearing contravened 

section 977, subdivision (b)(1)’s requirement of in-person appearances at such

hearings. During the hearing, and as memorialized in the minutes, the court 

accepted defense counsel’s statement that she was appearing on her client’s 

behalf under section 977, implicitly as expanded by Rule 5, and defense 

counsel acknowledged she had “authority” to act on the defendant’s behalf. 

According to the minutes, the defendant was “not present” but did not “fail[ ]

to appear.” On this record, the trial court did not abuse its discretion in 

concluding the defendant appeared and not declaring the bond forfeited.

Bail Agent and Surety advance several arguments why, in their view, 

Rule 5 is inapplicable here. They claim “[i]t is well established that an order 

mandating a personal appearance overrides any statutory right to appear 

through counsel.” Bail Agent and Surety thus argue Rule 5 does not 

supersede the trial court’s March 2021 order for the defendant to appear at 

the April hearing and the jailer’s subsequent order to appear referenced in 

the bond. But both orders simply require the defendant to appear; neither 

mandated that the defendant appear by any specific means, including in

person. Further, at the time of these orders, Rule 5 already had expanded a 

defendant’s right to waive his right to appear in person and instead elect to 

have counsel appear on his or her behalf. (See generally Rule 5.) 

Accordingly, this argument is unavailing.

Bail Agent and Surety also argue that Rule 5 is inapplicable to this 

civil bail bond proceeding. Rule 5 did apply, however, to the defendant’s 

appearances in the underlying criminal proceeding. (See Rule 5(a).)
6

Finally, Bail Agent and Surety note “there was no explanation why [the 

defendant] could not have appeared via video connection, as he did prior to 

release on bail.” But no such explanation was required. Rule 5 permits a 

defendant to appear remotely or to waive his appearance and have counsel

appear on his or her behalf. (See generally Rule 5.) That the defendant 

appeared remotely while in custody did not create any continuing obligation 

to do so at subsequent hearings.

Because the defendant appeared through his counsel at the April 

hearing, there was no reason for his counsel or the court to reference Rule 5 

as “the basis for any sufficient excuse for [the defendant]’s absence.” There 

was no absence to be excused. Nor was there any reason for the court to 

reference Rule 5 in accepting defendant’s appearance through counsel, given 

the Rules had been in use for over a year. (E.P., supra, 59 Cal.App.5th at 

pp. 54-55.)

As the criminal defendant appeared at the April hearing, the court was 

not required to declare the bond forfeited and retained jurisdiction over the 

bond. The trial court thus properly declared the bond forfeited at the May 

hearing, at which the defendant indisputably failed to appear. (Pen. Code, 

§ 1305, subd. (a)(1)(D).) Accordingly, we perceive no abuse of discretion on 

this record.
7

III.

We affirm. The People are entitled to their costs on appeal.

CASTILLO, J.

WE CONCUR:

IRION, Acting P. J.

BUCHANAN, J.