1

Filed 8/30/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. ACCREDITED SURETY & CASUALTY COMPANY, Defendant and Appellant. A150209
(Alameda County Super. Ct. No. 135346)

When bail is forfeited because a n out

- of

- custody defendant fails to appear
, the surety is entitled to an automatic exoneration of bail by operation of law if the defendant appears within 185 days from the mailing of a notice of forfeiture. ( Pen

. Code
, § 1305
, subds. (b)(1), (c)(1). ) 1 Here defendant appeared voluntarily to recall a bench warrant
, but

— when the case was continued to the afternoon session to secure the bail bondsman’s

atten dance

— he failed to appear th at afternoon

. The trial court did not treat the defendant’s morning appearance as sufficient to exonerate the bail and entered summary judgment against the surety. T he surety appeals from the order denying its motion to set aside summary judgment , to vacate the forfeiture and to exonerat e the bail. We agree with the surety that
, upon defendant’s appearance , the bail was exonerated by operation
of law and reverse.

FACTUAL AND PROCEDURAL BACKGROUND
Defendant John Adam s ( defendant) was charged with unlawful driving or taking of an automobile (Veh. Code, § 10851 , subd. (a) )

. When defendant failed to appear for a

1 Unless otherwise stated, all statutory citations herein are to the Penal Code.2

hearing, the trial court issued a bench wa rrant and set bail at $50,000. Defendant was
arrested on the warra nt . O n December 28, 2015, Accredited Surety (Accredited), through its agent, Chad Conley Bail Bonds, posted bail in the amount of $50,000
, and defendant
was released from custody. Defendant appeared at two post

- release hearings and was ordered to appear on February 18, 2016, for assig nment of counsel. When he failed to appear, the court declared the bond forfeited
, and issued a bench warrant. On February 22, 2016, the clerk of the trial c ourt mailed notice of bail forfeiture to Accredited which gave Accredited 185 days

—up to and including August 25, 2016

— to

move to vacate the forfeiture and to exonerate the bond. T he matter was on calendar
, on August 11, 2016, to recall the bench warrant

. D efendant appeared at 10 a.m., but the bail
bondsman did not. Defendant asked
, and the court agreed, to pass the matter to later in the morning . Defendant again appeared
, without the bondsman , and the court continued the matter to 2 p.m

. When the defendant appeared at the morning session, t he court did

not vacate the order of forfeiture and did not exo nerate the bond. Defen dant did not
appear in the afternoon
, and the court ordered “the benc h warrant to remain.” Upon the expiration of the exoneration period, t he trial court entere d summary judgment on the bond and sent Accredited notice of entry. Accredited moved to set aside summary judgment, arguing that the bail was exonerated by operation of law when defendant appeared on August 11, 2016. (§ 1305 , subd. (c)(1).) The court heard and
denied the motion
, and Accredited appealed

. DISCUSSION
I. Legal Principles

“ The forfeiture of bail and related proceedings are a matter of statutory procedure governed by [Penal Code] sections 1305 through 1308. ” ( People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703 , 709 ( Safety National ).) “ When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial
court must declare a forfeiture of the bond. ( Pen. Code, § 1305, subd. (a).) The surety that posted the bond t hen has a statutory ‘ appearanc e’ period in which either to produce the accused in court and have the forfeiture set aside, or to demonstrate other3

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. (§ 1306, subd. (a).) ” ( People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657 , fn. omitted .)

“ ‘ “Certain fixed legal principles guide us in the construction of bail statutes. The law traditionally disfavors forfeitures and this disfavor extends t o forfeiture of bail. [Citation. ] Thus, [the bail forfeiture statutes] must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture. ” ’ [Citation.] ‘ “ The standard of review, therefore, compels us to protect the surety, and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody, in order to obtai n the corporate bond.” ’ ” ( People v. American Contractors Indemnity Co. (2015) 238 Cal.App.4th 1041, 1044 .) “The provisions of section 1305

‘ must be strictly followed or the court acts without or in excess of its jurisdiction. ’ [Citations.] ‘ The burde n is upon the bonding company seeking to set aside the forfeiture to establish by competent evidence that its case falls within the four corners o f these statutory requirements.’ ” ( People v. Fairmont Specialty Group (2009) 173 Cal.App.4th 146, 152 .)
“ ‘T he object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court. ’ [Citation.] ‘ While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosec utions and are civil in nature.’ [Citation. ] In that regard, the
bail bond itself 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. ” ’ ( Ibid. ) When a defendant who posts bail fails to appear at a scheduled hearing, the forfeiture of bail im plicates not just the defendant’ s required presence, but
constitutes a ‘ breach of this contract ’ between the surety and the government. [Citation .] Ultimately, if the defendant’ s nonappearance is without sufficien t excuse, it is the surety
who ‘ must suffer the consequences. ’ ” ( Safety Nat ional
, supra , 62 Cal.4th at p. 709.)4

“If the defendant appe ars

. . . voluntarily

. . . within 180 days of the date of mailing
of the notice

. . . the court shall, on its own motion at the time the defendant first appears in court on the case in which the forfeiture was entered, direct the order of forfeiture to be
vacated and the bond exonerated. If the court f ail s to so act on its own motion, then the surety’s

. . . obligations under the bond shall be immediately vacated and the bond exonerated.” (§ 1305 , subd. (c)(1).) We review an order denying a motion to vacate a bond forfeiture under an abuse of discretion standard; however where , as here, the facts are uncontested, and the issue concerns a pure question of law, we review the decision de novo. ( People v. Fairmont Specialty Group, supra, 173 Cal.App.4th a t p. 151; see People v. International Fidelity
Ins. Co. (2012) 204 Cal. App.4th 588, 5 92; accord
, People v. International Fidelity Ins.
Co. (2010) 185 Cal. App .4 th 1391, 1395.)

II. Analysis It is undisputed that

— within the 185

- day exoneration period , on August 11,
2016

— defendant voluntarily appeared; the matter was passed to later in the morning ; and, due to the bondsman’s absence, continued to the afternoon, at which time defendant failed to appear. Upon the voluntary appearance of defendant, section 1305, su bdivision (c )(1) required the trial court

— on its own motion

— to order the forfeiture to be vacated
and t o exonerate t he bail. ( Id

. , subd. (c )(1). ) Failing that, “the surety’s

. . . obligations under the bond shall be immediately vacated and the bond exonerated.” ( Id

. , subd. (c)(2). ) In its motion and at the hearing , Accredited relied on the operation of law to seek to set aside the summary judgment . T he court recalled “that the defendant appeared in the morning. Went out to make a call to the bail bonds person and came back in and told me that the bail bonds person was going to be here later that morning, that did not occur, and then towards the end of the calendar still believed that the bail bonds person was going to appear and we pas sed it until 2:00 p.m.” Accredited argued
that defendant having voluntarily appeared, the surety was entitled to its remedy. In the
absence of the bail bondsman to address the issue of whether to reinstate the bond, the
court could e ither remand the defendant in the morning or

— as it did

— continue the5

matter to the afternoon with the defendant out of custody. Accredited observ ed : T he court indulged the defendant, but that accommodation should not be at the surety’s

expen se. The county argued that defendant’s presenc e throughout the morning did not constitute the prerequisite voluntary appearance to require vacation of the forfeiture and exoneration of the bond and analogiz ed to People v. Allied F idelity Insurance Company (1978) 82 Cal.App.3d 242 ( Allied ) , which interpreted appearance for pronouncement of judgment or grant of probation

. ( § 1287 .) The court agreed that defendant appeared
, but expressed uncertainty whether the appearance was sufficient . He ultimately denied the motion because

— at the defe ndant’s request

— the matter did not conclude while the defendant was present and invited defense counsel to seek appellate review

. The parties agree that the only case interpreting “appearance” as used in section
1305 , subdivision (c)(1), is People v. Ra nger Ins. Co. (2005 ) 133 Cal. App.4 th 1000 ( Ranger )

. I n Ranger , supra, 133 Cal.App.4th 1000, when the defendant for whom the surety posted bail failed to appear, the court declared the bail forfeited and issued an arrest warrant. According to the court’s docket, two days later, the defendant went to the clerk’s office, and, as a result, the matter was recalendared for a date four days later. ( Id

. at p. 1001.) Again
, the defendant failed to appear. After the expiration of the exoneration period
, the cour t entered summary judgment and mailed notice of forfeiture to the surety. The surety moved to set aside the summary judgment and sought relief
from forfeiture. The court denied the motion , and the Court of Appeal affirmed the judgment
, reasoning: “ The p lain language of section 1305, subdivision (c)(1) re quires the defendant to appear ‘in court.’ An appearance in the courtho use vestibule, hallway,

r estroom, or clerk’ s office is not an appearance in court. We presume that had the Legislature inte nded an appearance in the clerk’ s office to suffice, it would have said so. We have no power to add language to the statute. The defe ndant’ s appearance in the
clerk’ s o ffice is simply not sufficient. ” ( Ranger , supra , at p. 1002 .)
Like the Ranger c ourt, the parties here rely on the statute’s “plain language

. ”
Accredited argu es that the statute merely requires that the defendant appear “in court.”6

( Ranger , supra , 133 Cal.App.4 th at p. 1002 .) The county refers us to Black’s Law Dictionary which defines “appea rance” as “ ‘ the overt act by which one against whom suit has been commenced submits himself to the court’s jurisdiction

. . . .’ ” (Black’s
Law Dict. ( 10 th ed. 2014) p. 118, col. 2, quoting 4 Am.Jur.2d (1995) Appearance, § 1, p. 620.) The county ’s effort to compare defendant’s multiple appearances before the trial judge during the course of the morning calendar to the Ranger defendant’s request to
the clerk to recalendar the matter reveals the difference

— rather than the similarity

— between the two

. Here the defendant submitted himself to the court’s jurisdiction and

— had the judge not indulged defendant’s request to pass the matter

— to the prospect of being remanded. Since the defendant ’s previous failure to appear le d to his arrest on a
warrant and f

orfeiture of that bail, the possib i lity that he would be return ed to custody
was real.
In its effort to expand section 1305, subdivision (c)(1) ’s requirement that a defendant voluntarily appear, the county urges us to “determine the Legislature’s intent

s o as to effectuate the law’s purpose.” ( Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4 th 733, 737.) With that objective
, the county relies on the interpretation of “ap pear” as used in section 1287. ( Allied, supra, 82 Cal.App.3d 242. )
Unlike Ranger , supra , 133 Cal.App.4 th 1000, Allied addresses whether the defendant ’s
failure to appear trigger ed bail forfeiture under the specific conditions of the bond. ( Allied, supra, at pp. 244

– 245.) “ The undertaking of the cor porate bail bond was that the defendant would appear on the date set for arraignment and would at all times hold
himself amenable to the orders and process of the court, and ‘ if convicted, will appear for pronouncement of judgmen t or grant of probation

. ’ ” ( Id. at p. 244.) Defendant appeared for sentencing
, at which time the court ordered that the proceedings be suspended and that he be placed on probation

. The court passed the matter to consider probation
conditions. ( Id . at pp. 244

– 245.) The defendan t did not appear when the matter was recalled; the court forfeited bail and issued a warrant. The s urety moved to vacate the forfeiture, arguing variously that defendant’s nonappearance occurred “after being sentenced” and that “the defendant appeared for sentencing” as required by the bond.7

( Id

. at p. 245.) The Court of A ppeal reject ed both claims, concluding: “ The cond ition of
the bond that [defendant] ‘ appear for pronouncement of judgment or grant of probation’ was not satisfied by [defendant’s] being there for a portion of that process. ” ( Id. at p. 246 .) Defendant was out of custody on a bond pursuant to section 1287 “ which provides in pertinent part that the bond shal l guarantee that the defendant ‘

. . . if convicted, will appear for pronounc ement of judgment or grant of probation.’ ” ( I bi d. ) The court held that the bond remained in effect until completion of the pronouncement of judgment or grant of probation and that defendant departed before completion of the grant of probation in violati on of the terms of the bond . ( Id . at p p

. 247

– 248 .) Allied is inapposite : I ts holding is not based on the definition of “appear,” but rather on the additional statutory and bond requirement that a defendant “appear for pronouncement of judgment or grant of probation

. ” ( Ibid .; § 1287 , italics added .)
S ection 1305 sub division (c)(1) is unambiguous. “ The plain language of section 1305, subdivision (c)(1) requires the defendant to appear ‘in court.’ ” ( Ranger , supra , 133 Cal.App.4th at p. 1002.) Within the exoneration period, defendant voluntarily appeared in court , subjected himself to its jurisdiction, and remained throughout the morning calendar . T he court having failed to vacate the forfeiture and to exonerate the
bail on its motion
, by opera tion of law the forfeiture was vacated and the bail exonerated. (§ 1305 , subd. (c)(1).)
DISPOSITION The judgment is reversed. The forfeiture is vacated
, and the bail bond is

exonerate d

. Appellant shall be entitled to recover its costs on appeal.8 _________________________ Ross, J. *

We concur:

_________________________ Pollak, Acting P.J.

_________________________ Jenkins, J.

A150209

* Judge of the San Francisco Superior Court , assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.9

People v. Accredited Surety & Casualty Co.
(A150209)

Trial Court: Alameda County
Trial Judge: Hon. Gail Brewster Bereola
Attorneys: Law Office of John Rorabaugh, John M. Rorabaugh, Crystal L.

Rorabaugh for Defendant and Appellant.

Donna R. Ziegler, County Counsel, Scott J. Feudale , Deputy County Counsel for Plaintiff and Respondent.