Filed 10/29/20 P. v. Financial Casualty & Surety, Inc. CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

FINANCIAL CASUALTY &

SURETY, INC.,

Defendant and Appellant.

 B295899

 (Los Angeles County

 Super. Ct. No. OSJ2102)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Victoria B. Wilson, Judge. Affirmed.

Law Office of John Rorabaugh, John Mark Rorabaugh and 

Crystal L. Rorabaugh for Defendant and Appellant. 

Mary C. Wickham, County Counsel, Adrian G. Gragas, 

Assistant County Counsel, and Kelsey C. Nau, Deputy County 

Counsel, for Plaintiff and Respondent.

_____________________________
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In this bail forfeiture case, Financial Casualty & Surety, 

Inc. appeals an order denying its motion to vacate forfeiture, 

exonerate bail, and set aside summary judgment. Financial 

Casualty contends the trial court failed to conduct a

constitutionally sufficient process when setting Edgar Javier 

Gonzalez’s bail, and therefore the bond is void. Financial 

Casualty also argues, for the first time on appeal, that it would 

be unconscionable to enforce the bail contract. We affirm.

BACKGROUND

In April 2014, Mr. Gonzalez was charged by felony 

complaint with two counts of making criminal threats (Pen. Code, 

§ 422, subd. (a), counts 1 & 2), and one count of child abuse under 

circumstances likely to cause great bodily harm or death (§ 273a, 

subd. (a), count 3). The complaint also included personal firearm 

use and strike allegations. Mr. Gonzalez was released on a 

$100,000 bond (which is not at issue in this appeal), but failed to 

appear for his May 16, 2014 preliminary hearing. The trial court 

declared the bond forfeited, and issued a no bail warrant for 

Mr. Gonzalez’s arrest. 

Mr. Gonzalez failed to appear at several subsequent 

hearings. He finally appeared on January 4, 2016, and the bench 

warrant was recalled. The court confirmed that bail was

previously set at $100,000, and re-set bail at $325,000. 

Mr. Gonzalez was remanded into custody, and did not object to 

the amount of bail. He retained private counsel in February 

2016. 

Mr. Gonzalez remained in custody until the preliminary 

hearing, which was held on May 31, 2016. At the preliminary 

hearing, Mr. Gonzalez was held to answer on four counts, and an 

amended felony complaint was filed, adding one count of

possession of a firearm by a felon (Pen. Code, § 29800, 
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subd. (a)(1), count 4). Because of the addition of a new count, the 

prosecutor requested that bail be increased. Mr. Gonzalez

requested that bail be lowered, arguing he has seven children, is 

a self-employed small business owner, and that the statutory bail 

amount “would create an undue burden [on] defendant.” No 

evidence of his financial circumstances was introduced. The trial

court acknowledged defendant’s circumstances, but reasoned they

did not “mitigate against his failing to appear on the previous 

bail in this case.” The court denied the request to reduce bail, 

and increased bail to $360,000. 

On June 2, 2016, Financial Casualty posted a bond for 

Mr. Gonzalez’s release. Mr. Gonzalez failed to appear for his 

June 14, 2016 arraignment on the amended complaint, and the 

trial court forfeited bail. Summary judgment was entered on 

March 19, 2018.

Financial Casualty filed a motion to set aside summary 

judgment, arguing bail was unconstitutionally set, rendering the

bond void, because the trial court did not make any inquiry into 

Mr. Gonzalez’s ability to pay, or whether there were other means 

to secure his presence in court. Financial Casualty did not argue 

the bail contract was unconscionable. The trial court denied the 

motion by written order, and Financial Casualty filed a timely 

notice of appeal.

DISCUSSION

Financial Casualty’s briefs are long on authority, and short 

on case-specific analysis. Financial Casualty’s chief complaint 

appears to be that California’s bail system, as a whole, is fatally 

flawed. Specifically, Financial Casualty argues that increasing

Mr. Gonzalez’s bail to $360,000 based only on the bail schedule 

was constitutionally deficient because the court failed to consider 

his individual circumstances. 
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Financial Casualty principally relies on In re Humphrey

(2018) 19 Cal.App.5th 1006, review granted May 23, 2018, 

S247278. In Humphrey, the Court of Appeal held due process 

requires a trial court to consider a defendant’s ability to pay, and 

other individualized factors, when determining whether to set 

bail. (Id. at pp. 1041, 1046.) Financial Casualty also relies on 

briefs filed with the Supreme Court in Humphrey, and upon 

Arevalo v. Hennessy (9th Cir. 2018) 882 F.3d 763, 764, arguing 

that California has conceded that an individualized inquiry must 

be made in setting bail to comport with due process. 

Notwithstanding Humphrey, or the state’s apparent 

concessions, it is well settled that “ ‘[d]efects and irregularities, if 

any, in the proceedings preliminary to the taking of bail are 

considered as waived by the surety when it assumes its 

obligations as such at the time of the execution of the bond.’ 

[Citations.]” (People v. Accredited Surety & Casualty Co. (2019) 

34 Cal.App.5th 891, 898 (Accredited).) Moreover, the “[f]ailure to 

comply with the procedural requirements of Humphrey, 

requirements intended to safeguard the defendant’s 

constitutional rights, [does] not render the subsequently issued 

bond void.” (Accredited, supra, at p. 899; see also People v. The

North River Ins. Co. (2020) 48 Cal.App.5th 226, 234-236 [finding

that failure to comply with Humphrey does not render a bond

void] (North River).)

Financial Casualty essentially argues that Accredited and 

North River, supra, were wrongly decided. We see no reason to 

depart from these cases, which plainly found the failure to make 

an individualized inquiry does not render a bond void after it has 

been executed, as is the case here. (Accredited, supra, 

34 Cal.App.5th at p. 898; see also North River, 48 Cal.App.5th at

p. 234.) Moreover, it appears the trial court did consider 
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Mr. Gonzalez’s circumstances, and found that any theoretical

hardship was outweighed by the risk evidenced by his previous 

failures to appear. 

Lastly, Financial Casualty argues that even if the bail 

contract was properly formed, it would be unconscionable to 

enforce it, reasoning it is a contract of adhesion between parties 

with unequal bargaining power. We asked the parties to provide 

letter briefs addressing whether this argument was forfeited by 

Financial Casualty’s failure to raise it in the trial court. (Bhatt v.

State Dept. of Health Services (2005) 133 Cal.App.4th 923, 933.) 

Financial Casualty urges we may address purely legal issues

based on undisputed facts for the first time on appeal. While this 

is true, it remains firmly within our discretion whether we will 

address new theories not presented to the trial court. (Bialo v.

Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73.) We see no 

reason to do so here, especially since the parties submitted no 

evidence in favor of or against a finding of unconscionability in 

the trial court. This case does not present a purely legal issue 

based on undisputed facts. Financial Casualty asks us to decide 

a fact-intensive question without any facts in the record, which 

would be improvident for us to do. (Armendariz v. Foundation 

Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 99

[discussing unconscionability].) 

DISPOSITION

The judgment is affirmed. Respondent may recover its

costs on appeal.

GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J. WILEY, J.