Filed 12/10/19; Certified for publication 12/17/19 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                    THIRD APPELLATE DISTRICT
                                                      (Yolo)
                                                        ----




COUNTY OF YOLO,                                                              C087140

                  Plaintiff and Appellant,                            (Super. Ct. No. CV1849)

         v.

AMERICAN SURETY COMPANY,

                  Defendant and Respondent.




         Appellant, Yolo County (County), appeals from an order granting respondent’s,
American Surety Company (American Surety), motion to set aside the summary
judgment and exonerate bail. The County argues Department 8 correctly exercised its
discretion under Penal Code section 1305.1 finding, based on counsel’s representations,
there might be sufficient excuse for defendant’s failure to appear (statutory section
references that follow are to the Penal Code unless otherwise stated). Thus, the trial court
retained jurisdiction to declare the bond forfeited when defendant failed to appear two



                                                          1
weeks later. Accordingly, the County argues Department 13 erred in finding the trial
court (Department 8) lacked jurisdiction to forfeit the bond.
       We find Department 13 erred in setting aside the summary judgment. Department
8 did not abuse its discretion under section 1305.1 to continue the case for a reasonable
period of time to enable defendant to appear without ordering a forfeiture of bail. We
reverse the order and reinstate the summary judgment. The County is to recover its costs
on appeal.

                                FACTS AND PROCEEDINGS
       The People charged defendant Francisco Estrella with numerous felony offenses,
including assault with a deadly weapon and shooting at an inhabited dwelling with gang
and firearm use enhancements. The trial court set bail at $190,000. On March 25, 2016,
American Surety, through its agent Bail Hotline Bail Bonds, posted bond for Estrella’s
release. Between March 25, 2016 and August 31, 2016, Estrella appeared at four
hearings, April 11, May 18, June 9, and August 17. At the August 17 hearing, the matter
was ordered continued to August 31 for a section 995 motion and trial setting conference.
       Defendant was not present in court on the morning of August 31. The acting
public defender, Monica Brushia, was unsure why defendant was not in court, and
indicated she thought it was a misunderstanding because defendant had appeared at all
his other hearings. Estrella’s regular public defender, Martha Sequeira, was in a different
department on another matter and did not have defendant’s telephone number with her, so
Department 8 put the matter over to the afternoon to allow Sequeira to try to contact
Estrella.
       Defendant was not present at the continued afternoon hearing. Sequeira informed
the court she did not know why defendant was not in court, “but it’s not like him to not
be here because he’s made every court appearance. We have a really good working
relationship and I just talked to his sister the day before yesterday, . . . not today’s court


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date, but his case in general. I have constant communications with him and his entire
family. He’s been working consistently for the last year and a half that I’ve been
representing him on different matters. So I don’t know why, but it’s unlike him not to be
present.” She also indicated that she had not been the attorney in court with Estrella at
the prior hearing. She remained certain his failure to appear could not “be because he’s
willfully trying to evade the process of the court. It has to be something that happened
between him and the attorney in my office. And when I went to go talk to Mr. Borruso
[the acting public defender at that hearing] this morning, who was here the time before
and stood in for me, he didn’t remember what they talked about. [¶] So I don’t know.
And I tried to make phone calls but his phone goes directly to voicemail, which is
consistent with when he’s at work. He doesn’t answer the phone.” The People did not
object to the trial court finding sufficient excuse. Based on counsel’s representations,
Department 8 found sufficient cause to not forfeit the bond and set the matter for hearing
on September 14, 2016, in Department 13. Defendant failed to appear at the
September 14 hearing and the trial court ordered the bond forfeited.
       After American Surety’s efforts to return defendant to court and exonerate bail
were unsuccessful, the trial court entered summary judgment. American Surety filed a
motion in Department 13 to set aside the summary judgment, discharge forfeiture and
exonerate bail. American Surety argued the court lost jurisdiction over the bond when it
did not declare an immediate forfeiture of the bond when Estrella did not appear in court
on August 31, 2016. The County opposed the motion, arguing that under section 1305.1,
Department 8 had a rational basis to find there might be a sufficient excuse for Estrella’s
failure to appear. Department 13 granted American Surety’s motion stating, “The Court
isn’t satisfied with the decision this Court made, but it may have been in error and I grant
the motion.”




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                                         DISCUSSION
       The County contends Department 13 erred in granting American Surety’s motion
to set aside the summary judgment and exonerate bail. The County argues Department 8
correctly exercised its discretion under section 1305.1, and defense counsel’s
representations to the court were a rational basis on which Department 8 could find there
might be sufficient excuse for defendant’s failure to appear. Accordingly, the County
argues Department 13 erred in finding the court did not have jurisdiction to declare the
bond forfeited when defendant failed to appear two weeks later.
       If a criminal defendant released on bail fails to appear at a lawfully required
hearing, without sufficient excuse, the trial court must declare bail forfeited. (§ 1305,
subd. (a)(1).) “If the court has no information that a sufficient excuse may exist so as to
justify a continuance pursuant to section 1305.1, the court must declare a forfeiture. If
the court fails to do so, it loses jurisdiction and the bond is exonerated by operation of
law. [Citations.] The court does not have jurisdiction to declare a forfeiture later.
[Citation.]” (People v. Indiana Lumbermens Mutual Ins. Co. (2011) 194 Cal.App.4th 45,
48–49.) There is a limited exception to this rule under section 1305.1, if “the court has
reason to believe that [a] sufficient excuse may exist . . . , [it] may continue the case for a
[reasonable] period . . . to enable the defendant to appear without ordering a forfeiture of
[the bond].” (§ 1305.1.) “Thus, the court has the discretion to continue a hearing, and
retain its jurisdiction to declare a forfeiture, as long as it has reason to believe that a
sufficient excuse exists for the defendant’s nonappearance. [Citation.]” (People v.
Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 127, 134 (Financial Casualty &
Surety, Inc.).)
       Generally, we review an order resolving a motion to vacate a bond forfeiture under
an abuse of discretion standard, “subject to constraints imposed by the bail statutory
scheme.” (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488,



                                                4
1491-1492.) “As the Supreme Court has noted, however, ‘[t]he abuse of discretion
standard is not a unified standard; the deference it calls for varies according to the aspect
of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for
substantial evidence, its conclusions of law are reviewed de novo, and its application of
the law to the facts is reversible only if arbitrary and capricious.’ ” (County of Los
Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 543.) “[W]here, as
here, the facts are uncontested, and the issue concerns a pure question of law, we review
the decision de novo.” (People v. Accredited Surety & Casualty Co. (2018)
26 Cal.App.5th 913, 917; People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915,
919 (Amwest Surety Ins.).) Moreover “ ‘ [w]hen a statute requires a court to exercise its
jurisdiction in a particular manner, to follow a particular procedure, or to act subject to
certain limitations, an act beyond those limits is in excess of its jurisdiction.’ [Citation.]”
(County of Orange v. Lexington Nat. Ins. Corp., supra, 140 Cal.App.4th at pp. 1491–
1492; County of Los Angeles v. Fairmont Specialty Group, supra, 173 Cal.App.4th at
p. 543.) Department 13’s ruling on the motion to discharge the forfeiture, set aside the
summary judgment and exonerate bail, was essentially a jurisdictional question. (Amwest
Surety Ins., at p. 920.) “Because the relevant facts are undisputed and only legal issues
are involved, we conduct an independent review.” (County of Los Angeles v. Financial
Casualty & Surety, Inc. (2018) 5 Cal.5th 309, 314.)
       The determination of whether an excuse for nonappearance is sufficient is decided
on a case-by-case basis. (Financial Casualty & Surety, Inc., supra, 14 Cal.App.5th at
p. 135.) Importantly, “the test is not whether it has been conclusively demonstrated a
defendant had an actual and valid excuse for his nonappearance to justify continuing a
hearing without declaring a bail forfeiture.” (People v. Ranger Ins. Co. (2003)
108 Cal.App.4th 945, 953.) Section 1305.1 “requires the court [to] only have ‘reason to
believe that sufficient excuse may exist for the failure to appear.’ ” (Ibid., fn. omitted,
quoting § 1305.1.) Defendant’s past history of making court appearances “over a several

                                               5
month period provided a ‘rational basis’ for believing there might be a sufficient excuse
for the defendant’s absence.” (Ibid.) So, too, does the possibility that there was a
misunderstanding or miscommunication between defendant and counsel about the need to
appear at the hearing. (Financial Casualty & Surety, Inc., at pp. 131, 136 [court retained
jurisdiction to declare forfeiture when counsel believed defendant may have been
confused about the court dates]; People v. Frontier Pacific Ins. Co. (2000)
83 Cal.App.4th 1289, 1292-1293 [misunderstanding or miscommunication about required
attendance in court, combined with history of appearances, sufficient excuse to retain
jurisdiction]; People v. Ranger Ins. Co. (2005) 135 Cal.App.4th 820, 822, 824, 825
[sister’s representation to counsel that defendant did not think he had to appear was
sufficient to retain jurisdiction].) And, the possible excuse proffered for defendant’s
nonappearance need not be a certainty. (Amwest Surety Ins., supra, 56 Cal.App.4th at
pp. 925-926 [no loss of jurisdiction to declare forfeiture based on counsel’s
representation “ ‘there may be an emergency’ ”]; Ranger, supra, 108 Cal.App.4th at
p. 953 [counsel’s statement that he had called every number he knew and was concerned
“something must have happened” to defendant combined with appearance history was
sufficient to continue jurisdiction].)
       Here defense counsel had been representing defendant for over a year and a half.
She had a good working relationship with him and his family, and had discussed the case
with his sister shortly before the hearing. Although she could not reach him by phone on
the day of the hearing, that inability was consistent with his practice of turning off his
phone when he was working. During her representation of him for over a year and a half,
defendant had a history of “mak[ing] every court appearance.” Because she had not been
at the prior hearing, she believed there must have been some misunderstanding between
defendant and Borruso, who had stood in for her at the prior hearing. Counsel’s
representations provided a rational basis for Department 8 to find there might be
sufficient excuse for defendant’s nonappearance. Department 8’s acceptance of

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counsel’s representations is consistent with the practice of trial courts that “have
cooperated with defense counsels’ requests and have liberally relied on their
representations.” (People v. Ranger Ins. Co., supra, 135 Cal.App.4th at p. 824.)
Accordingly, Department 13 erred in granting the motion to vacate the summary
judgment on the basis that Department 8 lacked jurisdiction to enter summary judgment
at the time that it did.

                                           DISPOSITION
       The order granting the motion to discharge the forfeiture, set aside the summary
judgment and exonerate bail is reversed and the summary judgment and costs order are
reinstated, with such further proceedings to take place as necessary to adjudicate a further
award of costs under section 1305.3. The County is to recover costs on appeal.




                                                  HULL, Acting P. J.



We concur:




BUTZ, J.




DUARTE, J.




                                              7
Filed 12/17/19
                              CERTIFIED FOR PUBLICATION



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                             (Yolo)
                                              ----




COUNTY OF YOLO,                                                  C087140

                 Plaintiff and Appellant,                (Super. Ct. No. CV1849)

        v.                                                ORDER CERTIFYING
                                                            OPINION FOR
AMERICAN SURETY COMPANY,                                    PUBLICATION

                 Defendant and Respondent.




      APPEAL from a judgment of the Superior Court of Yolo County, Paul K.
Richardson, J. Reversed.

      Philip J. Pogledich, County Counsel, Julie Barga and Eric May, Senior Deputies
County Counsel, for Plaintiff and Appellant.

       Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh
for Defendant and Respondent.




                                               1
THE COURT:


       The opinion in the above-entitled matter filed on December 10, 2019, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.


BY THE COURT:



                            ,
HULL, Acting P. J.




BUTZ, J.




DUARTE, J.




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