Filed 11/25/15 P. v. Bankers Ins. Co. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040224
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1106975)

         v.

BANKERS INSURANCE CO.,

         Defendant and Appellant.

THE PEOPLE,                                                          H040225
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1226899)

         v.

BANKERS INSURANCE CO.,

         Defendant and Appellant.


         Defendant Shawna Jackson was arrested in two different cases involving felonies.
Bankers Insurance Company (Bankers) posted bail bonds of $25,000 and $50,000 for her
release. During the course of a court proceeding involving both cases, she was told by
the trial court that her cases would be set for a preliminary setting hearing two weeks
later. When Defendant failed to appear for the next hearing, the trial court forfeited her
bail bonds.
         Bankers moved to vacate the forfeitures and exonerate the bonds on the basis that
the court was without jurisdiction to declare the forfeitures. Bankers claimed that
because a preliminary setting hearing is not one of the court proceedings listed in Penal
Code section 1305, subdivision (a)1 that requires a felony defendant’s mandatory
appearance, and because the trial court did not specifically order her to appear, defendant
was not lawfully required to appear at the hearing. The trial court denied the motion,
summary judgments were entered, and Bankers appealed.
       We conclude that, absent a written waiver of her right to be present, defendant was
required to appear for the preliminary setting hearing under both section 977 and Santa
Clara County Superior Court, Local Criminal Rule 3 (Local Rule 3). Because defendant
had prior notice of the mandatory appearance and had not executed a written waiver, her
failure to be personally present at the preliminary setting hearing gave the court
jurisdiction to forfeit her bail. We affirm the judgments.
                       FACTUAL AND PROCEDURAL BACKGROUND
       In case No. C1226899, defendant was arrested for three counts of second degree
burglary (§§ 459, 460, subd. (b)), one count of willfully resisting, delaying, or obstructing
any public officer, peace officer, or an emergency medical technician (§ 148,
subd. (a)(1)), one count of making a false representation of identity to a peace officer
(§ 148.9), and one count of burglary (§ 459). In case No. C1106975, defendant was
arrested for one count of second degree burglary (§§ 459, 460, subd. (b)) and one count
of petty theft (§§ 484, 488). In March 2012, Bankers posted a $25,000 bail bond and a
$50,000 bail bond to release defendant from custody.2 On June 19, 2012, when
defendant appeared in court, the following colloquy ensued:
       “THE COURT: As to Ms. Brown then, is it Ms. Jackson?
       “MR. GUY: She’s represented by A.D.O. on line 6 and 5B, and she’s out of
custody and present.

       1
           Unspecified statutory references are to the Penal Code.
       2
           The two bonds at issue here are bond Nos. 555079836-7 and 527143208-7.


                                             2
         “THE COURT: Thank you. Okay. There is a preliminary set for July 19. Is that
to remain as set?
         “MR. GUY: That is going to remain as set. We would like to come back in two
weeks.
         “MR. GOSHTASB: July 3rd, please, Judge, in the afternoon.
         “THE COURT: So as to—let’s just say July 3rd, afternoon.
         “MR. GOSHTASB: Please.
         “THE COURT: July 3rd, 2:00 p.m. Department 23 for preliminary setting with
the understanding that the prelim date set for July 19th remains as set.
         “PROBATION OFFICER: Yes, and all offers will be revoked if they don’t plead?
         “THE COURT: No, I have never heard that before. Thank you.
         “MR. GUY: I have also Ms. Jackson’s also number 6. Is that a V.O.P.?
         “MR. HARRIS: No. That is another docket, Your Honor.
         “THE COURT: That is July 3rd for prelim setting as to that remaining case?
         “MR. GUY: Correct.
         “THE COURT: Okay, folks, see you back July 3rd.”
         Defendant did not appear at the July 3, 2012 preliminary setting hearing. She had
not executed a written waiver of her right to be present. Subsequently, the court ordered
her bail forfeited. Defendant also failed to appear for the preliminary hearing on July 19,
2012.
         On July 3, 2013, Bankers filed two motions to vacate the forfeitures and to
exonerate bail, arguing the court was without jurisdiction to declare the forfeiture.




                                              3
The court denied the motions to vacate and judgment was entered against Bankers on
September 13, 2013. Bankers appealed.3
                                         DISCUSSION
        Bankers argues that the court did not have the jurisdiction to declare the forfeitures
on July 3, 2012, because defendant’s presence was not lawfully required at the
preliminary setting hearing and the court never specifically ordered her to appear. For
the reasons explained below, we find that defendant was required to appear at the hearing
under the provisions of section 977 and Local Rule 3. Accordingly, we conclude that the
court did not err when it declared the forfeiture and entered summary judgment against
Bankers in both cases.
   1. Overview of Principles Underlying Bail Forfeiture
        “The forfeiture or exoneration of bail is entirely a statutory procedure, and
forfeiture proceedings are governed entirely by the special statutes applicable thereto.”
(People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552 (Ranger); accord, People v.
International Fidelity Ins. Co. (2012) 212 Cal.App.4th 1556, 1561 (International
Fidelity).) “Because the law disfavors forfeitures,” bail statutes must “be construed
strictly to avoid forfeiture, and the procedures set forth therein must be ‘ “precisely
followed or the court loses jurisdiction and its actions are void.” ’ ” (International
Fidelity, supra, at p. 1561, quoting People v. Topa Ins. Co. (1995) 32 Cal.App.4th 296,
300.)
        Section 1305 states that a court shall forfeit bail if a defendant fails to appear for
any of the following: arraignment, trial, judgment, “[a]ny other occasion prior to the
pronouncement of judgment if the defendant’s presence in court is lawfully required,”


        3
        Bankers appealed the summary judgment entered against it for the two bail
bonds in case Nos. H040224 and H040225. On August 29, 2014, the cases were ordered
considered together for the purposes of briefing, oral argument, and disposition.


                                                4
and to surrender himself or herself in execution of judgment after appeal. (§ 1305,
subd. (a)(4).)
       An order denying a motion to vacate a bail forfeiture “is normally reviewed for
abuse of discretion,” but where, as here, the relevant facts are “undisputed and the
dispositive issue is one of statutory construction, we apply an independent review
standard.” (International Fidelity, supra, 212 Cal.App.4th at p. 1561.)
   2. Nature of the July 3, 2012 Hearing
       First, we address the People’s claim that the July 3, 2012 hearing was actually a
“further arraignment,” not a preliminary setting. We find the People’s characterization of
this hearing faulty.
       The People cite to the minute order after the hearing as proof that the July 3, 2012
hearing was a “further arraignment.” The minute order is where the confusion lies. On
the minute order, the checkbox for “Arr” (arraignment) is directly above the checkbox for
“Atty Present.” The clerk appears to have checked the box for “Atty Present,” but the
marked line extends into the checkbox for “Arr.” Additionally, the checkbox for “PSet”
is directly above the checkbox for “Further.” The clerk marked a line that went between
these two checkboxes. Therefore, there is some ambiguity in the minute order. It can be
viewed either as indicating the hearing was for a “further arraignment,” as argued by the
People, or for a “preliminary setting,” as argued by Bankers. However, during the
June 19, 2012 hearing the court clearly stated that the July 3, 2012 hearing was for a
“preliminary setting.”
       Accordingly, we do not find merit in the People’s claim that the July 3, 2012
hearing was a further arraignment. Any ambiguity present in the minute order is resolved
by the court’s statements during the June 19, 2012 hearing. The July 3, 2012 hearing was
a preliminary setting hearing.




                                             5
   3. Defendant’s Presence was Lawfully Required
       a. Section 977 and Local Rule 3
       Here, defendant failed to appear at a preliminary setting hearing, which is not an
arraignment, trial, judgment, or a hearing where she was surrendering herself in
execution of judgment after an appeal. (§ 1305, subd. (a).) Therefore, at issue here is
whether the preliminary hearing setting qualifies as “[a]ny other occasion . . . [where] the
defendant’s presence in court [was] lawfully required.” (§ 1305, subd. (a)(4).)
       Some proceedings have been deemed to be occasions where a defendant’s
presence was “lawfully required” under section 1305, subdivision (a)(4), because there
are specific rules of court or laws requiring a defendant’s presence during that particular
proceeding. In People v. American Bankers Ins. Co. (1990) 225 Cal.App.3d 1378, the
court held that California Rules of Court, former rule 227.6 (now rule 4.112) along with
the defendant’s notice of the hearing date rendered the defendant lawfully required to be
present for a trial readiness conference within the meaning of section 1305.
       There is no rule of court or statute that specifically compels a defendant to appear
for a preliminary setting hearing. However, the People argue the court had jurisdiction to
declare bail forfeited under Local Rule 3, which states: “(1) Consistent with California
Penal Code § 977, in felony cases, the defendant must be present each time his/her matter
is called in court, including when matters are submitted, unless a written waiver is on
file. Absent a written waiver of appearance, failure of the defendant to appear will result
in the issuance of a bench warrant. A written waiver of appearance shall not relieve a
defendant from appearing at the Arraignment, Preliminary Examination, at the time of
Plea, Master Trial Calendar (MTC), motions under Penal Code § 1050, and Sentencing.”
(Super. Ct. Santa Clara County, Local Rules, crim. rule 3.C.(1), italics added.)
       Section 977, subdivision (b)(1) provides that “in all cases in which a felony is
charged, the accused shall be personally present at the arraignment, at the time of plea,


                                             6
during the preliminary hearing, during those portions of the trial when evidence is taken
before the trier of fact, and at the time of the imposition of sentence.” Section 977,
subdivision (b)(1) also specifies that “[t]he accused shall be personally present at all
other proceedings unless he or she shall, with leave of court, execute in open court, a
written waiver of his or her right to be personally present . . . .” (Italics added.)
       Defendant did not execute a written waiver of her right to be personally present.
Accordingly, the issue is whether under Local Rule 3 and section 977, the preliminary
setting hearing was a mandatory appearance.
       Bankers argues that rules like Local Rule 3 and statutes like section 977 are meant
to protect a defendant’s due process right to be present during the critical stages of a
criminal proceeding and should not be used in the bail forfeiture context. Whether
section 977 can be utilized to determine whether a defendant is lawfully required to be
present at a hearing for the purposes of forfeiting bail under section 1305 is an issue that
is presently pending before our Supreme Court in People v. Safety National Casualty
Insurance Co. (2014) 225 Cal.App.4th 438, review granted July 23, 2014, S218712, and
People v. American Contractors Indemnity Co. (2014) 226 Cal.App.4th 1059, review
granted August 13, 2014, S219842.
       The People attempt to distance Local Rule 3 from section 977, arguing:
“Respondent here is not claiming that [section] 977 triggers the application of Penal Code
section 1305. Rather, Local Criminal Rule 3, by its own terms, is simply ‘consistent
with’ [section] 977 and requires anyone accused of a felony to be present at all hearings
unless a written waiver is on file with the court. Local Rule 3 does not cause the
application of [section] 977. Instead, Local Criminal Rule 3 broadens the scope of those




                                               7
appearances that are ‘lawfully required’ under Penal Code section 1305(a)(4).”4 (Fn.
omitted.)
       However, given the language of Local Rule 3, we find the cases discussing
section 977’s role in forfeiting bail relevant to our analysis. Local Rule 3 echoes the
same requirements set forth under section 977. By its very language, it is meant to be
“consistent” with section 977. Therefore, Local Rule 3 may broaden the scope of those
appearances that are lawfully required under section 1305, subdivision (a)(4) the same
way that section 977 may broaden the scope of those appearances that are lawfully
required. If section 977 is solely meant to preserve a defendant’s due process rights, it is
axiomatic that Local Rule 3 be read as “[c]onsistent with” section 977 for that purpose.
(Super. Ct. Santa Clara County, Local Rules, crim. rule 3.C.(1).)
       Thus, to determine whether defendant’s presence was lawfully required, we turn to
the cases discussing section 977.
       b. Section 977 and Due Process
       As we previously stated, our Supreme Court will ultimately decide whether
statutes like section 977 can be utilized to forfeit bail. (People v. Safety National
Casualty Insurance Co. (2014) 225 Cal.App.4th 438, review granted July 23, 2014,
S218712, and People v. American Contractors Indemnity Co. (2014) 226 Cal.App.4th
1059, review granted Aug. 13, 2014, S219842.) In the meantime, there are cases that
support Bankers’ arguments and cases that support the People’s claims to the contrary.
       Consistent with Bankers’ claims, some courts have construed section 977 as
“designed to implement the defendant’s due process right to be present at his trial and
other proceedings.” (People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663,



       4
        Local rules have the force of law if there is no legislative direction to the
contrary. (Wilburn v. Oakland Hospital (1989) 213 Cal.App.3d 1107, 1110.)


                                              8
669.) Therefore, courts have held that section 977 does not require a felony defendant’s
presence for all court proceedings absent a court order.
       For example, in People v. Classified Ins. Corp. (1985) 164 Cal.App.3d 341
(Classified), the defendant failed to appear at a hearing set by his defense counsel for a
section 995 motion after his defense counsel was unable to notify him of the hearing date.
The court declared his bail forfeited, and the surety appealed the denial of its motion to
vacate the forfeiture and the subsequent summary judgment. (Classified, supra, at
pp. 343-344.) The People argued that under section 977, the defendant’s presence at the
section 995 motion hearing was lawfully required; accordingly, his bail was properly
forfeited under section 1305 when he failed to appear. (Classified, supra, at p. 345.)
       The appellate court in Classified rejected the People’s argument regarding
section 977, calling it “untenable.” (Classified, supra, 164 Cal.App.3d at p. 345.) Citing
People v. North Beach Bonding Co., supra, 36 Cal.App.3d at page 669, the court
reiterated that “ ‘[t]he provisions in section 997 [sic] are designed to implement the
defendant’s due process right to be present at his trial and other proceedings.’ ”
(Classified, supra, at p. 345.) The court concluded that the People’s construction of
section 1305 with reference to section 977 would produce absurd results, since it would
allow defense attorneys to place their clients in default even if their clients had no prior
notice of a hearing date. (Classified, supra, at p. 346.) Therefore, the court held that
“[a]bsent an order or other actual notification from the court that [defendant’s]
appearance was required at a given date and time, the failure of [defendant] to appear
cannot be grounds for forfeiture of bail under section 1305.” (Ibid.) And, the court
went further and stated that “inasmuch as [the People’s] construction of section 1305
would permit the forfeiture of bail in a situation where the defendant does not even have
notice of the court date requiring his appearance, such a construction may well render
section 1305 unconstitutional as violative of the due process right of notice.” (Ibid.)


                                              9
       Classified’s interpretation of section 977 has been favorably accepted by other
courts. In People v. Sacramento Bail Bonds (1989) 210 Cal.App.3d 118, 121
(Sacramento Bail Bonds), the court stated that “[t]he Court of Appeal [in Classified]
correctly noted section 977 did not require” the defendant’s presence at a section 995
hearing. (Sacramento Bail Bonds, supra, at p. 121, fn. omitted.) However, the court
disagreed with Classified to the extent it suggested that a defendant’s presence must be
commanded by a specific court order since section 1305 did not contain such a
requirement. (Sacramento Bail Bonds, supra, at p. 122.) But, the court concluded that
the defendant’s bail was properly forfeited when he failed to appear for a readiness
conference, because his presence was compelled by California Rules of Court,
former rule 227.6 (now rule 4.112), and he did not execute a written waiver pursuant to
section 977. (Sacramento Bail Bonds, supra, at p. 121.)
       The decisions in North Beach Bonding Co., Classified, and Sacramento Bail
Bonds lend credence to Bankers’ claim that section 977, and, by extension, Local Rule 3,
should not be used in the bail forfeiture context. However, we do not believe this
interpretation of section 977 is reasonable based on the plain language of both
sections 977 and 1305.
       Section 1305 states that a court shall declare bail forfeited if a defendant is not
present during an occasion where his presence is lawfully required. (§ 1305,
subd. (a)(4).) Section 977 and Local Rule 3 both provide that a felony defendant shall be
present at all proceedings unless he or she executes a written waiver with leave of court.
(§ 977, subd. (b)(1); Super. Ct. Santa Clara County, Local Rule, crim. rule 3.C.) It is
difficult to imagine how the wording of section 977 and the local criminal rule can be
interpreted any way other than that felony defendants are required to be present at all
hearings. The language of both section 977 and the local rule are clear and unambiguous.
In short, section 977 and the local criminal rule are essentially laws that require a felony


                                             10
defendant’s appearance absent a waiver, and section 1305 states that bail shall be
forfeited if a defendant does not appear at a lawfully required occasion.
       We do not completely disagree with Classified, North Beach Bonding Co., and
Sacramento Bail Bonds. We agree with these cases to the extent they find that
section 977 protects a defendant’s constitutional right to be present during criminal
proceedings. However, we disagree with their view that protection of a defendant’s
constitutional right to be present is section 977’s sole function.
       In fact, despite the contrary statements in Classified, North Beach Bonding Co.,
and Sacramento Bail Bonds, courts have often looked to section 977 when analyzing bail
forfeitures. In International Fidelity, supra, 212 Cal.App.4th 1556, a panel of this court
utilized section 977, subdivision (a) when finding that a misdemeanor defendant was not
required to appear at a pretrial conference. There, we stated that “[t]he bail statutes at
issue in this case are Penal Code sections 977 and 1305.” (International Fidelity, supra,
at p. 1561.) Section 977, subdivision (a) provides that misdemeanor defendants can
appear through counsel at pretrial proceedings unless he or she is ordered to appear at
certain specified proceedings. The misdemeanor defendant in International Fidelity was
not ordered to appear at the pretrial conference, and his counsel appeared on his behalf.
Therefore, we concluded that under section 977, subdivision (a), he was not lawfully
required to appear at the pretrial conference, and the trial court erred in forfeiting bail.
       International Fidelity relied on People v. American Bankers Ins. Co. (1987) 191
Cal.App.3d 742 (American Bankers). In American Bankers, the appellate court also cited
section 977, subdivision (a) for its provision allowing misdemeanor defendants to appear
through counsel. Like International Fidelity, American Bankers concluded that under
section 977, subdivision (a), a misdemeanor defendant can appear through counsel at
certain pretrial proceedings. American Bankers held that a trial court does not have
jurisdiction to declare bail forfeited if an attorney appears on behalf of a misdemeanor


                                              11
defendant unless the court ordered the misdemeanor defendant’s presence, or if there was
a factual showing that the attorney did not have authority to proceed on the misdemeanor
defendant’s behalf. (American Bankers, supra, at p. 747.)
       In sum, International Fidelity and American Bankers analyzed whether a
misdemeanor defendant’s presence was lawfully required at a hearing by turning to
section 977, subdivision (a). We would create an odd dichotomy if we were to find that
section 977, subdivision (b), is inapplicable when determining whether a felony defendant
is lawfully required to be present at a hearing. It would mean that one subdivision of
section 977 is relevant to whether a defendant is lawfully required to be present at a
hearing while the other subdivision of the same statute is, inexplicably, irrelevant.
       Case law is also replete with other examples of situations where courts have either
cited to or relied on section 977 in the context of bail forfeitures. In People v. Indiana
Lumbermens Mutual Ins. Co. (2011) 194 Cal.App.4th 45, the trial court forfeited the
defendant’s bail after he failed to appear on the date set for sentencing. (Id. at p. 48.)
Prior to sentencing, the defendant had also failed to appear for a hearing on a motion for a
continuance for a preliminary hearing. (Ibid.) The surety moved to vacate the court’s
forfeiture, arguing that the court had lost jurisdiction to order bail forfeited after the
defendant failed to appear for the hearing on the motion for a continuance for the
preliminary hearing. (Ibid.) However, the defendant had executed a written waiver
pursuant to section 977. Therefore, the court reasoned that neither section 977 nor
section 1305 required his personal presence. (People v. Indiana Lumbermens Mutual Ins.
Co., supra, at p. 50.)
       Similarly, this court discussed section 977 when analyzing whether a defendant
was lawfully required to be present during a hearing in Ranger, supra, 66 Cal.App.4th
1549. In Ranger, the trial court forfeited the defendant’s bail after he failed to appear at a
hearing on the motion to continue the trial. Earlier, the defendant had also failed to


                                               12
appear for the date set for the master trial calendar hearing. (Id. at p. 1552.) Thereafter,
the surety moved to vacate the forfeiture, arguing the court had lost its jurisdiction to
declare forfeiture when it did not do so at defendant’s first nonappearance. In beginning
its analysis, this court set forth the provisions of section 1305, subdivision (a) and
section 977, subdivision (b)(1) and (b)(2). (Ranger, supra, at p. 1552.) The Ranger
defendant had executed a section 977 waiver, but this court concluded that the date set for
the master trial calendar hearing was the date set for trial, whether or not trial occurs.
(Ranger, supra, at p. 1553.) Accordingly, the defendant was required to attend the
hearing and because he did not, the trial court lost jurisdiction to declare the forfeiture
when he failed to appear at the later hearing. (Id. at pp. 1554-1555.)
       There are also several 19th century cases where the Supreme Court applied
section 977 in the context of bail forfeitures. In People v. Budd (1881) 57 Cal. 349, the
Supreme Court concluded a misdemeanor defendant was not required to be personally
present for trial under section 977 and reversed the trial court’s forfeiture of bail due to
the defendant’s nonappearance. (People v. Budd, supra, at p. 351.) Budd cited People v.
Ebner (1863) 23 Cal. 158, 160, which reached the same conclusion after an analysis of a
similar former law under the Criminal Practice Act.
       In sum, there are a multitude of cases, both predating and postdating North Beach
Bonding Co., Classified, and Sacramento Bail Bonds, that expressly utilize section 977 in
the context of analyzing bail forfeiture. It therefore seems that the analysis set forth in
North Beach Bonding Co., Classified, and Sacramento Bail Bonds are anomalous, and we
respectfully disagree with these decisions to the extent they suggest section 977 does not
mandate a felony defendant’s presence during court proceedings absent a valid waiver.
       Further, the basis for Classified’s reliance on precedent for the proposition that
section 977 was designed to implement a defendant’s due process rights is suspect.
Classified cited North Beach Bonding Co. (Classified, supra, 164 Cal.App.3d at p. 345.)


                                              13
In turn, North Beach Bonding Co. cited People v. Williams (1970) 10 Cal.App.3d 745
(Williams) to support its assertions regarding the due process implications of section 977.
       Williams had nothing to do with bail forfeiture, however. In Williams, the issue
was whether the defendant’s right to due process of law was violated when he was not
taken to court while in custody. (Williams, supra, 10 Cal.App.3d at p. 749.) Williams
cited to section 977 for its provision requiring a felony defendant’s presence during
certain specified portions of the trial. The appellate court concluded that the defendant
had not met his burden to demonstrate how he was prejudiced by his failure to appear in
court for the specified hearing. (Williams, supra, at p. 752.) Consequently, no due
process violation had occurred. In short, Williams does not stand for the proposition that
section 977’s sole purpose is to protect a defendant’s constitutional right to be present.
And, aside from Williams, North Beach Bonding Co. did not cite any other authority
discussing section 977.
       In part, Classified reasoned that section 977 does not compel a defendant’s
presence by claiming that such a construction would be “untenable” and would produce
“absurd” results. (Classified, supra, 164 Cal.App.3d at pp. 345-346.) However, the
absurd result contemplated in Classified—that a defendant may find his bail forfeited
even if he does not have prior notice of a court date requiring his appearance—would be
prevented by section 1305 itself. Bail is forfeited only if the defendant does not have
sufficient excuse for his or her failure to appear at a required hearing. (§ 1305, subd. (a).)
       We find People v. Jimenez (1995) 38 Cal.App.4th 795 (Jimenez) persuasive.
Jimenez, in contrast to the bail cases discussed above, was an appeal by a defendant who
was charged under section 1320.5 for failing to appear on a felony charge. The defendant
in Jimenez had appealed his earlier conviction, which the appellate court affirmed. After
issuance of the remittitur, the defendant’s matter was calendared with the superior court
and the defendant’s counsel was advised of the hearing date and was told to secure the


                                              14
defendant’s presence. (Jimenez, supra, at p. 798.) The defendant failed to appear and a
bench warrant was ordered for his arrest. (Ibid.)
       Jimenez concluded that the defendant’s presence was required under a different
statute and did not reach the issue of whether the defendant’s presence was also mandated
under section 977. However, in dicta, the Jimenez court stated: “The district attorney
asserts Jimenez’s presence after remittitur was required under section 977. We would be
inclined to agree. Although the section may have been adopted to protect the defendant’s
due process rights, it nonetheless mandates his or her presence. There is no danger the
section would be used unfairly against a defendant who was ignorant of the court date
because section 1305 only allows bail forfeiture if the defendant fails to appear ‘without
sufficient excuse.’ ” (Jimenez, supra, 38 Cal.App.4th at p. 800, fn. 8.)
       We agree with Jimenez’s characterization of section 977. Section 977 and the
local criminal rule protect a defendant’s constitutional right to be present during criminal
proceedings. Nevertheless, these provisions still mandate a felony defendant’s presence
at all hearings absent a waiver.
       Our conclusion is grounded in the principles that an appellate court’s role in
statutory construction is a conservative one. Our function in construing a statute is
simply “to ascertain and declare what is in terms or in substance contained therein, not to
insert what has been omitted.” (Code Civ. Proc., § 1858.) Here, section 977,
subdivision (b)(1) states that a felony defendant “shall” be personally present at “all other
proceedings” unless a written waiver is on file, because no written waiver was on file the
trial court properly forfeited her bail under section 1305.

       c. A Defendant’s Constitutional Right to be Present During Criminal
          Proceedings is a Separate Issue
       Bankers also advances the argument that a defendant’s constitutional right to be
present informs whether a defendant is lawfully required to appear. According to
Bankers, a defendant is not lawfully required to be present unless he or she is

                                             15
constitutionally entitled to be present. And, a defendant is not constitutionally guaranteed
the privilege of being present at all proceedings.
       The cases cited by Bankers, however, are not applicable in the context of bail
forfeitures. These cases stand for the proposition that a defendant’s constitutional right
to be present is not necessarily violated in certain situations if he or she is not present
during some portions of a criminal proceeding. 5 (People v. Wallin, supra, 34 Cal.2d 777;
Waidla, supra, 22 Cal.4th 690; Bradford, supra, 15 Cal.4th 1229.) For example, the
court in Bradford noted that “[s]ections 977 and 1043 do not require the defendant’s
presence, or a written waiver,” unless the defendant’s presence bears “ ‘ “ ‘reasonably
substantial relation to the fullness of his opportunity to defend against the charge.’ ” ’ ”
(Bradford, supra, at p. 1357.) However, Bradford did not address whether the
defendant’s appearance was lawfully required for the purposes of forfeiting bail. Rather,
Bradford discussed whether the defendant was constitutionally entitled to be present.

       5
         Bankers notes that although a defendant has the constitutional right to be present
and to participate in criminal proceedings, he or she also has the ability to waive these
rights. (See People v. Wallin (1950) 34 Cal.2d 777 [ability to waive the right to confront
witnesses].) Further, a defendant’s constitutional right to be present at a criminal
proceeding is not absolute. As discussed in People v. Waidla (2000) 22 Cal.4th 690
(Waidla), under the Sixth Amendment’s confrontation clause a defendant does not have a
right to be personally present at a criminal proceeding unless his or her presence is
required to prevent “ ‘interference with [his or her] opportunity for effective cross
examination.’ ” (Id. at p. 741.) And, under the Fourteenth Amendment’s due process
clause, “a criminal defendant does not have a right to be personally present at a particular
proceeding unless he finds himself at a ‘stage . . . that is critical to [the] outcome’ and
‘his presence would contribute to the fairness of the procedure.’ ” (Id. at p. 742.) Under
the California Constitution, a criminal defendant also does not have the right “to be
personally present ‘either in chambers or at bench discussions that occur outside of the
jury’s presence on questions of law or other matters as to which [his or her] presence
does not bear a “ ‘ “reasonably substantial relation to the fullness of his opportunity to
defend against the charge.” ’ ” ’ ” (Ibid.) Waidla also noted that sections 977 and 1043
do not require the defendant’s presence when he or she does not have the right to be
present under the California Constitution. (Waidla, supra, at p. 742; People v. Bradford
(1997) 15 Cal.4th 1229, 1357 (Bradford).)


                                              16
This is a separate issue, and cases are not authority for propositions not considered.
(People v. Jones (1995) 11 Cal.4th 118, 123, fn. 2.)
       It may be true that a defendant can waive his or her constitutional right to be
present or that a defendant’s rights may not necessarily be violated if he or she is not
present during all court proceedings. However, this does not mean that a felony
defendant is not mandated by statute, for the purposes of section 1305, to be present
during all hearings absent a waiver under section 977.
       d. Local Rule 3 and Section 977 are not “Blanket” Provisions
       Next, Bankers argues that Local Rule 3 and section 977 are “blanket” provisions
requiring a defendant’s presence unless a written waiver is executed and that similar
blanket provisions have been deemed invalid in the context of requiring a misdemeanor
defendant’s presence in court. In support, Bankers cites to Bracher v. Superior Court
(2012) 205 Cal.App.4th 1445 (Bracher) and Olney v. Municipal Court (1982) 133
Cal.App.3d 455 (Olney).
       However, Bracher is inapplicable here. Bracher concerned a Superior Court of El
Dorado County local rule which required a misdemeanor defendant’s personal presence
at a trial readiness and settlement conference. (Bracher, supra, 205 Cal.App.4th at
pp. 1451-1452.) This local rule was in tension with section 977, subdivision (a)(1),
which provides that a misdemeanor defendant may ordinarily appear through counsel
absent certain exceptions as outlined in section 977, subdivision (a)(2) and (a)(3). The
appellate court therefore concluded that El Dorado County’s local rule created an
erroneous blanket policy where misdemeanor defendants were required to appear at a
readiness and settlement conference, contravening the settled principles set forth under
section 977, subdivision (a)(1). (Bracher, supra, at p. 1458.)
       It also follows that Olney is similarly inapplicable. Olney concerned a blanket
policy similar to the rule considered in Bracher that required all misdemeanor defendants


                                             17
to be present at readiness and sentencing hearings. (Olney, supra, 133 Cal.App.3d at
pp. 458-459.) Like Bracher, Olney concluded that such blanket policy violated a
misdemeanor defendant’s statutory right to appear through counsel. (Id. at p. 462.)
       Unlike the local rule at issue in Bracher and Olney, the local rule at issue here is
fully consistent with section 977. Additionally, unlike these blanket policies, the local
rule does not contravene state law by requiring a defendant’s presence at certain
proceedings even if he or she has executed a valid waiver.

       e. No Court Order is Necessary to Render Mandatory Appearance
          “Lawfully Required”
       Lastly, Bankers suggests that there must be a court order compelling a defendant’s
presence at a proceeding for the hearing to be lawfully required. Bankers relies on a case
from the appellate division of the Superior Court of Los Angeles County, People v.
National Auto. & Cas. Ins. Co. (1977) 77 Cal.App.3d Supp. 7 (National Auto). However,
Bankers’ reliance on National Auto is misplaced. National Auto itself acknowledged that
if a defendant “fails to appear on a date ordered by the court (or otherwise required by
law),” section 1305 requires a court to declare the bail forfeited absent a sufficient
excuse. (National Auto, supra, at p. Supp. 9, italics added.) A court order is not an
absolute necessity if the defendant is statutorily required to appear.
       Bankers’ position that a specific court order commanding a defendant’s
appearance is required is supported by dicta in Classified. However, as we previously
noted, that proposition has been rejected by other appellate courts.
       As stated in Sacramento Bail Bonds: “To the extent Classified Ins. suggests in
dictum that ‘before a court can forfeit bail a defendant’s appearance must [always] be
required by a specific court order commanding his appearance at a date and time certain’
(164 Cal.App.3d at p. 344), we respectfully decline to follow it. To our knowledge no
other case has construed section 1305 to require categorically such an order of court.
Although Classified Ins. relied on People v. National Auto. & Cas. Ins. Co. (1977)

                                             18
77 Cal.App.3d Supp. 7, the latter case expressly recognized section 1305 was
satisfied ‘. . . when a defendant fails to appear on a date ordered by the court (or
otherwise required by law, such as to surrender for judgment . . . .)’ (National Auto.,
supra, 77 Cal.App.3d at Supp. 9, italics added.) Moreover, Classified Ins.’s dictum is at
odds with the established rule permitting forfeiture of an appeal bond. Although
section 1305 governs such a forfeiture, it is well recognized a forfeiture is appropriate
where a defendant fails to surrender himself following an appeal even though the
defendant has received no court order stating the time or place of his surrender.”
(Sacramento Bail Bonds, supra, 210 Cal.App.3d at p. 122.) We agree with Sacramento
Bail Bonds’ analysis.
       Moreover, as this court concluded in People v. Ranger Ins. Co. (1992) 6
Cal.App.4th 1301, “[a] defendant’s presence is ‘lawfully required’ when there is ‘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.” (Id. at p. 1304.)
       In defendant’s case, the preliminary setting hearing was a mandatory appearance
under section 977 and Local Rule 3, since defendant had not executed a written waiver of
her right to be personally present. Further, defendant had notice of the date and time of
the mandatory appearance, because she was present when it was set. As a result, she was
lawfully required to be present during the hearing.
       f. Summary
       Section 977 mandates a felony defendant’s presence during all proceedings if a
defendant has not executed a written waiver. Defendant did not execute a written
waiver, and she had adequate notice because she was present when the preliminary
setting hearing was set. Therefore, she was lawfully required under section 1305,


                                             19
subdivision (a)(4) to be present at the hearing, and the trial court had jurisdiction to
declare her bail forfeited when she failed to appear. Consequently, the court properly
denied Bankers’ motions to vacate the forfeitures and made no error when it entered
summary judgment against Bankers in case Nos. H040224 and H040225.
                                        DISPOSITION
       The judgments in both case Nos. H040224 and H040225 are affirmed.




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                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




People v. Bankers Insurance Co.
H040224; H040225

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