Filed 6/13/14 P. v. Seneca Ins. Co. CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                         D064079

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. SCD233620)

SENECA INSURANCE COMPANY,

         Defendant and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, David M.

Szumowski, Judge. Reversed.



         Thomas E. Montgomery, County Counsel and Thomas Deak, Senior Deputy

County Counsel for Plaintiff and Appellant.

         E. Alan Nunez for Defendant and Respondent.



         The People appeal the trial court's order granting a motion to vacate a bail bond

forfeiture and exonerate the bail. The People contend the court erred in concluding the
defendant, Jerome Davis, was not present at a scheduled readiness conference hearing.

Respondent Seneca Insurance Company (Seneca), the bonding company, counters that

the trial court did not timely declare the bail forfeiture on that hearing date; therefore, it

lost jurisdiction over the matter and the bail was exonerated by operation of law. (Pen.

Code, § 1305.) We reverse the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On April 10, 2011, Seneca posted a $25,000 bail bond for Davis's release. On July

19, 2011, the court ordered Davis to appear at a September 27, 2011 readiness conference

hearing.

       The court's September 27, 2011 standard minute order form leaves blank all the

boxes provided for the clerk to record whether a defendant is present or absent from that

day's hearing. However, at the bottom of the minute order, there are markings indicating

that the minute order was distributed to the defendant and attorney. On that day, Judge

Charles R. Gill continued the readiness conference to October 18, 2011.

       When Davis failed to appear at a March 9, 2012 hearing, Judge Gail E. Kaneshiro

declared the bond forfeited that day and issued a bench warrant for Davis's arrest. On

September 19, 2012, the parties stipulated to extend Davis's bail bond for a 180-day

period ending March 13, 2013.

       On March 12, 2013, Seneca moved to vacate the forfeiture and exonerate the

bond, arguing that the trial court had lost jurisdiction to rule on that matter because it had

failed to declare the bond forfeited at the September 2011 readiness conference hearing.

On April 11, 2013, Judge David M. Szumowski granted the motion, ruling, "I can't tell

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from this docket whether the defendant was present or not present [for the readiness

conference on September 27, 2011]. I note for the record, though, that if he was not

present, the bond was not forfeited. [¶] I'm going to rule in favor of the moving party in

this case. Set aside the forfeiture and exonerate the bond."

                                            DISCUSSION

       The People contend the record does not affirmatively indicate that Davis was

absent from the September 27, 2011 hearing. They point out the record instead shows the

court clerk did not mark a box indicating he was present, but the minute order does note

the court clerk distributed a copy of the minute order to the defendant and attorney, thus

indicating that they were present at the hearing. The People argue we must presume that

Judge Gill regularly performed his official duties and acted in lawful exercise of the

court's jurisdiction. (Evid. Code, §§ 664, 666.)

       Our review of a trial court's interpretation of Penal Code section 1305 to a set of

undisputed facts is de novo. (County of Los Angeles v. Fairmont Specialty Group (2009)

173 Cal.App.4th 538, 543 (Fairmount Specialty).) Penal Code section 1305, subdivision

(a) states that "[a] court shall in open court declare forfeited the undertaking of bail . . . if,

without sufficient excuse, a defendant fails to appear." "Absent an order or other actual

notification from the court that [the 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 [Penal Code] section 1305." (People v. Classified Ins. Corp. (1985) 164

Cal.App.3d 341, 346.) " ' "The law traditionally disfavors forfeitures and this disfavor

extends to forfeiture of bail. [Citations.] Thus, Penal Code sections . . . dealing with

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forfeiture of bail bonds must be strictly construed in favor of the surety." ' " (Fairmont

Specialty, at p. 543, quoting County of Los Angeles v. Surety Ins. Co. (1984) 162

Cal.App.3d 58, 62.) As the party seeking to set aside the forfeiture, Seneca has the

burden to "establish by competent evidence that its case falls within the four corners of

these statutory requirements." (People v. American Bankers Ins. Co. (1992) 4

Cal.App.4th 348, 354.)

       Here, there are various indicia that Davis was present at the September 27, 2011

trial readiness hearing: The minute order itself indicates that it was distributed to the

defendant and attorney; Judge Gill did not declare the bond forfeited due to Davis's

nonappearance; and, he did not order Davis arrested for nonappearance. Although the

court clerk did not check the box specifically indicating Davis was present, we presume

that he was present, and that Judge Gill acted accordingly. "[S]ome events that occur in

open court simply are not recorded by a reporter or memorialized by a court clerk."

(People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 709.) Seneca has therefore

failed to meet its burden of showing that Davis failed to appear, and that the court erred

in not declaring the bond forfeited at the September 27, 2011 readiness hearing.

       Seneca's contrary contention that the trial court lost jurisdiction to declare a

forfeiture of Davis's bail by failing to do so on September 27, 2011, relies on inapplicable

cases in which courts presumed a defendant's nonappearance in the face of a silent

record. (See People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907 ["Court

minutes which fail to disclose that the court has expressly excused a nonappearance on a

record which is silent as to a defendant's reasons therefor, will require a reviewing court

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to conclude that a nonappearance was without sufficient excuse and that the right to

declare a forfeiture not having been exercised was foreclosed. An excused

nonappearance, accordingly, should be expressly reflected in the minutes."]; see also

People v. American Bankers Ins. Co. (1989) 215 Cal.App.3d 1363, 1370 [record failed to

show court expressly excused defendant's nonappearance; failure to declare bail forfeited

at this initial nonappearance foreclosed right to do so at later date].)




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                              DISPOSITION

     The order is reversed.




                                            O'ROURKE, J.

WE CONCUR:


HUFFMAN, Acting P. J.


McINTYRE, J.




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