Filed 4/27/16 P. v. Accredited Surety and Casualty CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
                                                                       G050609
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 13CF1714)
         v.
                                                                       OPINION
ACCREDITED SURETY AND
CASUALTY COMPANY,

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Richard
J. Oberholzer and Gregg Prickett, Judges. Affirmed.
                   E. Alan Nuñez and John Mark Rorabaugh for Defendant and Appellant.
                   Leon J. Page, County Counsel, and Suzanne E. Shoai, Deputy County
Counsel, for Plaintiff and Respondent.
                                          *                  *                  *
              Accredited Surety and Casualty Company (Accredited) appeals from the
trial court’s entry of judgment after denying its motion to set aside the court’s earlier
summary judgment on its bail bond. Accredited sought in its motion to discharge its bail
forfeiture 230 days earlier and to have the trial court exonerate its bond. Accredited
contends it was entitled to relief under Penal Code section 1305.6 (all further statutory
references are to this code) or, alternatively, that the trial court lacked jurisdiction to
forfeit the bond. These contentions have no merit, and we therefore affirm the judgment.
                                                I
                   FACTUAL AND PROCEDURAL BACKGROUND
              On May 29, 2013, Orange County authorities filed a fugitive criminal
complaint in Orange County Superior Court against Aaron Dejon Belyeu (defendant)
under section 1551.1 for his June 21, 2011 failure to appear in court in El Paso County,
Colorado. Section 1551.1 provides for a fugitive’s arrest and appearance before a
magistrate when “the accused stands charged in the courts of any other state with a crime
punishable . . . by imprisonment for a term exceeding one year . . . .” That same day,
defendant appeared in court, was appointed counsel on the section 1551.1 complaint,
waived arraignment, and the court set defendant’s bail at $50,000. Accredited posted the
bail with an initial bail bond on May 31, 2013, to secure defendant’s release. He failed to
appear in court in July 2013, and the court declared the bail bond forfeited, but later
exonerated it after defendant was rearrested in August 2013.
              The magistrate again set bail at $50,000, and Accredited on September 15,
2013, again posted the bail, issuing a new bond to secure defendant’s release. In October
2013, defendant again failed to appear, the court declared the bond forfeited and issued a
warrant for defendant’s arrest. On October 16, 2013, the court clerk mailed Accredited
and its bail agent a Notice of Forfeiture, which stated that “the forfeiture will become
final 186 days from the date of mailing of this notice, unless, before that date, you obtain
a court order setting aside such forfeiture . . . .” (Italics added.)

                                               2
              Two hundred and five days later, on May 9, 2014, neither Accredited nor
its bail agent had sought to set aside the forfeiture, and consequently, the trial court
entered summary judgment on the bond in the People’s favor, on behalf of the County of
Orange. On May 13th, the court clerk mailed Accredited and its bail agent certified
copies of the court’s Summary Judgment on Forfeited Bail Bond order.
              Twenty days later, and 230 days after the court clerk’s Notice of Forfeiture,
Accredited on June 2, 2014, filed a motion it entitled, “Motion to Set Aside Summary
Judgment; Discharge Forfeiture and Exonerate Bail.” Accredited attached to its motion a
document labeled, “Final Commitment and Warrant of Removal,” which stated that on
September 19, 2013 (just four days after defendant’s release on bail on the California
criminal complaint), defendant had been remanded by a United States District Court
magistrate for the Central District of California to the custody of the United States
Marshal on federal felon-in-possession gun charges under 18 U.S.C. § 922(g)(1).
              On the July 2, 2014, hearing date on Accredited’s set aside motion,
Accredited’s counsel filed a supplemental declaration attaching an e-mail from Assistant
Federal Public Defender Matthew K. Belker stating that defendant’s Colorado state-law
“gun charges in El Paso County stem from the same arrest and the same firearm that
supported the federal prosecution.” The e-mail also suggested Belker would ascertain
whether El Paso County authorities planned to dismiss their charges against defendant in
light of the federal charges.
              The court continued the hearing date on Accredited’s set aside motion, and
two days before the new date, Accredited filed a supplemental request for judicial notice
of two documents. The first document appears to be an El Paso County, Colorado
“Docket Report” relating to defendant. The Docket Report shows February 8, 2013,
charges under Colorado Statute Numbers 18-12-108(1) (weapons possession by a
previous offender), 18-12-106(1)(b) (prohibited use/recklessness with a gun),
18-4-401(1), (2) (b) (theft under $500), and 18-8-212(l) (violation of bail bond

                                              3
conditions-felony). The second document appears to be a June 4, 2013, federal
indictment relating to defendant, charging him under 18 U.S.C. § 922(g)(1) (felon
possessing firearm in and affecting interstate commerce) and 924(e) (penalty
enhancement for previous convictions).
              Accredited also filed a supplemental declaration by its bail agent,
Thadrance Aaron Breaux, the owner of Aaron’s Bail Bonds, which had posted
defendant’s bail bond. Breaux stated that on September 19, 2013, the defendant’s
girlfriend told him defendant had been arrested that day by federal agents, and Breaux
also stated that “several weeks later” the girlfriend told him defendant had been sent back
to Colorado. Based on this information from defendant’s girlfriend, Breaux stated he
believed the bail bond was exonerated without the need for a motion.
              At the hearing on Accredited’s set aside motion, the trial court questioned
Accredited’s claim that defendant’s arrest by federal authorities on federal charges
constituted an arrest in the “underlying case” under section 1305, subdivision (c)(3),
under which Accredited sought relief from forfeiture of its bond. The court observed,
“The problem with your argument is that its flawed from the standpoint, as I understand
it, that it’s not the same charge. It’s a different charge. It’s a federal charge, versus a
state charge. He’s in court and the extradition hearing was to be on the state charge, the
violation of the state statutes, not on violation of federal statutes. So his subsequent
arrest under the law may have stemmed from the same incident, but they are different
charges.”
              The trial court also observed that, to the extent Accredited could have
sought exoneration of the bond based on defendant’s apparent transportation and
continued detention in federal custody in Colorado, Accredited had missed its deadline to
do so. (See § 1305, subds. (d), (e) & (f) [providing 180-day period from notice of
forfeiture for surety to obtain exoneration on specified grounds].) The court noted,
“There is a procedure, a specific procedure, in the statute to protect your client so that

                                               4
they can protect their investment in this client from the standpoint of having issued a
bond, but they didn’t follow it. It appears to me as though they didn’t follow that
procedure. Now you’re coming in and asking for relief after everything has been
executed in a sense.”
              The trial court denied Accredited’s motion, concluding, “There has been
nothing presented to the court to show that [defendant] was arrested in the underlying
case[;] the underlying case was a state case, not a federal case.” Alternately, the trial
court also explained Accredited failed to show good cause under section 1305.6,
subdivision (b), to file a belated motion, as follows: “There has to be a showing of good
cause. . . . I have trouble finding good cause, because for one thing, the declaration is not
clear enough as to exactly when this conversation with the defendant’s girlfriend and the
surety was taking place. But I would think that once the surety was notified that this
forfeiture had occurred, they would be taking some kind of action.” The trial court
subsequently entered a written order denying the motion, and Accredited now appeals.
                                               II
                                        DISCUSSION
              Accredited contends the trial court erred by denying its set aside motion
under section 1305.6. That section, however, applies to individuals who are arrested and
appear in court “on the same case within the county where the case is located” (§ 1305.6,
subd. (a)) and, in any event, requires “good cause” to grant a motion for relief after entry
of judgment on a bond (id., subd. (b)). Accredited met neither criterion. “‘[A] motion to
set aside an order of forfeiture [rests] entirely within the discretion of the trial court,’”
with “‘“[t]he burden . . . on the party complaining to establish an abuse of discretion.”’”
(County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 944.) As we
explain, Accredited failed to meet that burden.
              Section 1305 establishes a “jurisdictional time limit” after the trial court’s
entry of forfeiture on a bond in which the surety has 180 days either to produce the

                                                5
defendant in court or bring a motion for relief from the forfeiture. (People v. Ranger Ins.
Co. (2002) 101 Cal.App.4th 605, 608 (Ranger).) Because Accredited’s motion fell
outside the 180-day period, it sought relief under section 1305.6, which affords two
exceptions, in subdivisions (a) and (b), respectively.
                 The first provides: “If a person appears in court after the end of the
180-day period specified in Section 1305, the court may, in its discretion, vacate the
forfeiture and exonerate the bond if both of the following conditions are met: [¶] (1) The
person was arrested on the same case within the county where the case is located, within
the 180-day period. [¶] (2) The person has been in continuous custody from the time of
his or her arrest until the court appearance on that case.” (§ 1305.6, subd. (a), italics
added.)
                 This provision plainly does not apply because it requires the defendant’s
personal appearance, which did not occur. The statutory language calling for the
defendant’s “court appearance on that case” indicates the defendant must be produced in
the court that approved the defendant’s release on bond, but here, the defendant did not
appear in the superior court. In any event, Accredited presented no evidence defendant
appeared in any other court after his September 2013 arrest, whether in Colorado or
elsewhere, nor that he had been in continuous custody following his arrest. Moreover, as
the trial court observed, defendant had not been arrested by federal authorities on the
same charge for which the trial court had granted his release on bail, namely, the fugitive
criminal complaint under California law, section 1551.1.
                 Tacitly recognizing the terms of subdivision (a) do not apply, Accredited
urges that the statute “be considerably bent” in “fairness and commonsense” to “giv[e]
effect to the policy and spirit of the law” because “none of the provisions of the bail
statutes expressly address fugitive bond circumstances.” Accredited’s argument fails for
three reasons.



                                                6
              First, “the obligation assumed by the bail is absolute but for the defenses set
forth in section 1305 of the Penal Code.” (People v. Stuyvesant Ins. Co. (1963)
216 Cal.App.2d 380, 382.) Sections 1268 through 1308 enact a comprehensive statutory
infrastructure governing bail, exoneration, and forfeiture, and these provisions —
including relief from forfeiture — “are subject to precise and strict construction” (County
of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62; People v. Range Ins. Co.
(1999) 76 Cal.App.4th 326, 328-329) because “[t]he Legislature declares state public
policy, not the courts.” (In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 628.)
The early common law cases and general equitable principles on which Accredited relies
are therefore unavailing. (See People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549,
1552 [“The forfeiture or exoneration of bail is entirely a statutory procedure, and
forfeiture proceedings are governed entirely by the special statutes applicable thereto”].)
              Second, Accredited’s attempt to “ben[d]” section 1305.6, subdivision (a), is
misplaced because other statutory provisions are more apt. Contrary to Accredited’s
suggestion, the Legislature contemplated scenarios in which the defendant is transported
beyond California’s borders and the surety’s reach, and provided ample measures for the
surety’s relief from forfeiture, albeit with a 180-day deadline. For example, section 1305,
subdivision (d), provides that “the court shall direct the order of forfeiture to be vacated
and the bail or money or property deposited as bail exonerated, if within 180 days of the
date of forfeiture or within 180 days of the date of mailing of the notice . . . both of the
following conditions are met: [¶] (1) The defendant is deceased or otherwise
permanently unable to appear in the court due to illness, insanity, or detention by
military or civil authorities [and] [¶] (2) The absence of the defendant is without the
connivance of the bail.” (Italics added.)
              Section 1305, subdivision (e), provides for similar relief in instances where
the defendant is “temporarily disabled” from appearing due to “detention by military or
civil authorities” “during the remainder of the 180-day period.” And section 1305,

                                               7
subdivision (f), expressly provides for bail exoneration on the surety’s motion within
180 days of forfeiture “where a defendant is in custody beyond the jurisdiction of the
court that ordered the bail forfeited . . . and the prosecuting agency elects not to seek
extradition after being informed of the location of the defendant, the court shall vacate
the forfeiture and exonerate the bond . . . .” (Italics added.)
              Accredited does not acknowledge, cite, or attempt to distinguish the
foregoing subdivisions, presumably because these grounds for relief must be invoked
within 180 days of the trial court’s notice of forfeiture, which Accredited failed to do.
But as noted, such time limits are jurisdictional and within the Legislature’s prerogative.
(See Ranger, supra, 101 Cal.App.4th at p. 608.)
              Third, there is no basis to “ben[d]” at Accredited’s request section 1305.6,
subdivision (a), to apply here on equitable grounds to defendant’s nonappearance on a
fugitive bond because equity does not favor Accredited. As we discuss below concerning
section 1305.6, subdivision (b), Accredited failed to establish the “good cause” necessary
for relief from the 180-day deadline.
               Section 1305.6, subdivision (b), provides: “Upon a showing of good
cause, a motion brought pursuant to paragraph (3) of subdivision (c) of Section 1305 may
be filed within 20 days from the mailing of the notice of entry of judgment under
Section 1306.”
              In turn, section 1305, subdivision (c)(3) [hereafter § 1305(c)(3)], requires
the court to “vacate the forfeiture and exonerate” the surety’s bond “[i]f, outside the
county where the case is located, the defendant is surrendered to custody by the bail or is
arrested in the underlying case within the 180-day period.” (Italics added.) As the trial
court noted, defendant was not arrested by federal authorities on the “underlying case”
for which the bail bond issued. Nor did Accredited surrender defendant to federal
custody; to the contrary, those agents arrested defendant without Accredited’s aid.



                                               8
               In any event, even assuming arguendo that the federal felon-in-possession
charges on which defendant was arrested were based on the same incident or gun
possession underlying the Colorado state law felon-in-possession charges that formed the
basis for the fugitive complaint under California law (§ 1551.1), the trial court did not
abuse its discretion in concluding Accredited failed to establish the requisite good cause
under section 1305.6, subdivision (b). In other words, the predicate for invoking relief
from forfeiture under § 1305(c)(3) was absent.
               True, Accredited met the 20-day deadline by filing its motion for relief
from forfeiture on the 20th day after the trial court’s notice of entry of summary
judgment on the bond. But the trial court reasonably could reject Accredited’s motion to
vacate summary judgment because Accredited presented no good cause for failing to seek
relief from forfeiture within 180 days of the trial court’s notice of forfeiture.
               Accredited argued simply that “the bail agent neglected to file a motion for
exoneration of the bail . . . because he justifiably believed that since the defendant had
been returned to Colorado, the bail would be exonerated. Any reasonable person would
have believed the same.” Not so. The flaw in Accredited’s argument and its bail agent’s
reasoning is that exoneration is not self-executing. For example, the fact that a portion of
a defendant’s bail is imposed unconstitutionally does not excuse the surety from timely
appearing or from seeking statutory relief from forfeiture. (Continental Cas. Co. v. State
of California (1974) 41 Cal.App.3d 259.) Here, the trial court had no way of knowing
the defendant had been returned to Colorado, but instead relied on Accredited to bring
pertinent information to its attention, which Accredited failed to do timely, and for no
good reason.
               Accredited suggests that the only alternative was “to bring the defendant
back from Colorado just so extradition proceedings could be carried out to return him to
Colorado,” which “would be most unreasonable and illogical.” But this false alternative
is a red herring because, as noted, subdivisions (d), (e), and (f) of section 1305 provide

                                               9
within the 180-day statutory period several avenues for relief without extradition, but
Accredited never invoked them.
              Accredited did not deny it and its bail agent each received the trial court’s
notice of forfeiture, which expressly noted the statutory period in which to seek relief.
But Accredited did nothing for 230 days on the bare supposition that the trial court
somehow would divine information about defendant’s custody status that Accredited and
its bail agent made no effort to provide. In effect, Accredited claims it was entitled to
move for exoneration within 180 days’ notice or 230 days entirely at its leisure and for
any reason. To the contrary, “‘“[t]he law casts upon the party the duty of looking after
his legal rights”’” (In re Christina L. (1992) 3 Cal.App.4th 404, 416), and relieves
opposing parties and the trial court of the time, expense, and waste of resources in
responding to stale claims for relief, absent good cause. (§ 1305.6, subd. (b).) Because
Accredited provided none, the trial court did not err in denying its motion.
              Alternately, Accredited contends for the first time on appeal that the trial
court lacked jurisdiction to forfeit the bond, and therefore was required to grant
Accredited’s set aside motion. According to Accredited, defendant’s release from
custody served as the superior court’s consideration for the bail Accredited posted, and
once defendant was again taken into the government’s custody, albeit federal custody,
that consideration was void and Accredited was entitled to exoneration of its bond. In a
similar vein, Accredited argues that federal custody rendered Accredited’s promise to
produce defendant impossible through no fault of its own. Accredited relies on the
general principle that posting bail serves as a contractual undertaking to ensure the
defendant’s appearance in court. (Citing generally, e.g., People v. Meyers (1932)
215 Cal. 115, 117.) Anticipating that respondent “may complain that this jurisdictional
issue is being raised for the first time on appeal,” Accredited observes that “a
jurisdictional question may be raised at any time . . . .”



                                              10
               But Accredited confuses impossibility and a lack of consideration, which
are contract defenses, with a fundamental absence of jurisdiction. Accredited’s failure to
timely assert its defenses to summary judgment on the bond did not deprive the trial court
of jurisdiction. To the contrary, even a constitutional right may be forfeited by “‘“the
failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it.’” [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) As our
Supreme Court has explained, the trial court has jurisdiction over a bail bond “‘from the
point it is issued until the point it is either satisfied, exonerated, or time expires to enter
summary judgment after forfeiture.’” (People v. American Contractors Indemity Co.
(2004) 33 Cal.4th 653, 663.) Accredited forfeited the contract defenses it now belatedly
asserts by failing to timely raise them, and they furnish no basis to overturn the summary
judgment on appeal. (See Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th
1334, 1350-1351, fn. 12 [permitting appellant to raise new arguments on appeal “would
not only be unfair to the trial court, but manifestly unjust to the opposing litigant”].)
                                               III
                                        DISPOSITION
               The judgment is affirmed. The People are entitled to their costs on appeal.



                                                     ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.



                                               11
