Filed 4/21/17; pub. order 5/2/17 (see end of opn.)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



THE PEOPLE,                                             D070060

         Plaintiff and Respondent,                      (Super. Ct. No. 37-2015-00028283-
                                                                        CU-EN-CTL)
         v.

INTERNATIONAL FIDELITY
INSURANCE CO.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Lisa

Schall, Judge. Affirmed.

         Law Office of John Rorabaugh, John M. Rorabaugh and Robert Tomlin White for

Defendant and Appellant.

         Thomas E. Montgomery, County Counsel, and Ayriel A. Bland, Deputy County

Counsel, for Plaintiff and Respondent.

         Appellant International Fidelity Insurance Co. (Fidelity), acting through its agent

King Stahlman Bail Bonds, posted a $100,000 bail bond on behalf of Catalin Gabriel
Vaja (defendant) who later failed to make a required appearance. The trial court forfeited

the bond under Penal Code1 section 1305 and later entered summary judgment against

Fidelity. Fidelity appeals from an order denying its motion to set aside the judgment

entered on the forfeited bail bond. Fidelity contends that, without its knowledge or

consent, the trial court added conditions to defendant's bail that materially increased its

risk under the bond. Thus, Fidelity claims the bond should be exonerated. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Police arrested defendant on charges of driving under the influence (DUI) (Veh.

Code, § 23152, subd. (a)), obtaining a subsequent DUI charge within 10 years of previous

DUI conviction (Veh. Code, § 23550.5, subd. (a)), and driving when privilege is

suspended or revoked. (Veh. Code, § 14601.1, subd. (a).) Fidelity, though its bail agent,

posted a bail bond for defendant's release from custody. The following month, defendant

appeared in court for arraignment. The trial court ordered defendant released on bail with

conditions to: (1) not drive during the pendency of the case; (2) attend three Alcoholics

Anonymous (AA) meetings per week; and (3) abstain from alcohol. Defendant later

appeared for his preliminary hearing. At the hearing, the trial court noted that defendant

was facing arraignment on a misdemeanor driving case and heard argument from counsel

about a "SCRAM" monitoring system which monitors alcohol consumption

transdermally and immediately sends a report to the court should defendant consume any

alcohol. Instead of raising bail, as an additional condition of the defendant's continued



1      Undesignated statutory references are to the Penal Code.
                                              2
release on the posted bail amount, the court required that defendant enroll in the SCRAM

monitoring system within 48 hours.

       Defendant failed to appear for trial. The trial court ordered a bench warrant and

forfeited the bail bond. The court sent notice of forfeiture to Fidelity. The court later

granted an extension of time for defendant to appear. Ultimately, the trial court granted

summary judgment on the bond and entered a judgment on the defaulted bond against

Fidelity. The court later denied Fidelity's motion to set aside the summary judgment,

ruling that "the Defendant in this matter was lawfully required to appear because the

Court expressly ordered the Defendant to appear," that "[t]he public safety conditions

imposed by the Court did not materially alter the chances of the Defendant's flight risk,"

and therefore Fidelity "failed to meet its burden." Fidelity timely appealed.

                                           DISCUSSION

                                  I. LEGAL PRINCIPLES

       A bail bond is a contract between the government and the surety. Under this

contract, the surety acts as guarantor of the criminal defendant's appearance in court and

risks forfeiture of the bond if the defendant fails to appear. (People v. American

Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) "When a defendant who posts

bail fails to appear at a scheduled hearing, the forfeiture of bail implicates not just the

defendant's required presence, but constitutes a 'breach of this contract' between the

surety and the government. [Citation.] Ultimately, if the defendant's nonappearance is

without sufficient excuse, it is the surety who 'must suffer the consequences.' " (People v.

Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709.)

                                               3
        Statutes govern the forfeiture and exoneration of bail. (§ 1305 et seq.) When a

defendant who has been released on bail fails to appear in court as required without a

sufficient excuse, the trial court is required to declare bail forfeited. (§ 1305, subd.

(a)(1).) Within 30 days of the forfeiture, the court clerk must serve notice of the

forfeiture on the surety and its bail agent, and, if the bond amount exceeds $400, the

notice of forfeiture must be served by mail. (§ 1305, subd. (b)(1).) The surety has 185

days from the date the notice of forfeiture is mailed (180 days plus five days for service

by mail) to obtain relief from the forfeiture on any of the grounds set forth in section

1305. (§ 1305, subd. (b)(1); People v. United States Fire Ins. Co. (2015) 242

Cal.App.4th 991, 999.) The 185-day period is known as either the "exoneration period"

or the "appearance period." (People v. United States Fire Ins. Co., at p. 1000.) The trial

court may extend the original 185-day appearance period up to 180 additional days, on

motion supported by a showing of good cause. (§ 1305.4.) If the surety fails to obtain

relief from the forfeiture within the appearance period, including extensions, the court

shall enter summary judgment against the surety on the bond, plus costs. (§ 1306, subd.

(a).)

        An order denying a motion to set aside the forfeiture of a bail bond is appealable.

(People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1382.) We normally review an

order denying a motion to set aside the forfeiture of a bail bond for abuse of discretion.

(County of Los Angeles v. American Contractors Indemnity Co. (2011) 198 Cal.App.4th

175, 178.) When, however, the issue is one of statutory construction or contract

interpretation, and the evidence is undisputed, we review the order de novo. (Ibid.)

                                               4
                                          II. ANALYSIS

       Fidelity argues it did not enter into a bail bond contract that included conditioning

defendant's release upon defendant's attendance at three AA meetings per week and his

adherence to the restrictions of a SCRAM device. Fidelity asserts that the court's act of

placing additional conditions and government control upon defendant's release materially

altered the bail bond contract to increase its risks. Additionally, it asserts that the court's

failure to provide notice of the additional conditions voided the bail bond contract

between it and the court. Accordingly, it claims that the subsequent bail forfeiture and

summary judgment are void and must be set aside.

       Section 1305 sets forth the statutory grounds for vacating forfeiture and

exonerating a bond. (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 5.) Section

1305, however, does not set forth the exclusive bases for vacating a forfeiture. (People v.

Bankers Ins. Co. (2016) 247 Cal.App.4th 1004, 1011.) Rather, courts must consider the

bonding language and "whether the government's actions materially increased the risk

that the surety had accepted." (Ibid.) "[I]f the government materially increases the risk to

the surety beyond the express terms of the bond without notice to the surety or the

surety's consent, the government violates its contract with the surety, and the surety is

entitled to vacation of the forfeiture and exoneration of the bond." (Ibid.) The surety has

the burden of showing, with competent evidence, that a forfeiture of its bail should be set

aside. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 725.)

Accordingly, the surety has the burden of showing that the bail conditions materially

increased its risks.

                                               5
       In determining the limits of the surety's risk, we look to the provisions of the bond

itself, along with applicable statutes. (People v. North Beach Bonding Co. (1974) 36

Cal.App.3d 663, 668, disapproved on other grounds in People v. Safety National

Casualty Corp., supra, 62 Cal.4th at p. 716, fn. 5.) We apply the de novo standard of

review because the issues turn on the terms of the bail contract and the relevant evidence

is not in dispute. (County of Los Angeles v. American Contractors Indemnity Co., supra,

198 Cal.App.4th at p. 178.) The bond issued by Fidelity provides in relevant part:

          "Now, the INTERNATIONAL FIDELITY INSURANCE
          COMPANY, a New Jersey corporation, hereby undertakes that the
          above-named defendant will appear in the above-named court on the
          date set forth to answer any charge in any accusatory pleading based
          upon the acts supporting the complaint filed against him/her and all
          duly authorized amendments thereof, in whatever court may be
          prosecuted, and will at all times hold him/herself amenable to the
          orders and process of the court, and if convicted, will appear for
          pronouncement of judgment or grant of probation; or if he/she fails
          to perform either of these conditions, that the INTERNATIONAL
          FIDELITY INSURANCE COMPANY, a New Jersey corporation,
          will pay the People of the State of California, the sum of
          [$100,000]." (Italics added.)

       The trial court has discretion to "set bail on the terms and conditions [it] deems

appropriate." (§ 1269c.) Specifically, the trial court has the power to impose reasonable

bail conditions intended to ensure public safety. (Gray v. Superior Court (2005) 125

Cal.App.4th 629, 642.) The question presented is whether the court's act of conditioning

bail on defendant not driving during the pendency of the case, attending three AA

meetings per week, abstaining from alcohol, and adhering to the restrictions of a SCRAM

device materially increased the risk to Fidelity beyond that contemplated by the express



                                             6
language of the bond. As we shall explain, Fidelity has not established that these

conditions materially increased its risk.

       As a preliminary matter, we reject Fidelity's argument that the trial court was

required to provide it notice before imposing any bail conditions and that the failure to

provide notice rendered the bail contract void. Fidelity cited no California authority to

support its argument that it was entitled to such notice and nothing in any of the bail

statutes (§§ 1268-1320) required the court or the People provide a surety notice of bail

conditions. Rather, Fidelity relied on inapposite out-of-state authority, namely: State v.

Sedam (2005) 34 Kan.App.2d 624 [122 P.3d 829] (Kansas); United States v. King (7th

Cir. 2003) 349 F.3d 964 (King) and United States v. Gambino (1992) 809 F.Supp. 1048

(Gambino).

       In Kansas, the court vacated a judgment against the surety finding that the trial

court's order subjecting defendant to supervision while on bail, including urinalysis and

weekly check-ins, without notice to the surety amounted to a material change to the bond.

(Kansas, supra, 122 P.3d at p. 831.) There, however, the bond expressly provided: "If

the amount of the bond required for the person's appearance or the other conditions are

modified from the above amount or conditions, then this bond is null and void, and a new

bond in the required amount and/or with the modified other conditions must be posted at

the time." (Id. at p. 830.) In contrast, the bond at issue does not contain an express

modification clause; rather, it acknowledged and agreed that defendant would be

amenable to the trial court's orders and contained no requirement that the surety be given



                                             7
notice of those orders. If Fidelity desired notice of the imposition of bail conditions, it

could have negotiated such a provision in the bail contract.

          Fidelity cites King, supra, 349 F.3d 964 and Gambino, supra, 809 F.Supp. 1048

for the proposition that a surety is entitled to notice of changes made to a defendant's

conditions of bail. In both cases, the court held that a surety is entitled to notice of a

material change to the conditions of a bond, but ultimately found that the respective

change in condition had not materially increased the surety's risk. (King, at pp. 966, 968

[defendant's travel to Nigeria and then return to United States, where defendant vanished,

did not materially increase risk of flight]; Gambino, at pp. 1055, 1056 [removal of

electronic monitoring bracelets, under circumstances of case, did not significantly

increase defendants' risk of flight.].) When the recognizance of bail is accepted, an

implied covenant on the part of the government exists that it will not "take any

proceedings with the principal which will increase the risks of the sureties or affect their

remedy against him." (Reese v. United States (1869) 76 U.S. 13, 22 (Reese); People v.

Western Ins. Co. (2013) 213 Cal.App.4th 316, 322 (Western) [same, quoting Reese].)

"Accordingly, a surety is discharged from its liability under the bail bond agreement if

the government, without the surety's consent or knowledge, materially increases the

surety's risks." (Western, at p. 322.) Here, even assuming Fidelity was entitled to notice

of the change in bail conditions, Fidelity should not be discharged from its liability as it

has not established the changed conditions significantly increased defendant's risk of

flight.



                                               8
       Under the bail bond, Fidelity accepted responsibility for ensuring that defendant

would appear on a number of DUI related charges, including driving with a suspended or

revoked license. The bail bond reflected that defendant was charged with driving under

the influence with a suspended or revoked license; thus, Fidelity necessarily knew

defendant could not legally drive regardless of conditioning bail on defendant not driving

during the pendency of the case. Accordingly, the no driving condition did not materially

increase Fidelity's risk.

        Fidelity has not presented any evidence showing how the conditions requiring

defendant to attend three AA meetings per week, abstain from alcohol, or adhere to the

restrictions of a SCRAM device materially increased defendant's flight risk. " 'The object

of bail and its forfeiture is to insure the attendance of the accused and his obedience to

the orders and judgment of the court.' " (People v. Safety National Casualty Corp. (2016)

62 Cal.4th 703, 709.) Here, the conditions imposed by the trial court are unrelated to

future court appearances. (Contra, Reese, supra, 76 U.S. at p. 22 [allowing a defendant to

leave country without notice to the surety materially increased risks on a surety relating

to defendant's future court appearances]; Western, supra, 213 Cal.App.4th at pp. 323-324

[same].) Fidelity has not presented any evidence (or persuasive argument) showing how

these conditions undermined the primary object of bail—defendant's continuing

appearance. Nothing in the record compels a finding that these conditions increased

Fidelity's risk to the extent that the bail contract was void as a matter of law. Thus, the




                                              9
court did not err by denying Fidelity's motion to set aside the summary judgment.2 As

another court noted, Fidelity could have monitored defendant's case and surrendered him

to custody if it believed that the bail conditions increased defendant's risk of flight.

(People v. Bankers Ins. Co., supra, 181 Cal.App.4th at p. 6.)

                                           DISPOSITION

       The order denying Fidelity's motion to vacate the forfeiture and exonerate the

bond and the summary judgment on the bond are affirmed. The People shall recover

their costs on appeal. (Cal. Rules of Court, rule 8.278.)




                                                                                   NARES, J.

WE CONCUR:



HUFFMAN, Acting P. J.



HALLER, J.




2       For the first time in its reply brief, Fidelity argues that the bail conditions were
unauthorized by law as they waived defendant's constitutional rights. Waiting until the
reply brief to make an argument forfeits the argument. (People v. Bonilla (2007) 41
Cal.4th 313, 349-350.) Accordingly, we deem the argument forfeited and decline to
address it. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [" 'points raised in the
reply brief for the first time will not be considered, unless good reason is shown for
failure to present them before' "].)
                                              10
Filed 5/2/17

                             CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA



THE PEOPLE,                                         D070060

        Plaintiff and Respondent,
                                                    (Super. Ct. No. 37-2015-00028283-
        v.                                                        CU-EN-CTL)

INTERNATIONAL FIDELITY
INSURANCE CO.,                                      ORDER CERTIFYING OPINION
                                                    FOR PUBLICATION
        Defendant and Appellant.


THE COURT:

        The opinion in this case filed April 21, 2017, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a)

for publication is GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c), AND
      ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.




                                                                 HUFFMAN, Acting P. J.

Copies to: All parties




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