                                                   132 Nev., Advance Opinion iji
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                RICHARD JUSTIN, D/B/A JUSTIN                        No. 67786
                BROS BAIL BONDS; AND
                INTERNATIONAL FIDELITY
                INSURANCE COMPANY,
                Petitioners,
                                                                         FILED
                vs.                                                       JUN 3 0 2016
                THE SECOND JUDICIAL DISTRICT                                   IE K. LINDEMAN
                                                                     C - ER F.        R    CQU
                COURT OF THE STATE OF NEVADA,                       BY

                IN AND FOR THE COUNTY OF                                 CHIEF DP C


                WASHOE; AND THE HONORABLE
                JANET J. BERRY, DISTRICT JUDGE,
                Respondents,
                and
                THE STATE OF NEVADA,
                Real Party in Interest.



                            Original petition for a writ of mandamus challenging the
                denial of a motion to exonerate a bail bond.
                            Petition denied.

                Richard F. Cornell, Reno,
                for Petitioners.

                Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno,
                for Respondents.

                Adam Paul Laxalt, Attorney General, Carson City; Christopher. J. Hicks,
                District Attorney, and Keith G. Munro, Deputy District Attorney, Washoe
                County,
                for Real Party in Interest.




                BEFORE DOUGLAS CHERRY and GIBBONS, JJ.
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                                                       OPINION
                      By the Court, DOUGLAS, J.:
                                  In this writ petition challenging a district court order denying
                      exoneration of a bail bond, we are asked to consider whether Nevada's
                      statutory scheme governing bail bonds provides for automatic exoneration
                      of a surety bond when a defendant is remanded to custody or convicted.
                      We conclude that NRS 178.509's plain language does not espouse such an
                      intent. Accordingly, we deny writ relief.
                                                        FACTS
                                  On September 18, 2013, Norman Dupree was arrested and
                      incarcerated in Washoe County Jail. Dupree's bail bond was set at
                      $25,000. Petitioners Justin Bros Bail Bonds and International Fidelity
                      Insurance Company (collectively Justin Bros) 1 posted Dupree's bond (bond
                      number one). The respective bond agreement provided that Dupree would
                      answer to the charges specified and be amenable to the orders and process
                      of the court. The agreement further specified that if Dupree failed to meet
                      its conditions, Justin Bros would pay the State of Nevada $25,000.
                                  On January 30, 2014, while out of custody on bail, Dupree
                      appeared before the Second Judicial District Court for arraignment.
                      During the hearing, the district court ordered Dupree to complete drug
                      testing. Dupree tested positive, and consequently, the district court added
                      supervision to the conditions of his bail and rescheduled his arraignment
                      for March 18, 2014.



                          'Justin Bros is the agent of International Fidelity Insurance
                      Company.



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                               Dupree was remanded to custody based on a pretrial
                   supervision violation on January 31, 2014. Bonafide Bail Bonds then
                   posted a $20,000 bond (bond number two) on February 3, 2014, to secure
                   Dupree's rerelease from custody. Justin Bros did not attempt to exonerate
                   bond number one during the time Dupree was incarcerated.
                               On March 18, after Dupree failed to appear for his
                   arraignment, the district court issued notices of intent to forfeit. The
                   district court provided that bond number one and bond number two would
                   be declared forfeited in 180 days under NRS 178.506, 178.509, and
                   178.514 and noted that Dupree's failure to appear for his scheduled
                   arraignment constituted a breach of the agreed-upon conditions of bail.
                   On March 21, the district court issued a bench warrant, and set bond at
                   $50,000, cash only. But according to Dupree, when he attempted to
                   surrender himself on March 21, the Washoe County Sheriffs Office did not
                   take him into custody because the bench warrant was not entered in the
                   justice system records.
                               Thereafter, Dupree surrendered himself to Bonafide. In turn,
                   Bonafide surrendered him to the Washoe County Sheriffs Office on
                   May 14, 2014, and bond number two was exonerated. Dupree's
                   arraignment was rescheduled for June 10, 2014, and Justin Bros, without
                   seeking to exonerate bond number one, posted another bond for $20,000
                   (bond number three) to secure Dupree's release pending the June




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                arraignment. 2 Dupree failed to appear for the June arraignment, and the
                district court ordered that bond number three be forfeited.
                             Dupree's counsel subsequently requested a status hearing,
                which was scheduled for July 24, 2014. Again, Dupree failed to appear.
                The district court took no further action, noting that the bench warrant
                with bail set at $50,000 was still active.
                             In August 2014, Justin Bros filed a motion for exoneration of
                bond number one, arguing that it was never informed of Dupree's June 10
                arraignment and that it was unclear whether Dupree was informed.
                Justin Bros also argued that notwithstanding Dupree's failure to appear
                in court on June 10, bond number one should have been exonerated when
                the court revoked Dupree's supervised bail in January or when Bonafide
                posted bond number two in February, allowing Dupree to be rereleased.
                            Respondent Second Judicial District Court Judge Janet Berry
                denied Justin Bros' motion, observing that: (1) Justin Bros did not attempt
                to• exonerate bond number one while Dupree was in custody from
                January 31 through February 3, or after Bonafide surrendered Dupree to
                custody on May 14, but instead posted bond number three; (2) Dupree
                failed to appear for his arraignments, had yet to be arraigned, and
                remained out of custody despite Justin Bros' acknowledgment that it had
                been in contact with Dupree; and (3) a bench warrant had been issued.
                The court concluded that, because Dupree had not appeared before it since
                January 30, 2014, bond number one could not be exonerated. On


                      2Although the $50,000 cash only bond was still in place, because it
                did not appear in the justice system records, Dupree was released on a
                $20,000 bond.



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                 October 6, 2014, the district court entered a judgment of forfeiture for
                 bond number one.
                             On October 23, 2014, Justin Bros filed a motion for
                 reconsideration or an alternative order to set aside judgment, arguing that
                 when Dupree's release was revoked on January 31, and he was taken back
                 into custody, bond number one should have been exonerated pursuant to
                 NRS 178.509(1)(b)(4) (providing that the court shall not exonerate the
                 bond before the date of forfeiture unless the defendant is "being detained
                 by civil . . . authorities"). Justin Bros also argued that when a new bail
                 was set for the same charges and Bonafide posted bond number two, bond
                 number one was automatically exonerated, as custody of Dupree then
                 belonged to Bonafide. Further, Justin Bros maintained that because the
                 $50,000 cash-only warrant had not been entered into the justice system
                 records, Dupree was not held in custody after Bonafide turned him in, but
                 instead was rebailed on bond number three, which replaced bonds one and
                 two and therefore exonerated those bonds.
                             While Justin Bros' motion was pending, Dupree surrendered.
                 At that time, bond number three was exonerated. On December 8, 2014,
                 Justin Bros filed a reply in support of its motion for reconsideration,
                 pointing out that it had since surrendered Dupree to Washoe County
                 authorities, and that surrender took place within the statutory 180-day
                 forfeiture time limit. The district court denied Justin Bros' motion,
                 finding that Justin Bros had not presented any different evidence or
                 persuasive legal authority to support reconsideration, or demonstrated
                 that the court's forfeiture judgment was erroneous to justify setting it
                 aside.



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                                 Following Dupree's guilty plea conviction and sentencing,
                    Justin Bros filed a motion to declare the bond forfeiture judgment
                    unenforceable or completely satisfied, or to exonerate bond number one.
                    Justin Bros argued that bond number one should have been exonerated by
                    operation of law under NRS 178.509(1)(a), NRS 178.512(1)(a)(1), NRS
                    178.514, NRS 178.522, NRS 178.526, and People v. Int? Fid. Ins. Co., 138
                    Cal. Rptr. 3d 883, 886-87 (Ct. App. 2012). 3 Justin Bros maintained that
                    the following events triggered bond number one's exoneration: Dupree's
                    remand to custody on January 31, 2014; Dupree's attempt to surrender to
                    the Washoe County Sheriffs Office in March 2014; Bonafide's surrender of
                    Dupree to custody on May 14, 2014, on bond number two; Justin Bros'
                    surrender of Dupree to custody on bond number three, which occurred
                    within 180 days of the court's notice of intent to forfeit bond; and Dupree's
                    guilty plea and sentencing while in custody.
                                 The district court denied the motion, finding that Justin Bros
                    did not timely address the forfeiture of bond number one. In addition, the
                    district court concluded that Justin Bros' reliance on Accredited Surety
                    was grounded in California's penal code, providing for automatic
                    exoneration, whereas no similar codification exists under Nevada law.




                          3 JustinBros cited to International Fidelity, 138 Cal. Rptr. 3d at 886-
                    87, for the proposition that because the surety's responsibilities are based
                    on its constructive custody of thefl defendant, when the defendant is
                    remanded to custody, the surety no longer has responsibility for the
                    defendant and the court "must act on its own motion to exonerate the
                    bond, and if it fails to do so, exoneration is accomplished by operation of
                    law."



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                Justin Bros now challenges the district court's order through an original
                petition for a writ of mandamus
                                               DISCUSSION
                            A writ petition is the proper vehicle for challenging orders
                originating from ancillary bail bond proceedings. All Star Bail Bonds, Inc.
                v. Eighth Judicial Dist. Court, 130 Nev., Adv. Op. 45, 326 P.3d 1107, 1109
                (2014). A writ of mandamus may issue to compel the performance of an
                act required by the law, or to control a manifest abuse of discretion.    Id.
                Therefore, the question is whether the "district court manifestly abused its
                discretion in deciding whether to exonerate a bail bond." Id.
                            This petition presents an issue of statutory interpretation,
                namely, whether provisions of NRS Chapter 178 required the district
                court to exonerate bond number one or to set aside the forfeiture
                judgment. Statutory interpretation, even in the context of a writ petition,
                is a question of law that we review de novo. See All Star Bonding v. State,
                119 Nev. 47, 49, 62 P.3d 1124, 1125 (2003). When the plain language of a
                statute establishes the Legislature's intent, we "will give effect to such
                intention." We the People Nev. v. Miller, 124 Nev. 874, 881, 192 P.3d 1166,
                1170-71 (2008).
                Nevada law does not provide for automatic exoneration of a bail bond
                            Justin Bros argues that various events, including Dupree's
                remand to custody on two occasions and his subsequent releases secured
                by bond numbers two and three, Dupree's attempt to surrender himself,
                Dupree's final surrender to Washoe County authorities through Justin
                Bros' bondsman, and Dupree's eventual guilty plea and sentence while in
                custody, required bond number one's exoneration by operation of law or
                that the bond forfeiture judgment be set aside. Justin Bros asserts that
                the district court "had no discretion and no legal authority to do anything
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                 but exonerate the [blond." In contrast, the State on behalf of Judge Berry
                 argues that the district court may not exonerate a bail bond in the absence
                 of statutory authority, and because no such authority existed here, the
                 court was prohibited from ordering exoneration. We agree.
                             NRS 178.509 provides:
                                   1. If the defendant fails to appear when the
                             defendant's presence in court is lawfully required,
                             the court shall not exonerate the surety before the
                             date of forfeiture prescribed in NRS 178.508
                             unless:
                                   (a) The defendant appears before the court
                             and the court, upon hearing the matter,
                             determines that the defendant has presented a
                             satisfactory excuse or that the surety did not in
                             any way cause or aid the absence of the defendant;
                             or
                                  (b) The surety submits an application for
                             exoneration on the ground that the defendant is
                             unable to appear because the defendant:
                                         (1) Is dead;
                                         (2) Is ill;
                                         (3) Is insane;
                                         (4) Is being detained by civil       Or
                             military authorities; or
                                         (5) Has been deported,
                             and the court, upon hearing the matter,
                             determines that one or more of the grounds
                             described in this paragraph exist and that the
                             surety did not in any way cause or aid the absence
                             of the defendant.
                                   2. If the requirements of subsection 1 are
                             met, the court may exonerate the surety upon
                             such terms as may be just.


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                             The language of NRS 178.509 plainly prohibits courts from
                 exonerating a bond for any reason other than those set forth under
                 subsection 1. All Star Bail Bonds, 130 Nev., Adv. Op. 45, 326 P.3d at
                 1110. It establishes a two-step approach to exonerate a bond after a
                 defendant fails to appear for a court proceeding. In the first step,
                 exoneration of the bond may be initiated by the defendant or the surety.
                 The defendant may initiate the process by appearing in court before the
                 date of forfeiture, at which time the district court must have determined
                 that either the defendant provided a satisfactory excuse or that the surety
                 did not aid in the defendant's absence. In the alternative, the surety may
                 initiate the exoneration process by application. When the surety submits
                 an application, the district court must have determined that the surety did
                 not aid in the defendant's absence and that the defendant is unable to
                 appear because he or she is dead, ill, insane, being detained by civil or
                 military authorities, or has been deported. Thus, the first step is complete
                 if the district court makes findings pursuant to either option. At step two,
                 the district court may exonerate a bond Importantly, if the district court
                 does not find that one of the conditions in the first step exists, then it
                 "shall not" have the discretion to exonerate a bond. NRS 178.509(1).
                             A plain reading of NRS 178.509 not only fails to support
                 Justin Bros' argument that bond number one was exonerated by operation
                 of law, but it demonstrates quite the opposite. Exoneration is, in fact,
                 prohibited after a defendant fails to appear, save certain limited
                 circumstances. All Star Bail Bonds, 130 Nev., Adv. Op. 45, 326 P.3d at
                 1110 (noting that NRS 178.509(1)'s use of the words "shall not"
                 demonstrates the Legislature's intent to prohibit the district court's
                 discretion to exonerate a bond for any reasons other than the five

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                  conditions listed in the statute). Indeed, even if one of the enumerated
                  circumstances is met, exoneration is not mandatory.        State V. Stu's Bail
                  Bonds, 115 Nev. 436, 438, 991 P.2d 469, 470-71 (1999) ("Once the
                  requirements of NRS 178.509(1) are met, the decision to grant exoneration
                  of a bail bond rests within the discretion of the district court." (citing NRS
                  178.509(2)).
                                 Here, it is undisputed that Dupree failed to appear for his
                  arraignments, thereby breaching the agreement to answer the charges
                  specified and to be amendable to the court process. Consequently, the
                  district court was prohibited from exonerating bond number one, unless
                  one of NRS 178.509(1)'s enumerated conditions materialized. But the
                  district court did not find that Justin Bros did not aid Dupree's absence.
                  To the contrary, the district court found that Justin Bros was admittedly
                  in contact with Dupree, but failed to surrender him to the proper
                  authorities. In addition, the district court did not make findings as to
                  Dupree's reason for failing to appear at his arraignment. 4 Thus, according
                  to the undisputed facts, and in contrast to Justin Bros' argument, the
                  district court would have abused its discretion by proceeding to exonerate
                  Justin Bros' bond.




                        4JustinBros' argument that bond number one should have been
                  exonerated pursuant to NRS 178.509(1)(b)(4) because he was taken into
                  custody lacks merit. The appropriate inquiry is whether his detainment
                  was the reason for his failure to appear.



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                               Because we conclude that the district court applied NRS
                  178.509 properly, we deny writ relief.




                  We concur:




                  Gibbons




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