Filed 11/14/13 County of Santa Barbara v. American Surety CA2/6
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


COUNTY OF SANTA BARBARA,                                                        2d Civil No. B238601
                                                                              (Super. Ct. No. 1363847)
     Plaintiff and Respondent,                                                 (Santa Barbara County)

v.

AMERICAN SURETY COMPANY,

     Defendant and Appellant.



                   American Surety Company (American) appeals from an order
denying its motion to vacate a $1 million bail forfeiture and exonerate two
$500,000 bail bonds that were posted on behalf of Randall Rudy Quaid and
Evegenia Helena Quaid (Randy and Evi, respectively) after they fled to Canada.
(Pen. Code, § 1305.)1 American claims that the bail bonds are void ab initio
because the Quaids were not released from "custody" in exchange for the posted
bond amount.
                   We reverse and remand with directions to enter a new order to vacate
Randy's bail forfeiture and exonerate his $500,000 bail bond. Bail was forfeited
nunc pro tunc in violation of section 1305, subdivision (a). The order denying

                   1
                       All statutory references are to the Penal Code unless otherwise
stated.
American's motion to vacate Evi's bail forfeiture and exonerate her $500,000 bail
bond is affirmed.
                                        FACTS
              On September 18, 2010, the Quaids were arrested for felony
vandalism (§ 594, subd. (b)(1)) after they allegedly entered a private residence and
destroyed property in excess of $5,000 in value. American's agent, Biker Bail
Bonds, posted $50,000 bail each for the Quaids' release on September 19, 2010.
                         Failure to Appear: Bench Warrant
              When the Quaids failed to appear at the October 18, 2010
arraignment, the trial court issued $50,000 bench warrants. (§ 979.) Quaids'
attorney, Robert Sanger, requested a continuance. Granting that request, the trial
court continued the arraignment to October 26, 2010. Although the minute order
states that the September 19, 2010 bail was "forfeited," the court did not declare the
forfeiture in open court (§1305, subd. (a)).2
              Several days later, it was learned that the Quaids were in Canada and
detained by Canadian immigration officials. On October 22, 2010, based on their
nonappearance and flight risk, the trial court granted the prosecution's motion to
increase their bail to $500,000 each.
                                 $500,000 Bail Bonds
              On October 26, 2010, attorney Sanger appeared and stated that he had
spoken to the Quaids. At counsel's request, the trial court continued the
arraignment to November 2, 2010, and ordered the $50,000 bench warrants to
remain outstanding. After the hearing, American's agent, Santa Barbara Bail
Bonds, posted a $500,000 bail bond on each bench warrant.
              On November 2, 2010, the Quaids failed to appear. The trial court
ordered Evi's $500,000 bail forfeited. It recalled Randy's bench warrant and
              2
                On June 20, 2011, the trial court granted American's motion to
vacate the forfeiture and exonerate the $50,000 bail bonds because the forfeiture
was not declared in open court as required by section 1305, subdivision (a)(1).


                                           2
ordered it held to November 16, 2010. (§ 1305.1.) On November 5, 2010, the trial
court reconsidered its ruling, found there was no good cause for Randy's
nonappearance, and ordered Randy's bail forfeited nunc pro tunc as of November 2,
2010.
               On June 20, 2011, the trial court granted American's motion to extend
the time to return the Quaids to custody (§ 1305.4) based on the prosecution's
representation that it was seeking their extradition. After the United States
Department of Justice declined to process the extradition request, the trial court
denied American's motion to vacate the bail forfeiture and to exonerate the
$500,000 bail bonds.
                                      DISCUSSION
               Because the facts are not in dispute and the issue involves contract
and statutory interpretation, our review of the trial court's order is de novo. (People
v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 558, 592.) American
argues that the $500,000 bail bonds were void at their inception because the Quaids
were not in custody when the bonds were posted.
               A bail bond is a contract between the government and the surety in
which the surety acts as a guarantor of the defendant's appearance under risk of
forfeiture of the bond. (People v. Amwest Surety Ins. Co. (2001) 87 Cal.App.4th 69,
71.) "'. . . "In general the state and surety agree that if the state will release the
defendant from custody, the surety will undertake that the defendant will appear
personally and at a specified time and place . . . . If the defendant fails to appear at
the proper time and place, the surety becomes the absolute debtor of the state for the
amount of the bond." [Citation.]' [Citation.]" (Ibid.)
               American claims that Quaids' fugitive status rendered the October 22,
2010 $500,000 bail order void ab initio because the Quaids were not in "custody."
If that was the law, every bail bond posted on a failure to appear bench warrant
would be void. It would repeal section 979 which provides: "If the defendant has
been discharged on bail . . . , and does not appear to be arraigned when his personal


                                             3
presence is necessary, the court, in addition to the forfeiture of the undertaking of
bail . . . , may order the issue of a bench warrant for his arrest." Here the Quaids did
not appear at the October 18, 2010 arraignment and $50,000 bench warrants issued
pursuant to section 979.
              Bail was increased to $500,000 on October 22, 2010 after the trial
court learned that the Quaids fled to Canada. American complains that the Quaids
were not in the court's custody when their bond amounts were set and posted.
              The Quaids, however, were already out on bail and in American's
custody. "'When bail is given, the principal is regarded as delivered to the custody
of his sureties. Their dominion is a continuance of the original imprisonment.'
[Citations.]" (People v. Lexington Nat. Ins. Co. (2007) 147 Cal.App.4th 1192,
1198.) The two $50,000 bail bonds which were posted to get the Quaids out of jail
were not declared forfeited "in open court." (§ 1305, subd. (a)(1); Lexington, at fn.
2.) The court increased their bail pursuant to section 985 which provides: "When
the information or indictment is for a felony, and the defendant, before the filing
thereof, has given bail for his appearance to answer the charge, the Court to which
the indictment or information is presented, or in which it is pending, may order the
defendant to be committed to actual custody, unless he gives bail in an increased
amount, to be specified in the order." Section 986 provides that if the defendant is
not present when the order is made, "a bench-warrant must be issued. . . ."
              American acknowledges that the trial court had authority to increase
bail but argues that the court could not "admit" the Quaids to bail until the court had
custody of the Quaids. Admission to bail is defined as "the order of a competent
Court or magistrate that the defendant be discharged from actual custody upon
bail." (§ 1268.) But that occurred on September 19, 2010, when American's agent,
Biker Bail Bonds, posted bail for the Quaids' release.
              American bases its appeal on the false premise that it has no surety
obligation on the $500,000 bonds unless the Quaids were released from custody
when bail was posted on October 22, 2010. Such a construction of the law renders


                                           4
sections 985 and 986 null. It is contrary to American's prior claim that the $500,000
bail bonds relieved it of liability on the first bonds. That was the ground for
American's June 21, 2011 motion to exonerate the $50,000 bail bonds which were
posted to get the Quaids out of jail.3
              American assumed custody of the Quaids on September 19, 2010,
when they were released from jail. (See People v. McReynolds (1894) 102 Cal.
308, 311-312 ["responsibility of the sureties is based upon their custody of
the person bailed"]; People v. Amwest Surety Ins. Co. (1986) 180 Cal.App.3d 444,
447-448 [liability or surety ceases when defendant is remanded to custody of
sheriff]; People v. United Bonding Ins. Co. (1969) 274 Cal.App.2d 898, 902-904
[court released defendant on day after it ordered bail forfeited without placing
defendant in custody; bond surety remained liable for defendant's nonappearance].)
The fact that the Quaids fled the state or were arrested in other proceedings (i.e., the
Canadian immigration proceeding) does not exonerate the bond obligation. (County
of Los Angeles v. Maga (1929) 97 Cal.App. 688, 691.) "[W]hen the People attempt
to obtain extradition as they did in this case, they have done all they can to bring the
defendant before the court and it is not unjust for the surety which has assumed the

              3
                American's motion to exonerate the $50,000 bail bonds stated:
"[T]he original bond[s] were released by novation. [¶]. . .[¶] It is intuitive that a
defendant cannot have two active bonds at the same time. To hold otherwise,
would require the original surety to locate and surrender the defendant on his
original bond, while at the same time charging the second surety with the custody
and control of the defendant. This principle stands true even if the same surety
posts both bonds."
               American claimed that "'[n]ovation is the substitution of a new
obligation for an existing one.'" (Citing Civ. Code, § 1530) Surety law, however,
bars American from having its cake and eating it too. Code of Civil Procedure
section 996.240 provides: "If a new bond is given in place of the original bond:
[¶] (a) The original bond remains in full force and effect for all liabilities incurred
before, and for acts, omissions, or causes existing or which arose before, the new
bond became effective." Assuming, arguendo, that the $500,000 bail bond was an
additional or supplemental bond, it "does not discharge or affect the original bond.
The original bond remains in full force and effect as if the additional or
supplemental bond had not been given." (Code Civ. Proc., § 996.250, subd. (a).)

                                           5
risk of the defendant's nonappearance to bear the consequences." (People v. Ranger
Ins. Co. (1998) 61 Cal.App.4th 812, 819.)
                      Nunc Pro Tunc Forfeiture of Randy's Bail
              American argues that the nunc pro tunc forfeiture of Randy's
$500,000 bail bond on November 5 was void. We agree. Had the forfeiture been
declared on November 2, as it was with Evi's bond, or on November 16 (§ 1305.1),
it would have been valid. Randy, however, was not required to be present at the
November 5 hearing. Therefore, the trial court could not "as a matter of law validly
declare a forfeiture under section 1305 based on [Randy's] nonappearance at a
hearing he was not 'lawfully required' to attend . . . .'" (People v National Auto. &
Casualty Ins. Co. (2004) 121 Cal.App.4th 1441, 1451.) The trial court's effort to
correct the matter as of November 2 by a nunc pro tunc order was equally
unavailing.
              A court cannot revive lapsed jurisdiction by the simple expedient of
issuing an order nunc pro tunc. (In re Daoud (1976) 16 Cal.3d 879, 882; People v
United Bonding Ins. Co. (1971) 5 Cal.3d 898, 904.) The court is required to declare
a forfeiture of bail "in open court" if a defendant fails to appear at a "lawfully
required" court proceeding. (§ 1305; 4 Witkin & Epstein, Cal. Criminal Law (4th
ed. 2012) Pretrial Proceedings, § 118, pp. 358-359; People v. Allegheny Cas. Co.
(2007) 41 Cal.4th 704, 706.) The failure to comply with this statutory requirement
results in the loss of jurisdiction to later declare a forfeiture. (People v. Amwest
Surety Ins. Co. (2004) 125 Cal.App.4th 550, 554.)
                                    DISPOSITION
              We reverse and remand with directions to enter a new order to vacate
Randy's bail forfeiture and to exonerate his $500,000 bail bond. The order denying
American's motion to vacate Evi's bail forfeiture and exonerate her bail bond is
affirmed.




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              The parties shall bear their own costs on appeal. (Cal. Rules of Court,
rule 8.278 (a)(5).)
              NOT TO BE PUBLISHED.




                                         PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                          7
                                 Frank J. Ochoa, Judge

                        Superior Court County of Santa Barbara

                         ______________________________


             Law Offices of Brendan Pegg, Brendan Pegg for Defendant and Appellant.
             Dennis A. Marshall, County Counsel, Sarah A. McElhinney, Deputy
Counsel for Plaintiff and Respondent.
