Filed 3/9/16 P. v. The North River Ins. Co. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067847

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. 37-2015-00006389-
                                                                    CU-EN-CTL)
THE NORTH RIVER INSURANCE
COMPANY,

         Defendant and Appellant;

BAD BOYS BAIL BONDS,

         Real Party in Interest and Appellant.


         APPEAL from an order and judgment of the Superior Court of San Diego County,

Kathleen M. Lewis and David J. Danielsen, Judges. Appeal from order, affirmed; appeal

from judgment, dismissed.

         Jefferson T. Stamp for Defendant, Appellants, and Real Party in Interest.

         Thomas E. Montgomery, County Counsel, and Walter J. DeLorrell III, Deputy

County Counsel, for Plaintiff and Respondent.
                                             I.

                                    INTRODUCTION

       Defendant surety, The North River Insurance Company (North River), and its bail

agent, real party in interest Bad Boys Bail Bonds (Bad Boys) (collectively, "appellants"),

appeal from an order denying Bad Boys's motion to vacate the forfeiture of a bail bond

and to exonerate the bond, and the ensuing summary judgment entered against North

River on the bond. Appellants claim that the trial court erred in denying the motion to

vacate for two reasons. First, appellants contend that a plea agreement in the underlying

criminal case and the People's stipulation to a deferred sentencing date at the plea

hearing, changed the bail bond contract and thereby discharged North River of its

obligation on the bond. In addition, appellants contend that the trial court erred in

determining that North River was not entitled to discharge of its obligations on the bond

on the ground that the plea agreement and the stipulation to defer sentencing materially

increased North River's risk on the bond. We reject both of these contentions and affirm

the order denying the motion to vacate the forfeiture of the bail bond and exonerate the

bond. For reasons we explain in part III.A., post, we dismiss the appeal from the

summary judgment.




                                             2
                                              II.

                     FACTUAL AND PROCEDURAL BACKGROUND

       On April 4, 2013, the People filed a complaint charging Thach Dang with willful

infliction of corporal injury to a spouse or roommate (Pen. Code, § 273.5)1 (count 1),

attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count

2), vandalism under $400 (§ 594, subds. (a), (b)(2)(A)) (count 3), and cruelty to a child

by inflicting injury (§ 273a, subd. (b)) (count 4). The complaint also alleged that Dang

had previously suffered two serious felony priors (§§ 667, subd. (a)(1), 668, 1192.7

(c)), and two strike priors (§§ 667, subds. (b)-(i), 1170.12, 668). That same day, Dang

was taken into custody and the trial court set bail at $75,000.

       Three days later, Bad Boys, acting as a bail agent for North River, posted a bail

bond on behalf of Dang in the amount of $75,000. The bond provides that, if convicted,

Dang will appear for pronouncement of judgment. The bond further provides that if Dang

fails to perform this condition, North River will pay $75,000. The bond also states that,

"[i]f the forfeiture of this bond be ordered by the Court, judgment may be summarily made

and entered forthwith against [North River] for the amount of its undertaking herein as

provided by Sections 1305 and 1306 of the Penal Code."2

       Dang and the People entered into a plea agreement on September 23, 2013 in

which Dang agreed to plead guilty to count 1 and to admit having suffered one prior



1     Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
2     These statutes outline the process by which bail may be forfeited.
                                              3
serious felony conviction and one prior strike conviction, in exchange for the dismissal of

the balance of the charges and the People's agreement to a nine-year stipulated sentence.

The plea agreement further provided that the maximum term of imprisonment that could

result from Dang's plea was 13 years, and stated that if "[Dang] willfully fail[ed] to

appear for . . . [the] sentencing hearing," he would "not be allowed to withdraw [his]

guilty . . . plea[ ]," and would be "sentenced unconditionally." The trial court held a plea

hearing and accepted the guilty plea that same day.

       At the conclusion of the plea hearing, defense counsel indicated that the People had

stipulated to a November 21, 2013 sentencing date. The court informed Dang that he had

a right to be sentenced on October 22, 2013, and asked whether he was willing to waive

this right in order to permit sentencing to occur on November 21. Dang responded in the

affirmative.

       Dang failed to appear for sentencing on November 21. The court ordered the bail

bond forfeited that day.

       Bad Boys filed an amended notice of motion and motion to vacate forfeiture and

exonerate the bond on January 13, 2015.3 Bad Boys supported its motion with a brief,

together with several exhibits and a declaration from an investigator whom it had retained

in an attempt to locate Dang.

       Ten days later, Bad Boys filed a supplemental brief in support of its motion, as



3     Although North River and Bad Boys filed a notice of motion to vacate forfeiture
and exonerate the bond on December 29, 2014, it does not appear from the record that
any accompanying motion was filed with this initial notice.
                                              4
well as an additional declaration and additional supporting exhibits. In its supplemental

brief, Bad Boys argued that sentencing in the underlying criminal matter had been

postponed in order to permit Dang to sell his business.4 Bad Boys argued that the

continuance of the sentencing hearing rendered the bond void because such a delay was

contrary to section 1191, which provides generally that a defendant is to be sentenced

within 20 court days after a plea of guilty. Bad Boys also argued that the bond should be

exonerated because the plea agreement containing the nine-year indicated sentence and

the continuance of the sentencing hearing materially increased the surety's risk under the

bond.

        The People filed an opposition to the motion, and Bad Boys filed a reply brief.

Thereafter, the trial court (Judge Lewis) heard oral argument and denied the motion to

vacate the forfeiture of the bail bond and exonerate the bond. Judge Lewis reasoned in

part, "I don't find there was a material increase to the risk of the surety by [Dang] giving a

time waiver for the sentencing date." Judge Lewis concluded by noting that time waivers

are "extremely common" and adding, "I don't find that it is unlawful to set the sentencing

beyond without notice to the surety . . . ."

        Approximately two weeks after the denial of Bad Boys's motion, the trial court


4      Together with its supplemental brief, Bad Boys filed a declaration from its
counsel. In his declaration, Bad Boys's counsel described a January 22, 2014
conversation that counsel had with the prosecutor in Dang's criminal case. Bad Boys's
counsel described this conversation as follows: "According to [the prosecutor], [Dang's]
counsel represented to the Court the reason for extending the sentencing date to
November 21, 2013, was to allow [Dang] to get his affairs in order, to take care of his
family and to 'sell his business.' According to [the prosecutor], this discussion with the
Judge was held off the record."
                                               5
(Judge Danielsen) granted summary judgment against North River on the bail bond

forfeiture in the amount of $75,000 plus costs and interest.

       Appellants filed a notice of appeal from the order denying the motion to vacate the

forfeiture of the bond and exonerate the bond and the ensuing summary judgment.

                                             III.

                                       DISCUSSION

A.     Appellate jurisdiction

       We first consider, sua sponte, whether we have appellate jurisdiction over

appellants' appeals. (E.g., Drum v. Superior Court (2006) 139 Cal.App.4th 845, 849

["because the timeliness of an appeal poses a jurisdictional issue, we must raise the point

sua sponte"].)

       With respect to the order denying the motion to vacate forfeiture of the bail bond

and exonerate the bond, it is well established that, "[a]n order denying a motion to vacate

or set aside a forfeiture and exonerate the bail bond is an appealable order." (County of

Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542.) Thus, Bad

Boys may appeal the denial of its motion to vacate the forfeiture and exonerate the bail

bond. Further, although the motion to vacate was brought solely by Bad Boys, North

River is a party to the action, and, given North River's status as surety on the bond, it was

legally aggrieved by the order. (Center for Biological Diversity v. County of San

Bernardino (2010) 185 Cal.App.4th 866, 881 ["A party is aggrieved when the judgment

or order 'has an immediate, pecuniary, and substantial effect on his interests or rights' "].)

We therefore conclude that North River is a proper party to the appeal from the order

                                              6
denying Bad Boys's motion to vacate. (See ibid. [" 'Any party aggrieved' may appeal an

adverse judgment or order"].)

       However, we conclude that we lack appellate jurisdiction over appellants' appeal

from the summary judgment. (See People v. Souza (1984) 156 Cal.App.3d 834, 837,

fn. 2 ["Ordinarily, a summary judgment against a surety [on a bail bond] is a consent

judgment which is not appealable"].) The court in People v. Fairmont Specialty Group

(2009) 173 Cal.App.4th 146, explained the basis for this rule: "Because bonds generally

include a clause authorizing the entry of summary judgment after forfeiture, such

judgments are considered nonappealable consent judgments." (Id. at p. 151, fn. 5.) The

bond at issue in this case contained such an authorizing provision. (See pt. II, ante.) We

therefore dismiss appellants' appeal insofar as it purports to appeal from the summary

judgment.5

B.     The People's stipulation to a deferred sentencing date did not result in a
       modification of the bond contract

       Appellants claim that the plea agreement and the People's stipulation to a deferred

sentencing date changed the bail bond contract and thereby discharged the surety of its

obligation on the bond. In support of this claim, appellants contend that the bond

contract incorporated all applicable laws in existence at the time the contract was made,

including section 1191, which provides generally that a defendant must be sentenced


5      We emphasize that our dismissal of appellants' appeal with respect to the summary
judgment is without substantive effect. We reach the merits of all of the claims raised by
appellants in their brief by virtue of our appellate jurisdiction over appellants' appeal
from the order denying the motion to vacate the forfeiture of the bail bond and exonerate
the bond.
                                             7
within 20 court days after pleading guilty to an offense. Appellants further argue that the

plea agreement and the People's stipulation to a sentencing date more than 20 court days

after the plea of guilty "deviat[ed] from the statutory provisions of [s]ection 1191," and

thereby unlawfully changed an underlying provision of the bond contract.

       Appellants' claim raises a question of law. We review such claims de novo.

(People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592 [stating that

legal claims raised on appeal from an order denying a motion to vacate the forfeiture of a

bail bond are reviewed de novo].)

       1.      Factual and procedural background

       On September 23, 2013, the trial court (Judge Yherabide) held a plea hearing for

the purpose of accepting Dang's plea. After Judge Yherabide accepted Dang's plea and

granted the People's motion to dismiss the balance of the charges alleged in the

complaint, the following colloquy occurred:

            "The court: . . . In terms of [a] sentencing date.

            "[Defense counsel]: Yes, we have cleared a date with the stipulation
            by the People for November 21st, your honor.

            "The court: Sir, you have a right to be sentenced on [October 22].
            Are you willing to waive time to have your sentencing heard on
            November 21?

            "The defendant: Yes Ma'am.

            "The court: Terms will be noted. . . . See you in November."




                                                8
      2.      Governing law

              a.      A surety's liability on a bond contract is restricted to the terms
                      of the contract

      A bail bond contract is an agreement between a surety and the government

whereby the surety acts as a guarantor of the defendant's appearance in court under the

risk of forfeiture of the bond. (People v. Western Ins. Co. (2013) 213 Cal.App.4th 316,

322 (Western).) A court "cannot extend the contractual obligation of the surety insurer

beyond that contemplated by the statutes and found in the bond itself." (People v. North

Beach Bonding Co. (1974) 36 Cal.App.3d 663, 672.)

              b.      Section 1191

      Section 1191 provides in relevant part:

           "In a felony case, after a plea, finding, or verdict of guilty, or after a
           finding or verdict against the defendant on a plea of a former
           conviction or acquittal, or once in jeopardy, the court shall appoint a
           time for pronouncing judgment, which shall be within 20 judicial
           days after the verdict, finding, or plea of guilty . . . ."

      "As a general rule, the time limits on the pronouncement of sentence provided by

section 1191 are not jurisdictional, but may be waived by the parties." (People v.

Cunningham (2001) 25 Cal.4th 926, 1044.) This has long been the law. (See, e.g.,

People v. Ford (1966) 65 Cal.2d 41, 47 ["A defendant cannot complain that he was not

sentenced within the time period prescribed by section 1191 of the Penal Code where he

waives time for or sanctions the postponement of his sentencing"].)




                                               9
       3.     Application

       Appellants argue that section 1191 was incorporated into the bond contract

because "all laws applicable, in existence when a contract is made, form a part of it."

(Quoting People v. Page (1929) 100 Cal.App. 252, 254 (Page), boldface omitted.)

Assuming that section 1191 is an "applicable" law (Page, supra, at p. 254) incorporated

into the bond contract, it is clear that the continuance of the sentencing date did not

violate either the letter or the spirit of section 1191, given the defendant's personal waiver

of his right to be sentenced within 20 court days. (See People v. Ford, supra, 65 Cal.2d

at p. 47.) Appellants point to nothing in either the bond contract, or the law generally,

that provides that a surety is discharged of all obligations on a bond contract merely

because a defendant, in accordance with well established law, waives his right to be

sentenced within the time frame provided in section 1191 and the People agree to a

continuation of the sentencing date.

       Accordingly, we conclude that the People's stipulation to a deferred sentencing

date beyond the 20-court-day period in section 1191 did not discharge the surety of its

obligation on the bond contract.6




6       Although appellants suggest that the deferral of sentencing was based in part on
the "plea agreement," there is nothing in either the plea agreement or the plea colloquy
that supports this contention. As described in part III.B.1, ante, the court discussed
Dang's sentencing date with the parties after the court accepted his plea of guilty. Thus,
there is nothing in the record to support appellants' contention that "[t]he [p]lea
[a]greement . . . changed the [b]ail [b]ond [c]ontract."
                                             10
C.     The trial court did not abuse its discretion in determining that the surety was not
       entitled to discharge of its obligations on the bond on the ground that the plea
       agreement and the stipulation to defer sentencing in order to permit Dang to sell
       his business materially increased the surety's risk on the bond

       Appellants claim that the surety is entitled to discharge of the surety's obligations

on the bond because the plea agreement and the stipulation to defer sentencing in order to

permit Dang to sell his business materially increased the surety's risk on the bond. We

review this claim for an abuse of discretion. (See Western, supra, 213 Cal.App.4th at p.

325 [applying abuse of discretion standard of review in considering claim that trial court

erred in failing to exonerate bail bond because government "materially increased

[surety's] risk under the bail bond agreement"].)

       1.      Governing law

               a.     The nature of a bail bond contract

       In Western, supra, 213 Cal.App.4th 316, the Court of Appeal outlined the nature

of a bail bond contract:

            "As courts have noted, the bail bond agreement is a contract
            involving three parties. First, it is a contract between the surety and
            the [defendant]. Under the terms of the bail bond agreement, 'the
            [defendant] is, in the theory of the law, committed to the custody of
            the sureties as to jailers of his own choosing, not that he is, in point
            of fact, in this country at least, subjected or can be subjected by them
            to constant imprisonment; but he is so far placed in their power that
            they may at any time arrest him upon the recognizance and surrender
            him to the court, and, to the extent necessary to accomplish this, may
            restrain him of his liberty.' [Citation.] Second, 'the "bail bond is a
            contract between the surety and the government whereby the surety
            acts as a guarantor of the defendant's appearance in court under the
            risk of forfeiture of the bond." ' " (Id. at p. 322.)




                                              11
              b.     The government's implied covenant not to materially increase
                     the surety's risks on the bail bond contract

       The Western court explained that in light of the nature of a bail bond contract,

courts have recognized an implied covenant on the part of the government, " 'that it will

not in any way interfere with this covenant between [the defendant and the surety], or

impair [the surety's] obligation, or take any proceedings with the [defendant] which will

increase the risks of the sureties or affect their remedy against him.' " (Western, supra,

213 Cal.App.4th at p. 322, quoting Reese v. United States (1869) 76 U.S. 13, 22.)

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, supra, at p. 322.)

       For example, in Western, the Court of Appeal concluded that a court order

permitting a defendant to leave the United States materially increased the surety's risk

under the bail bond agreement. (Western, supra, 213 Cal.App.4th at p. 325.) In reaching

this conclusion, the Western court noted that "[s]ince the 19th century, the United States

Supreme Court has recognized that because the power to arrest a [defendant] can be

exercised only within the territory of the United States, 'there is an implied covenant on

the part of the [defendant] with his sureties, when he is admitted to bail, that he will not

depart out of this territory without their assent.' " (Id. at p. 322.) The Western court

further relied on long standing case law that " '[a]ny Government action that substantially

encourages the defendant to leave the country in violation of the terms of the bond is a

material breach of the Government's implied covenant not to interfere with the covenant


                                                12
between the defendant and the surety.' " (Id. at p. 323, quoting United States v. Galvez-

Uriarte (9th Cir. 1983) 709 F.2d 1323.) Thus, the Western court concluded that the trial

court's order materially increased the surety's risk on the bond because the action

authorized the breach of an implied covenant between the defendant and the surety that

he would not depart the county, and also placed the defendant beyond the reach of both

the surety and domestic law enforcement agencies. (Western, supra, at pp. 323-324.)

The court reasoned:

          "Here, [the surety] met its burden of showing that the court order
          permitting [defendant] to travel to the Philippines was made without
          its consent or knowledge, and materially increased its risks under the
          bail bond agreement. In particular, the unchallenged declaration of
          [an investigator retained by Western] established that Western made
          a good faith effort to locate and apprehend [defendant] in the
          Philippines, but was prejudiced by the court order permitting
          [defendant] to travel outside the United States. The order put
          [defendant] out of reach of the surety and of domestic law
          enforcement agencies. It permitted him to disregard the court's
          directive to return, with little chance of apprehension. And
          significantly, it denied Western the opportunity to exercise its
          statutory right to surrender [defendant] to the custody of the court,
          rather than incur the very real risk that he would not return and the
          bond would be forfeited. [Citation.] The actions of the court thus
          breached the government's obligation not to materially increase the
          risk to the surety without notice." (Ibid.)

       Similarly, in United States v. Aguilar (N.D.Cal. 1993) 813 F.Supp. 727 (Aguilar),

a federal district court concluded that the government had "materially increase[d] the risk

of the sure[ties] without [their] knowledge and consent," (id. at p. 728) by permitting the

defendant to travel outside the federal district in which the defendant had been criminally

charged for the purpose of meeting with drug traffickers, as part of an ongoing

government investigation. (Id. at p. 729.) The Aguilar court noted that a magistrate

                                            13
judge had authorized such travel pursuant to a plea agreement with the government

through which the defendant "agreed to testify against his suppliers . . . and to assist in

future narcotics investigations." (Ibid.)

       In determining that the government had materially increased the sureties' risk on

the bond contract, the Aguilar court noted that the bond specifically provided that the

defendant "could not travel outside of the Northern District of California." (Aguilar,

supra, 813 F.Supp. at p. 728.) The Aguilar court also emphasized that, as a result of the

government's actions, the "[d]efendant was authorized to engage in the dangerous activity

of assisting the government with narcotics investigations outside of the Northern

District." (Id. at p. 729; see also id. at p. 729, fn. 3 [rejecting argument that bond should

be forfeited because sureties were aware that defendant had previously been permitted to

travel outside of the Northern District to visit relatives, stating "[w]hile visiting relatives

does not materially increase the [s]ureties' risk, assisting the government in drug

investigations does"].) The Aguilar court also noted that the sureties were prevented

from learning the terms of the plea agreement because the agreement had been filed

under seal. (Id. at p. 729.)

       2.     Application

       In their brief, appellants refer to three actions taken by the government,7 that they

appear to claim materially increased the risks that the surety faced on the bond. First,

appellants note that the People and Dang "entered into a plea agreement in which Dang


7      As appellants do in their brief, we use the term "government," to refer to the
actions of both the trial court and the People.
                                               14
was provided an indicated sentence of 9 years." To the extent appellants intend to argue

that, in entering into a plea agreement with an indicated sentence of nine years, the

People materially increased the surety's risk under the bond because Dang was less likely

to appear for sentencing after learning of his potential sentence, we disagree. At the time

of the posting of the bond, Dang faced a potential sentence of 25 years to life in prison.8

Thus, as the trial court observed in denying Bad Boys's motion, the indicated sentence of

nine years was far below the potential sentence that Dang faced at the time "the bond

company chose to secure his attendance with the bond." Further, appellants were free to

monitor the case, learn of the nine-year indicated sentence, and return Dang to custody

(and thereby exonerate its bond) to the extent they deemed him a flight risk in light of

indicated sentence. (See § 1300, subd. (a) ["At any time before the forfeiture of their

undertaking, or deposit by a third person, the bail or the depositor may surrender the

defendant in their exoneration"].)

       Appellants also note that the People agreed to a stipulation with defense counsel

whereby Dang would not be sentenced until 59 days after his plea, rather than within 20

court days after his plea as provided in section 1191. However, appellants fail to explain

how this relatively brief continuance of the sentencing hearing9 materially increased the

surety's risk. Since the law has long permitted a defendant to waive the 20-court-day

sentencing period (see pt. III.B.2, ante), and, as the trial court noted, it is "extremely

8      The trial court noted that "[t]he complaint that was filed charges two strike priors,
a serious felony prior, and several charges."
9      As noted in part III.B.1, ante, Dang agreed to waive his right to be sentenced by
October 22, in favor of a stipulated November 21 sentencing date.
                                              15
common" for defendants to provide a sentencing time waiver, the surety could reasonably

be expected to understand the possibility that sentencing might occur outside the 20-

court-day window at the time it posted the bond. Further, appellants were free to monitor

to the proceedings and return Dang to custody in exoneration of the bond to the extent

that they considered the time waiver to have increased the surety's risk on the bond. (See

§ 1300, subd. (a).)10 We therefore conclude that the trial court did not abuse its

discretion in determining that the People's stipulation to the trial court's setting of a

sentencing date outside the 20-court-day period provided in section 1191 did not

materially increase the risk to the surety.

       Finally, appellants contend that the surety's risk was materially increased by the

fact that sentencing was deferred in order to permit Dang to sell his business.11 We are

not persuaded. Deferring a sentencing date in order to permit a defendant to sell his

business is not in any way analogous to the travel authorized in Western and Aguilar.

Most importantly, unlike the excursions authorized in Aguilar and Western, Dang was

free to sell his business at any time. Moreover, unlike in Aguilar, deferring sentencing to

permit Dang to sell his business did not put Dang beyond the reach of the surety or

domestic law enforcement, nor did it directly authorize the defendant to breach his

implied covenant with the surety to remain in the country. Further, the government's

10     Appellants point to no authority, and we are aware of none, suggesting that the
government is required to provide notice to the surety of the setting of a sentencing date
outside the 20-day period provided in section 1191.
11     In support of this argument, appellants note that the surety could not have
discovered the reason for the delay by monitoring the proceedings because the reason for
the delay was given "off the record."
                                              16
action in this case did not authorize the defendant to leave the charging jurisdiction in

order to engage in the "dangerous activity of assisting the government with narcotics

investigations" in direct contravention of the bail bond, as in Aguilar. (See Aguilar,

supra, 813 F.Supp. at p. 729.)

       Accordingly, we conclude that the trial court did not abuse its discretion in

determining that the surety was not entitled to discharge of its obligations on the bond on

the ground that the government materially increased the surety's risk on the bond.

                                             IV.

                                      DISPOSITION

       The order denying the motion to vacate forfeiture and exonerate the bail bond is

affirmed. The appeal from the summary judgment is dismissed.



                                                                           AARON, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.




                                             17
