Filed 11/3/14 County of Los Angeles v. Indiana Lumbermens Mutual Ins. Co. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN


COUNTY OF LOS ANGELES,                                               B249091

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. OSJ1498)
         v.

INDIANA LUMBERMENS MUTUAL
INSURANCE COMPANY,

         Defendant and Appellant.




                   APPEAL from an order of the Superior Court of Los Angeles County,
Lia M. Martin, Judge. Affirmed.


                   Law Offices of Brendan Pegg and Brendan Pegg for Defendant and
Appellant.


                   John F. Krattli, County Counsel, Ruben Baeza Jr., Assistant County
Counsel, and Debbie C. Carlos, Deputy County Counsel, for Plaintiff and Respondent.


                                      ____________________________
                                    INTRODUCTION
       Appellant Indiana Lumbermens Mutual Insurance Company (Indiana) appeals
from the trial court’s order denying Indiana’s motion to set aside summary judgment,
discharge forfeiture, and exonerate bail. Indiana argues the trial court abused its
discretion in denying the motion because the court materially increased Indiana’s risk
under a bond posted to secure a defendant’s release in one case, when the court
subsequently released the same defendant on his own recognizance in a preexisting,
unrelated case. As discussed below, the trial court’s decision to release the defendant on
the preexisting case did not materially increase Indiana’s risk under the subject bond.
Accordingly, we affirm the trial court’s ruling.
                                     BACKGROUND
A. The Defendant’s Criminal History and the Subject Bond
       On April 8, 2008, a criminal complaint was filed against Facial Cherradi, charging
him with the following crimes: three counts of felony burglary; one count of felony
identity theft; and one count of felony possession of a controlled substance (the old
felony case). On April 15, 2008, Cherradi pled no contest to the felony identity theft
charge, and the remaining charges were dismissed. Pursuant to the plea agreement in that
case, the court suspended imposition of Cherradi’s sentence and placed him on three-year
probation. On March 8, 2010, Cherradi’s probation in the old felony case was revoked.
       On March 18, 2010, another criminal complaint was filed against Cherradi,
charging him with three misdemeanors (the misdemeanor case).
       On August 24, 2010, the trial court reinstated Cherradi’s probation in the old
felony case with the following modified terms: (1) Cherradi was sentenced to three years
in state prison, with execution of the sentence suspended; (2) Cherradi was ordered to
serve an additional 152 days in county jail; and (3) Cherradi’s probation was extended
until August 24, 2012.
       On August 16, 2011, a third criminal complaint was filed against Cherradi,
charging him with the following crimes: felony possession of a controlled substance;


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felony possession of another’s access card with intent to use fraudulently; and felony
identity theft (the new felony case).
       On February 18, 2012, Indiana posted a $70,000 bail bond to secure Cherradi’s
release in the new felony case. That same day, Indiana posted a $7,500 bond to secure
Cherradi’s release in the misdemeanor case.
B. The Trial Court’s Decision to Release the Defendant on his Own Recognizance, the
    Defendant’s Failure to Appear, and Subsequent Court Proceedings
       On February 21, 2012, Cherradi appeared at a hearing on the new felony and
misdemeanor cases. At that hearing, the trial court also addressed the old felony case,
which apparently was not on calendar for that day.1 The trial court made the following
orders at the hearing: (1) with respect to the new felony case, it set a preliminary hearing
for March 20, 2012 and released Cherradi on the $70,000 bond posted by Indiana; (2)
with respect to the misdemeanor case, it set a probation violation hearing for March 20,
2012, and released Cherradi on the $7,500 bond posted by Indiana; and (3) with respect
to the old felony case, it revoked Cherradi’s probation, set a probation violation hearing
for March 20, 2012, and released Cherradi on his own recognizance. Concerning the old
felony case, the trial court stated: “I’m going to release [Cherradi] on that case. But for
the record I think everybody should know [ ] the reason I’m releasing him O.R. He did
not know that case was here.” The court went on to state: “On [the old felony case] only
the defendant is going to be released O.R.”
       Cherradi appeared at the March 20, 2012 hearing. At that hearing, he pled no
contest to the charges alleged in the new felony case and agreed to serve a three-year
state-prison sentence, which was to run concurrently with the old felony case’s three-year



1
         Although Cherradi was not scheduled to appear on the old felony case at the
February 21, 2012 hearing, Cherradi’s attorney made several attempts to order that case’s
file at several of Cherradi’s hearings leading up to February 21, 2012. For example, at a
January 19, 2012 hearing on the new felony case, Cherradi’s counsel made the following
request: “Your Honor, in this case we would be asking to continue it to February 2nd so
that we can re-order [the old felony case].”
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sentence. The trial court put over sentencing to April 5, 2012 and ordered Cherradi to
appear on that date.
       Cherradi failed to appear on April 5, 2012. As a result, the trial court forfeited
Indiana’s bonds in the new felony case and the misdemeanor case.2
       On April 6, 2012, the trial court mailed Indiana notice of the forfeiture in the new
felony case. On December 4, 2012, the trial court mailed Indiana a Notice of Entry of
Judgment on Forfeited Bond and Demand for Payment (Sup. Ct. L.A. County, No.
SJ001498), informing Indiana that summary judgment on its forfeited bond was entered
on December 3, 2012.
       On March 15, 2013, Indiana filed a motion to set aside summary judgment,
discharge forfeiture, and exonerate bail. In its motion, Indiana argued the court lacked
jurisdiction to forfeit Indiana’s bond in the new felony case. Specifically, Indiana
contended the trial court’s decision to release Cherradi on his own recognizance in the
old felony case materially increased Indiana’s risk under the bond it posted in the new
felony case, thereby exonerating that bond. On April 19, 2013, the trial court denied
Indiana’s motion. On May 24, 2013, Indiana timely filed its Notice of Appeal.
                                STANDARD OF REVIEW
       “An order denying a motion to vacate summary judgment on a bail bond forfeiture
is an appealable order and is a proper vehicle for considering a jurisdictional attack on the
summary judgment. [Citation.] Ordinarily, appellate courts review an order denying a
motion to vacate the forfeiture of a bail bond under an abuse of discretion standard.
[Citation.]” (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592
(Fidelity II); see also People v. Indiana Lumbermens Mut. Ins. Co. (2012) 202
Cal.App.4th 1541, 1545 (Indiana Lumbermens) [“The deferential abuse of discretion




2
       In the instant appeal, Indiana challenges the trial court’s forfeiture of the bond
posted in the new felony case; it does not challenge the trial court’s forfeiture of the bond
posted in the misdemeanor case.
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standard applies to the trial court’s resolution of a motion to set aside a bail forfeiture,
subject to any constraints imposed by the bail statutory scheme”].)
       “‘“The law traditionally disfavors forfeitures and this disfavor extends to forfeiture
of bail. . . .” The standard of review, therefore, compels us to protect the surety, and
more importantly the individual citizens who pledge to the surety their property on behalf
of persons seeking release from custody, in order to obtain the corporate bond.’” (People
v. Western Insurance Company (2013) 213 Cal.App.4th 316, 321 (Western), citing
County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62.) Nevertheless,
the surety bears the burden of demonstrating a forfeiture should be vacated and the
subject bond should be exonerated. (Western, supra, 213 Cal.App.4th at p. 321.)
                                        DISCUSSION
       Indiana contends the trial court’s decision to release Cherradi on his own
recognizance in the old felony case materially increased Indiana’s risk under the bond it
posted in the new felony case, thereby requiring the trial court to exonerate that bond.
We disagree.
A.     Applicable law
       When a surety posts a bond to secure a defendant’s release, a contract is created
between the surety and the court. (Western, supra, 213 Cal.App.4th at pp. 321-322.) By
entering into this contract, the surety assumes the risk that the amount of the bond it
deposits with the court will be forfeited in the event the defendant fails to appear at future
hearings where his or her presence is required. (Ibid; see also Pen. Code, § 1305, subd.
(a).) In the event the defendant fails to appear without sufficient excuse at such a
hearing, Penal Code section 1305, subdivision (a),3 requires the court to declare the
surety’s bond forfeited. (§ 1305, subd. (a)(4).) Once the bond is declared forfeited,
“[t]he surety that posted the bond then has a statutory ‘appearance’ period in which either
to produce the accused in court and have the forfeiture set aside, or to demonstrate other
circumstances requiring the court to vacate the forfeiture.” (Western, supra, 213


3
       All further statutory references are to the Penal Code unless otherwise specified.
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Cal.App.4th at p. 322; see also Pen. Code, § 1305, subd. (b).) “‘If the forfeiture is not set
aside by the end of the appearance period, the court is required to enter summary
judgment against the surety.’ [Citation.]” (Western, supra, 213 Cal.App.4th at p. 322.)
       Section 1305 also sets forth when the trial court is required to exonerate a bond
forfeiture. (§ 1305, subds. (b)-(d), (f), (g).) These “remedies” for exoneration of a bond
forfeiture are not exclusive, however, as a surety may be entitled to exoneration of a
forfeiture under circumstances not addressed in section 1305. (See, e.g., Western, supra,
213 Cal.App.4th at pp. 323-325 [bond exonerated because court materially increased
surety’s risk under bond agreement where court executed order allowing the defendant to
leave the country without first notifying the surety or otherwise obtaining the surety’s
consent]; People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675 [bail
exonerated despite failure of defendant to appear for execution of judgment, where surety
fulfilled its obligations under sections 1195 and 1459]; People v. Surety Ins. Co. (1983)
139 Cal.App.3d 848, 854 [bail exonerated where surety was not notified pursuant to
section 1303 that bail was transferred to a new complaint]; People v. Resolute Ins. Co.
(1975) 50 Cal.App.3d 433, 437 [bail exonerated where surety was not notified pursuant
to section 1303 that bail was transferred from a dismissed complaint to later-issued
indictment].) Here, Indiana seeks exoneration of its bond on non-statutory grounds.
B.     The trial court did not materially increase Indiana’s risk under the subject
       bond agreement
       Indiana argues the trial court should have exonerated the bond Indiana posted in
the new felony case because the court’s decision to release Cherradi on his own
recognizance in the old felony case materially increased Cherradi’s flight risk, thereby
divesting the trial court of its jurisdiction to declare the new felony case’s bond forfeited.
We disagree.
       This District’s decision in Indiana Lumbermens, supra, 202 Cal.App.4th 1541, is
instructive on the issue before us, which is whether the trial court’s decision to release the
defendant on his own recognizance in the old felony case materially increased the risk


                                              6
that Cherradi would fail to appear in the unrelated new felony case, when the old felony
case predates and is unrelated to the new felony case.
       In Indiana Lumbermens, a criminal defendant faced two cases involving felony
robberies. (Indiana Lumbermens, supra, 202 Cal.App.4th at p. 1544.) The first case
involved a single count of second degree robbery (first case), and the second case, as
initially filed, involved ten criminal charges, including six second degree robbery counts,
one attempted second degree robbery count, and three receiving stolen property counts
(second case). (Ibid.) The complaints in both cases alleged the defendant committed the
crimes during the same period of time. (Id. at pp. 1544, 1550.) After the complaints
were filed, a surety posted a $500,000 bond to secure the defendant’s release. (Id. at p.
1544.) The defendant later failed to appear at a hearing on both cases and the $500,000
bond was forfeited. (Ibid.)
       After the defendant was later captured and remanded to custody, another surety
posted a $625,000 bond to secure the defendant’s release in the second case. (Indiana
Lumbermens, supra, 202 Cal.App.4th at p. 1544.) With respect to the first case, the trial
court released the defendant on his own recognizance without explanation. (Ibid.) Later,
the trial court consolidated the defendant’s two cases, left the defendant’s bail unchanged
without notifying the surety, and allowed the defendant to remain out of custody. (Ibid.)
Later that year, the defendant failed to appear for trial on the consolidated case and the
trial court declared the surety’s $625,000 bond forfeited. (Ibid.) In a motion to set aside
the forfeiture, the surety argued the trial court lost jurisdiction to declare the bond
forfeited by allowing the bond to secure the defendant’s release on the charge originally
alleged in the first case after the defendant’s cases were consolidated. (Id. at p. 1545.)
Specifically, the surety argued the consolidation materially changed the terms of the bond
posted in the second case and materially increased the surety’s risk under that bond. (Id.
at pp. 1545, 1550-1551.) The trial court denied the surety’s motion. (Id. at p. 1545.)
       Division Three affirmed the trial court’s decision on two grounds. (Indiana
Lumbermens, supra, 202 Cal.App.4th at pp. 1549-1551.) On the first ground, it held the
trial court’s consolidation of the two cases without altering bail was a duly authorized

                                               7
amendment of the bond agreement, which did not require the trial court to first provide
notice to the surety. (Id. at pp. 1550-1551.) On the second ground, the court concluded
that even if the trial court’s consolidation was not a duly authorized amendment of the
second case’s bond agreement, the consolidation did not materially increase the surety’s
risk under that bond. (Id. at pp. 1550-1551.) The court reasoned the consolidation did
not materially increase the surety’s risk because, at the time the surety posted the
$625,000 bond in the second case, the first case was already in existence, a fact the surety
could have ascertained before it posted the $625,000 bond. (Id. at p. 1550.) The court
also looked to the fact the surety was aware the defendant had previously failed to appear
in 2003, which caused a different surety to forfeit a $500,000 bond. (Ibid.) With these
two factors in mind, the court determined the surety should have been aware of any
significant risk imposed by the first case at the time it posted the bond in the second case.
(Ibid.) Finally, the court reasoned the consolidation of the two cases did not increase the
defendant’s motivation to flee because “he was facing the same charges after the
consolidation as before and he stood to forfeit the same $625,000 if he failed to appear
[on the consolidated case].” (Id. at p. 1551.)
       Here, Indiana raises an argument similar to the one raised by the surety in Indiana
Lumbermens. Indiana argues the trial court’s decision to release Cherradi on his own
recognizance on the old felony case materially increased Indiana’s risk under the bond it
posted in the new felony case because, at the time Indiana posted the bond, it was
unaware of Cherradi’s old felony case and did not intend to secure his release on that
case. We reject this argument.
       The old felony case originated well before Indiana posted its bond in the new
felony case. (See Indiana Lumbermens, supra, 202 Cal.App.4th at p. 1551 [“It is
undisputed the [first] case was already in existence at the time Indiana undertook the risk
of guaranteeing [the defendant’s] appearance in the [second] case”].) As the trial court’s
records reflect, the old felony case originated in 2008, remained active when Cherradi
first violated probation in 2010, and was brought back to the trial court’s attention less
than one month before Indiana posted bail in Cherradi’s new felony case. Therefore,

                                              8
Indiana could have discovered the old felony case at the time it posted Cherradi’s bail in
the new felony case. (See Indiana Lumbermens, supra, 202 Cal.App.4th at p. 1551
[“Thus, [the surety] either knew of, or could have ascertained, the pendency of the [first
case] at the time it issued the bond in the [second case]”]; see also People v. Bankers Ins.
Co. (2010) 181 Cal.App.4th 1, 6 (Bankers) [surety could have monitored the defendant’s
case after the prosecuting agency amended the complaint under which the surety’s bond
was posted to determine whether there was an increased flight risk].) Indeed, Indiana
offered the trial court no explanation for why it was unable to discover the old felony
case before posting the subject bond. (See Western, supra, 213 Cal.App.4th 316, 321
[“The surety has the burden of proof in a motion to set aside a forfeiture”]; see also
Indiana Lumbermens, supra, 202 Cal.App.4th at p. 1551.)
       Further, the trial court’s decision to release Cherradi on his own recognizance on
the old felony case did not create any additional incentive for Cherradi to flee the trial
court’s jurisdiction. The trial court added the suspended prison sentence to Cherradi’s
probation in the old felony case approximately one year before the new felony case was
filed. As a result, Cherradi would have been aware of the potential for serving that
prison sentence at the time Indiana posted its bond in the new felony case. Thus, any
incentive for Cherradi to flee stemming from the old felony case would have existed
before Indiana posted the subject bond. (See Indiana Lumbermens, supra, 202
Cal.App.4th at p. 1551 [the trial court’s decision to consolidate the defendant’s cases did
not increase the defendant’s motivation to flee because the defendant was facing the same
potential punishment after the court’s decision as before, and he stood to forfeit the same
amount of money if he failed to appear].)
       Finally, Cherradi appeared at a hearing in the new felony case nearly one month
after the trial court released him on his own recognizance. Thus, Indiana actually had the
opportunity to monitor Cherradi following his release to determine whether the trial
court’s decision increased Indiana’s risk under the subject bond and, whether based on
this information, it would have been prudent to arrest Cherradi and surrender him to the
court’s custody to ensure his continued appearance going forward. (See Bankers, supra,

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181 Cal.App.4th at p. 6 [surety was free to monitor the defendant’s case to determine
whether it believed its bond was adequate to cover the defendant’s flight risk].)
       In light of the foregoing, we find the trial court’s decision to release Cherradi on
his own recognizance in the old felony case did not materially increase Indiana’s risk
under the bond it posted to secure Cherradi’s release in the new felony case. Therefore,
the trial court did not abuse its discretion in denying Indiana’s motion.
                                      DISPOSITION
       The order denying Indiana’s motion to set aside summary judgment, discharge
forfeiture, and exonerate bond is affirmed. Respondent shall recover its costs on appeal.




                                                                WOODS, Acting P. J.


We concur:




              ZELON, J.                                         SEGAL, J.*




*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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