Filed 3/14/16 P. v. Financial Casualty & Surety CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064853

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. CD240387)

FINANCIAL CASUALTY & SURETY,
INC.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David M.

Szumowski, Judge. Affirmed.

         John M. Rorabaugh for Defendant and Appellant.

         Thomas E. Montgomery, County Counsel, Walter J. De Lorrell III, Deputy County

Counsel, for Plaintiff and Respondent.

         Financial Casualty & Surety, Inc. (Surety) posted a bail bond for a defendant and,

when the defendant did not appear at a felony readiness hearing, the court ordered the

bond forfeited. The court denied Surety's subsequent motion to vacate the forfeiture and
exonerate the bond, and Surety appeals from the denial of its motion. The issue is

whether the defendant was required to appear at the felony readiness hearing. Because

we conclude the defendant was required to appear at the felony readiness hearing within

the meaning of the bail forfeiture statutes, the court properly ordered the bond forfeited

and did not abuse its discretion in denying Surety's subsequent motion to vacate the

forfeiture and exonerate the bond.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The Nonappearance

       Surety posted a bond for the release of defendant Guled Karie from custody, and

Karie was ordered to appear for arraignment on April 19, 2012. At the April 19, 2012,

arraignment, Karie pleaded not guilty. The court set two hearings: a felony readiness

hearing for May 31, 2012, at 8:15 a.m. in Department 29, and a preliminary examination

for June 21, 2012, at 8:15 a.m. in Department 11. The written April 19, 2012, minute

order stated (under the heading "Hearings") that "DEFENDANT IS ORDERED TO

APPEAR for" followed by a number of boxes, two of which were checked: the

"Readiness/DWT" was checked followed by the notation "5.31.12 at 815 in Dept. 29,"

and the "Prelim Exam" was checked followed by the notation "6.21.12 at 815 in Dept.

11." The April 19, 2012, minute order was served on Karie and his attorney, Mr.

Burgess.

       Mr. Burgess appeared at the May 31, 2012, felony readiness hearing on behalf of

Karie but reported Karie was "not present." The court, noting the time was then 10:05


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a.m., stated Karie "was ordered to be here at 8:15" and issued a bench warrant, ordered

the bail forfeited, and vacated the previously set dates. Burgess made no objection.

       The Motion

       Surety moved to vacate the forfeiture and exonerate the bond. Surety argued

Karie was not ordered to appear at the May 31, 2012, felony readiness hearing, and the

felony readiness hearing was not a hearing at which his appearance was required by Penal

Code1 section 1305 or any other statute, and therefore there was no legal requirement for

him to appear. Surety argued the court erred when it ordered the bond forfeited based on

Karie's nonappearance. The People opposed the motion, asserting (1) the court had

expressly ordered Karie to appear at the May 31, 2012, felony readiness hearing, and (2)

section 977, subdivision (b)(1), mandated Karie's appearance at the May 31, 2012, felony

readiness hearing. The court denied Surety's motion, and Surety appealed.

                                         ANALYSIS

       Legal Principles

       "The forfeiture or exoneration of bail is entirely a statutory procedure, and

forfeiture proceedings are governed entirely by the special statutes applicable thereto.

[Citation.] Sections 1305 through 1309 govern bail forfeiture. [Citation.] Because the

law abhors forfeitures, these statutes are to be strictly construed in favor of the surety."

(People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552.)




1      All further statutory references are to the Penal Code.

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       Section 1305, subdivision (a), requires bail be forfeited if, without sufficient

excuse, a defendant does not appear for arraignment, trial, or judgment, or "[a]ny other

occasion . . . if the defendant's presence in court is lawfully required." A defendant's

presence is "lawfully required" at certain so-called mandatory hearings (even without a

specific court order) and at other so-called nonmandatory hearings when there is " 'a

specific court order commanding his appearance at a date and time certain.' " (People v.

Ranger Ins. Co. (1992) 6 Cal.App.4th 1301, 1304.)

       When a court orders a bond forfeited, the surety may move to set aside the

forfeiture, and the abuse of discretion standard applies to the trial court's resolution of a

motion to set aside a bail forfeiture (People v. Legion Ins. Co. (2002) 102 Cal.App.4th

1192, 1195) subject to constraints imposed by the bail statutory scheme. " 'The law

traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail.

[Citations.] Thus, Penal Code sections . . . dealing with forfeiture of bail bonds must be

strictly construed in favor of the surety to avoid the harsh results of a forfeiture.' [¶] 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." (County of Los Angeles v.

Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62.) Because the determination on a motion to

set aside a bail forfeiture is discretionary and will not be disturbed on appeal unless abuse

appears in the record, deference requires that the trial court's findings of fact are reviewed

for substantial evidence, its conclusions of law are reviewed de novo, and its application


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of the law to the facts is reversible only if arbitrary and capricious. (County of Los

Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542-543.)

       Analysis

       Surety contends, because the May 31, 2012, hearing was not one of the so-called

mandatory hearings at which a defendant must appear without a specific court order,

Karie's presence in court at the May 31, 2012, hearing could only have lawfully been

required within the meaning of the bail forfeiture statutes if there was " 'a specific court

order commanding his appearance at a date and time certain.' " (People v. Ranger Ins.

Co., supra, 6 Cal.App.4th at p. 1304.) Surety asserts, because the reporter's transcript

from the April 19, 2012, hearing does not reflect a specific order for Karie to appear at

the May 31, 2012, hearing, his nonappearance could not support the bail forfeiture order.

       Our Supreme Court's recently published its decision in People v. Safety National

Casualty Corp. (2016) 62 Cal.4th 703, and we are satisfied it controls here. In Safety

National, the defendant (Bent) was released on bond and appeared at several hearings.

At his arraignment hearing, the trial court entered Bent's plea of not guilty, and also set a

pretrial conference date. Bent appeared at the pretrial conference, where the parties

" 'agreed to put the case over' " to a new date, and the trial court stated " 'bail will stand.' "

When Bent did not appear at the agreed upon date, the court ordered bail forfeited. (Id. at

p. 708.) The Safety National court, after noting Bent had received notice of the pretrial

hearing, did not execute a written waiver of his right to be present, and failed to appear




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without sufficient excuse, concluded "Bent's absence at this scheduled pretrial hearing

constituted a basis on which to forfeit bail under section 1305." (Id. at p. 717.)

       The People argue, and we agree, that this case is controlled by Safety National,

and Surety has declined the opportunity to provide supplemental briefing articulating any

possible distinction that might obviate the application of Safety National to the present

action. Here, as in Safety National, Karie had notice of the May 31, 2012, hearing, did

not execute a written waiver of his right to be present, and failed to appear without

sufficient excuse. Accordingly, under Safety National, Karie's nonappearance provided

an adequate basis for the court's order forfeiting the bond.

                                      DISPOSITION

       The order is affirmed.




                                                                            McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


AARON, J.




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