Filed 8/30/18
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                        DIVISION THREE


 THE PEOPLE,
            Plaintiff and Respondent,
                                                      A150209
 v.
 ACCREDITED SURETY & CASUALTY                         (Alameda County
 COMPANY,                                             Super. Ct. No. 135346)
            Defendant and Appellant.


        When bail is forfeited because an out-of-custody defendant fails to appear, the
surety is entitled to an automatic exoneration of bail by operation of law if the defendant
appears within 185 days from the mailing of a notice of forfeiture. (Pen. Code, § 1305,
subds. (b)(1), (c)(1).)1 Here defendant appeared voluntarily to recall a bench warrant,
but—when the case was continued to the afternoon session to secure the bail bondsman’s
attendance—he failed to appear that afternoon. The trial court did not treat the
defendant’s morning appearance as sufficient to exonerate the bail and entered summary
judgment against the surety. The surety appeals from the order denying its motion to set
aside summary judgment, to vacate the forfeiture and to exonerate the bail. We agree
with the surety that, upon defendant’s appearance, the bail was exonerated by operation
of law and reverse.
                     FACTUAL AND PROCEDURAL BACKGROUND
        Defendant John Adams (defendant) was charged with unlawful driving or taking
of an automobile (Veh. Code, § 10851, subd. (a)). When defendant failed to appear for a


        1
            Unless otherwise stated, all statutory citations herein are to the Penal Code.

                                                 1
hearing, the trial court issued a bench warrant and set bail at $50,000. Defendant was
arrested on the warrant. On December 28, 2015, Accredited Surety (Accredited), through
its agent, Chad Conley Bail Bonds, posted bail in the amount of $50,000, and defendant
was released from custody. Defendant appeared at two post-release hearings and was
ordered to appear on February 18, 2016, for assignment of counsel. When he failed to
appear, the court declared the bond forfeited, and issued a bench warrant. On
February 22, 2016, the clerk of the trial court mailed notice of bail forfeiture to
Accredited which gave Accredited 185 days—up to and including August 25, 2016—to
move to vacate the forfeiture and to exonerate the bond. The matter was on calendar, on
August 11, 2016, to recall the bench warrant. Defendant appeared at 10 a.m., but the bail
bondsman did not. Defendant asked, and the court agreed, to pass the matter to later in
the morning. Defendant again appeared, without the bondsman, and the court continued
the matter to 2 p.m. When the defendant appeared at the morning session, the court did
not vacate the order of forfeiture and did not exonerate the bond. Defendant did not
appear in the afternoon, and the court ordered “the bench warrant to remain.”
       Upon the expiration of the exoneration period, the trial court entered summary
judgment on the bond and sent Accredited notice of entry. Accredited moved to set aside
summary judgment, arguing that the bail was exonerated by operation of law when
defendant appeared on August 11, 2016. (§ 1305, subd. (c)(1).) The court heard and
denied the motion, and Accredited appealed.
                                       DISCUSSION
          I.      Legal Principles
       “The forfeiture of bail and related proceedings are a matter of statutory procedure
governed by [Penal Code] sections 1305 through 1308.” (People v. Safety National
Casualty Corp. (2016) 62 Cal.4th 703, 709 (Safety National).) “When a person for whom
a bail bond has been posted fails without sufficient excuse to appear as required, the trial
court must declare a forfeiture of the bond. (Pen. Code, § 1305, subd. (a).) The 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


                                              2
circumstances requiring the court to vacate the forfeiture. 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. (§ 1306, subd. (a).)” (People v. American Contractors Indemnity Co.
(2004) 33 Cal.4th 653, 657, fn. omitted.)
       “ ‘ “Certain fixed legal principles guide us in the construction of bail statutes. The
law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail.
[Citation.] Thus, [the bail forfeiture statutes] must be strictly construed in favor of the
surety to avoid the harsh results of a forfeiture.” ’ [Citation.] ‘ “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. American Contractors
Indemnity Co. (2015) 238 Cal.App.4th 1041, 1044.) “The provisions of section 1305
‘must be strictly followed or the court acts without or in excess of its jurisdiction.’
[Citations.] ‘The burden is upon the bonding company seeking to set aside the forfeiture
to establish by competent evidence that its case falls within the four corners of these
statutory requirements.’ ” (People v. Fairmont Specialty Group (2009) 173 Cal.App.4th
146, 152.)
       “ ‘The object of bail and its forfeiture is to insure the attendance of the accused
and his obedience to the orders and judgment of the court.’ [Citation.] ‘While bail bond
proceedings occur in connection with criminal prosecutions, they are independent from
and collateral to the prosecutions and are civil in nature.’ [Citation.] In that regard, the
bail bond itself 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.” ’ (Ibid.) When a defendant who posts bail fails to appear at a scheduled
hearing, the forfeiture of bail implicates not just the defendant’s required presence, but
constitutes a ‘breach of this contract’ between the surety and the government. [Citation.]
Ultimately, if the defendant’s nonappearance is without sufficient excuse, it is the surety
who ‘must suffer the consequences.’ ” (Safety National, supra, 62 Cal.4th at p. 709.)



                                              3
       “If the defendant appears . . . voluntarily . . . within 180 days of the date of mailing
of the notice . . . the court shall, on its own motion at the time the defendant first appears
in court on the case in which the forfeiture was entered, direct the order of forfeiture to be
vacated and the bond exonerated. If the court fails to so act on its own motion, then the
surety’s . . . obligations under the bond shall be immediately vacated and the bond
exonerated.” (§ 1305, subd. (c)(1).)
       We review an order denying a motion to vacate a bond forfeiture under an abuse
of discretion standard; however where, as here, the facts are uncontested, and the issue
concerns a pure question of law, we review the decision de novo. (People v. Fairmont
Specialty Group, supra, 173 Cal.App.4th at p. 151; see People v. International Fidelity
Ins. Co. (2012) 204 Cal.App.4th 588, 592; accord, People v. International Fidelity Ins.
Co. (2010) 185 Cal.App.4th 1391, 1395.)
           II.    Analysis
       It is undisputed that—within the 185-day exoneration period, on August 11,
2016— defendant voluntarily appeared; the matter was passed to later in the morning;
and, due to the bondsman’s absence, continued to the afternoon, at which time defendant
failed to appear. Upon the voluntary appearance of defendant, section 1305, subdivision
(c)(1) required the trial court—on its own motion—to order the forfeiture to be vacated
and to exonerate the bail. (Id., subd. (c)(1).) Failing that, “the surety’s . . . obligations
under the bond shall be immediately vacated and the bond exonerated.” (Id.,
subd. (c)(2).) In its motion and at the hearing, Accredited relied on the operation of law
to seek to set aside the summary judgment. The court recalled “that the defendant
appeared in the morning. Went out to make a call to the bail bonds person and came
back in and told me that the bail bonds person was going to be here later that morning,
that did not occur, and then towards the end of the calendar still believed that the bail
bonds person was going to appear and we passed it until 2:00 p.m.” Accredited argued
that defendant having voluntarily appeared, the surety was entitled to its remedy. In the
absence of the bail bondsman to address the issue of whether to reinstate the bond, the
court could either remand the defendant in the morning or—as it did—continue the


                                               4
matter to the afternoon with the defendant out of custody. Accredited observed: The
court indulged the defendant, but that accommodation should not be at the surety’s
expense. The county argued that defendant’s presence throughout the morning did not
constitute the prerequisite voluntary appearance to require vacation of the forfeiture and
exoneration of the bond and analogized to People v. Allied Fidelity Insurance Company
(1978) 82 Cal.App.3d 242 (Allied), which interpreted appearance for pronouncement of
judgment or grant of probation. (§ 1287.)
       The court agreed that defendant appeared, but expressed uncertainty whether the
appearance was sufficient. He ultimately denied the motion because—at the defendant’s
request—the matter did not conclude while the defendant was present and invited defense
counsel to seek appellate review.
       The parties agree that the only case interpreting “appearance” as used in section
1305, subdivision (c)(1), is People v. Ranger Ins. Co. (2005) 133 Cal.App.4th 1000
(Ranger). In Ranger, supra, 133 Cal.App.4th 1000, when the defendant for whom the
surety posted bail failed to appear, the court declared the bail forfeited and issued an
arrest warrant. According to the court’s docket, two days later, the defendant went to the
clerk’s office, and, as a result, the matter was recalendared for a date four days later.
(Id. at p. 1001.) Again, the defendant failed to appear. After the expiration of the
exoneration period, the court entered summary judgment and mailed notice of forfeiture
to the surety. The surety moved to set aside the summary judgment and sought relief
from forfeiture. The court denied the motion, and the Court of Appeal affirmed the
judgment, reasoning: “The plain language of section 1305, subdivision (c)(1) requires
the defendant to appear ‘in court.’ An appearance in the courthouse vestibule, hallway,
restroom, or clerk’s office is not an appearance in court. We presume that had the
Legislature intended an appearance in the clerk’s office to suffice, it would have said so.
We have no power to add language to the statute. The defendant’s appearance in the
clerk’s office is simply not sufficient.” (Ranger, supra, at p. 1002.)
       Like the Ranger court, the parties here rely on the statute’s “plain language.”
Accredited argues that the statute merely requires that the defendant appear “in court.”


                                              5
(Ranger, supra, 133 Cal.App.4th at p. 1002.) The county refers us to Black’s Law
Dictionary which defines “appearance” as “ ‘the overt act by which one against whom
suit has been commenced submits himself to the court’s jurisdiction . . . .’ ” (Black’s
Law Dict. (10th ed. 2014) p. 118, col. 2, quoting 4 Am.Jur.2d (1995) Appearance,
§ 1, p. 620.) The county’s effort to compare defendant’s multiple appearances before the
trial judge during the course of the morning calendar to the Ranger defendant’s request to
the clerk to recalendar the matter reveals the difference—rather than the similarity—
between the two. Here the defendant submitted himself to the court’s jurisdiction and—
had the judge not indulged defendant’s request to pass the matter—to the prospect of
being remanded. Since the defendant’s previous failure to appear led to his arrest on a
warrant and forfeiture of that bail, the possibility that he would be returned to custody
was real.
       In its effort to expand section 1305, subdivision (c)(1)’s requirement that a
defendant voluntarily appear, the county urges us to “determine the Legislature’s intent
so as to effectuate the law’s purpose.” (Coalition of Concerned Communities, Inc. v. City
of Los Angeles (2004) 34 Cal.4th 733, 737.) With that objective, the county relies on the
interpretation of “appear” as used in section 1287. (Allied, supra, 82 Cal.App.3d 242.)
Unlike Ranger, supra, 133 Cal.App.4th 1000, Allied addresses whether the defendant’s
failure to appear triggered bail forfeiture under the specific conditions of the bond.
(Allied, supra, at pp. 244–245.) “The undertaking of the corporate bail bond was that the
defendant would appear on the date set for arraignment and would at all times hold
himself amenable to the orders and process of the court, and ‘if convicted, will appear for
pronouncement of judgment or grant of probation.’ ” (Id. at p. 244.) Defendant appeared
for sentencing, at which time the court ordered that the proceedings be suspended and
that he be placed on probation. The court passed the matter to consider probation
conditions. (Id. at pp. 244–245.) The defendant did not appear when the matter was
recalled; the court forfeited bail and issued a warrant. The surety moved to vacate the
forfeiture, arguing variously that defendant’s nonappearance occurred “after being
sentenced” and that “the defendant appeared for sentencing” as required by the bond.


                                              6
(Id. at p. 245.) The Court of Appeal rejected both claims, concluding: “The condition of
the bond that [defendant] ‘appear for pronouncement of judgment or grant of probation’
was not satisfied by [defendant’s] being there for a portion of that process.”
(Id. at p. 246.) Defendant was out of custody on a bond pursuant to section 1287 “which
provides in pertinent part that the bond shall guarantee that the defendant ‘. . . if
convicted, will appear for pronouncement of judgment or grant of probation.’ ” (Ibid.)
The court held that the bond remained in effect until completion of the pronouncement of
judgment or grant of probation and that defendant departed before completion of the
grant of probation in violation of the terms of the bond. (Id. at pp. 247–248.) Allied is
inapposite: Its holding is not based on the definition of “appear,” but rather on the
additional statutory and bond requirement that a defendant “appear for pronouncement of
judgment or grant of probation.” (Ibid.; § 1287, italics added.)
       Section 1305 subdivision (c)(1) is unambiguous. “The plain language of section
1305, subdivision (c)(1) requires the defendant to appear ‘in court.’ ” (Ranger, supra,
133 Cal.App.4th at p. 1002.) Within the exoneration period, defendant voluntarily
appeared in court, subjected himself to its jurisdiction, and remained throughout the
morning calendar. The court having failed to vacate the forfeiture and to exonerate the
bail on its motion, by operation of law the forfeiture was vacated and the bail exonerated.
(§ 1305, subd. (c)(1).)
                                       DISPOSITION
       The judgment is reversed. The forfeiture is vacated, and the bail bond is
exonerated. Appellant shall be entitled to recover its costs on appeal.




                                               7
                                               _________________________
                                               Ross, J.*


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.




A150209




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

                                           8
People v. Accredited Surety & Casualty Co.

(A150209)

Trial Court:       Alameda County

Trial Judge:       Hon. Gail Brewster Bereola

Attorneys:         Law Office of John Rorabaugh, John M. Rorabaugh, Crystal L.
                   Rorabaugh for Defendant and Appellant.


                   Donna R. Ziegler, County Counsel, Scott J. Feudale, Deputy County
                   Counsel for Plaintiff and Respondent.




                                             9
