Filed 8/26/20 P. v. The North River Insurance Co. CA2/5




           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE


         PEOPLE OF THE STATE OF                                           B292403
         CALIFORNIA,
                                                                          (Los Angeles County
                  Plaintiff and Respondent,                               Super. Ct. Nos. SJ4457;
                                                                          BA441726)
                  v.

         THE NORTH RIVER INSURANCE
         CO.,

                  Defendant and Appellant;

         BAD BOYS BAIL BONDS,

                 Real Party in Interest and
                 Appellant.


                 APPEAL from an order of the Superior Court of Los
        Angeles County, Christopher K. Lui, Judge. Affirmed.
                 Jefferson T. Stamp, for Appellants.
     Office of the County Counsel, Mary C. Wickham, County
Counsel, Adrian G. Gragas, Assistant County Counsel, and David
D. Lee, Deputy County Counsel, for Plaintiff and Respondent.




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       Bad Boys Bail Bonds, acting as the agent for The North
River Insurance Company (Agent and Surety, respectively)
posted a bail bond in the amount of $125,000 on behalf of
criminal defendant Marquise Marshall (Marshall), who
subsequently failed to appear for his sentencing hearing. After
the trial court granted summary judgment on the forfeited bond,
Agent and Surety moved to set aside the judgment, citing In re
Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23,
2018, S247278 (Humphrey) to argue the court should have
considered Marshall’s ability to pay and whether less restrictive
alternatives to pretrial detention were available when it set bail.
The trial court denied the motion, and we consider whether the
purported violation of Marshall’s constitutional rights bears upon
the enforceability of the bail bond.

                        I. BACKGROUND
       At his arraignment in March 2016, Marshall asked the trial
court to release him on his own recognizance or to reduce the
amount of his bail. The trial court ordered Marshall remanded
and set bail at $125,000. Agent and Surety issued a bail bond in
that amount and secured Marshall’s release.
       Several months later, after pleading no contest to certain
charges, Marshall failed to appear at his sentencing hearing. The
trial court ordered the bail bond forfeited. Agent and Surety
successfully moved to extend the appearance period, but they
were unable to locate Marshall. The trial court then entered
summary judgment on the forfeited bond in October 2017.
       In January 2018, the First District Court of Appeal
decided Humphrey, supra, 19 Cal.App.5th 1006. In that case, the
defendant moved to reduce his bail amount or be released on his




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own recognizance. (Id. at 1017-1019.) The trial court reduced
bail to $350,000, but when the defendant’s attorney pointed out
that the defendant was “too poor ‘to make even $350,000 bail,’”
the court “did not comment on the anomalousness of imposing a
condition of release that it made impossible for petitioner to
satisfy by setting bail at an unattainable figure.” (Id. at 1021.)
The Court of Appeal held that the trial court’s “unquestioning
reliance upon the bail schedule without consideration of [the]
defendant’s ability to pay, as well as other individualized factors
bearing upon his . . . dangerousness and/or risk of flight, runs
afoul of the requirements of due process for a decision that may
result in pretrial detention.” (Id. at 1044.) The court ordered a
new bail hearing “at which [the defendant] is afforded the
opportunity to provide evidence and argument, and the court
considers his financial resources and other relevant
circumstances, as well as alternatives to money bail. If the court
determines that petitioner is unable to afford the amount of
money bail it finds necessary to ensure petitioner’s future court
appearances, it may set bail at that amount only upon a
determination by clear and convincing evidence that no less
restrictive alternative will satisfy that purpose.” (Id. at 1048.)
Our Supreme Court later granted a petition to review the
Humphrey opinion.
       Relying on Humphrey, Agent and Surety moved to set aside
the summary judgment, vacate the forfeiture, and exonerate the
bond in this case. Surety argued that because the trial court did
not inquire into Marshall’s ability to pay or whether less
restrictive alternatives were available to serve the government’s
interests when it set bail, the bail order was void and the bond
unenforceable.




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       The trial court denied Agent and Surety’s motion,
articulating six reasons supporting denial: (1) the motion
amounted to an improper attempt to have the trial court review
another court’s order setting bail; (2) Humphrey was not binding
authority because the Supreme Court had granted review; (3)
even if Humphrey were binding, North River would have no
standing to “vicariously assert [Marshall’s] constitutional rights”;
(4) retroactive application of Humphrey would have an
unacceptable impact on the administration of justice; (5) even if
Humphrey were binding and applied retroactively, the court’s
failure to comply with Humphrey would not be a defense to
forfeiture of the bail bond; and (6) Humphrey is distinguishable in
any event because it addresses criminal defendants’ pretrial
liberty interests whereas Marshall was already a convicted felon
and not entitled to bail as a matter of right when he missed his
sentencing hearing.

                          II. DISCUSSION
       Agent and Surety’s appeal ignores most of the grounds for
the trial court ruling challenged on appeal and focuses
exclusively on the theory that the bail bond is void because the
purported violation of Marshall’s rights deprived them of
constructive custody over Marshall and, thus, of the right to
surrender Marshall in exoneration of the bond. Although Agent
and Surety have forfeited any contention that the trial court
erred with respect to the alternative grounds for its order, which
could alone warrant affirmance (see Christoff v. Union Pacific
Railroad Co. (2005) 134 Cal.App.4th 118, 125-126), the appeal
lacks merit even as to the lone issue it does raise. The asserted
violation of Marshall’s rights does not render the bail bond void.




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        The same issue presented in this appeal arose in People v.
The North River Insurance Company (2020) 48 Cal.App.5th 226
(North River). In that case, the agent and surety—the same
agent and surety as in this case—argued a purported Humphrey
violation “deprived the [trial] court of the power to detain [the]
defendant and thus deprived the surety of the power to
constructively detain him on bail, such that the surety lacked any
power to rearrest [the] defendant and must therefore be excused
from any obligation under the bond.” (Id. at 232.)
        Among other reasons for rejecting that argument, the
North River court held “any noncompliance with Humphrey
would, at best, render the bail order voidable as to the defendant,
not as to the surety.” (North River, supra, 47 Cal.App.5th at 235.)
The Court of Appeal explained “[b]ail is a function of ‘two
different contracts between three different parties’—namely, (1) a
contract between a criminal defendant and a surety under which
the surety posts a bail bond in exchange for the defendant’s
payment of a premium and his promise to pay the full amount of
the bond in the event of his nonappearance, and (2) a contract
between the surety and the People under which the surety
‘“‘“act[s] as a guarantor of the defendant’s appearance in court
under risk of forfeiture of the bond.”’” [Citations.]’ [Citations.]”
(Ibid.) Defects in the underlying criminal prosecution do not bear
on “the trial court-surety leg of the triangle.” (Id. at 237.)
        The North River court’s reasoning is sound. “Time and
again, courts have ruled that errors in a trial court’s setting of
bail during the criminal prosecution do not let the surety off the
hook in the collateral bail proceedings.” (North River, supra, 47
Cal.App.5th at 235 [citing People v. Accredited Surety & Casualty
Co., Inc. (2004) 125 Cal.App.4th 1, 4, 6-8; People v. Accredited




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Surety & Casualty Co., Inc. (2019) 34 Cal.App.5th 891, 897-899;
People v. Financial Casualty & Surety (2019) 39 Cal.App.5th
1213, 1216-1217, 1226-1227].) We follow North River, finding
Agent and Surety’s citations to inapposite authority (and an
out of state case) unpersuasive. (Id. at 235-236.)

                          DISPOSITION
      The trial court’s order is affirmed. Respondent shall
recover its costs on appeal.

    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                               BAKER, J.

We concur:




      RUBIN, P. J.




      MOOR, J.




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