THE PEOPLE, Plaintiff and Respondent, v. THE NORTH RIVER INSURANCE CO. et al., Defendants and Appellants.
B292411
Court of Appeal of the State of California, Second Appellate District, Division Two
April 9, 2020
CERTIFIED FOR PUBLICATION. (Los Angeles County Super. Ct. Nos. BA342316-03, SJ4309)
APPEAL from an order of the Superior Court of Los Angeles County, Christopher K. Lui, Judge. Affirmed.
Jefferson T. Stamp for Defendants and Appellants.
Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel, and Jessica C. Rivas, Deputy County Counsel, for Plaintiff and Respondent.
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Nearly two years after that judgment was entered, the surety moved to set aside the summary judgment under
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Issuance, forfeiture and judgment on bond
In June 2008, the People charged Sergio Musio Chavez Gonzalez2 (defendant) in a felony complaint with the sale and transportation of more than a kilogram of drugs (
On July 1, 2015, the trial court arraigned defendant and conducted a bail review hearing. Defendant requested the court “consider lowering bail” or release him on his own recognizance, but the trial court denied those requests and set bail at $100,000 “per [the county bail] schedule.”3 Later that day, Bad Boys Bail Bonds, an agent of The North River Insurance Company (collectively, the surety), issued a $100,000 bail bond, which included defendant‘s promise to appear for the next hearing on July 27, 2015.
Defendant did not appear on July 27, 2015.
B. Humphrey
On January 25, 2018, the First District of the Court of Appeal decided Humphrey, supra, 19 Cal.App.5th 1006. In that case, the court followed the county bail schedule and set bail at $600,000 (and, after a further hearing, at a reduced amount of $350,000) for a 63-year-old defendant who stole $5 in cash and a bottle of cologne from a neighbor in his apartment complex; the driving factor for the high bail amount was the defendant‘s decades-old criminal history. (Id. at pp. 1016-1017, 1021.) It was undisputed that the defendant could not afford to post a bond in either amount and would, as a consequence, be detained.
Drawing upon the thread of equal protection jurisprudence that precludes imprisonment of an indigent probationer for the failure to pay fines he has no ability to pay or, even with bona fide efforts, no ability to earn (id. at pp. 1026-1028, citing Bearden v. Georgia (1983) 461 U.S. 660) and the thread of substantive due process jurisprudence that requires a “compelling” government interest to justify pretrial detention (id. at pp. 1033-1035, citing United States v. Salerno (1987) 481 U.S. 739), Humphrey held that a court setting the amount of bail must “consider [a] defendant‘s ability to pay and refrain from setting an amount so beyond the defendant‘s means as to result in detention.” (Id., at p. 1037, italics added.) Thus, Humphrey concluded, “a court may not order pretrial detention unless it finds [(1)] that the defendant has the financial ability but failed to pay the amount of bail the court finds reasonably necessary to ensure his or her appearance at future court proceedings; or [(2)] that the defendant is unable to pay that amount and no less restrictive conditions of release would be sufficient to reasonably assure such appearance; or [(3)] that no less restrictive nonfinancial conditions of release would be sufficient to protect the victim and the community.” (Id., at p. 1026.)
Our Supreme Court granted review of Humphrey on May 23, 2018. (In re Humphrey, No. S247278, 2018 Cal.LEXIS 4053.)
II. Procedural Background
In June 2018, the surety filed a motion to set aside the August 2016 summary judgment. Invoking
After considering the People‘s opposition and the surety‘s reply, the trial court issued an eight-page order denying the motion to set aside. The court listed five reasons for denying the motion, four of which are pertinent on appeal:4 (1) the Supreme Court‘s grant of review renders Humphrey persuasive (rather than precedential) authority, (2) Humphrey should not apply retroactively to bail settings that occurred before it was decided, (3) the surety lacked standing to assert any violation of defendant‘s rights under Humphrey, and (4) any error in setting bail would not invalidate the bond or otherwise call for its exoneration.
The surety filed this timely appeal.
DISCUSSION
The surety argues that the trial court erred in denying its motion to set aside a void judgment under
Under
The trial court did not err in denying the surety‘s motion to set aside the summary judgment. To paraphrase (and thereby sully) the poet Elizabeth Barrett Browning, “How do [we reject thine argument]? Let [us] count the ways.”
First, the surety‘s motion is untimely. “Once six months have elapsed since the entry of a judgment [or order], ‘a trial court may grant a motion to set aside [a] judgment [or order] as void only if the judgment [or order] is void on its face.’ [Citation.]” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.) “A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll” “or [the] court record without consideration of extrinsic evidence.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441, quoting Morgan v. Clapp (1929) 207 Cal. 221, 224; Pittman v. Beck Park Apartments, Ltd. (2018) 20 Cal.App.5th 1009, 1021.)
The surety filed its motion to set aside the summary judgment as void more than 22 months after that judgment was entered. Further, that judgment is not “void on its face” because the alleged defect—that is, the trial court‘s failure to comply with the as-yet-undecided Humphrey decision by not considering the defendant‘s ability to pay when setting bail—is not apparent from the judgment roll or the court record without considering extrinsic evidence such as the Humphrey decision and the transcript from the bail setting hearing.
II. Voidness
Second, and even if we overlook the untimeliness of the surety‘s motion, the summary judgment is not void.
A judgment is “void” only when the court entering that judgment “lack[ed] jurisdiction in [a] fundamental sense” due to the “entire absence of power to hear or determine the case” resulting from the “absence of authority over the subject matter or the parties.” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 (American Contractors), quoting Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287, 288 (Abelleira).) To be sure, a court that “‘acts contrary to [its] authority‘” “‘to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites‘” is often said to lack “jurisdiction.” (American Contractors, at pp. 660-661, quoting Abelleira, at pp. 288, 290.) But such acts do not render the court‘s ensuing judgment or order void. That is because “jurisdictional errors can be of two types[:] A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.”
Applying these definitions, the trial court‘s summary judgment on the bond was not void. That is because the trial court at all times had fundamental jurisdiction over the subject matter and the parties. The court had the jurisdiction over the subject matter when it followed the statutory procedures then in effect when setting the bail amount for the defendant (
The trial court‘s failure to anticipate and adhere to Humphrey in setting the bail amount did not render void the summary judgment on the bond.
Any non-compliance with Humphrey would, at best, be an act “in excess of [the trial court‘s] jurisdiction.” (Goddard, supra, 33 Cal.4th at p. 56.) Humphrey imposes a requirement that a trial court “consider [a] defendant‘s ability to pay” when setting bail. (Humphrey, supra, 19 Cal.App.5th at p. 1037.) Because a court that “act[s] without the occurrence of certain procedural prerequisites” acts only in excess of its jurisdiction (but within its fundamental jurisdiction) (American Contractors, supra, 33 Cal.4th at p. 661), a trial court‘s failure to consider a defendant‘s ability to pay under Humphrey results in, at best, a bail order that is voidable, not void. That Humphrey rests on constitutional rather than statutory grounds does not affect the jurisdictional analysis and does not elevate an otherwise voidable order into a void order. (See In re Reno (2012) 55 Cal.4th 428, 478-481 [treating “lack[]” of “fundamental jurisdiction” as distinct from the commission of “constitutional error” when excusing procedural defaults in habeas corpus litigation].)
The independence of bail proceedings from the underlying criminal prosecution is why any non-compliance with Humphrey during the prosecution does not affect—let alone eviscerate—the trial court‘s jurisdiction over the collateral bail proceedings. 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. In People v. Accredited Surety & Casualty Co., Inc. (2004) 125 Cal.App.4th 1, 4, 6-8, the court held that the trial court‘s “failure to consider the statutory factors” in
The surety responds that the above cited wall of precedent is inapplicable because its challenge is focused on how a Humphrey violation affects a surety‘s power to constructively detain a criminal defendant through re-arrest. But this focus, while novel, is substantively indistinguishable from the challenge rejected in Accredited 2019 because the defect in a surety‘s power to constructively detain a criminal defendant that the surety focuses on in this case stems from the very same failure by the trial court to comply with Humphrey that was at issue in Accredited 2019. Because the failure is the same, its effect (or, more to the point, its non-effect) on the trial court‘s jurisdiction in the collateral bail proceedings is also the same, no matter which aspect of that effect a surety chooses to focus our attention.
The surety cites several cases in support of its position by stringing together out-of-context quotations from each case to support that position. Considering their holdings rather than their soundbites, however, most of these cases have no relevance whatsoever to the issue before us. (See People v. McReynolds (1894) 102 Cal. 308, 311-312 [surety released from liability on bond when defendant taken into custody by law enforcement]; Hensley v. Municipal Court San Jose-Milpitas Judicial Dist. (1973) 411 U.S. 345, 349 [person released on bail is in constructive custody]; People v. Cossey (1950) 97 Cal.App.2d 101, 114-115 [same]; Rodman v. Superior Court of Nevada County (1939) 13 Cal.2d 262, 267-271 [trial court exceeds its jurisdiction when refusing to exonerate a bond when surety surrenders defendant]; People v. Doe (1959) 172 Cal.App.2d Supp. 812, 814-817 [same, when defendant is released on probation]; Taylor v. Taintor (1872) 83 U.S. 366, 371-372 [trial court not required to exonerate bond when another state exerts jurisdiction over defendant before surety surrenders him]; Kiperman v. Klenshetyn (2005) 133 Cal.App.4th 934, 939-940 [addressing when trial court may order a surety to return the bond premium to defendant]; In re Palmer (2019) 33 Cal.App.5th 1199, 1202, 1222-1223 [defendant sentenced to an unconstitutionally excessive sentence is entitled to release].) The remaining cases are only marginally relevant and thus distinguishable. The surety cites People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588 (International Fidelity), which held that a surety was entitled to set aside a summary judgment on a bond as “void” where part of the consideration for the bond—in that case, the existence of a $35,000 bond issued by another surety that affected the surety‘s assessment of risk—was invalid. (Id. at pp. 595-596.) International Fidelity deals with a defect in the contract between the People and the surety. (See Financial Casualty 2019, supra, 39 Cal.App.5th at pp. 1226-1227 [similarly holding that any defect in bail setting as to criminal defendant
III. No Humphrey Violation
Third, and even if we overlook the untimeliness of the surety‘s motion and that any Humphrey error did not render the summary judgment void, there was no Humphrey error. As explained above, what Humphrey prohibits is the detention of a criminal defendant absent a consideration of his ability to pay. (Humphrey, supra, 19 Cal.App.5th at pp. 1026, 1037.) But Humphrey was not violated in this case because defendant was never detained. Instead, he
IV. Denial as a Matter of Law
Fourth and finally, the trial court would have been compelled as a matter of law to deny the surety‘s motion to set aside the summary judgment. The surety does not dispute that the trial court‘s bail setting was correct under the pre-Humphrey law in effect in July 2015; indeed, had the trial court at that time departed from the bail schedule based on the defendant‘s ability to pay (as contemplated by Humphrey), its order would have been subject to reversal. And we have concluded, above, that the trial court‘s order did not run afoul of Humphrey because defendant was never detained and because we may infer from his posting of bail that he had the ability to do so. Consequently, the surety is asking us to vacate summary
What is more, the logic of the surety‘s argument cannot be confined to this case: It would apply with equal force to every bond ever forfeited in the State of California prior to Humphrey. Tellingly, the surety says nothing about whether the legions of sureties who would benefit from this colossal disgorgement would have to refund the premiums they collected on those bonds to the defendants from whom they collected them. Thus, accepting the surety‘s argument would convert Humphrey—a decision that decried the “[m]oney bail” system as discriminatory and unconstitutional as applied to people who are detained due to the inability to afford bail (Humphrey, supra, 19 Cal.App.5th at p. 1029)—into a lottery ticket of staggering proportions to the bail bond industry (1) by requiring the People to disgorge every bond amount forfeited in cases involving defendants who, by definition, were not detained because they could afford bail, and (b) by allowing those sureties to retain the premiums they collected from those defendants. Because granting such relief would be a perversion of Humphrey and would allow the sureties to have their cake and eat it too, it would be “irrational,” “absurd” and a “repudiation of” the entire money bail system as well as Humphrey and hence an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 377-378; People v. Penoli (1996) 46 Cal.App.4th 298, 304, 306 & fn. 6.) We therefore conclude that a trial court would abuse its discretion if it grants the motion to set aside under these circumstances.
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION.
HOFFSTADT, J.
We concur:
CHAVEZ, Acting P. J.
BIGELOW**, J.