Case Information
*1 Filed 12/8/20
CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080749 Plaintiff and Respondent,
(Super. Ct. No. 1489891) v.
THE NORTH RIVER INSURANCE OPINION COMPANY et al.,
Dеfendants and Appellants. APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna F.
Reeves, Judge.
Jefferson T. Stamp for Defendants and Appellants.
Thomas E. Boze, County Counsel, and Robert J. Taro, Assistant County Counsel, for Plaintiff and Respondent.
-ooOoo-
Bad Boys Bail Bonds, acting as the agent for The North River Insurance Company (collectively, Surety) posted a $30,000 bail bond for the release of criminal defendant Gabriel Fontes Rivadeneyra from custody. When Gabriel failed to appear for a scheduled hearing, the trial court ordered bail forfeited and later entered summary judgment on the bond. In this apрeal, Surety contends the trial court erred in denying its motion to vacate the void summary judgment.
Surety’s claim of reversible error contains multiple steps. First, Surety makes the
factual assertion that Gabriel did not appear at the hearing because his visa expired and
he returned to Mexico to get it renewed, rather than staying in the United States and
violating federal law. Second, under Surety’s view of Penal Code section 1305,
subdivision (a),
1
these facts constitute a “sufficient excuse” for Gabriel’s nonappearance.
Third, based оn the Supreme Court’s description of “the lack of a sufficient excuse for
the defendant’s nonappearance” as one of the two “
jurisdictional prerequisites
” that
“must be met before the trial court may declare a forfeiture” of bail (
People v. Safety
National Casualty Corp.
(2016)
For purposes of this appeal, we assume without deciding that (1) Gabriel had a
“sufficient excuse” for not appearing at the scheduled hearing (§ 1305, subd. (a)) and (2)
1
All unlabeled references to a statutory provision are to the Penal Code.
*3
the trial court lackеd what our Supreme Court described as a “jurisdictional prerequisite”
to declaring a forfeiture of bail. (
Safety National
,
We therefore affirm the judgment.
FACTS AND PROCEEDINGS In July 2015, Gabriel Fontes Rivadeneyra was charged with felony counts of battery inflicting serious bodily injury (§ 243, subd. (d)) and assault likely to produce great bodily injury (§ 245, subd. (a)(4)), both with enhancements (§ 12022.7, subd. (a)). At a hearing held on August 3, 2015, Gabriel waived time for the preliminary hearing and his bail was reduced to $30,000.
On August 5, 2015, Surety posted a bail bond in the amount of $30,000 for Gabriel’s release. The bond stated Gabriel’s first court appearance was on August 10, 2015, at 8:30 a.m. Gabriel madе that appearance.
On October 20, 2015, Gabriel and his two codefendants appeared for day three of the preliminary hearing. The court set day four for October 22, 2015, and directed the defendants appear. The case was not called on that date and the next appearance date was November 5, 2015.
Nonappearance and Forfeiture
On November 5, 2015, Gabriel and the codefendants failed to appear for arraignment. The trial court noted Gabriel and his codefendants normally were at the court before him and were “usually waiting in the hallway when I come, and I believe that they were probably traveling from out of town.” On the question of whether forfeiture was required that day, the court stated on the record: “I think I can find good cause not to forfeit the bail bond and stay the warrant, and then I can order them to be present on the next court date and then forfeit the bail if they are not here. That gives them two weeks to get here before their bail bondsman starts to make phone calls and do things to property.” The court also ordered the infоrmation filed, issued a stayed bench warrant in the amount of $100,500, and continued the hearing to November 20, 2015.
On November 20, 2015, defendants again failed to appear. At the hearing, the attorneys representing Gabriel and his codefendants told the court the defendants’ visas were set to expire, defendants’ efforts to extend or renew the visas had failed, defendants returned to Mexico to avoid violating federal immigration law, and defendants were working with the Mexican consulate to get new visas so they could return to California and contest the criminal charges. The information provided by the attorneys is not described in detail here because we assume the information established Gabriel has a sufficient excuse for not appearing at the hearing.
After hearing from the attorneys, the trial court lifted the stay on the previously issued warrants and stated in open court that “each defendants’ bail bond is forfeited.” The clerk of the court mailed a timely notice of forfeiture of Gabriel’s bail bond to Surety. In June 2016, Surety filed a motion for an extension of the аppearance period pursuant to section 1305.4. The trial court granted the unopposed motion and extended Surety’s deadline for returning defendants to custody to December 14, 2016.
Motion to Vacate Forfeiture
On December 14, 2016, Surety filed a motion to vacate the forfeiture and exonerate bail. As alternatives, the motion requested the tolling of time under section 1305, subdivision (h) or the extension of time under section 1305.4. Surety argued, among other things, (1) the trial court’s order extending the appearance period did not comply with section 1305.4 and (2) the district attorney’s delay in deciding not to attempt to extradite Gabriel from Mexico violated due process.
In January 2017, after County’s opposition and Surety’s reply papers were filed, the trial court heard oral argument and took the case under submission. On February 10, 2017, the court issued its ruling from the bench. The court denied the motion to exonerate the bond, finding “it was not feasible to extradite any of the three defendants in the case.” On February 27, 2017, the trial court entered summary judgment on Gabriel’s bail bond. Surety filed a timely appeal.
First Appeal
Our unрublished opinion of July 24, 2019, concluded the trial court’s extension of the appearance period for 152 days and setting its expiration at December 14, 2016, was within the discretionary authority granted by section 1305.4 and, therefore, the court did not violate the statute. ( People v. The North River Insurance Company (Jul. 24, 2019, F075353) [nonpub. opn.].) On the procedural due process claim, we applied a three- factor balancing test and concluded due process does not require prosecuting agencies to *6 notify sureties and bail agents during the appearance period of (1) the agency’s determination that extradition is not feasible or (2) the agency’s rationale for that determination. Based on these conclusions, we affirmed the summary judgment granted on Gabriel’s bail bond. Remittitur was issued in September 2019.
Surety’s Second Motion and Appeal
In October 2019, Surety filed a motion to vacate the summary judgment entered on the forfeited bond, vacate the forfeiture, and exonerate the bond. Surety argued the trial court was presented with a sufficient excuse for defendants’ absence on November 20, 2015, and, therefore, a jurisdictional prerequisite for forfeiture was not satisfied. Surety further argued that the lack of jurisdiction rendered the forfeiture and ensuing summary judgment void and therefore subject to collateral attack.
In January 2020, the trial court held a hearing on the motion to vacate the summary judgment. At the start of the hearing, the court stated the summary judgment had been heard and ruled on in the trial court and the appellate court and then asked Surety’s counsel, “Why are we here again?” Counsel stated the issue being presented was not the same as the issue litigated in the previous motion. The court acknowledged a different argument was being made, but the broader issue of setting aside the summary judgment already had been decided. Surety’s counsel then argued that when a jurisdictional issue is being raised by a party to the forfeiture, the jurisdictional issue is not cancelled by the prior ruling and res judicata would not bar the jurisdictional issue from being raised. Counsel for County argued the appellate court’s unqualified affirmance in July 2019 caused the trial court to lose all jurisdiction to reopen the case.
The trial court concluded the hearing by stating: “I don’t see that I have jurisdiction and for that reason I’m not going to rehear it. I believe that this Court no longer has jurisdiction over the bail issue and the summary judgment issue that I ruled on *7 previously[,] so I’m not hearing it again.” The court’s minute order stated Surety’s motion was denied and the “Court does not have jurisdiction.”
In February 2020, Surety appealed. “An order denying a motion to set aside
summary judgment on a bail bond forfeiture is an appealable order.” (
People v.
Accredited Surety Casualty Co.
(2014)
DISCUSSION
I. Overview of Bail Forfeiture Statutes
A. The Contract
“While bail bond proceedings occur in connеction with criminal prosecutions,
they are independent from and collateral to the prosecutions and are civil in nature.
[Citation.] ‘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.’ ” (
American Contractors
,
,
Bail bonds are regarded as contracts between the government and the surety.
( ,
B. Forfeiture of Bail
The forfeiture of bail is addressed in section 1305, which provides in relevant part:
“(a)(1) A court shall in open court declare forfeited the undertaking of bail or the money
or property deposited as bail if,
without sufficient excuse
, a defendant fails to appear for
any of the following: [¶] (A) Arraignment. [¶] (B) Trial. [¶] (C) Judgment. [¶] (D) Any
other occasion priоr to the pronouncement of judgment if the defendant’s presence in
*8
court is lawfully required. [¶] (E) To surrender himself or herself in execution of the
judgment after appeal.” (Italics added.) Generally, “[i]f the court fails to declare a
forfeiture at the time of the defendant’s unexcused absence, it is without jurisdiction to do
so later.” (
Safety National
,
The general rule that forfeiture must be declared in open court at the time of a defendant’s unexcused absence is subject to an exception. Section 1305.1 provides: “If the defendant fails to appear … upon any … occasion when his or her appearance is lawfully required, but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant. [¶] If, after the court has made the order, thе defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant’s arrest may be ordered issued.” Here, the trial court invoked this discretionary authority when it continued the November 5, 2015 hearing to November 20, 2015, to give Gabriel and his codefendants an opportunity to appear.
Whether there is a sufficient excuse for a defendant’s failure to appear “will
depend upon the circumstances in the individual case.” (
People v. United Bonding Ins.
Co., supra,
C. Procedures After Forfeiture
After the trial court has declared a forfeiture of bail in open court, “the clerk of the court shall, within 30 days of the forfeiture, mail notice of the forfeiture to the surety [and bail agent].” (§ 1305, subd. (b)(1).) The surety shall be released of all obligations under the bond if the clerk fails to mail the notice of forfeiture in accordance with section 1305 within 30 days after the entry of the forfeiture. (§ 1305, subd. (b)(3).)
The bail statute provides sureties with an appearance period in which to either
produce the criminal defendant in court and have the forfeiture set аside, or demonstrate
other circumstances requiring the court to vacate the forfeiture. (
American Contractors
,
,
“When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound.” (§ 1306, subd. (a).) “If … summary judgment is not entered within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated.” (§ 1306, subd. (c).) In this case, the February 2017 summary judgment was entered during the 90-day period and, thus, the timing of its entry is not in question.
When a summary judgment is “entered ‘in excess of jurisdiction,’ ” it is voidable
and should be challenged directly. (
People v. Allegheny Casualty Co.
(2007) 41 Cal.4th
704, 716, fn. 7.) Voidable judgments, including summary judgments on bail bonds,
“generally [are] not subject to collateral attack once the judgment is final unless ‘unusual
circumstances were present which prevented an earlier[, timely] attack.’ ” (
American
Contractors
,
supra
,
II. Fundamental Jurisdiction
Section 1305, subdivision (a) has been interpreted by our Supreme Court to contain “two jurisdictional prerequisites—specifically, the defendant’s failure to appear at an enumerated proceeding or on another occasion as ‘lawfully required,’ and the lack of a sufficient excuse for the defendant’s nonappearance.” ( Safety National , 62 Cal.4th at p. 710, italics added.) Each prerequisite “must be met before the trial court may declare a forfeiture.” ( Ibid .)
A. Contentions
Surety asserts the infоrmation about Gabriel’s expired visa and the difficulties in getting it renewed presented at the November 2015 hearings requires this court to find that sufficient excuse was established as a matter of law. (See § 1305, subd. (a)(1) [court shall declare bail bond forfeited “if, without sufficient excuse, a defendant fails to appear”].) Next, based on the existence of a sufficient excuse for Gabriel’s nonappearance on November 20, 2015, Surety contends the trial court lacked one of the *11 “jurisdictional prerequisites” identified in Safety National and the absence of the prerequisite deрrived the court of jurisdiction in a fundamental sense.
Surety’s arguments present the legal question of how to interpret the term
“jurisdictional prerequisite” used by our Supreme Court to describe the lack of a
sufficient excuse for the defendant’s nonappearance. (
Safety National
,
supra
, 62 Cal.4th
at p. 710; cf.
Silverbrand v. County of Los Angeles
(2009)
As described below, we resolve this novel legal question by concluding the term
“jurisdictional prerequisite” does not refer to jurisdiction in a fundamental sense. (
Safety
National
, ,
B. Types of Jurisdictional Errors
Our analysis of what our Supreme Court meant when it used the modifier “jurisdictional” to describe section 1305’s prerequisites to forfeiture begins with the basic principle that “jurisdictional errors are of two types.” ( , 33 Cal.4th at p. 660.) “ ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.] When a court lacks jurisdiction in a *12 fundamental sense, an ensuing judgment is void, and ‘thus vulnеrable to direct or collateral attack at any time.’” ( Ibid .)
Because there are two types of jurisdictional errors, use of the phrase “lack of
jurisdiction” encompasses more than the lack of jurisdiction in a fundamental sense.
(
American Contractors
, ,
A summary of the two types of jurisdictional errors was provided in
In re
Marriage of Goddard
(2004)
C. Determining the Sufficiency of an Excuse and Declaring a Forfeiture
American Contractors
,
supra
,
Sections 1305 and 1306 expressly provide that in certain specified circumstances,
the surety is released of all obligations or the bond is exonerated. (
American
Contractors
, ,
In this appeal, we employ the approach used in
American Contractors
and first
examine the language in sections 1305 or 1306 to see if they state the consequences of
declaring a forfeiture of bail despite the existence of a sufficient excuse for the
defendant’s nonappearance. Neither section states the consequences of this particular
failure to comply with the statutory provisions governing the forfeiture of bail. The
absence of a specific statutory provision leads us to conclude that a trial court’s failure to
comply with section 1305 by declaring a forfeiture of bail when a sufficient excuse exists
for the defendant’s nonappearance does not negate the court’s fundamental jurisdiction.
(See ,
The question of fundamental jurisdiction also can be addressed chronologically by
identifying when a court obtains (1) subject matter jurisdiction and (2) personal
jurisdiction. As to personal jurisdiction over Surety, the trial court obtains that type of
jurisdiction once the surety posts its bond. (
People v. North River Ins. Co.
(2020) 48
Cal.App.5th 226, 234.) As tо subject matter jurisdiction, in
American Contractors
the
Supreme Court accepted the People’s observation that “ ‘a court has jurisdiction over a
bail bond from the point it is issued until the point it is either satisfied, exonerated, or
time expires to enter summary judgment after forfeiture.’ ” ( ,
,
D. Exceptional Circumstances
Next, we consider the possibility that the February 2017 summary judgment is subject to a collateral attack despite being, at most, voidable. Surety’s opening brief does not argue exceptional circumstances precluded it from raising the existence of a sufficient excuse earlier. Indeed, in this appeal Surety argued the trial court had enough evidence before it in November 2015 to determine a sufficient excuse existed for Gabriel’s failure to appear. That evidence was available to Surety in December 2106 when it filed a *16 timely motion to vacate the forfeiture and exonerate bail. Consequently, we conclude Surety was not prevented from raising the existence of a sufficient excuse in a timely motion to vacate the forfeiture and no exсeptional circumstances exist to render the February 2017 summary judgment subject to collateral attack. As a result, Surety’s second challenge to that judgment must fail. ( , 33 Cal.4th at pp. 663, 665 [voidable judgment was not subject to collateral attack because the surety had the means to challenge the judgment earlier].)
To summarize, (1) the trial court had fundamental jurisdiction when it declared the forfeiture, (2) the long-final summary judgment was not void, and (3) the summary judgment is not subject to collateral attack.
DISPOSITION
The summary judgment is affirmed. Respondent shall recover its costs on appeal. SMITH, J.
WE CONCUR:
FRANSON, A.P.J.
SNAUFFER, J.