P.v . Ranger Ins.

Filed 12/1/05 P.v . Ranger Ins. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. RANGER INSURANCE CO., Defendant and Appellant.

H028472 (Santa Clara County Super. Ct. No. CC268022)

Appellant Ranger Insurance Company (the Surety) appeals from the trial court’s order denying its motion to set aside summary judgment and vacate forfeiture of a bail bond. The Surety argues that the trial court lacked jurisdiction to order forfeiture of the bail bond at the master trial calendar hearing on July 14, 2003, because the court had not ordered the defendant to be present for that hearing. We disagree, and therefore affirm.

BACKGROUND

On November 27, 2002, the Surety, through its agent Bad Boys Bail Bonds, posted a $100,000 bond for the custodial release of Fernando Sanchez Diaz, the defendant in the underlying criminal action. On June 9, 2003, the defendant appeared with counsel for his arraignment in superior court, and was given a trial date of July 7, 2003. On Monday, July 7, 2003, the defendant was present with counsel when the master trial calendar judge assigned the matter to another judge “this morning for discussion only.” When the named judge found that settlement negotiations were at an impasse, he placed the matter on standby on the master trial calendar.

On Monday, July 14, 2003, the matter remained on the master trial calendar. Although the defendant’s counsel was present when the master trial calendar judge called the matter that morning, the defendant was not. The judge ordered the defendant’s bail forfeited and a no-bail warrant issued for the defendant’s arrest. Notice of forfeiture was mailed to the Surety on August 1, 2003. Summary judgment was entered on November 9, 2004. (Pen. Code, § 1306.)[1]

On December 7, 2004, the Surety filed a motion to set aside summary judgment and vacate forfeiture. The motion argued that available records did not reflect that the defendant was given notice of a duty to appear in court on July 14, 2003, so that the court was without jurisdiction to forfeit bail on that date. The People filed opposition to the motion on January 10, 2005, arguing that the defendant was required by law to appear for trial, even though the trial court did not personally order him to appear on July 14, 2003. The trial court denied the motion to set aside the summary judgment on January 21, 2005. The Surety filed a notice of appeal on February 14, 2005.

DISCUSSION

“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. [Citation.]” (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552 (Ranger Ins.).)

“Section 1305, subdivision (a) requires that bail be forfeited if, without sufficient excuse, a defendant fails to appear for arraignment, trial, or judgment, or upon any other occasion when his or her presence in court is lawfully required.” (Ranger Ins., supra, 66 Cal.App.4th at p. 1552.) Section 977, subdivision (b)(1) states, in pertinent part: “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2).” Section 977, subdivision (b)(2), provides the specific wording for the written waiver.

The question the appellate court had to resolve in Ranger Ins., was whether the defendant was required to appear on the date set for trial, that is, the master trial calendar hearing, or whether the defendant’s written waiver operated at that time. (Ranger Ins., supra, 66 Cal.App.4th at p. 1552.) In that case, the appellate court noted that “[i]f defendant’s presence was required, the court had to forfeit the bail bond or lose jurisdiction. If defendant’s presence was not required because of the waiver, the court would retain jurisdiction over the bail bond and could order it forfeited later.” (Id. at pp. 1552-1553.) The court found that the defendant’s presence was required at the master trial calendar hearing, despite his written waiver. “Although a section 977 waiver was in place, by its own terms it did not apply to the trial date. Trial includes the day on which the parties are called to try their case. Under section 1305, defendant must appear for trial. When defendant failed to appear on the date on which his case was set for trial, the master trial calendar hearing, he defaulted within the meaning of section 1305. The trial court was thus required to declare a forfeiture on that date or lose jurisdiction to do so later.” (Id. at p. 1554.)

The Surety argues here, as did the surety in People v. Sacramento Bail Bonds (1989) 210 Cal.App.3d 118, that the defendant’s bail could not be forfeited under section 1305 for failing to appear unless the court had ordered him to be present for the particular hearing. (Id. at p. 120.) The appellate court disagreed, finding that bail could be forfeited if a defendant failed to appear on a date ordered by the court or otherwise required by law. (Id. at pp. 121-122.) Since the defendant in that case failed to appear at a trial status conference when his presence was lawfully required, the appellate court held that the trial court properly forfeited the defendant’s bail and correctly denied the surety’s motion to vacate forfeiture. (Ibid.)

In this case the defendant was present on July 7, 2003, when his case was placed on standby on the master trial calendar after settlement negotiations were at an impasse. He then failed to appear at the master trial calendar hearing on July 14, 2003, when his presence was lawfully required. Accordingly, the trial court properly forfeited the defendant’s bail and correctly denied the Surety’s motion to set aside summary judgment and vacate forfeiture.

DISPOSITION

The judgment is affirmed.

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Bamattre-Manoukian, J.

WE CONCUR:

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RUSHING, P.J.

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PREMO, J.

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[1] All further statutory references are to the Penal Code.