Transcription

1 ALABAMA In Ex parte Singleton, 2004 WL (Ala. Crim. App. November 24, 2004) the trial court set a $150,000 cash only bond. The defendant appealed arguing that under the Alabama Constitution he had a right to bail with sufficient sureties and that the cash only bail was excessive and in violation of the sufficient sureties clause (Ala. Const. Art. I, 16). The Court reviewed the derivation of the clause and decisions from other states with similar clauses, and held that the cash only bail was constitutional and that the amount was not excessive given the facts of the case. The Court reasoned that sufficient was a limitation on a defendant s access to sureties and gave discretion to the judicial officer setting bail. In Union Planters Bank, N.A. v. People of the State of New York, 2006 WL (11 th Cir. January 20, 2006) a property bond was posted in New York secured by property in Alabama. After an affidavit of the bond was filed in the land records in Alabama, the property was refinanced and the amount owed to the bank increased. The property was sold in foreclosure, and the issue was how the proceeds should be divided. The Eleventh Circuit certified three questions to the Alabama Supreme Court relating to the priority of liens between the bank and the State and particularly whether the bond became a lien when the affidavit was recorded or only when a forfeiture was declared. ARIZONA In Re Bond Forfeiture in Pima County, 93 P.3d 1084 (Ariz. App. 2004) affirmed the trial court s judgment forfeiting the entire bond even though the defendant had been deported to Mexico. The court noted that: (1) the surety assumes the risk the defendant will not appear; (2) the surety could easily have ascertained that there was an INS hold on the defendant who, in fact, gave his only address as General Delivery, Nogales, Sonora, Mexico; (3) the surety did nothing to try to prevent the defendant s deportation, locate him in Mexico or secure his return for trial; and (4) there was no evidence the defendant attempted to return for trial. Fragoso v. Fell, 2005 WL (Ariz. App. May 10, 2005) held that the Arizona Constitution guarantee of a right to bail with "sufficient sureties" did not prevent the trial court from requiring a "cash only" bond. The Court discussed conflicting decisions on this issue from other states with the same or similar constitutional provisions and concluded that cash was a form of surety within the discretion of the court. The dissenting Judge would have held that a surety is a third party guarantor not a deposit of cash and thus a right to bail with sufficient sureties meant the court had to accept an appropriate surety bond and could not insist on only cash. Heath v. Kiger, 176 P.3d 690 (Ariz. 2008) held that a defendant released on her own recognizance was admitted to bail for purposes of an exception in the sufficient sureties clause of the Arizona Constitution. The Constitution provides that bail can be denied if the defendant has been arrested for a felony offense committed while admitted to bail on

2 a separate felony charge. The defendant was arrested on three felony drug charges, released on her own recognizance, and then arrested on additional felony drug charges. The Court held that she could be held without bond. In re Forfeiture in the Amount of $10,000, 2007 WL (Ariz.App. July 10, 2007) affirmed the trial court s exercise of its discretion not to remit any portion of a bond forfeiture. The defendant failed to appear and the court issued a bench warrant. Several months later, the court held a hearing on the state s application for a rule to show cause why the bond should not be forfeited. The defendant had fled to Mexico, but the surety located him there and brought him to the U.S. border. While the defendant was at U.S. Customs, they called the local police who did not locate the warrant and did not arrest the defendant. The court held that the bond was properly forfeited because forfeiture is based on the defendant s actions, not the surety s, and here the defendant willfully fled to Mexico. On the issue of remitting all or any part of the forfeiture, the trial court has discretion. The trial court considered the surety s unsuccessful efforts to return the defendant to custody and the other factors required, and thus did not abuse its discretion in not remitting any of the forfeiture. In State v. Liberty Bail Bonds, 2008 WL (Ariz.App. January 24, 2008) the defendant failed to appear, and the court set a hearing to show cause why the bond should not be forfeited. Prior to the hearing, the surety recovered the defendant and surrendered him to the Sheriff. The bail agency was a limited liability company. At the hearing, the owner of the agency attempted to appear for the agency and the surety. The State objected, and the court agreed that as a non-attorney the owner could not represent the agency or the surety. The record, however, showed that the defendant had been surrendered. The court forfeited two-thirds of the bond amount, and the surety appealed. The Court of Appeals agreed that the owner of the bail agency could not represent the agency or corporate surety. It thought the better practice would have been for the trial court to have permitted him to testify as a witness and itself questioned him to establish the facts, but that under the circumstances it was not an abuse of the trial court s discretion not to have done so. The Court affirmed the judgment forfeiting two-thirds of the bond amount. In State v. Bartley, 2008 WL (Ariz.App. January 10, 2008) the surety posted a bond for a defendant against whom INS had placed a hold. The defendant was released to INS and deported to Jamaica. He did not appear and the bond was forfeited. The surety denied it was aware of the INS hold and claimed to be surprised by the deportation, but the Court noted that information on the INS hold was in the bonding paperwork available to the surety and that the surety did not petition the Attorney General to permit the defendant s return to appear in the court case. The Court thought the surety assumed the risk of the defendant s failure to appear and under the facts of the case the non-appearance was not excused by the deportation. The Court held that forfeiture of the bond was not an abuse of the trial court s discretion. In State v. Azteca Bail Bonds, 2008 WL (Ariz.App. February 26, 2008) the defendant failed to appear at his initial pretrial conference. After a series of hearings, the 2

3 court eventually entered a judgment forfeiting the bond, and the surety appealed. The surety argued that on the date of the pretrial conference the defendant was in jail in the same County that was prosecuting the case. The Court recognized that case law from other jurisdictions held the bond could not be forfeited if the State itself prevented the defendant from appearing, but the Court did not reach that issue because the record on appeal did not establish the factual basis for the surety s contentions. The surety did not provide transcripts of the various hearings, so it was impossible to establish the facts before the trial court or the basis for its decision. The surety had the duty to furnish the relevant transcripts or recordings if it believed the trial court s ruling was not justified by the evidence, and in the absence of such recordings or transcripts the Court of Appeals had to assume that the evidence supported the trial court s ruling. There was no basis on which the Court could find that the trial court abused its discretion. In State v. Ameribail Bail Bonds, Inc., 2008 WL (Ariz.App. April 15, 2008) there was some confusion over the defendant s correct name, but the court record included both his name and an alias and the fact that there was an INS hold on him. The surety wrote the bond in the name of the alias, and the INS deported him. When he failed to appear at the next scheduled hearing, the bond was forfeited. He appeared, however, two months later at the bond show cause hearing. Nevertheless, the court forfeited the bond and the surety appealed. The surety argued that the court abused its discretion in forfeiting the bond because of the confusion over the names, because the defendant in fact returned to the United States to face the charges, and because the bond should have been exonerated when the defendant appeared at the show cause hearing. The Court rejected each argument and affirmed judgment against the surety. The Court held that the surety was obligated to exercise care in ascertaining the identity and circumstances of the defendant it proposed to bond. The surety ran the risk that the defendant gave it inaccurate information, and it is not the jail s obligation to perform the surety s investigation. Here, the court records had both his correct name and the alias. The defendant s return to the United States and subsequent appearance did not change the fact that the bond was breached. Unless the bond was not been breached and was no longer needed, neither of which occurred here, the trial court had discretion to forfeit all or part of the bond, and it did not abuse that discretion. In State v. Liberty Bail Bonds, 2008 WL (Ariz.App. October 2, 2008) two Mexican nationals were arrested in a drug transaction. The surety provided bonds for both defendants. After they were deported, the defendants failed to appear. The trial court forfeited one bond but exonerated the other. The surety and bail agent appealed the forfeiture. The defendant whose bond was exonerated was deported three days after the bond was posted and before arraignment. The court found no evidence this defendant had notice of his court proceedings. The other defendant was deported after he had appeared for arraignment. He had notice of his obligations to appear, and there was no evidence in the record of any effort by the defendant, the surety or the agent to arrange his return. The bail agent argued that forfeiting the bond of the second defendant was a denial of equal protection because the trial court treated the two defendants differently. The Court held that the different facts justified the disparate treatment. The agent argued that deportation of the defendant justified his failure to appear, but the Court held that the 3

4 surety knowingly bonded an alien and ran the risk he would be deported. There was no evidence of any attempt by the defendant to keep in contact with his attorney or to return for his court obligations and no evidence of attempts by the surety to secure his return. The court did not abuse its discretion in forfeiting the bond. In State v. MC s Bail Bonds, 2009 WL (Ariz.App. February 17, 2009) the defendant failed to appear at a settlement conference. The court issued a warrant and scheduled a bond forfeiture hearing. A few days later, and before the scheduled forfeiture hearing, the defendant was arrested on an unrelated federal charge. The surety moved to exonerate the bond because the defendant was in custody. The trial court denied the surety s motion and forfeited the bond. The surety appealed but did not request that the trial court issue findings of fact and conclusions of law as it had a right to do under the Arizona Rules. The Court of Appeals held that the trial court did not have to accept the defendant s proffered excuse for not appearing. The statute gave the court discretion to remit the forfeiture because the defendant was in custody prior to the forfeiture hearing, but did not require it to, and the trial court did not abuse its discretion. Finally, the surety s argument that the trial court failed to consider the relevant factors was speculation since it did not request findings of fact and conclusions of law. The Court had to assume that the trial court followed the law and that the evidence supported its decision. In State v. Liberty Bail Bonds, 2009 WL (Ariz.App. May 5, 2009) the surety appealed from forfeiture of its bond on the ground that it was prejudiced by late notice of the defendant s failure to appear. The surety, however, did not request findings of fact and conclusions of law from the trial court or obtain transcripts of the various hearings in the trial court. The Court of Appeals held that the time to give notice should be computed pursuant to the rules of civil procedure and, therefore, intervening Saturdays and Sundays were not counted. The defendant failed to appear on December 5, 2007, and the court issued a bench warrant and scheduled a bond forfeiture hearing. The minute entry evidencing the court s actions was filed on December 17. The Court found that posting the order on December 17 was notice to the surety and that it was within the ten day period required by Rule of Criminal Procedure 7.6.C.1. The Court noted that the record on appeal did not include findings of fact or transcripts and as a consequence it could not say that the trial court erred. There was nothing in the record to overcome the presumption that the trial court knew the law and properly applied it in rendering its decision. In State v. MC s Bail Bonds, 2009 WL (Ariz.App. May 14, 2009) the defendant was accused of a shooting and the surety provided a bond. After the bond was issued, the indictment added two counts of attempted murder. The defendant appeared at his arraignment, waived a formal reading of the charges, and pled not guilty. He did not appear for the initial pretrial conference, and the court set a bond forfeiture hearing. Despite time extensions, the defendant was not recovered. The surety argued that addition of the two attempted murder counts increased its risk and discharged the bond. The Court disagreed and found that the condition of the bond remained appearance, there was no justification offered for the failure to appear, and there was no evidence that the 4

5 defendant even knew of the added attempted murder charges or that they induced hi to flee. The Court held that the trial court did not abuse its discretion in forfeiting the entire amount of the bond. In State v. Copperstate Bail Bonds, 213 P.3d 342 (Ariz.App. 2009) the indemnitor who allegedly paid the premium appealed forfeiture of the bond. The Court held that a depositor or indemnitor has standing to contest forfeiture of a bond and remanded the case for the trial court to resolve any factual disputes as to the indemnitor s interest in the bond. The Court also thought there were disputed issues of fact as to the indemnitor s role in returning the defendant to custody after his failure to appear and noted that merely informing the police of the defendant s location was not sufficient to justify exoneration of the bond. Finally, the Court held that the defendant s excuse for his failure to appear that he was not aware of the re-scheduled court date was inadequate as a matter of law. The defendant was obligated to communicate with his lawyer and stay informed on developments in his case. In State v. Bail Bonds USA, 224 P.3d 210 (Ariz.App. 2010) the surety posted a bond for the defendant, who was turned over to federal immigration authorities rather than released. She remained in federal custody. The defendant failed to appear for arraignment and the bond was forfeited. The Court of Appeals thought that if the State could obtain the return of the defendant from the federal authorities, the bond should be exonerated. On the other hand, if the defendant was deported or otherwise not available to the State, the bond could be forfeited. The Court vacated the judgment of forfeiture and remanded the case to give the surety an opportunity to demonstrate that the State could obtain return of the defendant. In State v. Randolph & Company Bail Bonds, Inc., 2010 WL (Ariz.App. January 28, 2010) a stranger to the bail bond filed an affidavit that he had provided funds and indemnified for the bond and sought a continuance of the forfeiture hearing. The trial court thought the indemnitor did not have standing to be heard in connection with the bond forfeiture and denied his motion for a continuance. On the alleged indemnitor s appeal, the Court reversed and held that an indemnitor or depositor does have standing to be heard in connection with forfeiture of the bond, and the affidavit raised an issue of fact as to the appellant s standing. The Court remanded the case for a factual determination of the appellant s interest. In State v. Eazy Bail Bonds, 229 P.3d 239 (Ariz.App. 2010) the defendant failed to appear and the court set a bond forfeiture hearing. At the hearing, the president of one of the bail bond agents appeared as the agent of the surety and the corporate agents. She was not, however, an attorney. The trial court heard her arguments and evidence that the defendant was dead and entered judgment forfeiting the bond. The agents and surety, by counsel, asked for a new trial and appealed when it was denied. The Court held that as business entities the agents and surety could appear only by counsel. Since they effectively had not appeared or offered evidence to show a grounds to set aside the forfeiture until after judgment was entered, they could not challenge the judgment on appeal. The Court recognized that practices with regard to representation of bail agents 5

6 and sureties had not been consistent and that the trial court acquiesced in the nonattorney s participation in this case, but neither the litigants nor the trial court can change the rules on practice of law, and this decision will be published to clarify the issue. In State v. Aalpha Bonding & Services, LLC, 2010 WL (Ariz.App. April 27, 2010) the defendant failed to appear for a conference on November 17, 2008, but he was re-arrested by the Sheriff s Department on December 8. The individual bail agent, as agent for the bail agency and the surety, filed an affidavit to exonerate the bond on the ground that the defendant was in custody. On December 31 the defendant filed a similar motion. The court determined that the defendant violated the conditions of his pretrial release and set a bond forfeiture hearing. At the hearing, the Commissioner forfeited the entire bond. The bail agency appealed. The individual agent was present at the hearing on behalf of the agency and surety, but no attorney appeared on their behalf. The Court treated the bail agency and surety as not appearing or contesting forfeiture because the non-attorney agent could not represent them. The Court thought that the record showed the defendant s failure to appear in violation of the obligation of the bond and since no evidence was presented to justify or excuse the violation, forfeiture of the entire bond was within the trial court s discretion. In re Bond Forfeiture in Pinal County Cause No. CR , 2010 WL (Ariz.App. May 24, 2010) considered the surety s appeal of an order forfeiting the entire bond amount. The defendant pled guilty and appeared for sentencing. The sentencing was continued, and the court permitted the defendant to remain on bond after warning her that at the next hearing she should be prepared not to go home. The defendant did not appear at the next hearing, and the bond was forfeited. The surety argued that the trial court violated Criminal Rule 7.2(c)(1) by not remanding the defendant to prison at the first hearing. This Rule requires incarceration prior to sentencing if the court determines that the defendant will in all reasonable probability suffer a sentence of imprisonment. In this case, probation was possible under the defendant s plea agreement, and the trial court found that at the time of the first hearing it had not determined in all reasonable probability to sentence the defendant to serve time in prison. The Court of Appeals held that this finding was not an abuse of discretion. It also rejected the surety s argument that failure to follow Rule 7.2(c)(1) was a mitigating factor justifying partial remission of the bond because it held there was no failure to follow the Rule. The Court affirmed forfeiture of the bond. ARKANSAS Holt Bonding Co., Inc. v. State, 2003 WL (Ark. App. June 18, 2003) set aside a bond forfeiture because the applicable statute, Ark. Code section (a)(1)(A), requires that an order directing the surety to appear and show cause why the bond should not be forfeited shall be sent by certified mail. The certified mail receipt in the court file did not have a postmark on it. The court held "the failure to ensure a proper post mark constitutes a failure to strictly comply with the requirements of section " and reversed the forfeiture. 6

7 Renny's Bail Bond Company v. State, 2004 WL (Ark. App. September 8, 2004) did not reach the merits of the bail bond company's motion to set aside a forfeiture because the motion was filed more than 90 days after entry of the forfeiture. The Court held that pursuant to Ark. Civil Rule 60, once the 90 day period expired the trial court lost the power to modify the judgment of forfeiture. [Probably not published]. Renny's Bail Bond Co. v. State, 2004 WL (Ark. App. October 13, 2004) held that the trial court correctly denied a motion to set aside a bond forfeiture. The motion was filed after expiration of the 90 day period in which Ark. R. Civ. Proc. 60 permits the trial court to modify or vacate a judgment. In any case, Ark. Code (c)(2) exonerates the surety if the defendant is apprehended within 120 days after written notice to the surety that the defendant had failed to appear, and here he was surrendered after the 120 day period expired. Spencer Bonding Services, Inc. v. State, 200 S.W.3d 457 (Ark. App. 2004) held that the bond should not have been forfeited because a 171 day delay between the defendant's failure to appear and sending an order to show cause to the surety was not "prompt" issuance of the order as required by Ark. Code (a). Hot Springs Bail Bond v. State, 206 S.W.3d 306 (Ark. App. 2005) held that the state's failure or refusal to enter a misdemeanor warrant for the fugitive defendant in the NCIC and ACIC databases was not a ground to exonerate the bond. In Manuel Bail Bond Company, Inc. v. State, 2005 WL (Ark. App. April 27, 2005) the defendant failed to appear, and the bail bond company was personally served with notice of a show cause hearing. The company appeared and waived the show cause hearing and acknowledged that it had 120 days to produce the defendant. When it failed to produce him, the bond was forfeited. The bail bond company appealed on the theory that the statute required service of the notice by certified mail not by personal service. The court expressed skepticism but held that the case should be decided under the law in force at the time the forfeiture action was commenced, and the certified mail provisions was added to the statute by a later amendment. Since the applicable law did not require any notice to the surety, the judgment of the trial court was affirmed without reaching the question of how notice must be provided under the amended statute. In Arvis Harper Bail Bonds, Inc. v. State, 208 S.W.3d 809 (Ark. App. 2005) the defendant failed to appear and a hearing was set for the bondsman to show cause why a judgment of bond forfeiture should not be entered. Prior to the show cause hearing, the bondsman recovered the defendant and turned him over to the Sheriff, which should have foreclosed entry of judgment. However, the bondsman did not appear at the show cause hearing or provide the clerk, the court, or the prosecutor with the receipt showing he had surrendered the defendant. The court, not being informed otherwise, entered a judgment of forfeiture. No appeal was taken, but more than 90 days later the bondsman moved to set aside the judgment, and the trial court denied the motion. The Court of Appeals held that there was no jurisdiction to set aside the forfeiture. Under Ark. Rule of Civil 7

8 Procedure 60, for 90 days a court can act to correct errors or mistakes or to prevent a miscarriage of justice. After 90 days passes, a judgment can be set aside only for fraud or misrepresentation. Since there was no fraud or misrepresentation and the bondsman did not act within the 90 day period, the trial court could not modify or vacate the judgment. Manuel Bail Bond Company, Inc. v. State, 2005 WL (Ark. App. June 22, 2005) reached the same result on reconsideration of the decision reported at 2005 WL This time the Court held that service of the notice of forfeiture by certified mail was not a jurisdictional requirement and, like all questions of sufficiency of service of process could be waived by appearing in the case. In this case, the Court found such a waiver and affirmed judgment against the surety without discussing the "old" law versus "new" law issue addressed in its first reported decision. Renny s Bail Bond Co., Inc. v. State, 2006 WL (Ark.App. March 1, 2006) affirmed the trial court order forfeiting the bond. The defendant failed to appear and the court issued an arrest warrant. The next day the defendant was arrested for a different offense in another county, but he was released later the same day because the arrest warrant was not yet entered in the state s warrant database. The court found that release on bond remanded the defendant to the custody of the surety, and it was up to the surety to keep track of the defendant and make sure he appeared. The State has to cooperate, but the surety cannot rely on the authorities to perform the surety s duty. The surety did not recover the defendant and was not entitled to remission of the forfeiture. In Manuel Bail Bonds v. State, 2007 WL (Ark.App. January 17, 2007) the defendant gave a false name, and the Sheriff did not fingerprint her or keep any other record that would enable the surety to identify her. The surety argued that it should not be liable on the bond. The trial court forfeited $15,000 of the $50,000 bond, and the surety appealed. The Court of Appeals affirmed and held that it was up to the surety to know whom it was bonding and to produce the defendant when required and, while it did not condone the Sheriff s failure to follow proper procedures, it would not shift responsibility to produce the defendant from the surety to the State. In First Arkansas Bail Bonds, Inc. v. State, 2007 WL (Ark.App. April 4, 2007) the clerk mailed the surety notice of a forfeiture judgment two months after it was entered. The surety recovered the defendant within 90 days of receiving the notice, but more than 90 days after the judgment was entered. The surety moved for relief from the forfeiture under Arkansas Rule of Civil Procedure 60. The Court held that its motion was too late for relief under Rule 60(a), which must be filed within 90 days of entry of the judgment, and did not qualify for relief under Rules 60(b) or (c). The Court noted that there was a requirement that the clerk give the surety notice that the defendant failed to appear, but no requirement for notice of entry of the judgment. In Bob s Bail Bonds, Inc. v. State, 2007 WL (Ark.App. April 25, 2007) the surety objected to the timeliness and form of its notification of default and summons to appear and show cause why the bond should not be forfeited. It appeared at the show cause hearing through its agent, however, and presented none of these objections. 8

9 Instead, after judgment was entered, it filed a motion to set the judgment aside. The Court held that none of the stated grounds qualified as a basis for post-judgment relief under the civil rules. The surety had the opportunity to make its arguments at the show cause hearing, and having failed to do so cannot raise them by post-judgment motion. The Court also noted that the surety made other arguments on appeal that it had not presented to the trial court at all, and it refused to consider them for the first time on appeal. In First Arkansas Bail Bonds, Inc. v. State, 2007 WL (Ark.App. September 26, 2007) the defendant provided two bonds for the defendant. The second bond was posted after additional charges were added to the case. The defendant failed to appear, and the trial court forfeited both bonds. The surety appealed, and the Court of Appeals affirmed forfeiture of both bonds. The Court held that by appearing in the trial court and requesting an extension of time to apprehend the defendant, the surety waived any objection to the timing or form of service of process in the case. The Court refused to consider the surety s argument that the additional charges and second bond exonerated the first bond because the argument was not raised in the trial court. Finally, the Court found no abuse of discretion in the trial court s giving the surety credit for only a part of the amount it claimed to have expended in attempting to locate the defendant. First Arkansas Bail Bonds v. State, 284 S.W.3d 115 (Ark.App. 2008) held that forfeiture of a bail bond can be accomplished in the defendant s criminal proceeding without the State having to file a separate civil action. The surety argued that Ark. Code (e)(2) required a separate civil action because it required a summons as in civil actions, and the action shall be docketed and shall proceed as an ordinary civil action. The Court rejected the surety s argument and interpreted the statute to require only that the State proceed as in a civil matter within the context of the defendant s criminal case. In First Arkansas Bail Bonds, Inc. v. State, 284 S.W.3d 483 (Ark. 2008) and First Arkansas Bail Bonds, Inc. v. State, 284 S.W.3d 484 (Ark. 2008) and First Arkansas Bail Bonds, Inc. v. State, 284 S.W.3d 525 (Ark. 2008) the defendants failed to appear and the court sent a show cause notice to the surety. The notice, however, was not a summons and did not set a date for a hearing on forfeiture of the bonds. Some months later, the court issued a summons and held a hearing at which it forfeited the bonds. On appeal, the surety argued that the summonses were not immediately issued as required by Ark. Code (b)(2)(B). The Court thought that the initial notices, which were sent immediately, were not the summons because they did not set a date and time for a hearing. The Court rejected the State s argument that the delay actually benefited the surety and so to apply the literal requirement that the summons be issued immediately would be an absurd result that the Legislature could not have intended. Arkansas law requires that service of process requirements be strictly complied with, and the plain meaning of immediately did not permit a delay of several months. The Court reversed judgments against the surety and remanded the cases. 9

10 CALIFORNIA People v. Ranger Insurance Co., 134 Cal. Rptr.2d 199 (Cal. App. May 19, 2003) rejected the argument that the court lost jurisdiction to forfeit the bond when it failed to declare forfeiture on the first date the defendant did not appear. People v. Ranger Ins. Co., 2003 WL (Cal. App. May 23, 2003) rejected the surety's argument that the bond was exonerated by failure to notify the surety within 30 days of forfeiture. The defendant failed to appear and the bond was forfeited, but he appeared the next day with the bail agent and the bond was reinstated. He subsequently failed to appear for sentencing and the bond was forfeited. The Court made short work of the argument that failure to give notice within 30 days after the first forfeiture was fatal. In People v. Granite State Ins. Co., 2003 WL (Cal. App. May 28, 2003) the defendant failed to appear and the bail bond was forfeited. The defendant appeared the next day. The court released her for one day on her own recognizance to obtain reinstatement of bail. Granite, through its agent, signed a letter reinstating the bond. After pleading guilty, the defendant did not appear for sentencing, and the bond was forfeited. The court of appeals rejected a list of arguments based on the earlier forfeiture and reinstatement. It held that Granite had voluntarily resumed its obligations and was estopped to deny them later. People v. Ranger Ins. Co., 2003 WL (Cal. App., May 28, 2003) affirmed forfeiture of bond after the trial court accepted the defendant s guilty plea, told him what sentence to expect, and released him on bond pending return for sentencing. The court held that only actual sentencing constitutes pronouncing judgment. The court also held that Cal. Penal Code 1166 requires remanding the defendant into custody only after a verdict and does not apply to a guilty plea. County of Los Angeles v. American Contractors Indemnity Company, 2003 WL (Cal. App. June 13, 2003) affirmed denial of a motion to vacate forfeiture of a bond because the defendant was released after pleading guilty. This is another case following People v. Seneca Insurance Company and holding that Cal. Penal Code Section 1166 does not apply following a guilty plea. People v. Ranger Insurance Co., 2003 WL (Cal. App. July 16, 2003) held that the bail in Penal Code 1305(c)(4) requiring notice to the bail prior to reinstatement of the bond was the surety company, but nevertheless denied relief because notice to the bail agent was notice to the surety company. People v. Frontier Pacific Ins. Co., 2003 WL (Cal. App. July 16, 2003) is another in a series of cases holding that a guilty plea is not a conviction under Penal Code In People v. Ranger Ins. Co., 2003 WL (Cal. App. August 13, 2003) the defendant, a Lebanese national, fled to Lebanon. The bail recovery agent located him 10

11 there, took him into custody and had him identified by the mayor of the town. The surety alleged that the Lebanese police stated they would surrender the defendant at the airport if they received a federal warrant through Interpol. The United States, however, has no extradition treaty with Lebanon. The Court affirmed refusal to vacate forfeiture of the $450,000 bail bond. Cal. Penal Code section 1305(g) allows exoneration of the bond if the defendant is located in another jurisdiction and the prosecutor elects not to seek extradition. Extradition, however, must be feasible. The prosecutor is not required to attempt the impossible. The Court concluded that extradition was not feasible and that the surety had not established that the prosecutor could be a party to "a procedure which does not comport with the extradition process." People v. Granite State Insurance Co., 2003 WL (Cal. App. September 22, 2003) held that a timely judgment properly entered following forfeiture could be corrected to name the surety company rather than the bail agent as the surety even though the 90 day period to enter judgment against the surety had run at the time of the correction. It was clear throughout the file that Granite was the surety, but the judge erroneously entered the judgment against the bail agent, Exit Bail Bonds. Clerical errors in judgments can be corrected, and the court of appeals held that there was no evidence the Judge actually meant to hold the agent liable instead of the surety. In People v. American Contractors Indemnity Company, 2003 WL (Cal. App. October 8, 2003) the surety moved to set aside summary judgment on a bail bond because the summary judgment had been entered before expiration of the 185 day period in which the defendant's appearance would exonerate the surety. The court twists around about whether the trial court really lacked jurisdiction to grant the summary judgment. The surety did not appeal the summary judgment and waited until the time in which the court could enter judgment had passed before it moved to set aside the judgment. The court of appeals characterizes this as trifling with the courts. The court clearly stretched for a way not to let the surety out on what the court regarded as a technicality, and in doing so admitted that its result was inconsistent with two other recent cases. The court held that the premature judgment was only "voidable" and should have been challenged directly by appeal and that the surety was now estopped to make a collateral challenge by motion to set aside the judgment. In People v. Accredited Surety & Casualty Co., 2003 WL (Cal. App. October 28, 2003) the bail bond was issued for an alias name, but the defendant was subsequently arraigned under his correct name. The defendant failed to appear and notice of bail forfeiture was mailed to the surety. The name problem caused confusion in attempting to apprehend the defendant. The bail agent filed several different motions to vacate the forfeiture and exonerate the bond. Various extensions of the 180 day period in which such relief can be requested were also made. The motions were eventually denied and summary judgment entered against the surety. On appeal the court reversed the judgment and exonerated the bond on purely procedural grounds. Under the California statutory scheme, if the defendant appears, surrenders or is arrested within 180 days from notice of forfeiture (185 days if notice is mailed), the forfeiture is 11

12 vacated and the bond exonerated. The 180 day period can be extended only if the request is made prior to expiration of the period. If the 180 day period expires, the court loses jurisdiction to grant an extension and must enter summary judgment against the surety within 90 days of the expiration. The bail agent s request to extend the 180 day period was granted, but it had been made too late. Therefore, the court did not have jurisdiction to grant it, and summary judgment had to be entered within 90 days of the expiration of the original 180 day period (in this case 185 days because notice was mailed). The summary judgment was entered within 90 days of the end of the erroneously extended period but not within 90 days of the expiration of the original period, therefore the trial court had no jurisdiction to enter the summary judgment. People v. Alistar Insurance Company, 2003 WL (Cal. App. October 28, 2003) affirmed the trial court s refusal to set aside summary judgment against the surety. The defendant was charged with three separate offenses and three separate orders were entered admitting him to bail, none of which were in the amount of the bond. A single bond was issued and accepted. The court held that the defect predated the surety bond and so was waived by the bond s issuance and that, in any case, the bond contract should be enforced even if technically not in compliance with the court s orders. The court also found that the clerk s proofs of service and docket entries were sufficient evidence to support the trial court s finding that notice of forfeiture was received even though the bail agent and surety denied receipt. People v. American Contractors Indemnity Company, 2003 WL (Cal. App. November 4, 2003) denied a petition for rehearing of People v. American Contractors Indemnity Company, 2003 WL (Cal. App. October 8, 2003) but re-wrote the section of the earlier decision addressing the court's jurisdiction to enter summary judgment before expiration of the 185 day period following mailing of the notice of forfeiture. The California Supreme Court granted review of the revised decision, People v. American Contractors Indemnity Company, 81 P.3d 223 (Cal. 2003). People v. American Contractors Indemnity Co., 2003 WL (Cal. App. November 21, 2003) reverses summary judgment on a bail bond and directs that the surety be exonerated. The defendant failed to appear on May 21 but her attorney indicated she had car trouble. The court forfeited the bond but stayed the bench warrant. The defendant appeared on May 23 and the bail was reassumed. On June 11 the defendant again failed to appear, the bond was again forfeited, and this time notice of the forfeiture was given to the surety and bail agent. They were not given timely notice of the May 21 forfeiture. The Court of Appeals held that failure to give notice of the May 21 forfeiture deprived the trial court of jurisdiction over the bond and the subsequent forfeiture was void. The Court specifically stated that (1) no prejudice need be shown from failure to give the statutory notice of a bail forfeiture, (2) notice is required for every forfeiture, (3) a forfeiture order cannot be stayed, the proper statutory procedure is to continue the case without ordering forfeiture, and (4) the judge's intent is to be found from his or her own words not the clerk's minute orders. In this case the Sixth District Court of Appeal does not mention the collateral attack/estoppel argument of the Fourth District Court of Appeal in People v. American Contractors Indemnity Co., 2003 WL 12

13 (October 8, 2003), on rehearing WL (November 4, 2003) even though it appears that the surety followed the same procedure and moved to set aside the judgment of forfeiture as made without jurisdiction rather than directly appealing its entry. In People v. Gutierrez, 2003 WL (Cal. App. November 24, 2003) the bond was for $215,000 and the premium was $21,500. The defendant's mother paid $2,100 and pledged her house as security for the bond. She did not make any more premium payments, and the bail agent surrendered the defendant two months after the bond was posted. The defendant had not violated any terms of release, but the bail agent claimed he had given misinformation in obtaining the bond. The bail agent asserted that the balance of the premium was due, and the court ordered him to show cause why the premium should not be refunded under Cal. Penal Code 1300 (b). The trial court held that there was no good cause for the surrender, reduced the premium to $4,500 and reduced the lien on the mother's property to $2,400 (the unpaid balance of the $4,500). The Court of Appeals held that the bail agent failed to demonstrate any abuse of discretion by the trial court and affirmed the order. In People v. Allegheny Casualty Company, 2003 WL (Cal. App. November 25, 2003) conditions of release were ordered including that the defendant not drive, not possess alcohol, and attended Alcoholics Anonymous meetings. He failed to appear for his next court date, and the bond was forfeited. The appeal raised two issues. First, the surety argued that imposition of conditions in addition to appearance invalidated the bail contract. The court pointed out that the forfeiture was only for failure to appear, a risk that the surety unquestionably assumed. The court thought that violation of the additional conditions would not have resulted in forfeiture of the bond and, therefore, did not increase the surety s risk. The court stated, There is no suggestion in the record that violation of any of those conditions would result in the forfeiture of his bond. The second issue was that the trial court entered summary judgment against the bail agent as well as the surety. The government conceded that was error, and the court of appeals directed the trial court on remand to remove the bail agent as a judgment debtor. People v. Bankers Insurance Co., 2003 WL (Cal. App. December 19, 2003) held that the failure of the bondsman's lawyer to follow instructions to move to extend the 185 day period in which the surety could seek to exonerate the bond forfeiture did not allow the court to consider an untimely motion to exonerate the bond. In People v. Granite State Ins. Co., 2003 WL (Cal. App. December 22, 2003) the court held that the 90 day period in which the court had jurisdiction to enter summary judgment against the surety commenced on the date the surety's timely motion to set aside forfeiture and exonerate the bond was denied. Once forfeiture is entered, there is an 180 day exoneration period (185 days if notice is mailed to the surety) which can be extended up to another 180 days. If the surety files a timely motion to exonerate the bond 13

14 (i.e. files before the expiration of the 180 day period plus any extensions) then the date upon which summary judgment can first be entered against the surety is the day following the denial of the motion. The 90 day period starts upon denial of a timely motion not upon expiration of the period in which the motion had to be filed. People v. Alistar Ins. Co., 2003 WL (Cal. App. December 31, 2003) presents two issues. First, the surety moved to extend the 180 day period to set aside the forfeiture, but noticed its motion for hearing six days after the expiration of the 30 day period in which such motions may be granted. By statute, the 30 day period may be extended for good cause, but here the court never was asked to extend it. The Court of Appeals, however, rejected the government's argument that the 30 day period was jurisdictional and held that since the trial court heard and decided the motion, and the state did not object to its being heard, the court of appeals would presume that there was good cause to extend the 30 day period. The trial court however, denied the motion on its merits and refused to extend the 180 day period. The Court of Appeals reversed the trial court and held that the fairly detailed affidavit filed by the surety detailing the efforts of its investigator to locate the defendant was grounds to extend the 180 day period. The state argued only that the bond had been written without sufficient collateral, which the Court found to be irrelevant to the question. The Court pointed out that the law should avoid forfeitures and that the purpose of the bond is to give the surety an incentive to locate and return the defendant not to raise money for the state through forfeitures. In Cardenas v. American Surety Company, 2004 WL (Cal. App. February 4, 2004) relatives of the defendant pledged a house as collateral for the bond. The defendant was released into the custody of INS and immediately deported to Mexico. Naturally, he did not appear for trial and the bond was forfeited. The surety instituted non-judicial foreclosure against the house, and the bail agent, surety and indemnitors made a deal in which the house was sold to the agent with credit on the purchase price for the amount of the bond and various related expenses. The agent neglected to tell the indemnitors that a motion to exonerate the bond based on the deportation was filed and granted, so the agent ended up with no bond liability and the house. The indemnitors found out about the exoneration when they checked the court file on the criminal case and sued for breach of fiduciary duty, fraud, etc. The jury held for the surety and agent, and the indemnitors appealed various rulings of the trial court on motions and jury instructions. The court of appeals reversed and remanded for a re-trial. The court relied on the fact that applicable regulations provided that the collateral was held in a fiduciary capacity and that constructive fraud includes failure to disclose a material fact in breach of a fiduciary duty even though there was no intend to defraud. Interestingly, one of the few issues on which the court of appeals affirmed the trial court was denial of the indemnitors' motion to amend their complaint to add a bad faith count. The court of appeals noted that the Cates decision was based on the unique relationship of the parties to a surety contract, not just to a construction performance bond, and stated, 14

15 "We decline appellant's request that we expand tort remedies available only in insurance bad faith actions to a claim for breach of a bail bond surety contract." People v. Bankers Insurance Co., 2004 WL (Cal. App. February 19, 2004) considers the circumstances under which a surety must refund premium after surrendering a defendant. The defendant was arrested for several crimes and each time posted bonds. His sister paid the premiums and secured the bonds with deeds of trust on her residence. After the third arrest the surety on the bonds for arrests number 1 and 2 surrendered the defendant arguing that its risk had been increased by the third arrest and substantial bond posted by another company. The court ordered return of the premiums for bonds 1 and 2 pro rated for the time the defendant was free on the bonds (based on a hypothetical one year term). The Court of Appeals held that the trial court did not abuse its discretion in ordering return of premium or in arriving at an amount to be returned. In People v. Seneca Insurance Co., 2004 WL (Cal. App. February 25, 2004) the surety made a timely motion to extend the 185 day period in which the bond forfeiture could be avoided by returning the defendant. The defendant was apprehended, based on information provided by the bail agent, nine days after the 185 day period expired and while the extension motion was pending. The trial court refused to vacate the forfeiture. The court of appeals affirmed and held that filing a motion to extend the 185 day period does not automatically extend it and that nothing that happens after the 185 day period expires can constitute good cause to extend it. Therefore, the surety was limited to the grounds which existed prior to the expiration (that there was confusion getting notice to the actual bail agent whose name did not appear on the bond). The Court of Appeals found the trial court was within its discretion in rejecting this grounds. In People v. Alistar Insurance Company, 2004 WL (Cal. App. March 2, 2004) the surety moved to extend the 180 day period to produce the defendant and submitted an affidavit explaining in detail its specific efforts to locate the defendant and why the efforts had so far been unsuccessful. The trial court denied the motion without a hearing. The Court of Appeals reversed and held that the surety had shown good cause for the extension by submitting the affidavit and the court abused its discretion in denying the motion. In fact, the state conceded that the motion should have been granted. This case is a roadmap for what needs to be done to obtain an extension of the 180 day period. In People v. Lexington National Insurance Company, 2004 WL (Cal. App. March 3, 2004) the defendant appeared, admitted to a probation violation and was sentenced. He was granted leave to surrender six days later, and he failed to appear on the surrender date. The court ordered the bond forfeited, and a proper notice was mailed. The surety moved to vacate the forfeiture and exonerate the bond on the ground that the bond was exonerated by operation of law when the defendant was sentenced. The motion was denied. Another judge entered summary judgment against the surety, and denied the surety's motion to discharge the forfeiture and set aside the summary judgment. The surety appealed. The prosecutor and the court recognized that the surety was correct and the sentencing of the defendant exonerated the bond. The issue was whether the forfeiture could be overruled by denying summary judgment. The court held for the 15

16 surety on the ground that exoneration of the bond upon sentencing of the defendant was automatic and thus the judge declaring the forfeiture had no jurisdiction over the surety and his order was void. Therefore, the second judge had jurisdiction to deny the motion for summary judgment. Had the first judge merely been mistaken, but within his jurisdiction, then it would have been necessary to attack his order directly by appeal. In Seneca Insurance Co. v. County of Orange, 2004 WL and 2004 WL (Cal. App. March 24, 2004) pursuant to Cal. Penal Code the surety obtained an extension of the period for bond forfeiture. The day before it was to expire, a police detective, apparently acting at the behest of a bounty hunter and the indemnitor on the bond, went to the Judge in chambers and obtained another extension. The defendant was not surrendered and summary judgment was entered against the surety within the statutory 90 days from the expiration of the second extended period. The surety moved to set aside the judgment and exonerate the bond because the 90 day period from the original extension had expired and was not followed in procuring the second extension. The trial court denied the surety's motion and the surety appealed. The Court of Appeals held that the second extension was improper and considered whether the surety was estopped to assert that fact as a defense. The key to the case was the fact that neither the surety nor the bail agent asked for the second extension or even knew about it in advance. The police detective acted, at most, for the bounty hunter who was not the actual or apparent agent of the surety for purposes of requesting an extension. The Court held that the surety was correct and the 90 day period within which judgment could be entered had expired because it must be computed from the expiration of the first, legitimate extension, the trial court lacked jurisdiction to grant the second extension, and the surety was not estopped to assert the lack of jurisdiction. In County of Orange v. Bankers Ins. Co., 2004 WL (Cal. App. March 30, 2004) the defendant posted two bonds on two separate charges. The same agent provided both bonds, but with different sureties. The defendant failed to appear on the charge for which Bankers was surety on the bond, and the agent requested an extension of the 180 day period to produce the defendant and exonerate the bond. During the continued period, the agent received a copy of the other bond marked exonerated by the court clerk. The agent assumed that meant the defendant had been apprehended and took no further action on the Bankers bond. In fact, exoneration of the other bond was a mistake. In due course, summary judgment was granted on the Bankers bond. The Court of Appeals held that the extended forfeiture period had expired, the trial court no longer had jurisdiction to set aside the forfeiture, and in any case, the mistaken exoneration of the other bond was not a basis to grant relief from forfeiture of Bankers bond. People v. Ranger Ins. Co., 2004 WL (Cal. App. March 30, 2004) held that a court has no jurisdiction to grant relief from forfeiture once the 180 day period (plus any extensions) has expired. The defendant was incarcerated in another state, and the bail agent called the court clerk and told her of the incarceration, but no motion was filed until after the 180 day period expired. Had a timely motion been made, the surety would have been entitled to have the forfeiture set aside and the bond exonerated. Because a timely motion was not filed, summary judgment on the bond could not be set aside. 16

17 In County of Orange v. Continental Heritage Ins. Co., 2004 WL (Cal. App. April 23, 2004) the surety asserted three reasons why the bond forfeiture should be set aside. The Court rejected each claim because the surety could not establish the factual predicates for its arguments. The surety argued that the court failed to forfeit the bond when the defendant first failed to appear, but the Court held there was sufficient excuse for the initial failure to appear because the defendant was present when the case was called but his attorney was not. Later that day when the case was called again the attorney was present but the defendant was not. The attorney said he spoke to the defendant and told him the matter would be continued. The Court held that this was good cause to continue the matter without forfeiting the bail bond at that time. Second, the surety argued that the warrant was not entered in the National Crime Information System. The evidence, however, showed that it was entered, and in any case the surety failed to prove that the alleged absence of the warrant prevented it from recovering the defendant. Third, the surety claimed it had no evidence it received notice of the forfeiture, but the record included the clerk's sworn declaration of mailing. The court noted that the statute requires only the notice be mailed, and stated "The surety's failure to keep adequate records is not a ground for vacating the forfeiture." In The People v. Ranger Insurance Co., 2004 WL (Cal. App. April 14, 2004) the bonds were forfeited in July At the time the custom was that the court had a 30 day "grace period" in which to rule on a timely motion to extend the 180 day period in which the forfeiture could be set aside. At the surety's request, two extensions were granted after the original period had expired. The defendant did not appear, and summary judgment was eventually granted on the forfeitures. In 1998 the courts decided there was no grace period and the extension had to be granted before the original 180 day period expired (the 30 day grace period has since been restored by statute). The surety then claimed that the trial court did not have jurisdiction to grant summary judgment on its bonds because the judgment was not entered within 90 days of the expiration of the original 180 day period even though it was within 90 days of the expiration of the erroneously extended period. The trial court rejected the surety's argument, and in a prior decision, the Court of Appeals held that the surety was correct and the judgment invalid but remanded the case for the trial court to determine whether the surety was equitably estopped to assert the invalidity since it was the party which procured the extension. After remand, the trail court lost the file and the case sat for several years. The surety moved to dismiss for want of prosecution. The Court of Appeals affirmed the trial court's denial of the motion and its finding that the surety was equitably estopped to assert the invalidity of the original summary judgment. In People v. Seneca Insurance Company, 2004 WL (Cal. App. May 26, 2004) the defendant failed to appear for arraignment but no complaint had been filed and the arraignment was continued. He also failed to appear on the new date, and the bond was forfeited. The clerk, however, mailed the bail agent's notice of forfeiture to the wrong 17

18 address. The state represented that the bail agent was present in court, however, and thus received actual notice of the forfeiture. The appeal decided three issues. First, the court held that the failure to forfeit the bond at the first non-appearance was not a defense because the arraignment could not have gone forward so the defendant's presence was not lawfully required. Second, the court held that the defendant was not entitled to notice of the continued date since it was stated in open court on the first date and he should not profit by his failure to appear. Third, the statute, Cal. Penal Code 1305(b), requires written notice to the bail agent and surety, and there was no dispute that the bail agent did not receive written notice because of the clerk's error in addressing the envelope. Actual, but not written, notice does not satisfy the statutory requirement. The court, therefore, reversed the judgment and held that the surety's motion to vacate the forfeiture and exonerate the bond should have been granted. In People v. Accredited Surety and Casualty Co., 2004 WL (Cal. App. June 3, 2004) the surety timely moved to set aside forfeiture and exonerate the bond and in support relied on an Albanian certificate showing that the defendant died. The government relied on a witness, an alleged expert on the Albanian criminal gang of which the defendant was a member, who testified that in his opinion the death certificate was false. The government also submitted letters from Interpol indicating that the defendant was alive at times after the death certificate indicated he was dead. The Court of Appeals held that the surety had not met its burden to show that the trial court abused its discretion in refusing to set aside the forfeiture, in part because the record did not include a transcript of the expert s testimony so the Court could not review the trial court s decision to believe it. [Not published.] In People v. American Contractors Indemnity Company, 2004 WL (Cal. App. June 24, 2004) the surety sought relief from forfeiture because within 185 days of mailing of the notice of forfeiture the defendant voluntarily appeared in the clerk s office and had a new court date set. When he did not appear for the new date, no new forfeiture was entered. The Court assumed, without deciding, that appearing in the clerk s office was appearing in court within the meaning of Cal. Penal Code 1305(c)(1). It nevertheless refused to set aside the forfeiture because it found that the record before it on appeal failed to establish the defendant had personally appeared. The surety had the burden of establishing a basis to reverse the trail court, and the factual record was inadequate to do so. [Not published]. County of Los Angeles v. Granite State Insurance Company, 2004 WL (Cal. App. June 30, 2004) held that the surety's motion to set aside summary judgment and exonerate the bond should have been granted. The defendant failed to appear on February 13, 2001, and the judge issued a bench warrant and forfeited the bond. Inexplicably, the clerk's minute order said the bond was not forfeited and the bench warrant held until March 6. On March 6 the defendant did not appear and the bench warrant was issued and the bail bond again forfeited. This time the clerk mailed a notice to the surety on March 9 but the notice specified only the March 6 forfeiture. Cal. Penal Code 1305(b) requires that the surety shall be released if notice of forfeiture is not mailed within 30 days after entry of the forfeiture. The Court held that the clerk could 18

19 not overrule the judge and the forfeiture occurred on February 13 and the March 9 notice, although mailed within 30 days, could not be stretched to encompass the February 13 forfeiture. [Not published]. People v. American Contractors Indemnity Company, 2004 WL (Cal. App. July 12, 2004) acknowledged that the trial court erred in entering summary judgment on a bail bond forfeiture before ruling on the surety's timely motion to vacate the forfeiture. The Court of Appeals nevertheless refused to reverse the trial court's denial of the surety's motion to set aside the summary judgment. The Court noted that the motion to vacate was heard and denied on its merits a few days after the summary judgment was granted and held that while the surety could have appealed from the erroneous summary judgment it could not show exceptional circumstances justifying a collateral attack on the judgment via the motion to set it aside. [Not published]. People v. American Contractors Indemnity Co., 16 Cal. Rptr.3d 76, 93 P.3d 1020 (Cal. 2004) is a rare California Supreme Court decision on a bail bond issue. The trial court entered summary judgment against the surety on the 185 th day after the notice of forfeiture was mailed. The summary judgment was therefore premature. The surety, however, did not move to set it aside before it became final or file an appeal (either of which would have alerted the government and the court to the error and allowed them to correct it). Instead, the surety waited until it was too late to enter a new summary judgment and then filed a motion to set aside the summary judgment, discharge the forfeiture and exonerate the bond. If the summary judgment were void, the surety would prevail. The Supreme Court, however, held that the summary judgment was only voidable. That is, the trail court had jurisdiction over the parties and the subject matter but acted in excess of its statutory jurisdiction by entering the judgment prior to expiration of the 185 day appearance period. The Supreme Court held that a voidable judgment must be timely attacked by a motion to set aside before it becomes final or an appeal, and that it is not subject to collateral attack by an untimely motion to set it aside unless special circumstances prevented a timely motion or appeal. Here there were no such special circumstances, so the surety's untimely motion to set aside the erroneous summary judgment was properly denied. [Published]. People v. Lexington National Ins. Co., 2004 WL (Cal. App. July 27, 2004) allowed the bail agent to appeal in the surety's name but denied relief from the bail forfeiture. The defendant pled guilty and bail was continued pending sentencing. The court warned the defendant that he faced a substantially longer sentence if he failed to appear and indicated that it wanted the bail agent to agree that the bail continued in force. The bail agent did not agree, and the defendant did not appear for sentencing. The Court of Appeals held that the guilty plea, unlike a conviction after trial, did not require the court to remand the defendant into custody unless it made certain specific findings. The fact that the trial court apparently was confused or had doubts and wanted the bail agent's consent did not change the statutory procedure. The failure of the bail agent to consent to continuation of the bail was not a constructive surrender of the defendant. 19

20 People v. Safety National Casualty Co., 2004 WL (Cal. App. August 18, 2004) held that the surety was not entitled to have the forfeiture set aside and its bond exonerated. The defendant fled to Korea where a representative of the surety located him and took him to a local police station. The issue was whether the prosecutor elected not to seek extradition, which is one of the elements that Penal Code 1305(g) requires. The prosecutor did not act quickly, but eventually initiated an extradition request. The court held that even if inactivity can equal an election not to seek extradition, the trial court s finding that the prosecutor did elect to seek extradition was supported by substantial evidence. [Not published]. In People v. National Automobile and Casualty Insurance Company, 18 Cal. Rptr.3d 357 (Cal. App. 2004) the parties wanted to continue a motions hearing. The trial court agreed, but instead of simply continuing the hearing date, it said that the defendant and his counsel need not appear but left the case on the docket for the original date and at that time purported to forfeit the bond but took the forfeiture and a bench warrant under advisement. When the defendant appeared at the agreed-upon continued date, the court purported to vacate the forfeiture and reinstate the bond. After various other proceedings, the defendant failed to appear for sentencing, and the court forfeited the bond. The surety argued that the court had no jurisdiction to forfeit the bond at the sentencing because no notice was given of the purported forfeiture on the original date for the motions hearing and no prior notice was given when the bond was reinstated. The Court of Appeals held that once the defendant was excused from appearing on the date the motion was originally to be heard, his presence was not "lawfully required" within the meaning of Penal Code 1305(a) and therefore the bond could not be forfeited for his failure to appear and therefore the court did not have jurisdiction to declare a forfeiture, and its purported forfeiture was void. Since the bond was not actually forfeited, it could not be reinstated when the defendant appeared for the continued motions hearing. Thus, no notice to the surety was required. In effect, the Court of Appeals disregarded the trial court's procedural errors in purportedly forfeiting and reinstating the bond, and looked at the actual substance of the events which was a simple continuance of the hearing. In County of Los Angeles v. Lexington National Ins. Co., 2004 WL (Cal. App. October 28, 2004) the surety obtained the one permitted extension of the 180 day period to surrender the defendant and avoid a summary judgment on the bond forfeiture. For some reason, the court on its own granted another extension and entered summary judgment after expiration of this second extension. The Court of Appeals reversed and remanded for entry of an order exonerating the bond because the summary judgment was not entered within 90 days after the proper extension expired and, therefore, the bond was exonerated by statute. [ Not Published]. People v. Heritage Bail Bonds, 2004 WL (Cal. App. November 15, 2004) rejected an attempt by sureties that had prevailed in an earlier appeal to recover their attorneys fees as a part of the "costs" awarded to the prevailing party. [Not published.] 20