PEOPLE v. AMERICAN SUR. CO. Case No.: CPF-15-514545
Attorneys for Bail Agency: JOHN M. RORABAUGH, #178366, E. ALAN NUNEZ, #062288, ROBERT TOMLIN WHITE, #222504, ADAM SOSTRIN, #233908, Attorneys at Law, Santa Ana, California, Attorney for Defendant, AMERICAN SURETY COMPANY.
On or about November 22, 2014, Bail Now Bail Bonds posted bond number AS50-171931 as an agent of American Surety Company, Inc. for the release of the defendant from custody. (See Exhibit “A” Bail Bond, attached hereto)
On March 17, 2015, the defendant was not present in court. The notice of forfeiture reflects that bail was ordered forfeited.
On March 25, 2015 the defendant was arrested in Napa County. A hold on this case was placed against the defendant. (See Exhibit “D” Napa County Booking Report)
The court file contains a notice of forfeiture with a certificate of mailing signed by the clerk of the court on April 7, 2015.(See Exhibit “E” Notice of Forfeiture, attached hereto)
On August 21, 2015 a claims manager Elizabeth Herrera for the general agent Peninsular Surety Company in Florida received a vine link report showing the defendant in custody in Napa County. The claims [*2] manager believed that the arrest of the defendant in California automatically exonerated the bond and the forfeiture was removed from the open forfeiture report and listed as exonerated. (see Exhibit “F” declaration of Elizabeth Herrera; see also exhibit “G” vine link report; see also Exhibit “H” Forfeiture Report)
On October 23, 2015, the clerk of the court mailed a notice of summary judgment to the bail agent and the Surety. (See Exhibit “I” Notice of Summary Judgment, attached hereto)
ARGUMENT BY BAIL AGENCY
THE COURT SHOULD EXONERATE BAIL PURSUANT TO PENAL CODE § 1305(c)(3)
“If, outside the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, the court shall vacate the forfeiture and exonerate the bail.” 1 [*3]
“As used in this section, “arrest” includes a hold placed on the defendant in the underlying case while he or she is in custody on other charges.”
- “(b)Upon a showing of good cause, a motion brought pursuant to paragraph (3) of subdivision (c) of Section1305 may be filed within 20 days from the mailing of the notice of entry of judgment under Section 1306.”
Penal Code section 1305(c)(3) requires, in mandatory terms, that the court exonerate bail where a defendant has been arrested in the underlying case outside the county where the case is located. Penal Code section 1305(h) confirms that a hold placed on the defendant is an arrest on the underlying case. Penal Code Section 1305.6(b) allows a bondsman to file a motion within twenty days of the mailing of the notice of entry of summary judgment.
“The forgoing authorities support the concept that bail is in lieu of custody and the reason for bail, ceases to exist when the principal is in official custody. The principal’s amenability to the court’s process is out of the surety’s control and logically out its realm of responsibility.” People v. Amwest Surety Ins. Co., (1986) 180 Cal.App.3d 444, 448. [*4]
In the present case the defendant was arrested on the underlying case in Napa County on March 25, 2015, a hold was placed against him on the warrant issued in the in this case. On August 21, 2015 a claims manager for the supervising bail agent Peninsular bail bonds in Florida received a vine link report showing the defendant in custody in Napa County. This claims manager believed that the arrest of the defendant in California automatically exonerated bail. The claims manager removed the forfeiture from her active forfeiture list and entered the bond as exonerated.
Penal Code section 1305.6 allows for a bondsman to file a motion could section 1305 (C)(3) up to 20 days after the mailing of the notice of entry of judgment. In People vs Accredited (2014) 230 Cal. App.4th 548
Because extension available under subdivision (b) of section 1305.6 is shorter and narrower, we conclude that provision’s “good cause” requirement requires a lesser showing than the good cause requirement in section 1305.4. The justification for a relatively short, narrow extension need not be as demanding as the justification for an extension that doubles the length of the appearance period. [*5] People vs Accredited (2014) 230 Cal. App.4th 548
Since the defendant was arrested and a hold on this case well within the appearance period, all of the elements of Penal Code § 1305(c)(3) have been met in this case. The out of state claims manager for the general agent discovered that the defendant was in custody during the original 185 day period and entered the bond as exonerated based on her mistaken understanding that bail was automatically exonerated in California upon the arrest of the defendant. In fact the automatic exoneration only applies to arrests of the defendant within the county where the defendant was bailed (see Penal Code section 1305(C)(2)). This error by an out of state claims manager was a good faith mistake which resulted in a slight delay in the filing of the motion. Penal Code section 1305.6(b) was enacted to provide relief under these very circumstances.
The law disfavors forfeitures in general and bail forfeitures in particular. (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 714 [61 Cal.Rptr.3d 689, 161 P.3d 198].) Thus, as a general rule, the statutes governing bail are strictly construed to avoid [*6] forfeiture. (Ibid.) This policy of strict construction to avoid forfeitures protects the surety “and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody ….” (County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62 [208 Cal.Rptr. 263].)
WHEREFORE, it is respectfully requested that the court set aside summary judgment, vacate the forfeiture and exonerate bail.
Dated: November 18, 2015
John M. Rorabaugh, Attorney for Defendant
AMERICAN SURETY COMPANY