People v. American Surety Co. CA2/6 ( 2022 )

Filed 1/27/22 P. v. American Surety Co. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Civil No. B311899
(Super. Ct. No. 56-2020-
Plaintiff and Respondent, 00541778-CU-BC-VTA)
(Ventura County)
v.
AMERICAN SURETY
COMPANY,
Defendant and Appellant.
American Surety Company (American Surety) appeals from
an order denying its motion to set aside summary judgment on
forfeiture of a bail bond. American Surety ignores the basis of
the trial court’s ruling and omits material trial court filings from
the record. This precludes us from considering the appeal’s
merits. Had we done so, we would have rejected the surety’s
challenges to California’s consent judgment procedures as
contrary to clear, prevailing authority. Judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The Ventura County District Attorney charged Cristian
Otega Cruz with transporting or selling methamphetamine on
November 1, 2018.1 Cruz pleaded not guilty. The trial court
remanded him to custody in lieu of bail in the amount of
$100,000. Trust of Bankers, a different surety than appellant,
posted a bond for Cruz’s release shortly after his bail review
hearing on November 5. Cruz failed to appear for the
preliminary hearing. The court ordered the bond forfeited, issued
a warrant, and set bail at $125,000. Cruz promptly returned to
custody. The court exonerated the Trust of Bankers bond and
again remanded him to custody in lieu of bail. The court reduced
bail to $100,000 over the People’s objection at a second review
hearing. American Surety posted the bond at issue in December
2018.
Cruz failed to appear at the pre-trial conference in March of
2019. The court ordered his bond forfeited and directed the clerk
to mail notice of forfeiture to American Surety. Respondent
County of Ventura (County) filed this case on June 10, 2020. The
court entered summary judgment against American Surety in the
amount of $100,000 plus costs. (Pen. Code, § 1306, subd. (a).2)
American Surety moved to vacate summary judgment
under section 1305.4 in December of 2020. The court denied the
motion on January 26, 2021. American Surety then moved to set
aside the summary judgment contending the court lacked
jurisdiction to enter judgment because it set bail at an
unconstitutional amount. The court denied the motion as an
1 Superior Court, County of Ventura case no. 2018037637.
2 We cite the Penal Code unless otherwise noted.
2
improper motion for reconsideration on April 8, 2021. American
Surety appeals the April 8 order. (See People v. International
Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592 [orders denying
section 1305 motions to vacate appealable].)
DISCUSSION
Timeliness of Appeal
The County asserts the appeal is untimely because it was
filed more than 60 days after the court denied the surety’s first
motion on January 26, 2021. American Surety does not respond
to this challenge in its reply briefing. Nevertheless, we conclude
the appeal is timely. The parties waived notice of the court’s
ruling on January 26. A 180-day appeal period thus applies,
making the April 23 appeal timely by any calculation. (See Cal.
Rules of Court, rule 8.104(a)(3).)3
Adequacy of Record on Appeal
American Surety sidesteps the crux of the trial court’s
April 8 ruling, i.e., that the motion to set aside was an improper
motion to reconsider the December 2020 motion to vacate. It
makes no mention of the prior motion in its briefs and omits the
moving and opposition papers from the record. This precludes
any meaningful review of the April 8 order. We assume the trial
court ruled correctly in the absence of a complete record. (See
Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“a trial court
judgment is ordinarily presumed to be correct and the burden is
3 Rule 8.104(a)(3) states: “If the parties stipulated in the
trial court under Code of Civil Procedure section 1019.5 to waive
notice of the court order being appealed, the time to appeal under
(1)(C) [i.e., 180 days] applies unless the court or a party serves
notice of entry of judgment or a filed-endorsed copy of the
judgment to start the time period under (1)(A) or (B).”
3
on an appellant to demonstrate, on the basis of the record
presented to the appellate court, that the trial court committed
an error that justifies reversal of the judgment”].) Summary
judgment is affirmed on these grounds.
Entry of Summary Judgment on Bail Forfeiture
What we can glean from the sparse record and American
Surety’s arguments confirms an affirmance on the merits as well.
We review orders denying motions to set aside summary
judgment and to vacate forfeiture de novo where, as here, the
parties do not dispute the material facts. (In re Taylor (2015) 60
Cal.4th 1019, 1035.)
A bail bond surety consents to entry of judgment in the
state’s favor in the event the defendant fails to appear in court as
required. The trial court must declare bail forfeited in open court
and direct the clerk to notify the bail agent and surety. (§ 1305,
subd. (a).) The bail agent or surety then has 180 days (plus five
days for mailing – the “appearance period”) to move to vacate
forfeiture or to seek an extension of time. (Id., subds. (b), (c), (d),
(j); People v. American Contractors Indemnity Co. (2004) 33
Cal.4th 653, 658.) The trial court enters summary judgment
against the surety in the amount of the bail bond, plus costs, if
the appearance period elapses without the forfeiture being set
aside. (§ 1306, subd. (a).)
American Surety contends the “sum certain” nature of
California’s bail forfeiture statutes violate the excessive fines
prohibitions of the Eighth Amendment of the United States
Constitution and article I, section 17 of the California
Constitution. The amount of bail for which a criminal defendant
posts bond, it reasons, is typically based on the offenses listed in
the arresting officer’s report. Forfeiture may occur months or
4
years later, at which time the court enters judgment against the
surety for 100 percent of the bonded amount without analyzing
the circumstances of the forfeiture or the potential financial
impact on the “innocent indemnitors” who pledged their assets to
obtain the bond. American Surety proposes we invalidate the
Penal Code’s consent judgment provisions and require courts to
hold post-forfeiture hearings at which the state bears the burden
of proving: (1) the appropriate forfeiture penalty, up to the face
value of the bond; and (2) the ability of the defendant to pay that
penalty pursuant to In re Humphrey (2021) 11 Cal.5th 135.
Identical arguments were rejected in: People v. The North
River Ins. Co. (2020) 48 Cal.App.5th 226 (Second District); People
v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891(Third District); and People v. Accredited Surety & Casualty Co.
(2021) 65 Cal.App.5th 122 (Fifth District). We join the list of
reviewing courts confirming a Humphrey violation does not void
judgment against a surety entered pursuant to the bail forfeiture
statutes. (See The North River Ins. Co., at p. 235 [“The
independence of bail proceedings from the underlying criminal
prosecution is why any noncompliance with Humphrey during the
prosecution does not affect—let alone eviscerate—the trial court’s
jurisdiction over the collateral bail proceedings”].) The point is
moot. The court twice reviewed bail and rebuffed the prosecutor’s
request to increase the amount from $100,000 to $125,000 despite
Cruz’s failing to appear at his preliminary examination. The lack
of a reporter’s transcript from all but one of the hearings leaves
us to speculate whether Cruz or his counsel ever objected to the
amount of bail as too high, much less constitutionally excessive.
American Surety’s calls for us to align California’s bail
forfeiture statutes with its civil forfeiture statutes are more
5
wisely directed to the Legislature. We decline to enact specific
and structural political reforms in the guise of constitutional fiat.
(See, e.g., Schabarum v. California Legislature (1998) 60
Cal.App.4th 1205, 1213, quoting Japan Whaling Assn. v.
American Cetacean Soc. (1986) 478 U.S. 221, 230 [92 L. Ed. 2d
166] [“‘The political question doctrine excludes from judicial
review those controversies which revolve around policy choices
and value determinations constitutionally committed for
resolution to the [legislative and executive branches]’”].)
DISPOSITION
Judgment is affirmed. County shall recover its costs.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
6
Ronda McKaig, Judge
Superior Court County of Ventura
______________________________
Law Office of John Rorabaugh, John M. Rorabaugh, for
Defendant and Appellant.
Tiffany N. North, County Counsel, and Sean A. Perez,
Assistant County Counsel, for Plaintiff and Respondent.
7