Posted 4/26/2015

On April 21 the California Court of Appeals for the Second District ordered publication of County of Los Angeles v. Financial Casualty & Surety, Inc., 2015 WL 1577129 (Cal.App. April 7, 2015).

Commonwealth v. Culver, Case Nos. 1765 EDA 2014 and 1766 EDA 2014 (Pa. Super. April 13, 2015) affirmed forfeiture of the sureties’ bonds.  The defendant was released on the first bond, arrested for a new crime and released on a second, larger bond posted by a different surety, and then arrested and convicted for new crimes committed while on release under the two bonds.  After several prior decisions and the Pennsylvania Supreme Court decision in Commonwealth v. Hann, 81 A.3d 57 (Pa. 2013), the trial court held a new forfeiture hearing and denied the sureties’ petitions to vacate the forfeitures and exonerate their bonds.  The Court affirmed.  The first surety argued that it was entitled to notice of the defendant’s second arrest.  The Court disagreed and held that the surety is obligated to supervise and inform itself of the defendant’s conduct and stated, “Seneca cites no authority to support its suggestion that the Commonwealth must notify sureties of the arrest of their own bailees, and this Court is unaware of any statute or jurisprudence requiring the trial court or the Commonwealth to monitor a surety’s bailee on its behalf.”

The Court held that the trial court correctly applied the factors set out in Hann and did not abuse its discretion in forfeiting the bonds.  The Court stated, “In short, the evidence revealed that, in pursuit of profit, Seneca and Evergreen took calculated business risks; they gambled on Culver’s compliance with his bail conditions and lost.” The breach cited by the Court was the commission of a new crime while on release from the first two charges.

In People v. Jones, 2015 WL 1608425 (Colo. April 6, 2015) the defendant was charged with commission of a felony while released on bond.  The trial court revoked his bond and ordered that he be held without bond pending resolution of the new charges.  The Court held both that the defendant was entitled to an expedited review of this decision and that he was entitled under the sufficient sureties clause of the Colorado Constitution to release on a possibly modified bond.  The trial court could take protection of the public into account in modifying the bond but could not deny bond altogether.  The Court stated, “Because section 105(3) merely empowered the district court to have Jones brought before it for purposes of modifying the conditions of his pretrial release, the district court erred in revoking his existing bond and denying him a right to pretrial release altogether.”

In County of Los Angeles v. Financial Casualty & Surety, Inc., Case No. B251223 (Cal.App. April 7, 2015) the surety filed a timely motion to vacate the forfeiture and exonerate the bond on the ground that the defendant was under permanent disability within the meaning of Penal Code §1305(d) because he had been deported.  The County did not oppose the motion, and the surety’s attorney went to court on the day the motion was scheduled but left after the clerk allegedly told him the motion had been granted.  When the case was called and no one appeared for the surety, the court took the matter off of the calendar.  Subsequently, the court entered summary judgment and denied the surety’s motion pursuant to Code of Civ. Proc. §473(b) to set aside the judgment based on its attorney’s mistake, surprise, inadvertence and excusable neglect.  The surety appealed and the Court held that the §473(b) motion should have been granted.  The Court reversed denial to the §473(b) motion and remanded the case with directions to consider the merits of the surety’s motion to vacate the forfeiture and exonerate the bond.  [Not Published].

On April 21 the California Court of Appeals for the Second District ordered publication of County of Los Angeles v. Financial Casualty & Surety, Inc., 2015 WL 1577129 (Cal.App. April 7, 2015).

In State v. Burgins, Case No. 2014-2110 (Tenn. April 7, 2015) the Tennessee Supreme Court reversed the Court of Appeals decision reported at 2014 WL 6792690 (Tenn.Crim.App. December 3, 2014) and held that the right to bail under the Tennessee Constitution is not absolute and a defendant may forfeit her right to bail by her subsequent criminal conduct.  The defendant was charged with misdemeanor marijuana possession and released on bond.  While released, she was charged with several serious, violent felonies including attempted first degree murder.  The trial court revoked her bail and ordered her held without bond pursuant to Tenn. Code §40-11-141(b) which provided that if a defendant released on bond is charged with an offense committed while released, “the court may revoke and terminate the defendant’s bond and order the defendant held without bail pending trial or without release pending trial.”  The Court of Appeals held that §40-11-141(b) and denial of bond to the defendant violated the sufficient sureties clause of the Tennessee Constitution, Tenn. Const. Art. 1, §15.  The Supreme Court disagreed.

In County of Los Angeles v. Williamsburg National Insurance Co., Case No. B251811 (Cal.App. April 3, 2015) the surety filed a timely second motion to extend the appearance period (the first extension had been for 169 days, and when the second motion was filed the surety could have received a maximum of 9 additional days).  The trial court denied the motion the day it was filed without holding a hearing.  The minute order stated that no good cause was set forth in the moving papers.  After entry of summary judgment, the surety appealed denial of its second motion for an extension.  The Court held that under Penal Code §1305.4 the surety had a right to a hearing on its motion.  The Court reasoned that in light of the statutory references to the motion to being heard and calendered, “the Legislature intended the court to schedule an oral hearing at which time the parties would have a right to appear and argue their case for or against an extension . . . .”  The Court found support for this conclusion in the fact that such a hearing could be the surety’s only opportunity to be heard before the essentially automatic process resulting in a summary judgment and in the accepted rule that statutes governing bail bonds should be strictly construed to avoid a forfeiture.  The Court remanded the case with instructions to vacate the summary judgment, strike the Order denying the surety’s second motion for an extension of the appearance period, and hold a hearing on the surety’s motion.  If the trial court finds good cause, it will be able to extend the appearance period for up to 9 days from the date of its order.  If it does not find good cause, the appearance period will have expired on the date of the order.  [This would seem to result in an appearance period of over two years and eight months, i.e. at a minimum from the original notice mailed on July 23, 2012 to the date of the trial court’s order after remand and a hearing.]  [Published].