Posted 10/24/2015

In County of Los Angeles v. Financial Casualty & Surety, Inc., 2015 WL 5439706 (Cal.App. September 16, 2015) the defendant was arraigned on November 29, 2012 but had not yet posted bond.  The court set January 3, 2013 for a pretrial conference but did not order the defendant to appear on that date.  The defendant posted bond on December 19, and the bond form stated that she was ordered to appear on January 3.  She did not appear on January 3 and was not recovered during the extended appearance period.  The trial court entered a timely summary judgment but granted the surety’s motion to set the judgment aside because the defendant’s appearance was not “lawfully required” on January 3 within the meaning of Penal Code §1305(a)(1).  The issue before the Court was whether the date on the bond amounted to a court order for the defendant to appear.  The Court held, “writing the date of the hearing on the bond does not meant the defendant is ‘lawfully required’ to appear for purposed of forfeiting bail under section 1305.”  The Court affirmed the trial court’s order setting aside the forfeiture and judgment.  The Court did not consider the issue of whether Penal Code §977(b) could be used to establish that the felony defendant was lawfully required to appear.  That issue is pending in two cases before the California Supreme Court.  [Published].

In State v. Atkins, 2015 WL 5575237 (Mo.App. September 22, 2015) the defendant failed to appear and the state moved for forfeiture of the bond.  The surety requested 60 days to apprehend and surrender the defendant.  The trial court denied the surety’s request and entered a default judgment against the surety for the amount of the bond.  Ten days after entry of the default judgment, the surety apprehended the defendant and surrendered him to the Department of Justice Services.  The trial court denied the surety’s motion to set aside the judgment, and the surety appealed.  The State did not oppose the surety’s appeal.  The Court found that what the trial court denominated a “default judgment” was properly an order of forfeiture and the surety had an opportunity to surrender the defendant until a proper final judgment was entered.  Here, the surety surrendered the defendant within 30 days following entry of the forfeiture, and the trial court erred in denying the surety’s motion to set aside the default judgment.  The Court reversed the judgment and remanded the case.

AAA Bonding Agency, Incorporated v. United States Department of Homeland Security, Case No. 4:05-cv-2159 (S.D.Tex. September 24, 2015) involved claims on immigration bonds.  The court granted the defendant DHS’s motion to voluntarily dismiss its counterclaim in light of the Fifth Circuit’s decision, reported at 596 Fed.Appx. 294 (5th Cir. 2015), holding that DHS’s settlement and release of the surety on the bonds effectively released the bonding agent.   The court, however, declined to dismiss the bonding agent’s complaint and deferred ruling on the bonding agent’s motion to secure repayment of $1,008,310.51 which it had made pursuant to procedures agreed to during the course of the litigation but under an alleged mutual mistake of law.  DHS argued that the payments were made voluntarily.  The court gave the parties ten days to submit further briefing on the voluntary payment issue and which bonds, if any, were still before the court for purposes of final judgment.

Ex Parte Dixon, 2015 WL 5453313 (Tex.Crim.App. September 16, 2015) held in a 7-1 decision with one Justice not participating that the Court of Appeals erred in denying the defendant’s habeas corpus request to reduce his $10 million bail.  The defendant was arrested in July, 2012 and tried in October, 2014.  After three weeks of trial, the jury was unable to reach a verdict and the trial court declared a mistrial.  The defendant sought a bail reduction via a petition for habeas corpus.  At issue was the Constitutional right to bail that is not excessive as implemented by Tex. Code Crim. Proc. Art. 17.15. The Court held that the reviewing court must independently measure the trial court’s denial of relief against the relevant statutory criteria rather than merely review the trial court’s decision for an abuse of discretion.  In this case, the Court of Appeals erred by giving deference to the trial court because the judge hearing the habeas petition was the same as the judge who presided over the three week trial.  Upon measuring the facts against the relevant statutory bail criteria, the Court vacated the judgment of the Court of Appeals, set aside the trial court’s order, and reduced the defendant’s bail to $2 million.

In State v. Colletti, 2015 WL 6133025 (N.J.A.D. October 20, 2015) the surety, through its agent, appealed remission of only 10% of the $10,000 bond.  After the defendant failed to appear, the bond was forfeited and notice sent to the agent.  The surety eventually paid a default judgment. After the defendant was located in Florida, arrested there for another crime, and returned to New Jersey, the surety moved for partial remission.  The trial court held a plenary hearing on the motion but remitted only $1,000.  The Court vacated that order and remanded the case because the facts of record and the trial court’s explanation did not fully articulate the trial court’s reasoning or support the result.  It was not clear from the record whether the defendant committed a new crime while released, the basis for the trial court’s finding that the surety did not sufficiently undertake to recapture the defendant, and why the trial court thought that the maximum remission under Schedule 3 of the Guidelines was 10% when in fact Schedule 3 would permit from 10% to 40%.

In People v. Bankers Insurance Co., Case No. H041374 (Cal.App. October 21, 2015) the surety raised two arguments in its appeal of summary judgment on the bond.  The defendant was charged with a felony and was in court when a court date of February 19, 2013 was set, but the court did not explicitly order him to be present on that date.  The surety’s first argument was that his presence was not “lawfully required” under Penal Code §1305(a)(4).  The Court held that under Local Rule 3 and Penal Code §977(b)(1) the defendant’s presence was lawfully required unless he executed a written waiver (which this defendant had not) but noted that this issue was pending before the California Supreme Court in two cases and stated, “Until our Supreme Court holds otherwise, we find that the [sic.] Diaz’s failure to appear at the February 19, 2013 court date supports the trial court’s finding that bail had been forfeited.”

The surety also argued that because the defendant was released on “supervised own recognizance” (albeit conditioned on posting the bond) the bail bond was not valid.  The surety reasoned that the court’s imposition of various conditions on the defendant (such as not having contact with the victim of the alleged crime) meant he was in constructive custody and the bond was released.  The Court noted that the defendant was not taken back into custody after being released on the bond and held “The fact that Diaz’s supervised own recognizance was conditioned on his securing posting [sic.] bail did not invalidate the bond.”  The Court affirmed judgment against the surety.  [Not published].