People v. Earhart

Opinion

This appeal has to do with the construction of a statute which deals with the forfeiture of bail, namely, Penal Code section 1305, subdivision (a). The appeal is from an • order denying a motion to set aside forfeiture of bail.

Two questions are presented on appeal: the first, whether the mailing of notice to the surety without mailing of a copy of the notice to the bail agent caused the release of the surety from obligations under the bond; and the second, whether motion for relief from the forfeiture must have been made by the surety within 180 days after the entry of forfeiture in the minutes.

Release of the Surety

The relevant part of the statute on this subject reads as follows: “If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court is lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes and the undertaking of bail, or the money deposited instead of bail, as the case may be, must thereupon be declared forfeited, and, if the amount of the forfeiture exceeds fifty dollars ($50), the clerk of the court shall, promptly upon entering the fact of such failure to appear in

We do not agree. The statute clearly says that if the clerk fails to mail such notice within 30 days after the entry of forfeiture the surety shall be released. The words “such notice” obviously refer to the notice described in the preceding sentence, namely, notice to the surety and to the bail agent. The fact that the sentence also says that it is not sufficient to mail notice to the bail agent by no means is equivalent to a statement that notice to the bail agent is not required. Indeed, the sentence gives rise to an inference that the Legislature realized that the clerk might well believe, were it not for this provision, that the essential thing to do is to notify the person who had direct contact with the accused and with the court. We do not find from the words of the statute a significant difference between the mailing of the original of the notice to the surety and a copy to the bail agent. The copy would give just as effective notice as would the original. The statute simply provides that the clerk need not prepare two original notices. If this were not the meaning, what could possibly be the significance of the mandate that the clerk mail notice to the bail agent? The provision has consequence only if the failure to carry out the mandate brings about the result declared in the very next sentence, that is, release of the surety.

A second reason for our construction of the statute is that one of the pur

A third reason is that the law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. (People v. United Bonding Ins. Co., 5 Cal.3d 898 , 906 [ 98 Cal.Rptr. 57 , 489 P.2d 1385 ].)

Timeliness of Motion

Section 1305, subdivision (a) further provides: “But if at any time within 180 days after such entry in the minutes or, if mailing of notice of forfeiture is required, within 180 days after mailing such notice of forfeiture, the defendant and his bail appear, and satisfactorily excuse the defendant’s neglect or show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail, the court shall direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.” It is argued by respondent that because the bail did not appear with defendant and satisfactorily excuse the defendant’s absence, the forfeiture cannot be set aside. But the provision for relief within the 180 days becomes applicable only if notice of forfeiture has been mailed. This notice, we have no doubt, means the notice required by the statute, that is, notice to both surety and bail agent. Although the surety upon receiving notice could inform the bail agent, the statute imposes no duty upon the surety to do so. It places the duty of mailing notice to the bail agent squarely upon the clerk of the court. Thirty days after the entry of forfeiture, the clerk having failed to mail the required notice, the surety automatically was released from its obligations. The court had no discretion thereafter in the matter of granting or denying relief from the forfeiture.