People v. Surety Insurance

This appeal is from an order denying a surety’s motion to be relieved from a bail bond forfeiture. Defendant Levine did not appear on the date (Nov. 8, 1971) when his case was set for trial. His counsel reported information that Levine was detained in New York by federal authorities and requested a continuance until November 18th “to get it straightened out.” A bench warrant was issued but ordered held and the case was continued as requested. The clerk’s minutes for November 8, 1971, show only that “Defendant fails to appear . . . Bench Warrant issued.” There is no entry either forfeiting bail or reciting that appearance was excused. On November 18, 1971, Levine still not appearing, an order of forfeiture was entered. Thereafter the surety moved to vacate the forfeiture. That motion was denied and the present appeal followed. For the reasons set forth below, we reverse the order.

The applicable statute is section 1305 of the Penal Code which, in pertinent part, provides: “If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial . . . the court must direct the fact to be entered upon its minutes and the undertaking of bail . . . must…