People v. Amwest Surety Insurance
Opinion
Opinion
Boland, J.
SUMMARY
When the trial court fails to declare a bail bond forfeited on the record in open court, the bond is exonerated and the court loses jurisdiction over the bond. The court’s later entry of summary judgment on the bond is void, not merely voidable, and is subject to collateral attack at any time. These principles require reversal of the trial court’s order refusing to set aside the summary judgment entered in this case.
FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 1999, Amwest Surety Insurance Company issued a $30,000 bail bond to secure the release of Julio Cesar Hernandez, a criminal defendant. On May 18, 1999, Hernandez failed to appear in court. The record does not demonstrate that the trial court declared bail forfeited in open court, as required by Penal Code section 1305, subdivision (a). However, a bench warrant was issued, and the clerk’s minutes for the day state, “Bail ordered forfeited.” The clerk mailed notice of the forfeiture to the surety and the bail agent on June 2, 1999.
The surety filed a motion to extend the 180-day statutory “appearance” period, within which a surety may produce the accused in court or demonstrate other circumstances…