People v. National Automobile & Casualty Insurance

A surety appeals from an order denying its motion to vacate forfeiture of a bond. The sole issue on appeal is whether the failure to declare the bond forfeited in open court as required by Penal Code section 1305, subdivision (a) exonerates the bond. We answer the question in the affirmative. Accordingly, we reverse the order and remand to the trial court with directions to vacate the forfeiture and exonerate the bond.

Facts and Proceedings Below

On July 13, 1999, Bert Potter Bail Bonds, as an agent for appellant National Automobile and Casualty Insurance Company (National), posted a $50,000 bond for the release of one Gabriel Galvan from custody. On November 1, 1999, the defendant failed to appear at a scheduled court hearing without sufficient excuse. The record reflects the following occurred in open court: “People versus Galvan. HQ He’s failed to appear. It’s 9:35. HQ At counsel’s request, the warrant is going to be issued and held. HQ Bail status is revoked. No bail warrant is issued. It will be held here until the 9th ”

At a recess the clerk asked the court whether bail was forfeited. The judge said, “yes.” The minute order the clerk prepared for the day states,…