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People v. Surety Insurance Co.2/11/1983
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
Civ. No. 28240
1983.CA.41090 ; 139 Cal. App. 3d 848; 189 Cal. Rptr. 89
February 11, 1983
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SURETY INSURANCE COMPANY, DEFENDANT AND APPELLANT
Superior Court of Orange County, No. C 45632, Kenneth E. Lae, Judge.
Mazo, Crystal & Vidor and Paul M. Vidor for Defendant and Appellant.
Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, William W. Bedsworth and James P. Cloninger, Deputy District Attorneys, for Plaintiff and Respondent.
Opinion by Butler, J., with Brown (Gerald), P. J., and Wiener, J., concurring.
Butler
Defendant Pedro Barajas Peres was charged with others in the municipal court in case number 80CF01002 for violation of Penal Code section 182, conspiracy to commit a crime. Appellant Surety Insurance Company (Surety) posted a bail bond for $100,000 on his behalf.
The day of the preliminary hearing, case number 80CF01001 was dismissed, the defendants discharged, immediately rearrested and charged on a new complaint, case number 80CF01065, alleging the same offense. The bail bond posted by Surety under the first complaint was transferred to the new case. Notice of the bail bond transfer was not given to Surety.
Peres was bound over to the superior court. He failed to appear for trial. The bail was forfeited. A motion to set aside the forfeiture and exonerate the bail was denied. This appeal ensued.
Section 1303, applicable here, provides: "If an action or proceeding against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal. If, within such period, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense. If an undertaking of bail is on file, the clerk of the court shall promptly mail notice to the surety on the bond and the bail agent who posted the bond whenever the bail
is applied to a public offense pursuant to this section." (Italics added.) The original action against Peres was dismissed. Within 15 days, he was charged with the same offense in a second case. The bail was applied to the second case. The clerk failed to give notice to Surety or the bail agent of the transfer of the bond to the second case.
Surety contends this lack of notice voids the transfer and exonerates the bond.
Section 1303 does not deal with the consequences of noncompliance with the notice requirement. Surety argues People v. Resolute Ins. Co. (1975) 50 Cal. App. 3d 433 [123 Cal. Rptr. 246], supports its contention. There, the defendant, Salazar, was arrested on a complaint charging narcotic violations. Bail was posted. Later, the grand jury indicted Salazar on the same charges, and added a conspiracy count. The bail was transferred to the indictment. The clerk did not give notice of the transfer. Salazar failed to appear at trial, and the court ordered the bail forfeited.
On appeal, the surety argued the failure to notify as required by section 1303 precluded a forfeiture of bail. The appellate court
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