Where Reporter’s Transcript Does Not Reflect Declaration Of Forfeiture In Open Court, Bond Must Be Exonerated
In The People v. Bankers Insurance Company, No. C060243 (March 2), Bankers posted a bond on behalf of a criminal defendant. The defendant then failed to appear in court. The court minutes reflected that bail was ordered forfeited at that time. However, the reporter’s transcript did not a reflect a declaration of forfeiture in open court. Bankers appealed, contending that the bond was not declared forfeited in open court as required, and, therefore, the bond should be exonerated. The Court of Appeal agreed.
Penal Code Section Section 1305 (a) provides: “(a) A court shall in open court declare forfeited the undertaking of bail…” This is interpreted to mean that where such declaration is not made the court no longer retains “statutory control and jurisdiction over the bond,” and the bond is exonerated by operation of law. See People v. Amwest Surety Insurance Co. (2004) 125 Cal. App. 4th 547, 554. Here the record before the appellate court was not silent on whether the declaration was made in open court. The record might be in conflict on that issue, but the reporter’s transcript should take precedence, the Court held, over the clerk’s minutes. The reporter’s transcript reflects, the Court found, everything that took place at the time of the hearing. There is no suggestion in the transcript that anything took place outside the reporter’s hearing. Accordingly, the appellate court found, there was no reason to believe there had been the required declaration in open court.
March 2, 2010
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