I didn't think there'd be a dissent to this one.
The trial court declares the defendant's bond forfeited when his attorney shows up a little late to a hearing. The attorney had called in, telling the clerk that he'd be there in 45 minutes, but didn't leave his name. The attorney walked in five minutes after the court declared the bond forfeited, so the trial judge corrected the forfeiture. No blood, no foul.
Three months later, the defendant skips. The bond is ordered forfeited. But the surety says that it's entitled to its money back because the trial court forfeited the bond earlier, and wasn't allowed to change that decision five minutes later without providing notice to the surety.
The Court of Appeal, like the trial court, disagrees. It doesn't make any sense, Justice Danner says, to stop the trial court from correcting straightforward errors in the forfeiture process five minutes after they've transpired. If the lawyer was a little late (especially if he had an excuse), and the "forfeiture" box was never entered in the minutes and corrected during the same court session, that event should not have any significance -- much less a dispositive one that allows the surety to avoid its obligation in the event the defendant flees.
It's a common sense ruling.
But Justice Mihara dissents.
It's not that Justice Mihara doesn't have a point. The statute does say that you've got to give the surety notice once you forfeit a bond in open court. And there's an argument that this makes sense even for a lawyer being five minutes late; it give the surety the opportunity to "reassess" the flight risk of the defendant (and, arguably, the competence of counsel).
So there's an argument. Backed up by precedent.
But it's a weak one. Or at least weaker, in my view, than the arguments the other way. Particularly when the trial court makes mistakes; let's say, for example, that the defendant was there, and the trial court declared the bond forfeited, but it was a mistake, which the trial court realized ten seconds later (e.g., the defendant said "Here," but the trial court didn't hear him, and declared the bond forfeited, only to reinstate it seconds later when the defendant said "But I said I'm here!" and the trial court said "Oh, sorry, my bad, I didn't hear you.") Under Justice Mihara's view, you're under a mandatory duty to notify the surety -- even after the correction -- and if you don't, the bond can't be forfeited even if the defendant later skips. Doesn't make sense. Ditto for the situation here.
So Justice Danner writes a common sense opinion. As to which I'm on board.
Makes justice better.
