IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION TWO

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION TWO Case No. PAUL MENCOS, and ALL THOSE SIMILARLY SITUATED, (San Bernardino County Superior Petitioner, Criminal Case No. 0805070361) v. MEMORANDUM OF POINTS AND AUTHORITIES SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF SAN BERNARDINO, VICTORVILLE DISTRICT Respondent, DISTRICT ATTORNEY FOR SAN BERNARDINO COUNTY Real Parties in Interest I. INTRODUCTION The issues presented by this Writ of Mandate are of great public importance to the administration of justice in the Superior Court of the State of California, County of San Bernardino, Victorville District and must be resolved promptly. The Petitioner and all those similarly situated have been arrested and charged with criminal offenses in this judicial district. These defendants have paid a premium to post a bond as required by Penal Code 9

1278. Petitioner and those similarly situated have been ordered to appear at a set time and place in the Superior Court of California, County of San Bernardino, Victorville District pursuant to Penal Code 1269(b) upon posting of the bail bond. Unless a criminal complaint has been filed at the time of the defendant s first appearance, set pursuant to Penal Code 1269(b), the court has recently enacted a policy to exonerate all of the Bail Bonds without affording the defendants a hearing, without notice and without allowing the defendants an opportunity to be heard. In order to bring this Writ of Mandate Petitioner specifically requested that his matter be heard in open court to make a record for the relief set forth herein. Prior to the enactment of this new policy, the defendants would be placed on calendar at the time set for their first appearance pursuant to Penal Code 1269(b). The defendant was given the opportunity to have his first appearance continued to allow the District Attorney to file charges if necessary and to continue the bond. In the alternative, the defendant could request that his bail bond be exonerated and the defendant would not be ordered to re-appear in court. If the defendant failed to appear the bond was ordered forfeited pursuant to Penal Code 1305. These proceedings were formerly held in open court. Under the new policy the defendants appearing in court for their first appearance wander the hallways looking for their name on a calendar. There is no calendar, their respective bail bonds are simply exonerated without a hearing, without notice and without an opportunity to be heard. There does not appear to be any statutory authority for the 10

exoneration of bail bonds under these circumstances (see Penal Code 1195 and Penal Code 1300-1304). Petitioner respectfully requests that this Honorable Court issue a Peremptory Writ commanding this Respondent Court to conduct a hearing in open court on all appearances set pursuant to Penal Code 1269(b) and to consider all requests by the defendants to not exonerate their bail bonds and to continue the arraignment. In exonerating the bail bonds the Respondent Court solely relies upon Penal Code 1305 (a)(5), which states: A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: (1) Arraignment. (2) Trial. (3) Judgement. (4) Any other occasion prior to the pronouncement of judgement if the defendant s presence in court is lawfully required. (5) To surrender himself or herself in execution of the judgement after appeal. However the court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligation under bond if the case is dismissed or if no complaint is filed within 15 days of the arraignment. The court s reliance upon this section is misplaced because Penal Code 1305 only applies to forfeiture of the bond for non appearance at the arraignment or some future court appearance. Therefore, the court has no authority to exonerate the Bail Bonds under 11

these circumstances. II. THE RESPONDENT COURT S NEW POLICY VIOLATES THESE PETITIONERS CONSTITUTIONAL RIGHT TO BE RELEASED ON BAIL, VIOLATES THESE PETITIONERS RIGHT TO BE PRESENT AT ALL STAGES OF THE PROCEEDINGS AND VIOLATES THESE PETITIONERS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW BECAUSE THE BAIL BONDS ARE EXONERATED WITHOUT NOTICE, WITHOUT A HEARING AND WITHOUT AN OPPORTUNITY TO BE HEARD The right to reasonable bail is contained in California Constitution Article 1 Section 12 which provides in part: A person shall be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. Petitioner Mencos, and all those similarly situated, have posted a bail bond to secure their liberty and have complied with the order to appear in court as set forth in their respective bail bonds notice to appear as required by Penal Code 1269 (b). By exonerating the Petitioners bond before charges have been filed, over Petitioner s objection, the Petitioners will be subject to a new arrest warrant, arrest and required to post a new bail bond to secure their freedom. A defendant deprived of liberty is deprived of a fundamental interest second only to life itself in terms of constitutional importance. 12

(VanAtta vs. Scott (1984) 27.Cal.3d.424,435) Article 1 Section 15 of the California Constitution provides every defendant with the right to be present at all stages of the criminal proceedings. The Petitioner and all those similarly situated were arrested without a warrant and were admitted to bail under the authority of Penal Code 1269 (b) which provides in pertinent part as follows: The officer in charge of a jail in which an arrested person is held in custody, an officer of a sheriff s department or police department of a city who is in charge of a jail or is employed at a fixed police or sheriff s facility and is acting under an agreement with the agency that keeps the jail in which an arrested person is held in custody, an employee of a sheriff s department or police department of a city who is assigned by the department to collect bail, the clerk of the superior court of the county in which the offense was alleged to have been committed, and the clerk of the superior court in which the case against the defendant is pending may approve and accept bail in the amount fixed by the warrant of arrest, schedule of bail, or order admitting to bail in cash or surety bond executed by a certified, admitted surety insurer as provided in the Insurance Code, to issue and sign an order for the release... Upon posting bail, the defendant or arrested person shall be discharged from custody as to the offense on which the bail is posted. All money and surety bonds so deposited with an officer authorized to receive bail shall be transmitted immediately to the judge or clerk of the court by which the order was made or warrant issued or bail schedule fixed. If, in the case of felonies, an indictment is filed, the judge or clerk of the court shall transmit all of the money and surety bonds to the clerk of the court. If a defendant or arrested person so released fails to appear at the time and in the court so ordered upon his or her release from custody, Sections 1305 and 1306 apply. Petitioner and all those similarly situated posted bail bonds in form required by Penal Code 1278. Petitioner Mencos bail bond which is attached as Exhibit A provides: 13

It is clear from the bail bond that the Petitioner was ordered to appear in court on June 16, 2008, at 8:00 a.m. on Penal Code 273.5 charges, and will at all times hold himself amenable to the orders and processes of the court, and if convicted will appear for pronouncement of judgement or grant of probation. Petitioner Mencos was allowed to appear in court to request a continuance and to object to the exoneration of his bond. However, this was not on the court s calendar, the 14

following proceedings were reported: The Clerk: Your Honor, is this on six or sevens calendar? The Court: It s nothing. It s something that Judge Nakata gave me. (Reporter Transcript, Page 1) It should be noted that the Honorable Eric Nakata is the Supervising Judge of the Respondent Court. None of the similarly situated persons were placed on calendar, heard in open court or provided an opportunity to be heard pursuant to the court s new policy. The Respondent Court afforded Petitioner Mencos a hearing in contravention of the court s new policy so that this Writ of Mandate could be presented with a sufficient record. The Respondent Court s new policy deprived all other similarly situated defendants from due process as required by the U.S. and California Constitutions by denying them notice that the court was about to exonerate their bonds, by denying them a hearing and by denying them an opportunity to be heard. Unless the Writ of Mandate is issued, the Respondent Court will continue to deprive defendants similarly situated with the right to continue on bail, with the right to be present in court, with the right to due process as set forth herein, if a complaint has not been filed at the time of their first appearance in court. 15

III. THE RESPONDENT COURT POLICY OF EXONERATING ALL BAIL BONDS IF NO COMPLAINTS HAVE BEEN FILED BEFORE DEFENDANT S FIRST COURT APPEARANCE SET PURSUANT TO PENAL CODE 1269 (b) CANNOT BE JUSTIFIED BY RELIANCE ON PENAL CODE 1305 The Respondent Court erroneously concluded that it does not have jurisdiction to continue the bail bond hearing if no complaint has been filed. Therefore the Respondent Court failed to exercise its discretion in Petitioner Mencos case. The Respondent Court abused its discretion by not continuing Petitioner s bail bond appearance solely because of its new policy. The entire transcript of the proceeding is reprinted herein. THE COURT: Anything else ready? On Paul Mencos. MR. EWANISZYK: Richard Ewaniszyk for Paul Mencos. Mr. Mencos is present before the Court. THE COURT: I had been looking at this issue. I wanted to check one more thing to make sure. You re sure that It hasn t been filed? THE CLERK: Your Honor, is this on six or seven s calendar? THE COURT: It s nothing. It s something that Judge Nakata gave me. THE CLERK: Oh, okay. THE COURT: It s a motion regarding the bail bond. Go ahead, sir. 16

MR. EWANISZYK: Good morning, your Honor. Mr. Mencos was arrested on this case on or about May 13, 2008. He s charged with domestic violence under 273.5 of the Penal Code. The - - Mr. Mencos obtained a bail bond, and posted it with the jailer. The jailer pursuant to Penal Code 1269 (b) ordered Mr. Mencos appear in court today. He came to court today. There was no calendared event for him. It s our view that Mr. Mencos had a Constitutional right under Article I, Section Fifteen of the California Constitution to be personally present in court when his case was called. Under 1305 of the Penal Code the Court has authority to forfeit the bond if Mr. Mencos fails to appear. THE COURT: Correct MR. EWANISZYK: However, since Mr. Mencos has appeared in court, it s our request that the Arraignment be continued, that the Court find good cause for the continuance of the Arraignment as no charges have been filed. This will avoid Mr. Mencos having to post another bond. He agrees to re-appear. The provisions of thirteen-oh-five that say that if a Complaint is not filed within fifteen days of the Arraignment that only applies if the forfeiture was ordered pursuant to 1305 (a). So it s our request that the Court find good cause for the delay so that Mr. Mencos does not have to subject himself to a further arrest wherein he would have to post yet another bond for $5,000 and then e forced into a decision as to whether or not he pays the bail bondsman or retains an attorney. THE COURT: Okay. MR. EWANISZYK: I also cited the case of People versus Ranger Insurance Company. 17

THE COURT: Yeah. I don t know that that necessarily applies in this case, but tell me how it does. MR. EWANISZYK: I happen to have a copy of the case, but in Ranger what happened was that the jailer had delivered a date for Mr. - - for the Defendant to appear. And then through - - through some calendaring problem, the clerk set another date for him to appear, which was not the date issued pursuant to 1269 (b). THE COURT: Right. MR. EWANISZYK: When he failed to appear, um, at that future date, the Court had no jurisdiction according to Ranger, because he was not present in court. THE COURT: Right. MR. EWANISZYK: But what the Court does say is according to Ranger, failure to appear on the Arraignment date set by the jailer deprived the Court of jurisdiction to thereafter forfeit the bond, because there were no Court orders continuing the Arraignment date. In short, the original Arraignment date was the only date that mattered, and the Complaint was not filed fifteen days thereafter. So it s our request that the Court continue the Arraignment date so that we do not find ourselves in that position. THE COURT: Well, we wouldn t find ourselves in that position, because the bond would be exonerated today because there is no case filed within fifteen days. MR. EWANISZYK: We re requesting that the Arraignment date be continued and the bond be continued to a subsequent date so that he does not forfeit his ability to rely on the bond for which he has paid $5,000 cash. THE COURT: And for which he has gotten the benefit of being out of custody. 18

MR. EWANISZYK: He s entitled to that benefit for a period of one year. THE COURT: This jurisdiction previously had a calendar for this purpose. As a bench we have decided not to have a calendar for this purpose given that it is within the Court s jurisdiction as to whether or not to continue bond. The plain language in the statute seems to indicate that the Court would no longer have jurisdiction over the bond; although, I believe Ranger would countermand that argument. Nonetheless, since it is within the discretion of the Court and no case having been filed, the Court will exonerate the bond. MR. EWANISZYK: Thank you. May I request the court reporter prepare a transcript for me? THE COURT: Yes. MR. EWANISZYK: My I (indicating)? THE COURT: If you want to pay for it, you can. MR. EWANISZYK: I am sure she will let me know how THE COURT REPORTER: I ll call you. MR. EWANISZYK: Thank you, your Honor. THE COURT: Thank you. Mr. Mencos, you re free to go, sir. 19

THE DEFENDANT: Thank you. Penal Code 1305 states: (a) A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: (1) Arraignment. (2) Trial. (3) Judgement. (4) Any other occasion prior to the pronouncement of judgement if the defendant s presence in court is lawfully required. (5) To surrender himself or herself in execution of the judgement after appeal. However the court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligation under bond if the case is dismissed or if no complaint is filed within 15 days of the arraignment, emphasis added. The Respondent Court s reliance on Penal Code 1305 is misplaced. By its own terms Penal Code 1305 only applies when the defendant fails to appear and his bond is forfeited. The Respondent Court relies on the last sentence of Penal Code 1305 (a) which states: However the court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligation under bond if the case is dismissed or if no complaint is filed within 15 days of the arraignment. In People vs. Ranger Ins. Co. (2006) 145 CA.4th.23.al.p27, the court stated: 20

It is only when a defendant fails to appear on a date she is lawfully required to appear that section 1305 requires a forfeiture. In Ranger vs. Superior Court, the court reversed the Judgment forfeiting the bond and the trial court s order denying Ranger s Motion to Vacate the Judgement. The court held: Cook was ordered by the jailor to appear on January 22, and thus was lawfully required to appear for arraignment on that date. ( 1269b, subds. (a), (h).) She did not appear on January 22 because the Redondo Beach Police Department told her to appear instead on February 26, then told her to appear on March 25 (at which time she appeared and was arraigned but then failed to appear in April as ordered). Because the complaint was not filed 15 days from the date of arraignment (it was not filed until March 18), bail was exonerated on February 6 (15 days after the original date of arraignment). By the time Cook failed to appear for her April court date, the trial court had no jurisdiction to forfeit the bond. To avoid this conclusion, the People treat the January 13 and February 19 notices from the Redondo Beach Police Department as court orders requiring Cook s attendance on the dates specified in the notices. But that is not what they are, and no sleight of hand can transform them into something they are not. As best, the notices provided good cause for Cook s failure to appear on January 22, at which time the court could have continued the case for a reasonable time without ordering a forfeiture of bail or issuing a bench warrant People v. Amwest Ins. Co. (1997) 56 Cal.App.4th 915, 922 [66 Cal. Rptr. 2d 29]; cf. People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1553 [78 Cal. Rptr. 2d 763] [the day set for trial is the day set for trial, whether it occurs or not].) But that is not what happened, and the record affirmatively shows no orders were made on January 22 (or at any time before Cook was arraigned on March 25). Because the complaint was not filed 15 days after January 22, and because the court did not continue the case on January 22 (or otherwise order Cook to return on a later date), the bond was exonerated on February 6. As a result, the court had no jurisdiction to forfeit bail at the April 29 hearing. The Ranger court clearly held that if their was good cause to continue the initial appearance, the court could have continued the case for a reasonable time without 21

ordering a forfeiture of bail or issuing a bench warrant and retained jurisdiction to forfeiture the bond if Cook later failed to appear, emphasis added. In the case at bench, Petitioner appeared in court at the date set for his initial arraignment. Petitioner had paid a $5,000.00 premium to secure a bail bond for his freedom. Petitioner requested that the court find good cause to continue his hearing because no complaint had yet been filed and he would be prejudiced if his bond was exonerated because he would be subject to future arrest warrant, arrest and a new bail bond premium if charges were eventually filed. (See Petitioner s Ex Parte Application for a court order to continue the arraignment date and to order defendant to appear which is attached to the Verified Petition as Exhibit B ). The Respondent Court failed to even exercise its discretion on Petitioner s request to continue the bail bond hearing. The Respondent Court simply exonerated the defendant s bail bond pursuant to the Respondent Court s new policy. It would have been an abuse of discretion not to continue the arraignment under these circumstances. The defendant benefits by not having his bail exonerated before charges are actually filed because their will be no need to reapply for bail and pay an additional $5,000.00 in fees. The law enforcement agency and the court benefit by not having bail exonerated because if bail is exonerated at the first scheduled court appearance (when charges have not yet been filed) the District Attorney will have to prepare a warrant request to be signed by a judge and served by law enforcement in order to re-secure the defendant s appearance. The defendant will also risk re-arrest for the same charge and be unnecessarily deprived of his 22

liberty. The bail bond posted by Petitioner was effective for 2 years. (See Penal Code 1304). The respondent court made an erroneous determination that there was no discretion to continue the bail bond hearing. That was the equivalent of the familiar refusal to exercise jurisdiction because of a mistaken view that the same does not exist; in such a case the error does not divest jurisdiction and its exercise can be compelled by an appropriate proceeding such as mandamus. (See In re Brumback (1956) 46 Cal.2d 810 at p. 813). Petitioner requests that a Writ of Mandate be issued as prayed for herein. IV. THE RESPONDENT COURT ABUSED ITS DISCRETION, IF ANY, IN EXONERATING PETITIONER S BOND AND THE BONDS OF ALL THOSE SIMILARLY SITUATED PURSUANT TO THE NEW POLICY. Generally before bail can be exonerated, there must not only be a pronouncement of judgment or grant of probation, but also a taking of the defendant into custody when the judgment or order granting probation provides for immediate incarceration. (See People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663 at 675; see also Penal Code 1195). Otherwise, bail bonds may be exonerated as provided by statutory authority. (See 23

Penal Code 1300-1304). Penal Code 1300-1304 provide that the bail bonds may be exonerated if the defendant is surrendered by the bail bondsman, if the case is dismissed or if the defendant is released on his own recognizance, or it shall be exonerated two years from the effective date of the initial bond. Defendants granted diversion under Penal Code 1000 are entitled to have their bonds exonerated under Penal Code 1000.2. If a demurrer is granted without leave to amend the bond shall be exonerated. (See Penal Code 1008). The bail bond is exonerated if the action is dismissed or if the case is not brought to trial in a timely fashion. (See Penal Code 1303 and 1385). If the court grants a motion to arrest the judgment, bail is exonerated. (See Penal Code 1188). Bail is exonerated if a motion under Penal Code 995 is granted. (See Penal Code 997). Mentally incompetent defendants who have been committed shall have their bond exonerated. (Penal Code 1371). There does not appear to be any statutory authority for the court s new policy to exonerate bail bonds over the defendant s objections, if no complaint has been filed in time for the defendant s first appearance in court, pursuant to Penal Code 1269 (b). The defendant has entered into a contract with his surety and paid a substantial premium to secure his appearance in court. The bail bond is valid for 2 years or until one of the events set forth herein authorizes exoneration. The respondent court s new policy constitutes an abuse of discretion when the defendant appears in court at his first appearance and requests a continuance until charges can either be filed, rejected or dismissed. 24

The respondent court does not appear to have jurisdiction to exonerate the bail bonds under these circumstances. Therefore this Honorable Court of Appeals would be justified in issuing a peremptory writ of mandate as prayed for herein and alternatively commanding respondent court to show cause why it should not do so. A trial court is under a legal duty to apply the proper law and it may be directed to perform that duty by writ of mandate. (See Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579; Babb v. Superior Court (1971) 3 Cal.3d 841, 851). V. PETITIONER AND ALL THOSE SIMILARLY SITUATED HAVE NO PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE COURSE OF LAW. PETITIONER MENCOS SHOULD BE AWARDED ATTORNEY FEES PURSUANT TO PENAL CODE 1021.5. Petitioner and all those similarly situated as set forth in the petition have no plain, speedy or adequate remedy at law. No case has been filed against these defendants and they have no right to appeal the court s decision. The court has implemented a new policy which deprives all defendants released on bail bond for any hearing whatsoever. Petitioner is beneficially interested in these proceedings. (See Reaves v. Superior Court (1971) 22 Cal.App.3d 587, and In re Brindle (1979) 91 Cal.App.3d 660, 670). Extraordinary relief by mandamus or habeas corpus has been utilized to correct prior conditions or to declare the rights of unnamed and future petitioners by decisions 25

designed to affect the prospective administration of the criminal justice system. (In re Walters (1975) 15 Cal.3d 738, 744; In re William M. (1970) 3 Cal.3d 16, 23; Reaves v. Superior Court (1971) 22 Cal.App.3d 587, 592-593.) Where questions of general public concern are involved, particularly in the area of the supervision of the administration of criminal justice [the court] may reject mootness as a bar to the decision on the merits. (In re Walters, supra, 15 Cal.3d at p. 744.) Although the petitioner may have received the relief prayed for, the court nevertheless may decide a question arising from a recurring problem important to insure the basic rights of prisoners. (In re Fluery (1967) 67 Cal.2d 600, 601 [63 Cal.Rptr. 298, 432 P.2d 986].) Code of Civil Procedure section 1021.5 provides: Upon motion, a court may award attorneys fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any, with respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor. As established by Code of Civil Procedure section 1021.5, Serrano v. Priest (1977) 20 Cal.3d 25, and Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, the private attorney general theory for recovery of attorney fees is designed to encourage 26

private enforcement of important public rights (Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 836 [160 Cal.Rptr. 465]), and to ensure that an aggrieved citizen [has] access to the judicial process where statutory or constitutional rights have been subjected to wholesale trampling (Rhyne v. Municipal Court (1980) 113 Cal.App.3d 807, 825 [170 Cal.Rptr. 312]). An award of attorney fees is appropriate when the cost of the claimant s extraordinary writ proceedings transcends his personal interest, that is, when the necessity for pursing the lawsuit placed a burden on plaintiff out of proportion to his individual stake in the matter. Had he not undertaken this litigation, the common interest of those similarly situated may never be vindicated. (See Olney v. Municipal Court (1982) 133 Cal.App.3d 455; County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 89). VI. CONCLUSION In conclusion, Petitioner respectfully request that this Honorable Court of Appeal find that the new policy utilized by the respondent court is constitutionally impermissible because it interferes with the Petitioner s right to bail, violates the defendant s right to be personally present in court at all stages of the proceedings and/or violates the basic due process right to notice and an opportunity to be heard before bail bonds are exonerated. The Respondent Court has failed to exercise its discretion or abused its discretion 27

as set forth herein and this Honorable Court would be justified in issuing the Writ of Mandate as prayed for herein and awarding Petitioner his reasonable attorney fees. Respectfully submitted, EWANISZYK LAW FIRM By: RICHARD M. EWANISZYK, Attorney for Petitioner PAUL MENCOS 28

CERTIFICATE OF WORK COUNT (Cal. Rules of Court, Rules 8.204, 8.490) The text of this petition consists of 6656 words as counted by Corel WordPerfect, version 12, word processing program used to generate the petition. Dated: June 30, 2008 By: RICHARD M. EWANISZYK, Attorney for Petitioner PAUL MENCOS 29