When a defendant's bail has been declared forfeited under section 1305 of the California Criminal Code, can a surety bring a motion to vacate the forfeiture?

The Durbin court also relied on the rule set forth in In re Estrada (1965) 63 Cal.2d 740, 744-745, that "if an amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final, it applies rather than the old statute in effect when the prohibited act was committed." (People v. Durbin, supra, 64 Cal.2d at p. 479.) The court found that what was said in In re Estrada regarding an amended statute lessening criminal punishment "equally applies to the reduction or elimination of civil penalties or forfeitures." (Ibid.) The court in Durbin concluded that since the orders in the present appeal denying relief from forfeitures were not yet final, the amended version of section 1305 applied and required that the forfeitures be set aside.

The holding in Durbin was recently applied in County of San Bernardino v. Ranger Ins. Co., supra, 34 Cal.App.4th 1140. In that case, after bail was declared forfeited, the surety's agents arrested the defendant and returned him to custody. Believing the bond had been exonerated, the surety did not bring a motion to vacate the forfeiture, and after the requisite statutory time had passed summary judgment was entered on the forfeiture. On appeal, the surety argued that its surrender of the defendant into custody of the sheriff effected an exoneration as a matter of law under a recent amendment to section 1305. The version of section 1305 in effect at the time of the proceedings in the trial court was open to the interpretation that the surety was required to move for an order discharging the forfeiture upon notice and a hearing, and that the 180-day period in which to do so was jurisdictional. However, during the pendency of the appeal, section 1305 was amended to provide that if the defendant is surrendered within the 180-day period, "the court shall, on its own motion . . . direct the order of forfeiture to be vacated and the bond exonerated." (Stats. 1994 ch. 649 1.)