THE PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
B251230
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Filed 8/12/15
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. SJ003872)
Harvey Giss, Judge.
E. Alan Nunez for Defendant and Appellant.
Office of the County Counsel, Brian T. Chu, Principal Deputy County Counsel, for Plaintiff and Respondent.
STATUTORY SCHEME
“[T]he bail bond is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant‘s appearance in court under the risk of forfeiture of the bond.” (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22.) Thus, when there is a breach of this contract, the bond should be enforced. (See People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675.)” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657-658.)
”
STANDARD OF REVIEW
A trial court‘s ruling on a motion for extension under
FACTUAL AND PROCEDURAL BACKGROUND
On February 29, 2012, Surety posted a bail bond in the amount of $1,240,000 for the release of defendant Oscar Grijalva (Grijalva) in his prosecution for attempted murder and related charges. On August 23, 2012, Grijalva failed to appear in court. The court declared his bail forfeited and issued a bench warrant. A notice of forfeiture was mailed the next day, on August 24, 2012. The 185th day after that mailing was February 25, 2013.
On February 20, 2013, Surety filed its first motion to extend the exoneration period pursuant to
Attached to the motion was Surety‘s investigator, Cesar McGuire‘s, declaration of the action he had taken to apprehend Grijalva. In sum, the declaration revealed the following efforts between February 19 and July 31, 2013: McGuire contacted Grijalva‘s relatives on multiple occasions between March and July 2013 to learn of his whereabouts; offered to pay a $100,000 reward to Grijalva‘s sister if she persuaded Grijalva to turn himself in; raised the reward from $100,000 to $200,000, and posted the updated information on websites and publicized the information in California and Mexico; conducted surveillance at addresses in Taft, Bakersfield, Sylmar, and Arleta, California and interviewed neighbors and local businesses to gather information on Grijalva; followed Grijalva‘s mother and sister to Rosarito, Baja California, and inquired at the hotel at which they were staying if Grijalva looked familiar; contacted law enforcement in Rosarito; and ran want ads on Facebook throughout Tijuana, Rosarito, Ensenada and Baja California. Unfortunately, none of this resulted in a confirmed sighting of Grijalva, or a verified location.
In June 2013, McGuire learned through a Facebook message that the Harpy gang had a clique close to the Mexican border at Tijuana. Because he had earlier received information that Grijalva may have been a member of this gang, McGuire went to Tijuana and spoke with local law enforcement regarding the Harpy gang. The Tijuana authorities confirmed the presence of the Harpy gang and agreed to contact McGuire if they sighted Grijalva. Again this proved fruitless. It produced no sightings, or additional information.
On July 22, 2013, McGuire received a call from an informant claiming to have information about Grijalva‘s whereabouts. McGuire met with the informant on July 24, 2013, and was told he knew Grijalva‘s family personally; Grijalva was “in Tijuana” but it might take “some time to get actual detailed information” because he didn‘t want it to be
On July 26, 2013, an unnamed U.S. law enforcement officer who stated that he handles all fugitives outside the U.S. advised McGuire that unnamed law enforcement officials in Mexico claimed they had an informant who knew Grijalva. Again nothing, no sightings or confirmed locations were produced from this 11th hour, third hand information.
During the August 26, 2013, hearing the trial court denied the second motion for an extension, finding a lack of good cause as reflected in the following colloquy:
“[Counsel]: So the court has jurisdiction to grant 180 day extension from the [March] 20th date, which is September 16th, which is a Monday; and I know the court has been operating under the understanding that it can only grant an extension for 365 days total, but that‘s not what the statute and case law states. It allows the court to grant an extension from a full 180 [days] from the date of the order.”
“The Court: That‘s discretionary. I‘ll deny that request. There is no good cause –
“[Counsel: The good cause is based on the diligence and likelihood of success, which the declarations amply show that‘s a very low threshold; and the court‘s have held it‘s abuse of discretion to deny an extension with far less details and less success than in this case. I would ask the court to grant the extension to the time period of 9/16. This defendant is very close to being able to be returned to the court.
“The Court: There is no declaration. There is nothing –
“Counsel: There is a declaration.
“The Court: There is no declaration that supports that. They think he‘s somewhere in Tijuana.
“Counsel: Working with the marshals, who have been identified with the defendant.
“The Court: Sir, I‘ll deny your request. Bail remains forfeited.”
In sum, in denying the motion, although the Surety had made considerable efforts to locate Grijalva, the trial court did not find based on the information provided there was a reasonable likelihood Grijalva would be apprehended if an extension were granted. “They think he‘s somewhere in Tijuana” was not enough.
Surety timely filed a notice of appeal.
DISCUSSION
1. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN CONCLUDING SURETY FAILED TO SHOW GOOD CAUSE TO EXTEND THE APPEARANCE PERIOD A SECOND TIME AFTER PREVIOUSLY RECEIVING A 134-DAY EXTENSION.
At any time within the 185-day period – referred to as the “appearance” or “exoneration” period – the surety may seek an order extending the period. “A further extension is not automatic. [A surety] has to earn additional time by showing good cause.” (People v. Ranger, supra, 81 Cal.App.4th at p. 681.) “The court may, if good cause is shown for doing so, order the period extended ‘to a time not exceeding 180 days from its order.’ (
“Given the underlying policy of avoiding forfeitures in favor of bringing defendants before the court, a trial court, faced with a
To constitute “good cause” both due diligence and a reasonable likelihood of recapture must be shown. (County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1028-1029 (Fairmont); Accredited, supra, 137 Cal.App.4th at p. 1357.) Both are equally important circumstances in determining “good cause.” (Accredited, supra, at p. 1358.)
Surety argues the showing of “diligent, consistent and reasonable efforts to locate a fugitive is the measure of good cause.” Surety is wrong; more is required.
There are only four published cases interpreting the good cause requirement of
In Fairmont, supra, 164 Cal.App.4th 1018, a case factually similar to ours, our colleagues in Division Seven found the facts presented by the surety insufficient to establish good cause to grant an extension. There the investigator‘s declaration indicated the pre-investigation unit of Bad Boys Bail Bonds had contacted courts, jails, the
One week later, Zurita called and told the investigator that the defendant‘s wife had confirmed the defendant was in Mexico. Zurita told the investigator he would call him later with the defendant‘s telephone number in Mexico, which he failed to do. Thereafter, the investigator conducted periodic surveillance at various local addresses: the defendant‘s home address when arrested; an alternative home address for the defendant, which had since been torn down; and a residence address for the defendant‘s son, at which other persons were living. No one at any of these locations had sighted the defendant or knew his current contact information. Three months later, the investigator telephoned Zurita. Zurita advised him the defendant was still living in Mexico. Zurita said another friend, Martin Sanchez, had talked to the defendant in Mexico and the defendant told Sanchez he was planning to return to the United States to resolve the case. The investigator declared that with Sanchez‘s assistance, Zurita was either going to learn the defendant‘s location in Mexico or find out when the defendant planned to return to this country. The investigator concluded his declaration with his “opinion, that if granted additional time, in light of the new information obtained, and with the assistance of [Zurita] and the informant, the defendant will be apprehended and surrendered to the court.” (Fairmont, supra, 164 Cal.App.4th at pp. 1022-1023.)
At the hearing on Fairmont‘s motion to extend time, the prosecutor did not oppose Fairmont‘s request because he did not consider it “that unreasonable.” (Fairmont, supra, at p. 1023.) The court nevertheless denied the motion, explaining, based on “what‘s been provided the court, I don‘t really believe an extension of time will necessarily assist bails [sic] bonds in finding [the defendant]. Even based on the bails [sic] bonds’ declaration, it appears that [the defendant] is in Mexico, avoiding this case, knowing that there‘s a warrant out for his arrest.” The trial court entered summary judgment against Fairmont which was affirmed on appeal. (Fairmont, supra, 164 Cal.App.4th at p. 1023.)
In Ranger, supra, 81 Cal.App.4th 676, the investigator‘s declaration indicated he had located a positive address for the defendant in Rosarito, Mexico, and that the defendant was a member of a band. The declaration contained no explanation of how the investigator learned or verified this information. Because of the paucity of information, the appellate court found the surety had not demonstrated good cause to have the time extended. The court held a showing of good cause “means an explanation of what efforts [the surety] made to locate [the defendant] during the initial 180 days, and why such efforts were unsuccessful.” However, in reaching this determination, the court also considered the fact that the statement did not indicate how the investigator had located defendant, how he knew he had a bona fide address or the significance of defendant‘s membership in a band. Without these facts, the court could draw no reasonable inference about the likelihood of recapturing defendant. Thus, in considering the lack of these facts, the court concluded there was an absence of good cause. (Id. at pp. 678-682.)
In Alistar, supra, 115 Cal.App.4th 122, the investigator had found a new address for the defendant and obtained the help of local police. The conduct of the defendant‘s family members indicated he was in the area and that they were in contact with him. The investigator had a confirmed address for the defendant‘s sister. The defendant‘s brother called him and offered to pay the bond. The appellate court considered the fact that the agent had cooperation from the family and good reason to believe the defendant was currently in a particular geographic area. These facts allowed the court to draw the reasonable inference that, with an extension of time, the defendant was likely to be recaptured. (Id. at pp. 128-129.)
By contrast, in this case the bail agent had been consistently unable to gather verifiable information about Grijalva or his whereabouts. Much of the information he obtained was false or proved fruitless. Despite his conversations with some members of Grijalva‘s family, it appears none were cooperating or had the slightest idea where Grijalva was, where he was likely to be or with whom. Not only had Grijalva‘s trail grown cold, it was nonexistent.
In both Alistar, supra, 115 Cal.App.4th 122 and Accredited, supra, 137 Cal.App.4th 1349 the investigator or bail agent was consistently able to gather information about the defendant and his whereabouts. Further, they were able to provide information that indicated they had a general idea of where the defendant might be and had prospects for obtaining additional information which would eventually lead to his recapture. The existence of this factual information gave rise to an inference there was a reasonable likelihood of capturing the defendant, and is what distinguishes those cases from the one before us. In Accredited and Alistar, there were verifiable facts from which reasonable inferences about the likelihood of capture could be drawn. In this case there are no such facts.
We strictly construe the relevant statutory provisions in favor of the surety, but it is the surety who bears the burden of establishing that it falls within the statutory requirements for relief. (People v. Ranger, supra, 139 Cal.App.4th at p. 1564.) As Surety failed to carry its burden, the trial court did not abuse its discretion in denying the second motion to extend the appearance period.
Surety‘s central argument in its brief on appeal is that the trial court erred in denying the requested relief based on its mistaken belief it lacked discretionary authority to further extend the extension period: “The trial court here did not fault the surety for the efforts made to locate the defendant. Rather, it was under the erroneous impression that the ‘year has run out.‘” Surety then argues that, at the time the court ordered the initial extension of the appearance period on March 20, 2013, it was authorized to extend the period until September 16, 2013, that is, 180 days from the date of its prior order. Thus, in its second extension request, Surety sought to obtain the additional 46 days which it claims the court was authorized to grant on March 20, but did not.
As explained above, we find abundant evidence in the record that the trial court denied the second extension motion based on its conclusion that Surety had failed to establish a reasonable likelihood an additional 46-day extension would result in the return of Grijalva to the court‘s custody.
We have serious doubt Surety was entitled to an additional 46 days based on relevant case law. In Taylor Billingslea, supra, 74 Cal.App.4th 1193 the trial court had previously granted several extensions of the appearance period. On the day before the one-year anniversary of the mailing of the notice of bond forfeiture, the trial court denied the surety‘s request for an additional seven-day extension, stating there was “no authority in either case law or the statute that would permit me to extend the tolling period for
In the last cited case, People v. Accredited Surety and Casualty Co., Inc., supra, 220 Cal.App.4th 1137, a notice of bail forfeiture was mailed to the surety on January 18, 2011. On July 22, 2011, 185 days later, the surety filed a motion to extend the appearance period pursuant to
On April 26, 2012, summary judgment was entered on the forfeiture. Contending that the extended exoneration period authorized by statute expired no later than January 18, 2012 (365 days after service the notice of forfeiture), the surety challenged the validity of the summary judgment, claiming that it was entered beyond the 90-day
Without explicitly repudiating this holding, our colleagues in Division Four recently came to the opposite conclusion in County of Los Angeles v. Williamsburg (2015) 235 Cal.App.4th 944 (”Williamsburg“). In that case, a notice of bail forfeiture was mailed to the surety on July 23, 2012, giving the surety until January 24, 2013 to produce the defendant. On January 22, 2013, the surety moved to extend the appearance period pursuant to
American Contractors, supra, 33 Cal.4th at pp. 662-663, held the premature entry of summary judgment following a bail forfeiture renders the judgment voidable, not void. In dicta, in the introduction to the opinion, the Supreme Court described in general terms the process by which a surety may extend the appearance period: “[T]he trial court may . . . extend the period by no more than 180 days from the date the trial court orders the extension . . . .” (Id., at p. 658, emphasis added.)
2. THE TOLLING PROVISION OF SECTION 1305, SUBDIVISION (H) DOES NOT APPLY TO THE FACTS OF THIS CASE.
“The geographic scope of
Moreover, tolling can be granted only with the agreement of the prosecutor. While Surety represents that “the prosecuting agency was very interested in having the defendant returned to court, and the extradition deputy was inclined to agree to a tolling,” at the extension hearing, it conceded, “I agree that at this moment [the prosecutors] haven‘t made an agreement to do that.” Consequently, as the trial court ruled, the tolling provision of
For the foregoing reasons, we conclude that Surety has failed to establish that the trial court erred in denying its motion to extend the appearance period. Accordingly, we affirm.
DISPOSITION
The order is affirmed. The County of Los Angeles is awarded costs of appeal.
CERTIFIED FOR PUBLICATION
KIRSCHNER, J.*
We concur:
MOSK, Acting P. J.
KRIEGLER, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to