THE PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
No. B264718
Second Dist., Div. Two.
Apr. 3, 2017.
369
Law Office of John Rorabaugh, John M. Rorabaugh and Robert Tomlin White for Defendant and Appellant.
Mary C. Wickham, County Counsel, Ruben Baeza, Jr., Assistant County Counsel, and Joanne Nielsen, Principal Deputy County Counsel, for Plaintiff and Respondent.
OPINION
HOFFSTADT, J.—When a court forfeits a bail bond, the bond‘s surety is subsequently entitled to vacatur of that forfeiture if the defendant is later found out of state as long as (1) the defendant “is temporarily detained” by the “bail agent . . . in the presence of a local law enforcement officer,” (2) the local officer submits a sworn affidavit “positively identif[ying]” the defendant, (3) and “the prosecuting agency elects not to seek extradition after being informed of the location of the defendant.” (
In October 2013, Juan Carlos Pena Angulo (Angulo) was charged with (1) transporting and selling a controlled substance (
Angulo did not appear in court on February 4, 2014. The trial court issued a “no bail” warrant for Angulo‘s arrest. The court also stated on the record that the bond was forfeited and mailed a copy of its forfeiture order to the surety and its agent. Pursuant to law, the order gave the surety 185 days—until August 8, 2014—to locate Angulo and produce him in court. On August 1, 2014, the surety requested an extension of time to locate Angulo. On August 25, 2014, the trial court granted the surety an extension until December 24, 2014.
On October 5, 2014, an investigator for the surety and an officer of the fugitive recovery unit of the Baja California Mexico State Police stopped Angulo on the main street of the tourist center in Tijuana, Mexico. They identified him based on his booking photo and driver‘s license photo. The Mexican officer determined that Angulo was a Mexican national who was not wanted for any crimes in Mexico, which meant the officer could not “forcibly detain or arrest [Angulo] for questioning nor obtain fingerprints or photos.” They let Angulo go. The investigator and Mexican officer executed sworn affidavits to these facts.
Over two months later, on December 8, 2014, the surety submitted the affidavits to the Los Angeles County District Attorney‘s Office (the prosecutor‘s office) and asked whether it would seek extradition.2 Eight days later, on December 16, 2014, the prosecutor‘s office responded that it was “unable to make an extradition election” because it was “unable to confirm the identity of the defendant . . . because [the surety] ha[d] not provided us,” as per its office policy, “with fingerprints or a photograph taken while the defendant was detained in Mexico.”
At a February 2, 2015 hearing, the trial court denied the motion to vacate the forfeiture and exonerate the bond and declined to grant the surety additional time to obtain a photograph or fingerprints because Angulo had absconded more than 365 days earlier. On February 5, 2015, the court granted summary judgment for $100,435—the amount of the bond plus costs—against the surety.
The surety filed a motion to set aside the judgment on grounds unrelated to this appeal, which the trial court denied.
The surety filed this timely appeal.
DISCUSSION
The surety argues that the trial court erred in (1) denying its motion to vacate the forfeiture and to exonerate the bond, and (2) declining to grant a further 21-day continuance to allow it the opportunity to obtain Angulo‘s photograph or fingerprints. Both orders are appealable. (County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542 (Fairmont) [“An order denying a motion to vacate or set aside a forfeiture and exonerate the bail bond is an appealable order“];
A. Bail bond law, generally
“[E]xcept for capital crimes when the facts are evident or the presumption great,” a criminal defendant has a right to be “released on bail by sufficient sureties . . . .” (
If the defendant does not appear as ordered “without sufficient excuse,” the trial court can (1) declare the bond forfeited in open court (
Once the bond is forfeited, the surety has 185 days—that is, 180 days plus five days for mailing (because the trial court is required to notify the surety and bail agent of the forfeiture by mail within 30 days of the forfeiture (
The surety is entitled to have the trial court vacate the bond‘s forfeiture and exonerate the bond if, prior to the expiration of the 185-day period and any extension thereof, it makes one of five different showings. As
If the forfeiture is not vacated, the trial court must then enter summary judgment against the surety for “the amount of the bond plus costs.” (
B. Construction of section 1305, subdivision (g)
Because the surety in this case is attacking the trial court‘s ruling that the prosecutor‘s office had the right to insist upon the surety providing a photograph or fingerprints before electing whether to extradite Angulo, the question presented on appeal is whether
We review the denial of a motion to vacate a bond forfeiture and to exonerate the bond for an abuse of discretion. (People v. Accredited Surety & Casualty Co. (2016) 3 Cal.App.5th 1180, 1184;
We conclude that the trial court did not err in its construction of
First, the plain language of
Second, the legislative history of
Third, courts have consistently read subdivision (g) of
This deference to prosecutorial decisionmaking exists notwithstanding the fact that the end result will be the forfeiture of the bond. Although “equity abhors a forfeiture,” particularly when the brunt of that forfeiture falls upon the “family members and friends who have pledged their homes and other financial assets to the [sureties] to secure the defendant‘s release” (County of Los Angeles v. American Contractors Indemnity Co., supra, 152 Cal.App.4th at pp. 665-666; see People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906), the above-described decisions have placed greater weight on the plain language of subdivision (g) and the competing policy it embodies—namely, that “[t]he object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court” (Wilcox, supra, 53 Cal.2d at pp. 656-657; see American Contractors, supra, 33 Cal.4th at p. 657) and that “[t]he escape of [the] defendant is the business risk of [the] bail surety [and] is precisely the situation which [the] surety guarantees against” (Ranger Ins. Co., supra, 61 Cal.App.4th at p. 805, fn. 6).
To be sure,
The surety levels four challenges at this analysis.
First, the surety contends that upholding a prosecuting agency‘s insistence upon additional documentation over and above a sworn affidavit attesting to a “positive[] identifi[cation]” of the absconding defendant effectively—and impermissibly—engrafts new requirements onto
However, the prosecutor‘s office‘s insistence that a surety provide a photograph or fingerprints does not impermissibly amend
The surety‘s argument also leads to an absurd result—namely, that the prosecuting agency‘s decision becomes invalid if the agency (quite reasonably) says it needs corroborative evidence, but its decision remains valid if the agency says nothing. Creating an incentive for public agencies to play hide the ball is, in our view, an absurd result. (John, supra, 63 Cal.4th at p. 96.)
Second, the surety asserts that obtaining the defendant‘s photograph or fingerprints when he is in a foreign country is often impossible, which
Impossibility of extradition is not a defense in any event. As noted above, a surety is not entitled to vacatur of a forfeited bond when the defendant flees to a country without an extradition treaty. (Fairmont, supra, 173 Cal.App.4th at pp. 544-545; Ranger Ins. Co., supra, 61 Cal.App.4th at pp. 802-805; Lexington, supra, 189 Cal.App.4th at pp. 1247–1249.) Assuredly, the alleged impossibility here is due to a requirement of the prosecuting agency rather than the absence of an extradition treaty. But that is of no consequence, even under the contract doctrine of impossibility (
Third, the surety argues that allowing prosecuting agencies to require more than an affidavit undermines the public policies underlying subdivision (g) of
The surety relatedly argues that
Lastly, the surety contends that the prosecutor‘s office in this case does not really need a photograph or fingerprints corroborating the defendant‘s presence in a foreign jurisdiction in order to elect whether to extradite him. In the surety‘s view, the office can instead use a multistep process: It can use the affidavit to obtain a provisional arrest warrant; use the provisional warrant to arrest the defendant and obtain his fingerprints or photograph; then use the fingerprints or photograph to make an extradition request. To the extent the surety is arguing that the prosecutor‘s office is proceeding in actual bad faith, we reject that argument for the reasons explained above. Moreover, the fact that a more cumbersome and potentially less effective alternative mechanism
To the extent the surety is attacking the factual necessity for a photograph or fingerprints, we conclude that substantial evidence supports a finding that additional corroboration of the defendant‘s location is necessary. The office‘s extradition expert stated as much. The surety offered a contrary expert opinion, but in reviewing factual findings for substantial evidence, we resolve all evidentiary conflicts in favor of the ruling below (Bristol-Myers Squibb Co. v. Superior Court (2016) 1 Cal.5th 783, 792). The surety also asserts that prosecutors often do not require fingerprints or a photograph before filing charges, but this ignores that most of those charges are not filed against persons located in foreign countries for which extradition is required. The surety further argues that the affidavit already establishes that the defendant is located in the foreign country, but this ignores that what is necessary to satisfy the second element of subdivision (g) of
For all these reasons, we hold that a surety is not entitled to vacatur of a bond‘s forfeiture under subdivision (g) of
II. Further Extension of Appearance Period
As noted above, the initial 185-day appearance period in which a surety can seek to vacate a forfeited bond may be extended for “good cause.” (
The trial court abused its discretion when it denied the extension request on the ground that 365 days had passed since the bond had been forfeited. Some courts had followed that 365-day rule at the time the trial court made its ruling (e.g., People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193, 1199), but our Supreme Court rejected it in Financial Casualty. (Financial Casualty, supra, 2 Cal.5th at pp. 44-45.)
Under the proper rule, there were still 21 days left on the clock: The court granted the first extension on August 25, 2014; a 180-day period would have lapsed on February 23, 2015, which is 21 days after the court denied the further extension on February 2, 2015.
We may nevertheless affirm on any ground in the record because our job is to review the trial court‘s ruling, not its reasoning. (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.) In this case, we affirm because there was no “good cause” to grant a further 21-day extension. A showing of “good cause,” as noted above, rests upon a showing of (1) the surety‘s “past diligence” in tracking down the absconding defendant, and (2) a “reasonable likelihood the extension will result in the defendant‘s apprehension.” (Financial Casualty, supra, 2 Cal.5th at pp. 47-48.) Here, the surety was not moving swiftly in its efforts to track down Angulo and to inform the prosecutor‘s office of those efforts: The surety did not locate Angulo until October 5, 2014, and did not request an extradition decision from the prosecutor‘s office until December 8—over two months later and less than two weeks before the expiration of the first extension period on December 24, 2014. What is more, even though the prosecutor‘s office informed the surety that it would need a contemporaneous photograph or fingerprints of Angulo on December 16, 2014, the surety had done nothing to secure that additional information by the February 2, 2015 hearing. For much the same reason, the surety did not establish a reasonable likelihood of apprehending Angulo—or, in this case, of obtaining the photograph or fingerprints—within the remaining 21 days. The surety‘s failure to
DISPOSITION
The order denying the motion to vacate and for extension of time, as well as the judgment, are affirmed. The People are awarded costs on appeal.
Ashmann-Gerst, Acting P. J., and Goodman, J.,* concurred.
*Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to