County of Los Angeles v. Fairmont Specialty Group

• Decision Date: 28 April 2009
• Docket Number: No. B202469.,B202469.
• Citation: 173 Cal.App.4th 538,92 Cal. Rptr. 3d 767
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. FAIRMONT SPECIALTY GROUP, Defendant and Appellant.

173 Cal.App.4th 538

92 Cal. Rptr. 3d 767

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. FAIRMONT SPECIALTY GROUP, Defendant and Appellant.

No. B202469.

Court of Appeals of California, Second District, Division Five.

April 28, 2009.

Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Brian T. Chu, Principal Deputy County Counsel, for Plaintiff and Respondent.

OPINION

MOSK, J. —

INTRODUCTION

Under Penal Code section 1305, subdivision (g),¹ when bail is forfeited because a defendant has fled the jurisdiction of California, if the local law enforcement agency "elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond ...." We hold that when an extradition request would be futile or not feasible, no election can be made, and the forfeiture will not be vacated and the bond will not be exonerated. We further hold that there is sufficient evidence to support the trial court's conclusion that it was not feasible for the fugitive to be extradited from Honduras.

BACKGROUND

Defendant and appellant Fairmont Specialty Group (Fairmont) posted a $30,000 bail bond for the release from custody of Carlos Montes, who had been charged with a drug offense—violation of Health and Safety Code section 11351.5 (possession of cocaine base for sale). Violating an order, Montes failed to appear at a hearing, and the bond was forfeited. Fairmont filed a motion to vacate the forfeiture and exonerate the bond on the ground that the prosecuting agency elected not to extradite Montes, a Honduran national who had been detained and identified in Honduras by Fairmont's agent.

Plaintiff and respondent County of Los Angeles (County) submitted a declaration of Deputy District Attorney Diana Carbajal, who was assigned to the Extradition Services Unit and was responsible for evaluating cases for suitability for extradition and for preparing the necessary documentation to submit to the Office of International Affairs (OIA), an office within the Criminal Division of the United States Department of Justice. The OIA processes all extraditions from foreign states.

In her declaration, Ms. Carbajal stated that since the 1988 Vienna Drug Convention (United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, entered into force Nov. 11, 1990, 1582 U.N.T.S. 164, 28 ILM 493 (1989)), there has been only one extradition of a Honduran citizen to the United States for drug offenses. She further stated that her search of the records revealed that since 1988, the Los Angeles District Attorney's office had attempted on seven occasions to extradite from Honduras a citizen of Honduras, and none of those attempts was successful. Ms. Carbajal, in her legal argument, noted that the bilateral extradition treaty between the United States and Honduras does not require either state to deliver its own citizens to the other. (Treaty for the Extradition of Fugitives from Justice, signed Jan. 15, 1909, entered into force July 10, 1912, 37 Stat. 1616; Supplementary Extradition Convention, signed Feb. 21, 1927, entered into force June 5, 1928, 45 Stat. 2489 (Treaty).) She also pointed out that the Constitution of Honduras does not allow extradition of its citizens. (See VII Blaustein & Flanz, Constitutions of the Countries of the World, Booklet 1 (1997) Republic of Honduras, art. 102, p. 23 ["No Honduran may be extradited nor handed over to the authorities of a foreign state"].) Fairmont supplied no rebuttal evidence on the issue of whether extradition in this case was feasible.

The trial court found that under County of Orange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795 (County of Orange), it was not feasible to extradite Montes from Honduras. The trial court denied the motion to vacate the forfeiture and to exonerate the bond and entered summary judgment in favor of the County on the forfeited bond. Fairmont timely filed a notice of appeal from the orders denying the motion and granting summary judgment.

DISCUSSION

A. Standard of Review

(1) An order denying a motion to vacate or set aside a forfeiture and exonerate the bail bond is an appealable order. (County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 146; People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1382 .)² "The abuse of discretion standard applies to the trial court's resolution of a motion to set aside a bail forfeiture (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195 (Legion)), subject to constraints imposed by the bail statutory scheme. (2) `[W]hen a statute requires a court to exercise its jurisdiction in a particular manner, to follow a particular procedure, or to act subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.' (People v. Ranger Ins. Co.[, supra,] 51 Cal.App.4th [at p.] 1384 ... (Ranger '96). (3) `"The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus, Penal Code sections ... dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture." [¶] The standard of review, therefore, compels us to protect the surety, and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody, in order to obtain the corporate bond.' (County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62 (Surety Ins. Co.).)" (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1491-1492 ; see People v. American Contractors Indemnity (1999) 74 Cal.App.4th 1037, 1043 ["A determination on a motion to set aside a bail forfeiture is discretionary and will not be disturbed on appeal unless an abuse appears in the record."].) As the Supreme Court has noted, however, "The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 [76 Cal.Rptr.3d 250, 182 P.3d 579], fns. omitted.) Accordingly, we review the interpretation of section 1305, subdivision (g) de novo (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699 [170 Cal.Rptr. 817, 621 P.2d 856]; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [35 Cal.Rptr.2d 418, 883 P.2d 960]), and the trial court's finding of lack of feasibility under the substantial evidence test.

B. Section 1305, subdivision (g)

(4) "`The 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.'" (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657.) Section 1305 provides that bail is to be forfeited if the defendant fails to appear when lawfully required to do so. That section sets forth situations when the forfeiture must be vacated and the bond exonerated. We are presented here with one of those situations.

Section 1305, subdivision (g) states: "In all cases of forfeiture where a defendant is not in custody and is beyond the jurisdiction of the state, is temporarily detained, by the bail agent, in the presence of a local law enforcement officer of the jurisdiction in which the defendant is located, and is positively identified by that law enforcement officer as the wanted defendant in an affidavit signed under penalty of perjury, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release."

(5) In County of Orange, supra, 61 Cal.App.4th 795, the prosecuting agency did not seek extradition from Mexico of a Mexican national convicted of a drug offense. The Court of Appeal affirmed the trial court's decision not to vacate the forfeiture order and not to exonerate the bond. The court said that when "extradition is not a feasible option for the prosecuting agency," its failure to seek extradition is not an election not to do so because "[t]he term elect implies a choice of options." (Id. at p. 802.) "Extradition will be deemed infeasible when the host country, as a matter of policy and practice, refuses to grant extradition requests in the category of cases involved in the controversy at hand." (Id. at p. 803.) The court concluded that "[b]ecause the record here clearly proves gaining [defendant's] extradition from Mexico was not feasible" the trial court properly denied the motion to vacate the forfeiture order. (Id. at pp. 804-805.)

(6) This court has agreed with the court's interpretation in County of Orange, supra, 61 Cal.App.4th 795 that under section 1305, subdivision (g), if a request for extradition is not feasible and therefore would be futile, "`there can be no meaningful election whether to seek extradition, and the conditions for forfeiture relief have not been satisfied.'" (People v. American Contractors Indemnity, supra, 74 Cal.App.4th at p. 1048; County of Orange, supra, 61 Cal.App.4th at p. 802.) It is well established that "[n]o election can be made by anyone between something and nothing. There is no alternative. The term necessarily connotes at least two things between which a choice can be made. . . ." (Doyle v. Doyle (1893) 50 Ohio St. 330 ; see also State v. Henness (1997) 79 Ohio St.3d 53 [1997 Ohio 405, 679 N.E.2d 686, 692] ["The word `elect' implies a choice between inconsistent alternatives."]; Larson v. Albers (1925) 53 N.D. 340 ["A...