People v. Accredited Surety & Casualty Co., Inc., C049492 (CA 3/28/2006)
| Decision Date | 28 March 2006 |
| Docket Number | C049492 |
| Court | California Supreme Court |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ACCREDITED SURETY AND CASUALTY CO., INC., et al., Defendants and Appellants. |
Appeal from a judgment of the Superior Court of Sacramento County, No. 04F02797, Ronald W. Tochterman, Judge. ) Reversed with directions.
Nunez & Bernstein and E. Alan Nunez, for Defendant and Appellant.
Robert A. Ryan, Jr., County Counsel, and John Reed, Deputy County Counsel, for Plaintiff and Respondent.
The trial court denied defendant Accredited Surety and Casualty Co., Inc. (Accredited) an extension of time to vacate the forfeiture of a bail bond under Penal Code1 section 1305.4. On appeal, Accredited contends the trial court erred because Accredited showed it made a reasonable attempt to locate the defendant whose release was secured by the bond. We conclude the trial court abused its discretion in determining there was no showing of good cause to extend the time period, so we reverse the judgment.
On March 26, 2004, Accredited posted a bail bond in the amount of $100,000 to secure the release of Gregory Lee Thomas from custody. After pleading no contest to a charge of possession of cocaine base for sale, Thomas failed to appear at a sentencing hearing on July 21, 2004. The trial court declared the bail bond forfeited. The clerk mailed a notice of forfeiture to Accredited on July 29, 2004. The 185th day from the July 29 mailing was January 30, 2005.
On January 26, 2005, Accredited moved to extend the time to vacate the forfeiture pursuant to section 1305.4.2 Accredited filed the declaration of Herbert J. Tillman, a bail agent, in support of its motion. Tillman's declaration detailed his attempts to locate Thomas. The declaration contained seven entries describing information Tillman received and actions he took after receiving the notice of forfeiture.
On August 3, Tillman learned Thomas was staying with a friend and would be returning to that location. He conducted surveillance for six hours, and he stopped several subjects thought to be Thomas.
On August 24, Tillman learned Thomas was residing with family members just outside the Sacramento area. He contacted local authorities, and he and the authorities put the apartment and surrounding area under surveillance. After four hours of covert activity, they entered the apartment and discovered Thomas had fled. Tillman later determined Thomas had been tipped off by family members.
On September 3, Tillman hired a fugitive recovery specialist to assist him with returning Thomas to custody. They learned from a reliable source about two possible local addresses for Thomas. After surveillance and investigation, both addresses were found to be negative.
On September 17, after "canvassing" all of Thomas's relatives, Tillman determined Thomas had fled to Illinois. He contacted Thomas's family in Illinois and verified Thomas had been there. However, he found it difficult to find credible information and develop good leads. Tillman did determine Thomas was in the local drug scene and was selling drugs in and around Chicago.
Between October 18 and November 12, Tillman learned Thomas had stolen a check from his chiropractor, had purchased a brown vehicle, and had been seen coming and going from a Sacramento home.
On December 10, Tillman learned Thomas was being aided by a female driving a blue Chevrolet. The female was "connected to" a home Thomas had been seen frequenting. Tillman hired California Patrol Agency in an attempt to apprehend Thomas. "Surveillance was on-going at that time."
On January 6, a family member informed Tillman that Thomas was hiding out in an apartment complex in South Sacramento. The Sacramento Police and the Sacramento Sheriff surrounded an apartment, but Thomas was gone. They learned he was in an area apartment complex.
The declaration concluded by stating Tillman has known Thomas and his family for Thomas's entire life. He felt confident he could apprehend Thomas with additional time because Thomas had few places to go and his family was actively cooperating.
The trial court denied Accredited's motion for an extension of time on February 10, 2005. The court stated, On February 10, 2005, the court ordered entry of summary judgment on the forfeiture of the bail bond.
Accredited contends the trial court abused its discretion by denying Accredited's motion for an extension of the 180-day forfeiture period. Accredited claims section 1305.4 requires a court to find good cause and grant an extension as long as the surety has shown that a reasonable attempt to locate the defendant has been made. Accredited further argues that the law abhors forfeitures, so courts should strictly construe the statute's good cause requirement in favor of the surety. Finally, Accredited analogizes the Tillman declaration to the declaration in People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122 (Alistar), in which the Fourth Appellate District determined the trial court abused its discretion by denying a section 1305.4 motion. (Id. at p. 129.)
On the other hand, the People contend the trial court did not abuse its discretion by denying Accredited's motion. They argue the information in the Tillman declaration was too deficient in detail to show good cause for an extension of the forfeiture period because the declaration did not sufficiently explain Tillman's attempts to capture Thomas or why those efforts were unsuccessful. The People analogize the Tillman declaration to the declaration in People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 682 (Ranger), in which the Second Appellate District determined the trial court did not abuse its discretion by denying a section 1305.4 motion.
Only two published California opinions address the issue of whether good cause exists to extend the forfeiture period under section 1305.4: Ranger and Alistar. The court in Ranger was the first to interpret the good cause requirement of section 1305.4. The Ranger court explained that extensions beyond the automatic 180-day forfeiture period are not automatic. (Ranger, supra, 81 Cal.App.4th at p. 681.) The surety must earn additional time by showing good cause, which means an explanation of: (1) what efforts the surety made to locate the defendant; and (2) why those efforts were unsuccessful. (Ibid.)
Employing its standard, the Ranger court determined the surety's declaration in that case was cursory and incomplete. (Ranger, supra, 81 Cal.App.4th at p. 682.) The declaration merely stated that an investigation had produced a "positive address" for the defendant in Mexico and that he was a member of a band. (Id. at pp. 683-684, appen.) It did not describe what efforts the bond agent made, when he made them, or how he was able to locate the defendant. (Id. at p. 682.) It also did not explain what a "positive address" was; how the agent found it; how he knew it was a good address; whether it was still good; and why it was relevant the defendant was in a band. (Ibid.) Therefore, the trial court's ruling that there was no good cause for an extension did not exceed all bounds of reason. (Ibid.)
The Alistar court, on the other hand, determined the trial court's denial of an extension under section 1305.4 was an abuse of discretion. (Alistar, supra, 115 Cal.App.4th at p. 129.) The court used the Ranger standard, stating that establishing good cause requires an explanation of what efforts the surety made to locate the defendant and why those efforts were unsuccessful. (Alistar, at p. 127.)
The declaration in Alistar was "relatively detailed." (Alistar, supra, 115 Cal.App.4th at p. 128.) The court determined that it was "far more detailed" than the declaration in Ranger. (Alistar, at p. 128.) Among other things, it stated the investigator made a series of phone calls to reach the defendant and his brother; conducted database searches and checked addresses; contacted the police department and spoke to a detective; contacted the defendant's sister; and talked to the defendant's brother, who told him the defendant was in Mexico. (Ibid.)
The investigator also stated he believed the defendant was in a certain area (Moreno Valley) because he had spoken to the defendant's sister. (Alistar, supra, 115 Cal.App.4th at p. 128.) He thought the sister would have told him the defendant was in Mexico if he were there; instead, she told him she would pass along the message to the defendant. (Ibid.) The investigator "concluded that if granted an additional extension, he would be able to return [the] defendant to custody." (Ibid.)
The appellate court concluded the facts amounted to a reasonable attempt to locate the defendant. (Alistar, supra, 115 Cal.App.4th at p. 129.) Therefore, the trial court abused its discretion in denying Alistar's motion for an extension of time. (Ibid.)
We read the Ranger standard, as applied in Alistar, as a requirement that the surety show its due diligence to locate a defendant and secure his or her presence in court. As the Ranger court noted, section 1305.4 does not "giv[e] a surety carte blanche to sit on its hands for six months and then come running into court at the last minute with a bare-bones declaration that leaves huge gaps in the facts, and expect a trial court to simply roll over and give an extension." (Ranger, supra, 81 Cal.App.4th at p. 682.) In order to show good cause for its extension, the surety must demonstrate that it diligently attempted to locate and capture the defendant during the initial 180 days.
While the reasons why efforts were unsuccessful are relevant to determine whether good cause has been shown, as Accredited points...
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