People v. Fin. Cas. & Sur., Inc.

• Court: California Court of Appeals
• Writing for the Court: HOFFSTADT, J.
• Citation: People v. Fin. Cas. & Sur., Inc., 10 Cal.App.5th 369, 216 Cal.Rptr.3d 173 (Cal. App. 2017)
• Decision Date: 03 April 2017
• Docket Number: B264718
• Parties: The PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

10 Cal.App.5th 369

216 Cal.Rptr.3d 173

The PEOPLE, Plaintiff and Respondent,

v.FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

B264718

Court of Appeal, Second District, Division 2, California.

Filed April 3, 2017

Law Office of John Rorabaugh, John M. Rorabaugh, Fresno and Robert Tomlin White, San Diego, 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.

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." (Pen. Code, § 1305, subd. (g).)¹ Can the prosecuting agency refuse to make an election—and effectively deny the surety vacatur—unless the surety also provides the agency with a photograph or fingerprints to verify the defendant's presence in the foreign jurisdiction? We conclude the answer is "yes." Because the surety in this case did not comply with the prosecuting agency's request and was not reasonably likely to do so in the remaining 21 days before its window to seek vacatur closed, we affirm the trial court's denial of the motion to vacate the bond and its related order granting summary judgment on the bond.

FACTS AND PROCEDURAL BACKGROUND

In October 2013, Juan Carlos Pena Angulo (Angulo) was charged with (1) transporting and selling a controlled substance (Health & Saf. Code, § 11379, subd. (a) ), (2) possessing a controlled substance for sale (id. , § 11378), and (3) using a false compartment with the intent to store, smuggle, or transport a controlled substance (id. , § 11366.8, subd. (a)). Defendant and appellant Financial Casualty & Surety, Inc. (the surety) authorized its agent to issue a $100,000 bail bond guaranteeing Angulo's court appearances.

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."

On December 24, 2014, the surety filed a motion (1) seeking to vacate the bond's forfeiture and exonerate the bond, and alternatively (2) seeking until February 23, 2015, to provide a photograph or fingerprints.³ Further briefing followed.

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, 92 Cal.Rptr.3d 767 (Fairmont ) ["An order denying a motion to vacate or set aside a forfeiture and exonerate the bail bond is an appealable order"]; § 1305.5 [specifying to which court of appeal such orders must be directed]; People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 39, 211 Cal.Rptr.3d 79, 384 P.3d 1226 (Financial Casualty ) [appeal of order denying continuance of appearance period].)⁴

I. Motion to Vacate Forfeiture and Exonerate Bond

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 ..." (Cal. Const., art. I, § 28, subd. (f)(3).) The most common mechanism for obtaining release is a bail bond, which rests upon two different contracts between three different parties: The surety contracts with the government to " ‘ "act[ ] as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond," ’ " and the defendant contracts with the surety to pay a premium for the bond and to provide collateral in the event of his or her nonappearance. (Financial Casualty , supra , 2 Cal.5th at p. 42, 211 Cal.Rptr.3d 79, 384 P.3d 1226, quoting American Contractors , supra , 33 Cal.4th at p. 657, 16 Cal.Rptr.3d 76, 93 P.3d 1020.)

If the defendant does not appear as ordered "without sufficient excuse," the trial court can (1) declare the bond forfeited in open court (§ 1305, subd. (a)(1) ), or, if the court "has reason to believe that sufficient excuse may exist for the failure to appear," (2) continue the case for a "reasonable" period of time "to enable the defendant to appear" (§ 1305.1). Forfeiture is the general rule. (Financial Casualty , supra , 2 Cal.5th at p. 42, 211 Cal.Rptr.3d 79, 384 P.3d 1226 ["When the surety breaches [its] contract [with the government] by failing to secure the defendant's appearance, the bond generally must be enforced"].)

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 (§ 1305, subd. (b)(1) ))—to move to vacate the forfeiture. (§ 1305, subd. (c).) This is often called the "appearance period." (American Contractors , supra , 33 Cal.4th at p. 658, 16 Cal.Rptr.3d 76, 93 P.3d 1020.) The surety may ask for an additional 180-day extension of this period. (§ 1305.4.) Extensions may only be granted for "good cause" (ibid. ), which turns on the surety's diligence in tracking down the defendant as well as whether there is "a reasonable likelihood [that] the extension will result in the defendant's apprehension." (Financial Casualty , supra , 2 Cal.5th at pp. 47-50, 211 Cal.Rptr.3d 79, 384 P.3d 1226 ). A court lacks the power to grant further extensions—either as a matter of statute or through its inherent equitable powers. (People v. Western Ins. Co. (2012) 204 Cal.App.4th 1025, 1030, 139 Cal.Rptr.3d 479 (Western ) ["No additional extensions of this bond exoneration period are statutorily authorized"]; id. at pp. 1032-1033, 139 Cal.Rptr.3d 479 [equitable tolling unavailable].)

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 pertinent here,⁵ the surety is entitled to relief when the defendant is found in another state or country if (1) the defendant "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," (2) the defendant "is positively identified by that law enforcement officer ... in an affidavit signed under penalty of perjury," and (3) "the prosecuting agency elects not to seek extradition after being informed of the" defendant's location. (§ 1305, subd. (g) ; People v. Seneca Ins. Co. (2010) 189 Cal.App.4th 1075, 1080, 117 Cal.Rptr.3d 217 (Seneca ) [this provision reaches defendants in "a foreign country"] ). If the court vacates the forfeiture and exonerates the bond on this or any other statutorily permissible ground, it "shall impose a monetary payment as a condition of relief to compensate the people for the costs of returning a defendant to custody" unless such an award would not be in "the best interest of justice." (§ 1306, subd. (b).)

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." (§ 1306, subd. (a); American Contractors , supra , 33 Cal.4th at p. 658, 16 Cal.Rptr.3d 76, 93 P.3d 1020.) In this respect, "bail bond proceedings"—despite growing out of criminal prosecutions—"are independent from and collateral to the prosecutions and are civil in nature." (People v. Wilcox (1960) 53 Cal.2d 651, 654, 2 Cal.Rptr. 754, 349 P.2d 522...