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

• Decision Date: 08 December 2016
• Docket Number: S229446
• Citation: 384 P.3d 1226,2 Cal.5th 35,211 Cal.Rptr.3d 79
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

2 Cal.5th 35

384 P.3d 1226

211 Cal.Rptr.3d 79

The PEOPLE, Plaintiff and Respondent,

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

S229446

Supreme Court of California

Filed December 8, 2016

Law Office of John Rorabaugh, John M. Rorabaugh, Fresno, Robert Tomlin White, San Diego, and E. Alan Nunez for Defendant and Appellant.

Peter A. Botz, Toni Martinson, Carlsbad, and Justin C. Pinney for Two Jinn, Inc., as Amicus Curiae on behalf of Defendant and Appellant.

Mary C. Wickham, County Counsel, Brian T. Chu, Principal Deputy County Counsel, and Lindsay Yoshiyama, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer B. Henning and Janis L. Herbstman for California State Association of Counties as Amicus Curiae on behalf of Plaintiff and Respondent.

Werdegar, J.Penal Code section 1305.4¹ allows the period in which a bail bond may be exonerated by the accused's appearance, normally running 185 days from mailing of a notice the bond has been forfeited (§ 1305, subds. (b), (c)(1)), to be extended on a showing of good cause by up to 180 additional days from the court's order. The trial court in this case granted an extension for fewer than 180 days but, at the end of the extension period, denied the bond surety's second extension motion. The Court of Appeal affirmed that ruling on two grounds: (1) because the surety had not established a reasonable likelihood the requested extension would lead to the accused's return to custody, the trial court could reasonably find the surety had failed to show good cause for a further extension; and (2) under the case law interpreting section 1305.4, serious doubt exists as to whether the trial court even had the authority to grant a further extension, as at the time of the motion more than 365 days had passed since the bond was forfeited.

We conclude the Court of Appeal was correct on the first point but incorrect on the second. Because at the time the surety's second extension motion was heard fewer than 180 days had passed since the first extension was ordered, the trial court had discretion under section 1305.4 to grant a further extension. But the court did not abuse that discretion in considering, as grounds for denying an extension of the period for exonerating a bail bond, that the surety had not shown the requested extension was likely to produce the accused's appearance in court. As the Court of Appeal correctly found no abuse of discretion, we will affirm its judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 5, 2012, Financial Casualty & Surety, Inc. (Financial Casualty) posted a bail bond in the amount of $1,240,000 on behalf of Oscar Grijalva, who was charged with attempted murder and other felonies. Grijalva failed to appear at a pretrial proceeding on August 23, 2012, resulting in forfeiture of his bail and issuance of a bench warrant. A notice of forfeiture was mailed to Financial Casualty and its bail agent on August 24, 2012. Under section 1305, the forfeiture would be vacated and the bond exonerated if Grijalva appeared in court by the 185th day after the notice was mailed, February 25, 2013. (See § 1305, subds. (b), (c)(1).)

On February 20, 2013, five days before the appearance period ended, Financial Casualty filed a motion to extend the period under section 1305.4, supported by a declaration from Cesar McGuire, the lead investigator assigned by Financial Casualty to apprehend Grijalva. McGuire detailed the efforts he and his team of recovery agents had undertaken to find Grijalva, beginning on August 22, 2012, when Grijalva detached his ankle bracelet at an airport, and continuing through February 4, 2013, when a website and Facebook advertisements offering a $100,000 award were published in the United States. In that period, McGuire pursued numerous leads in Southern California and Mexico provided by Grijalva's family members and acquaintances and by confidential informants. Although his investigation to that point had failed to locate the fugitive, McGuire stated he had "a tremendous amount of new leads" from people who had seen Grijalva in Guadalajara, Mexico, and in Orange and Los Angeles Counties, and that "with all the legwork that I have done on the case, I am confident that Oscar Grijalva will be apprehended and brought to justice."

The motion was heard and decided on March 20, 2013. On that date, the trial court ordered the appearance period extended to August 1, 2013.

On August 1, 2013, Financial Casualty filed a second motion to extend the appearance period, again supported by a declaration from McGuire. Since the period covered by his previous declaration, McGuire had offered Grijalva's sister a $100,000 reward for turning him in; received a call from a Mexican man who claimed to be Grijalva's cousin; received information about other Grijalva family members travelling to Mexico; tried unsuccessfully to contact Grijalva's mother; conducted surveillance on four residences in California without finding Grijalva at any of them; followed family members on a drive to Rosarito, in Baja California, but lost them there without seeing Grijalva; established or maintained law enforcement contacts in Baja California and thereby confirmed that a gang with which Grijalva was associated had a presence in Tijuana; and spoken with a reliable confidential informant who said Grijalva was staying in Tijuana and with a "US law enforcement officer" who said Mexican law enforcement had told him they had an informant who knew Grijalva. In this declaration, unlike his first, McGuire made no predictions or claims as to the likelihood of apprehending Grijalva.

The second extension motion was heard and denied on August 26, 2013. The trial court first stated that the 365 days of total appearance time the court believed allowed under section 1305.4 had "run out." After counsel for Financial Casualty argued the 180 days of allowable extension from the date of the prior extension order (March 20, 2013) did not expire until September 16 (allowing for the requested extension of 21 days from the hearing date), the court stated that any further extension was "discretionary" and would be denied for lack of good cause. To counsel's claim that Grijalva "is very close to being able to be returned to the court," the court responded: "There is no declaration that supports that. They think he's somewhere in Tijuana." On September 4, 2013, the trial court entered summary judgment on the bond.

The Court of Appeal affirmed. Following two earlier decisions, People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 40 Cal.Rptr.3d 892 (Accredited ) and County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 79 Cal.Rptr.3d 421 (Fairmont ), the appellate court held that to establish good cause for an extension under section 1305.4, the surety must show not only that it had diligently sought to apprehend the defendant but also that it was reasonably likely to do so during the requested extension period. Here, Financial Casualty failed to show a reasonable likelihood of success if granted the extension: its agent, McGuire, "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."

The Court of Appeal also expressed "serious doubt" section 1305.4 permitted a further extension, even if good cause had been shown. Relying on the analysis in People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193, 88 Cal.Rptr.2d 713 (Taylor Billingslea ), the court below expressed agreement with the view that "the 180-day extension authorized by section 1305.4 is to be measured from the date the exoneration period would have expired in the absence of an extension, rather than from the date the court granted the extension; or in other words, 365 days from the mailing of the notice of forfeiture."

We granted Financial Casualty's petition for review, limiting the issues for briefing and argument to (1) whether an extension of the period to exonerate bail under section 1305.4 commences on the date on which the initial 180-day period expires or on the date on which the trial court grants the extension; and (2) whether the good cause standard under section 1305.4 includes consideration of a reasonable likelihood of success in returning the fugitive to court and, if so, which party bears the burden of proof on that question.

DISCUSSION

A 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. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657, 16 Cal.Rptr.3d 76, 93 P.3d 1020 (American Contractors ).) When the surety breaches the contract by failing to secure the defendant's appearance, the bond generally must be enforced. (Id. at pp. 657–658, 16 Cal.Rptr.3d 76, 93 P.3d 1020.) The purpose of bail and of its forfeiture, however, is to ensure the accused's attendance and obedience to the criminal court, not to raise revenue or to punish the surety. (Id. at p. 657, 16 Cal.Rptr.3d 76, 93 P.3d 1020.)

"When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (§ 1305, subd. (a).) The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c...