Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SJ-3271of Los Angeles County, Edmund W. Clarke, Judge. Affirmed.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Ralph L. Rosato, Assistant County Counsel, and Paul H.S. Kim, Deputy County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Indiana Lumbermens Mutual Insurance Company (Lumbermens Mutual) appeals from the entry of summary judgment following the trial court’s order denying the surety’s extension of the 185-day period in which Lumbermens Mutual could set aside the bail forfeiture (Pen. Code, § 1305.4). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 10, 2008, Lumbermens Mutual posted bail for the release of Alex Anuar Ortiz, who had been charged with burglary. Ortiz was required to appear in court on April 11, 2008 for his arraignment. On April 11, 2008, Ortiz plead nolo contendere to violation of Penal Code section 459, and was ordered to return for sentencing on May 12, 2008. Ortiz failed to appear on May 12, 2008, and so the trial court ordered his bail forfeited. The forfeiture order was served by mail to Lumbermens Mutual on May 20, 2008. The 185th day after mailing was November 10, 2008.
On November 13, 2008, Lumbermens Mutual’s agent filed a motion to extend the appearance period pursuant to Penal Code section 1305.4. The motion was supported by the declaration, made under penalty of perjury, of investigator Mario Hernandez, who averred that he had been looking for Ortiz since July 2008. The investigator stated he began attempts to locate Ortiz on July 1, 2008 by calling the telephone number listed on the bail application, but the number was no longer in service. Nor was the telephone number for Ortiz’s girlfriend, the cosigner of the bail bond application. The investigator also tried to contact the girlfriend’s sister, but there was no answer. Also in July, the investigator called Ortiz’s brother, went to Ortiz’s and the girlfriend’s sister’s residences. No one had seen Ortiz in two months. The investigator made three attempts to locate Ortiz in August 2008 by conducting surveillance of Ortiz’s sister’s house and other places Ortiz frequented. In September 2008, Hernandez offered a reward to Ortiz’s brother who had not heard from Ortiz “at all.” Hernandez searched another residence listed on the application but learned that Ortiz had moved out three weeks after being bailed out. In October 2008, Hernandez returned to the girlfriend’s residence and followed up on an address given him, but no one had seen Ortiz in some time.
Hernandez’s next attempts to locate Ortiz consisted of visiting the houses or conducting surveillance, and following up on leads suggesting that Ortiz had moved to an address in Van Nuys. On October 20, 2008, the manager at the Van Nuys address stated he had seen Ortiz recently but did not know whether he lived with any of the residents. The investigator offered the manager a reward for information leading to Ortiz’s arrest. Finally, the investigator declared he believed he would succeed in apprehending Ortiz if given more time.
The trial court denied the surety’s motion for lack of good cause and entered summary judgment. Lumbermens Mutual’s timely appeal ensued.
CONTENTION
Lumbermens Mutual contends that the trial court erred in denying the motion to extend the statutory appearance period.
DISCUSSION
“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. [Citation.] The surety that posted the bond then has a statutory ‘appearance’ period in which either to produce the accused in court and have the forfeiture set aside, or to demonstrate other circumstances requiring the court to vacate the forfeiture.” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657, fn. omitted.) This “appearance” period is 180 days, plus five days for service by mail, after a notice of forfeiture is mailed by the court clerk. (§ 1305, subd. (c).) “If the forfeiture is not set aside by the end of the appearance period, the court is required to enter summary judgment against the surety.” (People v. American Contractors Indemnity Co., supra, citing Pen. Code, § 1306, subd. (a).)
A surety may file a motion for an order extending the 185-day appearance period. The court may extend the appearance period upon a showing of good cause. (Pen. Code, § 1305, subd. (i).) Good cause means an “ ‘explanation of what efforts [the surety] made to locate [the accused] during the initial 180 days, and why such efforts were unsuccessful.’ [Citation.] ‘[T]he surety [must] show its due diligence to locate a defendant and secure his or her presence in court.... [S]ection 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.” [Citation.] 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.’ [Citation.]” (People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 644.)
The trial court must also consider whether there is a reasonable likelihood of securing the attendance of the accused. (People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1358 (Accredited).) “ ‘The inquiry must be prospective as well as retrospective; otherwise, an extension does not serve the statute’s policy of returning fleeing defendants to custody. That policy is best served by the surety showing that another 180 days might be productive.’ [Citation.]” (County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1027.)
“ ‘The purpose of bail and forfeiture statutes is to insure the attendance of the accused and his obedience to court orders and judgments.’ [Citations.]” (People v. Ranger Ins. Co. (2006) 139 Cal.App.4th 1562, 1564.) “[T]o avoid the harsh penalty of forfeiture, we strictly construe the relevant statutory provisions in favor of the surety. [Citation.] [¶] The surety... bears the burden of establishing that its case for relief falls within the statutory requirements. [Citation.]” (Ibid.) “ ‘If the surety demonstrates good cause by showing due diligence in the initial 180 days, a reasonable likelihood of success of capturing the defendant in a subsequent 180 days, and any other relevant circumstances, the court should grant the motion.’ [Citation.]” (County of Los Angeles v. Fairmont Specialty Group, supra, 164 Cal.App.4th at p. 1028.)
We review a trial court’s determination of good cause under the abuse of discretion standard (People v. Ranger Ins. Co., supra, 150 Cal.App.4th at p. 644) and will not disturb the determination unless the record demonstrates “a clear abuse of that discretion....” (People v. Ranger Ins. Co., supra, 139 Cal.App.4th at p. 1564.)
Here, even assuming the investigator has demonstrated due diligence, there is no evidence of the second prong of the test here, namely, a reasonable assurance that the surety could bring Ortiz into custody in another 180 days. The investigator simply stated his “belie[f]” he would successfully apprehend the defendant. Yet, other than the fact that in October 2008 the manager of a building in Van Nuys had recently seen Ortiz, there is no evidence on which the court could determine that the investigator was any nearer to locating Ortiz than in July 2008, or could assess the likelihood that Ortiz would be located if it granted the surety an extension.
Neither of the two cases on which Lumbermens Mutual relies, Accredited and People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122 (Alistar), is analogous because the diligence here does not rise to the level shown in those cases. Unlike here, Accredited’s investigator consistently gathered information about the accused, knew where he resided at various times, with whom he associated, and what actions the accused had taken. (Accredited, supra, 137 Cal.App.4th at pp. 1352-1354.) There, the surety had received tips about the accused’s whereabouts. (Id. at p. 1359.) The investigator here only received two tips and neither was as concrete as in Accredited. Twice, Accredited’s surety obtained the help of local police to capture the suspect; Hernandez sought no such help. The Accredited investigator hired a fugitive recovery specialist and California Patrol Agency to help him. (Ibid.) Not so here. Hence, the surety in Accredited exercised far more diligence than Lumbermens Mutual did here.
Similarly, in Alistar, the surety had obtained the help of local police and ran a database search and found a new address for the suspect. The investigator attempted to call the suspect’s brother at work. Finally, the brother of the suspect called the surety and offered to make arrangements to pay off the bail bond. (Alistair, supra, 115 Cal.App.4th at p. 128.) The efforts of the investigator in Alistar were simply more diligent than the evidence presented here indicates.
More important, unlike here, in Accredited there was evidence of the likelihood the surety could bring the accused to custody during the extended period. Accredited’s investigator explained that 18 days before signing his declaration, the surety learned the address of the accused. (Accredited, supra, 137 Cal.App.4th at p. 1359.) Here, however, the investigator does not have any concrete evidence of where Ortiz is to be found. The building manager in Van Nuys stated only that he had seen Ortiz; he did “not know if [Ortiz] stays with any of the residents.” One report from an apartment manager who had seen the suspect recently but did not even know whether the suspect was staying in the building, is simply not enough evidence for the court to assess the reasonable likelihood of capture in the next six months. Unlike here, in Alistar, there was no need for any evidence of assurance of capture given the brother’s promise to pay the bond in any event. (Alistar, supra, 115 Cal.App.4th at p. 128.)
Although we strictly construe the relevant statutory provisions in favor of the surety, it is the surety who bears the burden of establishing that it falls within the statutory requirements for relief. (People v. Ranger Ins. Co., supra, 139 Cal.App.4th at p. 1564.) As Lumbermens Mutual failed to carry its burden, the trial court did not abuse its discretion in denying the motion to extend the appearance period.
DISPOSITION
The judgment is affirmed. Lumbermens Mutual is to pay costs on appeal.
We concur: CROSKEY, ACTING P. J. KITCHING, J.