Opinion
H045639
10-04-2019
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN SURETY COMPANY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1510944)
I. INTRODUCTION
American Surety Company (the surety) appeals from an order denying its motion to extend the forfeiture period pursuant to Penal Code section 1305.4 and from the subsequent judgment entered against it. The surety contends that the trial court abused its discretion when it denied the surety's motion to extend the forfeiture period because the surety demonstrated "reasonable and diligent efforts" to locate defendant during the initial forfeiture period and the court "ignored the information in the declaration that established a likelihood of success" for defendant's capture.
All further statutory references are to the Penal Code.
For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
On December 29, 2016, the surety's agent, Bail Hotline Bail Bonds (the bail agent), posted a $50,000 bond for the release of defendant Elizabeth Nguyen, pending her January 24, 2017 appearance on felony charges. On April 13, 2017, when defendant failed to appear at a probation and sentencing hearing, the trial court ordered the bond forfeited. A notice of forfeiture was mailed to the parties the next day.
On October 13, 2017, the bail agent moved to extend the forfeiture period by 180 days pursuant to section 1305.4. Attached to the motion were two declarations. The first, by the "Forfeiture Clerk" of the "Pre-Investigations Department," stated that the forfeiture notice was received on May 8, 2017. According to the declaration, on May 9, the clerk determined that defendant was not in custody and tried to contact defendant by calling the cell phone number listed for her on the bail application. When defendant did not answer, the clerk left a message asking her to return his call. Over the next several weeks, the clerk called four individuals listed on defendant's bail application, but did not reach anyone associated with defendant. The clerk also left another message for defendant on June 2 and, on June 16, again checked the inmate locator database. When the clerk got no results on the inmate database, he prepared a file on defendant for the bail bond recovery agent.
The declaration does not indicate whether the forfeiture clerk worked for the surety, the bail agent, or some other entity.
The second declaration attached to the motion to extend the forfeiture period was from the "bail fugitive recovery agent . . . contracted by Fugitive Recovery Investigations (F.R.I.)." The six-page declaration detailed the recovery agent's efforts to locate defendant on 14 dates between June 27 and October 3, 2017. According to the declaration, the recovery agent conducted surveillance at defendant's "listed address" or "previous address" on four occasions. He also went to multiple other addresses, some of which were associated with defendant's references and her sister and cousin, called various phone numbers for defendant and her references, and searched databases and social media profiles. On none of the occasions when the recovery agent was able to contact someone at an address he visited did he receive any information regarding defendant's current whereabouts.
The declaration stated that "[o]n or about September 22, 2017 [the recovery agent] conducted a background search of the defendant utilizing F.R.I[.] search databases. [The recovery agent] was able to obtain [an] address [on] Luxor St., Downey, CA. The address was run through a reverse address search database and the family name associated to the property was the Kwon family." On or about October 2, 2017, the recovery agent searched for "defendant on multiple social media outlets under her alias name 'Kim' " and "was able to locate a profile under Kim Nguyen of Stockton, CA," which was the location of defendant's listed and previous addresses. On or about October 3, 2017, the recovery agent located the social media profiles of defendant's sisters.
The final paragraph of the recovery agent's declaration stated: "In conclusion, I believe that if the requested extension is granted, we will have the defendant returned into custody. I believe that the defendant is currently residing at the new-found address [on] Luxor St., Downey, CA. With this new information obtained, I plan o[n] contacting investigators [in the] southern California region and have them further investigate [the] address." It also stated that the recovery agent planned to visit defendant's references at their newly discovered addresses and that he would continue to search databases and monitor social medial accounts.
The trial court heard the motion to extend the forfeiture period on November 8, 2017. The district attorney orally objected to the extension request, arguing that the information regarding the Luxor Street address was "the product of a database search which somehow associates the defendant with that address, but . . . a further search of that address connects that property to the [Kwon] family. And there is no description or information as to how or why that would be the defendant's current address." In response, counsel for the bail agent asked whether the trial court would be amenable to continuing the matter for the filing of a supplemental declaration and also suggested that the court give the bail agent "a 90-day extension to see if they pick [defendant] up over the holidays, since it's family connections that they are following up [on]."
The trial court denied the motion. The trial court found the declaration "insufficient," stating that the information regarding the Luxor Street address "is entirely vague. We have no idea when [defendant] was associated with that address[,] why, how, et cetera, and the only other information indicates that she might not be associated with that address, in other words, it has to do with the [Kwon] family. So I don't think that satisfies the good cause requirement." The trial court also denied the bail agent's request for time to submit a supplemental declaration.
On November 21, 2017, defendant appeared in court and was remanded into custody. On December 19, 2017, summary judgment was entered against the surety on the forfeited bond.
III. DISCUSSION
A. Legal Principles
"Penal Code sections 1305 through 1309 govern the forfeiture of bail bonds. As the law disfavors forfeitures, including the forfeiture of bail, these statutory provisions must be strictly construed in favor of the surety to avoid the harsh results of forfeiture. [Citation.]" (People v. Ranger Ins. Co. (1992) 9 Cal.App.4th 1302, 1305, fn. omitted.)
Generally, the trial court is required to declare a forfeiture of bail when the defendant first fails to appear in court without sufficient excuse. (§ 1305, subd. (a).) The forfeiture may be set aside if, within 180 days of the date of forfeiture or 180 days of the date of mailing of the notice of forfeiture, the defendant appears, is arrested, or has a permanent disability. (§ 1305, subds. (b), (c) & (d).) This 180-day period is extended for five days when notice is required to be mailed (§ 1305, subd. (b)) and can be further extended upon a showing of good cause (§ 1305.4). If the period to set aside the forfeiture elapses, the court must enter summary judgment against the bondsman within 90 days or lose jurisdiction over the bond. (§ 1306, subds. (a) & (c); People v. American Bankers Ins. Co. (1992) 4 Cal.App.4th 348, 354.)
Section 1305.4 states: "Notwithstanding Section 1305, the surety insurer, the bail agent, the surety, or the depositor may file a motion, based upon good cause, for an order extending the 180-day period provided in that section. The motion shall include a declaration or affidavit that states the reasons showing good cause to extend that period. The court, upon a hearing and a showing of good cause, may order the period extended to a time not exceeding 180 days from its order. A motion may be filed and calendared as provided in subdivision (j) of Section 1305. In addition to any other notice required by law, the moving party shall give the prosecuting agency a written notice at least 10 court days before a hearing held pursuant to this section as a condition precedent to granting the motion."
In order to show good cause for an extension of the forfeiture period pursuant to section 1305.4, "the surety must demonstrate that it diligently attempted to locate and capture the defendant during the initial 180 days." (People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1356 (Accredited).) In addition, "a court deciding a surety's motion to extend the [forfeiture] period may consider, as a factor tending to show lack of good cause, that the motion is unsupported by facts establishing a reasonable likelihood the extension will result in the defendant's apprehension." (People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 47 (Financial Casualty).)
"[A] trial court considering the likelihood of apprehension as a factor in the determination does not attempt to foresee the future but rather assesses, on the basis of the affidavits or declarations detailing the investigation to that point, how close the surety's efforts have brought it to finding the defendant and bringing him or her into custody and what further steps the investigators intend to take during the requested extension. In light of the policy of avoiding forfeitures and favoring bringing defendants to justice, all that the court can demand is a showing of a reasonable likelihood of success, not a certainty or high probability, and the surety's declarations should be read liberally for inferences that would support good cause." (Financial Casualty, supra, 2 Cal.5th at pp. 49-50.) "The good cause showing under section 1305.4 is a low threshold for the movant." (Accredited, supra, 137 Cal.App.4th at p. 1358.)
We review the denial of a motion to extend the forfeiture period for an abuse of discretion. (Financial Casualty, supra, 2 Cal.5th at p. 47.) Accordingly, we may not overturn the order unless the trial court "clearly abused its discretion"—that is, "only where the court's decision ' "exceeds the bounds of reason, all circumstances being considered. [Citation.]" ' " (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679-680 (Ranger).)
B. Analysis
The surety contends that the trial court abused its discretion when it denied the section 1305.4 motion to extend the forfeiture period. The surety argues that it demonstrated it made "reasonable and diligent efforts" to locate defendant during the initial 180 days and that the court "ignored the information in the declaration that established a likelihood of success" for defendant's capture.
While we agree that the bail agent established its diligent efforts to locate defendant, we conclude that the trial court did not abuse its discretion when it found "the good cause requirement" unmet, implicitly determining that the bail agent failed to show a "reasonable likelihood" defendant would be apprehended during the requested extension. (Financial Casualty, supra, 2 Cal.5th at p. 49.)
The declaration by the forfeiture clerk attached to the bail agent's extension motion demonstrated that the bail agent began its attempts to find defendant promptly. When the forfeiture clerk was unable to reach defendant and the people listed on her bail application by phone, he prepared a file on defendant for the bail bond recovery agent. The six-page declaration by the recovery agent detailed his efforts to find defendant over the course of 14 days between June 27 and October 3, 2017. The recovery agent conducted surveillance at defendant's "listed address" or "previous address" four times, went to the addresses of defendant's sister, cousin, and references, and spoke to people he found at the various addresses. He also tried to call defendant and her references and searched databases and social media websites.
At the end of the declaration, the recovery agent stated: "In conclusion, I believe that if the requested extension is granted, we will have the defendant returned into custody. I believe that the defendant is currently residing at the new-found address [on] Luxor St., Downey, CA. With this new information obtained, I plan o[n] contacting investigators [in the] southern California region and hav[ing] them further investigate [the] address." The declaration further stated that the recovery agent planned to visit defendant's references at their newly discovered addresses and that he would continue to search databases and monitor social medial accounts.
The recovery agent also stated on the first page of the declaration: "I believe if we are granted the additional requested time, we will be successful in apprehending the defendant."
However, as the trial court determined, the declaration offered minimal information regarding how the newly discovered Luxor Street address was found and no information connecting defendant to that address. The declaration simply stated, "On or about September 22, 2017 [the recovery agent] conducted a background search of the defendant utilizing F.R.I[.] search databases. [The recovery agent] was able to obtain [an] address [on] Luxor St., Downey, CA. The address was run through a reverse address search database and the family name associated to the property was the Kwon family." As the trial court found, "[w]e have no idea when [defendant] was associated with that address[,] why, how, et cetera, and the only other information indicates that she might not be associated with that address, in other words, it has to do with the [Kwon] family." (See Ranger, supra, 81 Cal.App.4th at pp. 678, 682 [holding there was no abuse of discretion in denying the extension motion based in part on the declaration of the surety's investigator that did not "explain what a 'positive address' was, how he was able to find it, how he knew it was a bona fide address for [the defendant], and whether the address was still good"].)
Moreover, the declarations attached to the extension motion do not provide a single instance when either the forfeiture clerk or the recovery agent spoke to someone who knew defendant's current whereabouts or was in current contact with her. A surety is not "entitled to another 180 days simply by demonstrating it exerted some effort. 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." (Accredited, supra, 137 Cal.App.4th at p. 1357.)
Accredited is illustrative. In contrast to the circumstances here, in Accredited the bail agent's declaration indicated that at various times during the initial forfeiture period, the bail agent "knew where [the defendant] was, what he was doing, and with whom he was consorting. . . ." (Accredited, supra, 137 Cal.App.4th at p. 1359.) "On two occasions he secured the help of local police to capture [the defendant]. On the first, [the defendant's] family tipped him off and he fled before they entered an apartment; on the second, [the defendant] was 'gone.' . . . [¶] . . . Eighteen days before he signed his declaration, [the bail agent] learned [the defendant] was at an apartment in Sacramento. Although his attempt to capture [the defendant] that day proved fruitless, he did learn [the defendant] was in an area apartment complex. [¶] . . . He [also] learned where [the defendant] resided at various times, with whom he associated, and what actions he had taken, such as stealing a check from his chiropractor. . . . The declaration also stated that [the defendant's] family was actively cooperating, that [the defendant] had few places to go, and that [the bail agent] felt confident he could return [the defendant] to custody in another 180 days." (Ibid.)
While the surety argues here that the trial court "ignored the information in the declaration that established a likelihood of success, including the recent discovery of the Facebook pages for the defendant and her sisters," we observe that the recovery agent's declaration does not provide any tangible information to support his "belie[f] that if the requested extension is granted, we will have the defendant returned into custody." Thus, we conclude that the trial court's implicit determination that the bail agent failed to demonstrate a "reasonable likelihood" defendant would be apprehended during the requested extension (Financial Casualty, supra, 2 Cal.5th at p. 49) did not " ' "exceed[] the bounds of reason, all circumstances being considered" ' " (Ranger, supra, 81 Cal.App.4th at p. 680). In other words, "[t]o rely on the absence of proof an extension would be productive was not an abuse of the trial court's discretion." (Financial Casualty, supra, at p. 50.)
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.