Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County., No. F08905740, Kristi Culver Kapetan, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Kevin B. Briggs, County Counsel, and Juan P. Rodriguez, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Cornell, J. and Franson, J.
Financial Casualty & Surety, Inc. (Financial), posted a bail bond to secure the release of Andre Jermaine Madison. When Madison failed to appear at the scheduled court hearing, the trial court ordered the bond forfeited. When Financial was unable to locate Madison during the initial exoneration period, it filed a motion requesting an additional 180 days to do so. The trial court denied the motion and subsequently entered summary judgment against the bond. Financial appeals, arguing the trial court abused its discretion when it denied the motion to extend the exoneration period. We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On June 14, 2009, Financial posted a bail bond for Madison in the amount of $25,000. Madison failed to appear in court on July 13, 2009. The bond was declared forfeited and the notice of forfeiture was mailed the same day.
The notice of forfeiture began a 185-day exoneration period wherein Financial could redeem its bond if Madison appeared in court. (Pen. Code, § 1305, subds. (b) & (c)(1).) The exoneration period expired on January 14, 2010.
All further statutory references are to the Penal Code unless otherwise noted.
On January 13, 2010, Financial, through Bail Hotline Bail Bonds, filed a motion to extend the exoneration period by 180 days pursuant to section 1305.4. In support of the motion, Financial filed the declaration of Michael Estrella. Estrella declared that on September 16, 2009, he confirmed there was an active warrant for Madison. On September 18, he checked the address on the bail bond application and was informed that Madison had never lived there. The tenant told Estrella that Madison was staying in hotels in a specific part of town. On September 19, Estrella checked the address listed for Madison’s mother on the bail bond application and discovered she no longer lived there. On September 20, Estrella located Madison’s sister, who told Estrella that she had not seen her brother in four months and that as far as she knew he was living on the streets. Estrella checked some local hotels but did not locate Madison. He left pictures with the various hotel managers and asked them to contact him if they spotted Madison.
On October 1, Estrella called Madison’s sister, but she refused to provide any additional information. On October 5, Estrella spoke with Madison’s mother, who refused to provide any information about Madison’s whereabouts. On October 19, Estrella checked with the hotels he had canvassed before. No one had any information about Madison. A few days later Estrella located another address for Madison, but learned he had moved out eight months previously.
On November 9, Estrella learned Madison might be staying at a hotel. The manager informed Estrella that Madison had been kicked out because Madison was using the room for prostitution. The following day Estrella conducted some surveillance “where all the prostitutes hang out, ” attempting to locate Madison’s girlfriend. The surveillance was unsuccessful. On November 20, Estrella checked three addresses for Madison, but Madison was not at any of the addresses. It is unclear how the addresses were obtained or why Estrella thought Madison might have been at one of the addresses.
On December 1, Estrella verified by phone that Madison had not been arrested. On December 15, Estrella confirmed that a local detective had provided officers with a photo of Madison and his girlfriend. Two days later Estrella was informed by an officer that other prostitutes had stated that Madison and his girlfriend had relocated to another city. On December 18, Estrella spoke with police officers in the new city and stated he had received promises of cooperation.
On January 5, Estrella called Madison’s mother, who refused to provide any information. The next day Madison again talked with a police officer, but there is no indication what, if anything, was discussed.
On February 23, 2010, the trial court denied the motion for an extension of the exoneration period. On March 3, 2010, summary judgment was entered in favor of the County of Fresno on the bail bond. This appeal is from the judgment.
DISCUSSION
Section 1268 et seq. provides for bail to those accused of a crime. The purpose of bail is to ensure the attendance of the defendant and obedience to court orders. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 725.) When a defendant who has posted bail fails to appear when required to do so, the trial court must declare the bond forfeited. (§ 1305, subd. (a).) If a corporate surety has posted a bond, the clerk of the court is required to mail notice to the surety and its agent advising that bail has been forfeited. (Id., subd. (b).) This notice begins the running of a 185-day period (180 days plus five because the notice was mailed) (id., subd. (b)) in which the surety is allowed to produce the defendant and have the bond exonerated (id., subd. (c)). If the surety is unable to produce the defendant within the initial 185-day period, it “may file a motion, based upon good cause, for an order extending the 180-day period provided in” section 1305. (§ 1305.4.)
Financial filed a motion for an extension pursuant to section 1305.4, which the trial court denied for a lack of good cause. The issue is whether the trial court erred in denying Financial’s motion. We review the trial court’s order for an abuse of discretion. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679 (Ranger I).) The trial court abuses its discretion when its decision exceeds the bounds of reason when considering all of the circumstances. (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.)
Ranger I defined the term “good cause” as requiring “an explanation of what efforts [the surety] made to locate [the defendant] during the initial 180 days, and why such efforts were unsuccessful.” (Ranger I, supra, 81 Cal.App.4th at p. 681.) The appellate court cautioned, however, that section 1305.4 does not give “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 I, at p. 682.) Subsequent cases have explained that efforts taken after the initial 180-day period are not relevant to the issue of whether good cause exists for an extension. (People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 644, 649 (Ranger II).)
To ease the reader’s task, we will refer to the individual or entity that posted the bond, arranged for the bond, or otherwise was responsible for the forfeiture of funds if the defendant was not returned to custody as the surety. Similarly, we will refer to the individual who was attempting to locate the defendant as the investigator, regardless of his or her actual title.
In People v. Accredited Surety and Casualty Co., Inc. (2006) 137 Cal.App.4th 1349 (Accredited), the Third District Court of Appeal expanded the definition of “good cause” to include a requirement that the surety establish a “reasonable likelihood” the surety will capture the defendant during the extension period. (Id. at p. 1357.)
We need not consider the likelihood-of-capture requirement imposed by Accredited, or even whether we agree such a requirement should be imposed, because we conclude the trial court did not abuse its discretion when it found that Financial did not establish good cause under the Ranger I definition.
Four cases are relevant to our analysis. In Ranger I the appellate court concluded the trial court did not abuse its discretion when it denied a section 1305.4 motion. To support its motion, the surety submitted a declaration that stated the file was forwarded to an investigator after all attempts by the surety to locate the defendant failed. The investigator reviewed the case file and “obtained all necessary documents to effect the defendant’s arrest.” (Ranger I, supra, 81 Cal.App.4th at p. 684.) The investigator’s investigation “produced a positive address on the above entitled matter” in Mexico. (Ibid.) In addition, the investigator learned the “defendant is a member of a band named ‘Fortaleza Nortena De Tijuana.[’]” (Ibid.)
The appellate court found this declaration to be deficient. “The declaration does not state what efforts had been made, when they were made, or when [the investigator] received the file. Further, the declaration does not state how or by what process [the investigator] was able to locate [the defendant]. Nor does [the investigator] 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. Finally, the declaration gives no details on why it is significant that [the defendant] ‘is a member of a band named “Fortaleza Nortena De Tijuana.”’” (Ranger I, supra, 81 Cal.App.4th at p. 682.) The appellate court then summarized its holding: “At risk here is over $75,000. If [the surety] wanted to protect that money, it should have commenced an adequate investigation right after March 26, 1998, and should not have been afraid to spell out all the details of its efforts to the trial court. The cursory declaration that was filed in this matter is incomplete. The trial court’s ruling did not exceed the bounds of reason. Instead, we find the decision inherently reasonable.” (Ibid.)
In People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122 (Alistar), the trial court denied the surety’s section 1305.4 motion. In support of its motion, the surety filed a “detailed declaration” that two months after the defendant failed to appear, the file was assigned to an investigator. (Alistar, at p. 128.) The investigator learned the telephone numbers for defendant and his brother were disconnected; he left a message for the brother at the brother’s place of employment. The investigator also conducted a database search and found a possible address for the defendant. The investigator checked this address and an address for the defendant’s sister. The defendant’s sister stated she would tell the defendant the investigator was looking for him. The investigator contacted the local police agency and provided them with the information in his possession. The investigator received a message from the defendant’s brother advising him the defendant was in Mexico and would not be returning and added that he would not tell the investigator where the defendant was, even if he knew. The investigator stated he believed the defendant was still in the area because the sister had not mentioned that he had left for Mexico and concluded that with an extension he expected to locate the defendant. (Id. at p. 128.)
The appellate court concluded that the surety “provided sufficient evidence that its investigator … had made a concerted effort to locate defendant. The two-month delay in commencing the investigation is not a sufficient basis for denying [the surety’s] motions. [The investigator’s] declaration shows that he made a reasonable attempt to locate defendant, although it might have been advantageous to begin the investigation sooner.” (Alistar, supra, 115 Cal.App.4th at pp. 128-129.)
In Accredited the trial court denied the surety’s section 1305.4 motion. The surety submitted the declaration of its investigator in support of the motion. The investigator stated that shortly after the bond was forfeited, he learned the defendant was staying with a friend. The investigator conducted surveillance at the address and talked with several individuals who he thought might be the defendant. Shortly thereafter, the investigator learned that the defendant was living with family members at another location. The investigator contacted the local police department and they set up surveillance of the address. After four hours the investigator and the authorities entered the residence and discovered the defendant had fled. A fugitive recovery specialist was employed a few weeks later. Two possible addresses for the defendant were obtained and investigated. The defendant was not at either address. The investigator then contacted the defendant’s relatives and learned he had fled to Illinois. The defendant’s family in Illinois confirmed he was in the state but did not have an exact location where he was residing. The following month the investigator learned that the defendant had stolen a check, bought a vehicle, and was seen coming and going at a local address. The investigator discovered that the defendant had been seen in the company of a female, learned what type of vehicle she drove, and learned an address connected with the female. Surveillance was set up at this new address. The following month the investigator learned from a family member that the defendant was hiding out in an apartment complex. Local police authorities were contacted and the apartment was surrounded and searched. The defendant was not there. They obtained another address where the defendant may have been hiding. The investigator concluded his declaration by stating that he had known the defendant his entire life, and he was confident he would locate the defendant because the defendant had few places to go and the family was cooperating in the attempt to locate him. (Accredited, supra, 137 Cal.App.4th at pp. 1353-1354.)
The appellate court concluded that the surety had shown due diligence in attempting to locate the defendant and, accordingly, the trial court had abused its discretion in denying the surety’s section 1305.4 motion. (Accredited, supra, 137 Cal.App.4th at pp. 1358-1359.) “Even though he was not able to capture [the defendant] in the first 180 days, [the investigator] was able to consistently gather information about [the defendant]. He 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. Nothing in the declaration suggested [the investigator] would not continue to gather this sort of information. The declaration also stated that [the defendant’s] family was actively cooperating, that [the defendant] had few places to go, and that [the investigator] felt confident he could return [the defendant] to custody in another 180 days. The People offered no facts to counter these statements.” (Id. at p. 1359.)
In Ranger II, the trial court denied the surety’s section 1305.4 motion. In support of its motion, the surety filed a declaration that stated it believed the defendant had fled to Mexico and was staying with his mother. The surety assigned the file to an investigator. After the initial 180-day period expired, but before the section 1305.4 motion was heard, the surety informed the trial court it had located the defendant in Mexico. The defendant was detained as anticipated, but the district attorney declined to extradite him to the United States. Based on these facts, the surety moved to vacate the forfeiture and have the bond exonerated pursuant to section 1305, subdivision (g), which permits exoneration if the defendant is detained in a foreign country and the district attorney declines to extradite the defendant. The trial court denied the section 1305.4 motion and determined the motion to exonerate the bond was therefore moot.
Section 1305, subdivision (g) states in full: “In all cases of forfeiture where a defendant is not in custody and is beyond the jurisdiction of the state, 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, and is positively identified by that law enforcement officer as the wanted defendant in an affidavit signed under penalty of perjury, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release.”
The appellate court concluded that the trial court did not abuse its discretion when it denied the surety’s section 1305.4 motion.
“All circumstances considered, we cannot conclude that the trial court exceeded the bounds of reason in determining that [the surety] failed to demonstrate good cause. [Citation.] [The surety] had been informed of the probable whereabouts of [the defendant] as of July 8, 2005, yet by the 180-day date of December 3, 2005, it would appear [the surety] had made no effort whatsoever to confirm the information. Simply obtaining a probable address in Mexico, without confirming the same or doing more, is insufficient. [Citation.] [The surety] did not send [the investigator] to Mexico to make the confirmation until December 19, 2005. [The surety] gives no explanation as to why it made no earlier effort. It only indicates that the ball was in the district attorney’s court, to decide whether or not to extradite.
“There are too many gaps in the record for us to jump to this conclusion. The motion to extend was unaccompanied by any declaration of [the investigator]. We do not know to whom he placed calls on September 1, 2005, whether to a contact known to handle extradition decisions or to a receptionist who was uncertain as to where to route the calls. We have no idea whether the calls resulted in substantive telephone conversations or whether [the investigator] just left messages and had no idea whether they were ever received by an individual equipped and authorized to respond to them. We also do not know the nature or content of the purported October 26, 2005 letter, or again, the particular addressee. On the one hand, we don’t know if the letter was couched in purely speculative terms, such as, ‘What do you generally do if we locate a guy in Mexico?’ On the other hand, we don’t know if the letter provided concrete information on [the defendant], such as the nature of the charge against him and his exact whereabouts.
“The only thing apparent from the record is that once [the surety] realized its time had expired, it decided it had better get [the investigator] down to Mexico to confirm that, in fact, [the defendant] was at his mother’s home there. This does not ‘demonstrate that [the surety] diligently attempted to locate and capture the defendant during the initial 180 days.’ [Citation.]” (Ranger II, supra, 150 Cal.App.4th at pp. 646-647.)
A fifth case, County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018 (Fairmont), is analogous to our case. In Fairmont, the trial court denied the surety’s section 1305.4 motion. The surety provided the following information to support its motion. The investigator stated that the surety had contacted courts, jails, family members, friends, employers, and other secondary sources in an attempt to locate the defendant. When these efforts failed to locate him, the surety checked court records and various law enforcement Web sites to determine if the defendant was in custody. The investigator contacted the indemnitor on the bond for his assistance. The indemnitor stated he believed the defendant was in Mexico and he would check with the defendant’s wife to confirm his belief. A week later the indemnitor informed the investigator that the defendant’s wife confirmed the defendant was in Mexico. The indemnitor promised to inform the investigator of the defendant’s telephone number. The investigator also conducted surveillance at various addresses where the defendant had lived. No one at these addresses had any information about the defendant’s current whereabouts. Three months later the investigator again contacted the indemnitor, who informed the investigator that the defendant was living in Mexico and was planning on returning to the United States to resolve the criminal matter. The investigator declared that he was confident he would be able to locate the defendant if an extension was granted. (Id. at pp. 1022-1023.)
The appellate court concluded the trial court did not abuse its discretion when it denied the surety’s section 1305.4 motion. “[The surety] was informed [the defendant] was in Mexico in mid-October 2006. Yet [the investigator] did nothing with this information and made no further efforts to secure an address or a telephone number for [the defendant] in Mexico until late January 2007. Nothing in [the investigator’s] declaration suggests he ever interviewed [the defendant’s] wife or even asked for her address or telephone number to seek more information about [the defendant’s] whereabouts. Instead of pursuing this potential lead, [the investigator] seemingly ignored it and instead conducted surveillance at local addresses the [surety] had already determined were not productive.” (Fairmont, supra, 164 Cal.App.4th at p. 1029.)
Similarly, we conclude the trial court did not abuse its discretion in this case. There is no evidence Financial took any action to locate Madison for three months. When the file finally was assigned to Estrella, he determined Madison was not living at any address that he had for him. He also determined that Madison’s family members would not cooperate. He canvassed local hotels on two occasions, without any hint of success. The following month he learned Madison had been involved in prostitution, so Estrella conducted surveillance at a location where prostitutes congregated, again without success. The following month it appears Estrella’s efforts were limited to phone calls to various police agencies, hoping they would locate Madison. There is no indication that Estrella had any idea where to locate Madison or what efforts should be undertaken to locate him. The trial court could have concluded that Estrella simply was waiting and hoping that Madison would be arrested again. These facts do not demonstrate good cause for an extension. Estrella did not develop any leads to locate Madison and had no idea where he was presently located. The trial court’s conclusion that there was not good cause to extend the exoneration period did not exceed the bounds of reason under the circumstances of this case.
DISPOSITION
The judgment is affirmed.