Opinion
NOT TO BE PUBLISHED
Super. Ct. No. G06-1554
CANTIL-SAKAUYE, J.
International Fidelity Insurance Company (Fidelity), the surety on a bail bond, appeals from an order denying its Penal Code section 1305.4 motion to extend the 180-day exoneration period and from the summary judgment entered on the bail forfeiture. Fidelity contends the trial court abused its discretion in denying its motion as it demonstrated good cause for the extension. We shall affirm.
Unless otherwise indicated, further statutory references are to the Penal Code.
Section 1305 provides for certain circumstances in which bail may be exonerated. There is a 180-day jurisdictional time limit in which such relief can be granted. The 180 days may be extended by five days if the notice of forfeiture is mailed, as it was in this case. (§ 1305(b).)
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On January 24, 2006, Fidelity posted a bond in the amount of $35,000 for the release of Jaime Aaron Soria, the defendant in the underlying matter. When Soria failed to appear in court as ordered, the bail was declared forfeited. Notice of forfeiture was mailed to the surety and bail agent on January 30, 2006.
On July 28, 2006, before the expiration of the 185-day statutory period, Fidelity filed a motion to extend the exoneration period. Attached to this motion was Craig Stephenson’s, the bail agent, declaration of the actions he had taken to apprehend Soria. Before the scheduled hearing, Stephenson filed a supplemental declaration further detailing his efforts. In sum, the declarations revealed the following efforts.
On January 24, 2006, upon learning of the forfeiture, Stephenson attempted phone contact on all the numbers on the bail application. All of the phone numbers were either disconnected or false.
On January 27, 2006, Stephenson spoke with a deputy district attorney about the details of the underlying case. Among the facts revealed was that Soria should have been on an INS hold.
On January 31, 2006, Stephenson traveled to Winters, CA, where Soria lived. He spoke with a local police officer who knew Soria and promised to “be on the look out” for him and to alert other officers to do the same. He also went to Soria’s given address, but was not able to contact Soria or communicate with the family members who were present.
On February 7, 2006, Stephenson returned to Winters to locate the cosigner/indemnitor, Jesse Pelayo. The address given by Pelayo was false, as were the phone numbers provided. Pelayo had also provided false employment information.
On March 1, 2006, Stephenson returned to Soria’s address and met Soria’s brother, Chris, who was also apparently the victim of the crime. Chris advised Stephenson that he and the family had not had any contact with Soria since his release. Chris also spent the day with Stephenson, going to all of Soria’s previously known addresses and possible associates. Chris also pointed out a mobile home he believed belonged to Pelayo.
From March 17, 2006, to June 2, 2006, Stephenson did not make any efforts to apprehend Soria, as he was working on another bail forfeiture of $1,150,000, in a case involving a serial child molester and multiple law enforcement agencies.
On June 2, 2006, Stephenson contacted Chris again, who informed him there had been no contact from Soria and there was no new information on his whereabouts. Stephenson went to the mobile home believed to belong to Pelayo. There, he met Pelayo’s parents who informed him Pelayo stayed there periodically. Stephenson also spoke with a records officer at the Winters Police Department who advised him the warrant on Soria was still active and a second warrant had issued on the failure to appear.
On June 14, 2006, Stephenson went to Winters and conducted surveillance on the Pelayo mobile home. He did not see Pelayo there.
Stephenson learned Pelayo had a sister. After searching through several databases, he was unable to gather any additional information about her, such as a current address or phone number.
On June 15 and 16, 2006, Stephenson surveilled Soria’s home. Nothing happened which led him to believe the family had any contact with Soria.
On July 5 and 6, 2006, Stephenson went to Vacaville, to a former address of Pelayo. Several neighbors informed him that Pelayo no longer lived there and they did not recognize Soria.
In hopes of learning if Soria had been deported, beginning in June 2006, Stephenson made several inquiries into Soria’s immigration status, including with the Sacramento County Sherriff’s Department and the FBI. He was not able to get information on defendant Soria’s deportation status.
At the August 29, 2006 hearing, Stephenson indicated the FBI and INS did not have documentation of Soria being deported. Stephenson stated he now had more time available to work on this case, because of his decreased involvement in the other matter. He also opined he did not think Soria had “very far to go.”
The court denied the motion. In denying the motion the court found the surety had made considerable efforts in trying to locate Soria. However, the court could not find “based on all the information provided, that there is a reasonable likelihood to recapture [d]efendant [Soria] in the next 180 days.”
DISCUSSION
When a defendant, released from custody on bail, fails to appear in court as ordered, bail is ordered forfeited. Section 1305 provides a period of 185 days, during which the surety can produce the defendant in court, or otherwise show the defendant is in custody, and bail will be exonerated. If the surety fails to do so, summary judgment will be entered. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 678-679 (Ranger).)
Section 1305.4 provides that upon a showing of good cause, the court may grant the surety an extension of the exoneration period of no more than an additional 180 days. “The good cause showing under section 1305.4 is a low threshold for the movant. 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.” (People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1358 (Accredited); see also People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122, 127 (Alistar); see Ranger, supra, 81 Cal.App.4th at p. 681.)
We review the denial of a 1305.4 motion for an abuse of discretion. “In doing so, we are obligated to keep in mind that such abuse occurs only where the court's decision ‘“exceeds the bounds of reason, all circumstances being considered. [Citation.]”’” (Ranger, supra, 81 Cal.App.4th at pp. 678-679.)
Here, the surety argues it showed good cause by demonstrating diligent efforts, but “the trial court interposed an overly stringent ‘reasonable likelihood of recapture’ standard to deny the motion.” The surety complains “[l]ikelihood of capture is a decidedly subjective standard, and for that reason it must remain, . . . a lesser circumstance, entirely dependent on the far more objective showing of the efforts made to locate a fugitive.” In its reply brief, the surety goes further, arguing “reasonable likelihood of capture” is a “judicially created monster” and urges us “to revisit the concept . . . and clarify that such a subjective standard not be used to deny extensions of the exoneration period.”
We disagree that the trial court elevated the consideration of a reasonable likelihood of capture to a “high degree of certainty or imminence.” We disagree that the trial court was overly stringent in applying this consideration to the facts of this case.
There are only three published cases interpreting the good cause requirement of section 1305.4, Ranger, supra, 81 Cal.App.4th 676, Alistar, supra, 115 Cal.App.4th 122,and Accredited, supra, 137 Cal.App.4th 1349. Each case considered the likelihood of recapture as part of the circumstances demonstrating good cause, although Accredited was the only case to do so explicitly. (Accredited, supra, at p. 1349.)
In Ranger, the investigator’s declaration indicated he had located a positive address for the defendant and that the defendant was a member of a band. (Ranger, supra, 81 Cal.App.4th at p. 678.) The declaration contained no statement of what specific efforts the surety had made to locate the defendant, when they were made or when the investigator had received the file. (Id. at p. 682.) Because of the paucity of information, the court found the surety had not demonstrated good cause to have the time extended. (Ibid.) The court held a showing of good cause “means an explanation of what efforts [the surety] made to locate [the defendant] during the initial 180 days, and why such efforts were unsuccessful.” (Id. at p. 681.) However, in reaching this determination, the court also considered the fact that the statement did not indicate how the investigator had located defendant, how he knew he had a bona fide address or the significance of defendant’s membership in a band. (Id. at p. 682.) Without these facts, the court could draw no reasonable inference about the likelihood of recapturing defendant. Thus, in considering the lack of these facts, the court was not just looking at what had been done, but what likely could be done.
In Alistar, the investigator’s declaration was substantially more detailed than the one in Ranger. It detailed what efforts had been made, including attempts to contact defendant, his brother and his brother’s work supervisor, and when they were made. The investigator ultimately found a possible address for defendant. Based on the information he had gathered, the investigator believed defendant was still in a particular area. He had contact with the defendant’s siblings and good reason to believe defendant had recently been in contact with both of them. He had a confirmed address for defendant’s sister, and had spoken to the local police department to apprise them of the situation. Because of his contacts with defendant’s sister he believed he would be able to apprehend the defendant. (Alistar, supra, 115 Cal.App.4th at p. 128.) The court found the surety had shown good cause in its reasonable attempts to locate defendant. (Id. at p. 129.) Yet, here again, the court considered the fact that the agent had cooperation from the family and good reason to believe the defendant was currently in a particular geographic area. (Id. at pp. 128-129.) These facts allowed the court to draw the reasonable inference that, with an extension of time, defendant was likely to be recaptured. In so doing, the court was looking at the circumstances not just retrospectively, but prospectively as well.
In Accredited, the bail agent provided a very detailed declaration. The bail agent was consistently able to gather specific information on the defendant, where he was, what he was doing and with whom. (Accredited, supra, 137 Cal.App.4th at p. 1359.) He learned when defendant fled to Illinois and was able to confirm the information. He learned when defendant returned to Sacramento. He discovered the identities of people who were helping defendant and where they lived. The bail agent also had a long-term relationship with both defendant and his family. Defendant’s family was actively cooperating with the bail agent to bring defendant to court. (Id. at pp. 1353-1354, 1359.) Thus, the bail agent was confident he could apprehend the defendant. We found the surety had demonstrated good cause. Again, the declaration provided facts from which a court could reasonably infer that an extension of time would serve the purpose of returning the defendant to court. After analyzing Ranger and Alistar, we explicitly held the good cause analysis should consider the reasonable likelihood that the surety will capture the defendant if additional time is provided. (Id. at p. 1357.)
By contrast, in this case the bail agent has been consistently unable to gather information about defendant or his whereabouts. Much of the information he has obtained has been false or out of date. Despite his conversations with, and the apparent cooperation of, Soria’s family, it appears no one had the slightest idea where Soria was, where he was likely to be or with whom. The bail agent had been given a number of leads, none of which led to any additional information or resources. The bail agent stated he would have more time available for this case, but did not provide any suggestion as to what further efforts he might make with this additional time. There is no indication in his declaration that there was any lead which had been unexplored, any address which had not been checked out nor any connection to any people yet to be interviewed. In short, there was nothing here which suggested what more the bail agent might have been able to do that had not already been done.
In both Alistar and Accredited the investigator or bail agent was consistently able to gather information about the defendant and his whereabouts. Further, they were able to provide information that indicated they had a general idea of where defendant might be and had prospects for obtaining additional information which would eventually lead to the defendant’s recapture. The existence of this information, that despite diligent efforts there remain leads which might be pursued and have some likelihood of capturing defendant, is what distinguishes this case from Accredited and Alistar. In Accredited and Alistar there were facts from which reasonable inferences about the likelihood of capture could be drawn. In this case there are no such facts.
We do not suggest that a bail agent must be “hot on the trail” of the defendant or that recapture must be either definite or imminent. That would set the bar too high. We do believe, however, that there must be some indication of something more that the bail agent can do to bring defendant back to court. Some type of nexus between the diligent efforts of the bondsman and recapture of defendant must be shown. There must be facts from which the court can draw inferences in the surety’s favor. (See Alistar, supra, 115 Cal.App.4th at p. 129.)
While we decline Fidelity’s invitation to “revisit the concept of likelihood of capture,” we agree with Fidelity that the reasonable likelihood of recapture is, at least in some measure, shown by the efforts made to locate a fugitive. Where we part ways with Fidelity is that we do not believe it is only the diligence of those efforts which demonstrates the likelihood of recapture. The quantity and quality of the information obtained through those efforts also provides facts from which the court can draw reasonable inferences regarding the likelihood of recapture. This is an entirely appropriate analysis for the court to make in determining good cause.
Fidelity makes a point that the declaration in this case has more entries than those in either Alistar or Accredited. It is not the number of entries which make a declaration sufficiently detailed. Rather, it is the information contained within those entries.
Moreover, we continue to believe that a showing of a reasonable likelihood of recapture is an important circumstance to be considered in determining good cause for an extension. Having the inquiry be prospective as well as retrospective serves 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.” (Accredited, supra, 137 Cal.App.4th at p. 1357.)
Although the good cause showing under section 1305.4 is low, it is not non-existent. (Accredited, supra, 137 Cal.App.4th at p. 1358.) Simply, it was not met in this case.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P.J., DAVIS , J.