WILLHITE

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. SJ1158)

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard E. Naranjo, Judge. Reversed.

Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel, and Joanne Nielsen, Principal Deputy County Counsel, for Plaintiff and Appellant.

Nunez & Bernstein and E. Alan Nunez for Defendant and Respondent.

The People appeal from an order of the superior court granting the motion of respondent International Fidelity Insurance Company to exonerate a bail bond pursuant to Penal Code section 1305, subdivision (g). The statute provides for exoneration of the bond if certain requirements are met, including that the prosecuting agency has elected not to seek extradition of the defendant. Here, the prosecuting agency elected to seek extradition. We therefore reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On June 3, 2008, respondent posted a $150,000 bond for the release of criminal defendant Javier Abdin. After Abdin failed to appear at his preliminary hearing on June 6, 2008, the bond was ordered forfeited. The notice of forfeiture was printed and mailed on June 9, 2008. The docket indicated that the 185th day after the mailing was December 12, 2008.

On December 4, 2008, a motion to extend the forfeiture period was received, and a hearing was scheduled for January 9, 2009. The court granted the motion and extended the forfeiture date to June 8, 2009.

On June 4, 2009, the bail agent, Connie Elizabeth Schroeder, filed a motion to vacate the forfeiture and reinstate and exonerate the bond because she had located Abdin in Mexico. Schroeder stated in a declaration that, after finding Abdin, she contacted Dan Damon, the deputy district attorney in charge of Abdin's case, on May 11 and 13, 2009, but Damon told her both times that he would not extradite Abdin from Mexico.

Schroeder explained in her declaration that, on May 20, 2009, she found Abdin in Mexico and took him to a local law enforcement officer, who positively identified Abdin as the wanted defendant in an affidavit signed under penalty of perjury. Schroeder then spoke with Diana Carbajal, a deputy district attorney in the extradition unit, who instructed Schroeder to provide Abdin's photographs and fingerprints to Detective Prickett. After Detective Prickett verified Abdin's identity, he told Schroeder that they would not extradite Abdin from Mexico.

Schroeder sent an email to Carbajal on June 1, 2009, stating, "Thank you for the update. Please let me know your final election on whether your department will seek or not seek extradition of the defendant from Mexico at your earliest convenience, since time is of the essence." Carbajal replied the same date, in an email that stated, "I did hear from Det. Prickett who confirmed the identity of the defendant. We are confirming the availability of the witnesses/victim and once confirmed we will likely extradite the defendant from Mexico."

The hearing on the motion to vacate the forfeiture was held on June 29, 2009. Schroeder explained that the detective in charge of the case told her that they were not going to extradite Abdin. However, the People told the court that they had not yet reached a final decision regarding extradition and requested another week. The matter was trailed to the following day. At the hearing on June 30, 2009, the People indicated that they intended to extradite Abdin. The court therefore denied the motion to vacate the forfeiture and reinstate the bond.

On July 1, 2009, Schroeder filed an addendum to the motion to vacate the forfeiture and reinstate the bond. She attached copies of faxes she had sent to Damon on May 11 and May 13, 2009, asking Damon to complete a form indicating whether the district attorney elected to seek extradition of Abdin. Neither form had been completed by Damon.

On July 2, 2009, the court held another hearing, at which the court explained that the motion had been denied because the People indicated their intent to seek extradition. Schroeder asked the court to reopen the motion, but the court denied her request. After denying the motion, the court stated, "I'm allowing the [district attorney's] office 90 days for the extradition, not knowing what the standard procedure and timeframe are. . . . I need something from the extradition unit here in court showing what steps are taken and how we are doing on the process." The court thus gave the People 90 days, until September 30, 2009, to "show progress" on the extradition. The court continued, "If the body is back here, then I can exonerate and set aside forfeiture once he's back in L.A. County. [¶] So I want to see the progress made because we are dealing with Mexico."

On July 10, 2009, the court sent respondent a notice of entry of summary judgment on the forfeited bond and demand for payment. On August 5, 2009, the court sent respondent an order to show cause for its failure to pay the judgment. A hearing was scheduled for September 25, 2009.

On September 9, 2009, respondent filed a motion to set aside summary judgment, discharge the forfeiture, and exonerate the bond. Respondent argued that summary judgment was entered prematurely because it was entered before the September 30, 2009 deadline the court had set for the People to show progress on the extradition.

The court heard the motion to set aside summary judgment on October 16, 2009. At the hearing, the court expressed concern about the court's statement at the July 2 hearing that, although the motion to vacate forfeiture and reinstate the bond was denied, the People had until September 30 to show progress on the extradition, which indicated that the court maintained jurisdiction and would reconsider the issue at that time. The court thus decided to set aside the entry of summary judgment in order to allow the surety to seek clarification from the trial court about its July 2 ruling. The court scheduled another hearing for November 19.

On November 9, 2009, respondent filed a motion to exonerate bail and clarify the ruling. A hearing on the motion to clarify was set for December 9, 2009.

At the December 9 hearing, the court acknowledged that it erred in the July 2 hearing by not making its ruling clear. The court stated that, at sidebar, the People indicated that extradition proceedings had begun, but the process would take about six months. The parties agreed to continue the matter and toll the time for six months, until June 7, 2010.

At a hearing on June 15, 2010, the People stated that they still intended to extradite Abdin, who was detained by the bail agent in Mexico. The People explained that the extradition warrant had not been issued yet because it was a very formal procedure whose requirements were mandated by treaty. After obtaining affidavits from the victim, the investigating officer, and the prosecutor, the application then needed to be submitted to the Department of Justice and then to the Department of State, which would then submit it to the Mexican Embassy. The People stated that, so far, they had only been able to obtain an affidavit from the prosecutor.

John Rorabaugh, the attorney representing the bond agent and surety company, argued that his clients had been "waiting for a substantial period of time," and that the delay called into question whether the district attorney actually elected to extradite Abdin for purposes of section 1305, subdivision (g), "which is all we're talking about here." He therefore asked the court to either exonerate the bond pursuant to section 1305, subdivision (g), or toll the time for another six months.

The People reiterated that the district attorney's office was "actively extraditing the defendant," and that section 1305 accordingly did not allow exoneration. They further argued that tolling was allowed only in the case of temporary disability. (See § 1305, subd. (e).)

The court expressed concern about the delay, stating, "We have got a situation where a Mexican resident comes into the state. And they are always grateful to let us have their Mexican residents to come here to commit crimes. But then when they flee back in Mexico, they give us a hard time about getting those people back here to answer to those crimes. [¶] . . . [S]ince it is the Mexican government that's giving our country such a hard time in effectuating the extradition, that's going to - it's going to delay the matter no longer." Rorabaugh stated that the Mexican government had not delayed the extradition because the request had not yet been made to the government. The court asked why the bond agent could not bring Abdin back into the country, but Rorabaugh explained that this was not allowed under international law.

The court then indicated that there was no basis under the statute to grant the motion to exonerate. However, Rorabaugh argued that section 1305, subdivision (g), applied because the court previously had continued the matter for a progress report of the extradition process, and the district attorney caused the delay. Rorabaugh explained the extradition process and argued that, by delaying the process, the People had elected not to extradite.

After asking the People more questions about why the procedure was taking so long, the court asked, "what difference does it make whether the bond remains forfeited or whether the bond is exonerated?" The People explained that the bondsman did not have authority to arrest, so there was nothing the bond agent could do to expedite the process. The court replied, "You can see him grab Mr. Abdin and bring him back. That happens sometimes. And our government can protect him from bringing back a wanted criminal from Mexico." The People reiterated that the situation was governed by Penal Code section 1305.

The court then stated, "Enough is enough. [¶] The bond forfeiture is set aside. The bond is reinstated, and the bond is exonerated." The People asked the court the basis for its ruling, and the court replied, "I'm exonerating the bond on the fact the bond company found Mr. Abdin. He's in Mexico. Mexico won't send him back absent the extradition warrant coming through our government, which starts with the district attorney's office. [¶] It's been over a year. And the fact . . . the bond remains or not is really irrelevant whether Mr. Abdin is going to get brought back to this country. . . . It's a year now. So, said and done." The People filed a timely notice of appeal.

DISCUSSION

"The trial court's order exonerating the bond is appealable. [Citation.] We review the order under the deferential abuse of discretion standard, subject to the dictates of the statutory bail scheme. The law disfavors forfeitures, and we must construe the relief statutes in favor of the surety. [Citations.] In those instances in which the statute requires the court to act in a particular way, an act inconsistent with the statute is an abuse of discretion. [Citations.]" (People v. Lexington National Ins. Co. (2010) 189 Cal.App.4th 1242, 1246 (Lexington).)

People v. Seneca Ins. Co. (2010) 189 Cal.App.4th 1075 (Seneca) presents a similar factual situation to the instant case. After the criminal defendant in Seneca fled the jurisdiction, the bail agent flew to Korea and obtained a notarized certificate from a peace officer in Korea, who confirmed the bail agent brought the defendant to the police station. The surety moved to vacate forfeiture and exonerate bail, arguing that, although the People had indicated they would pursue extradition, they had not done so yet. The trial court denied the motion and entered summary judgment on the bond. We quote at length from the appellate court's explanation of the statutory framework.

"If a criminal defendant fails to appear in court when lawfully required to do so, the court must declare bail forfeited. (§ 1305, subd. (a).) For any bond exceeding $400, the clerk must mail notice of forfeiture; the surety then has 185 days (including five days added to the standard 180-day period for mailing of the notice) to secure the presence of the criminal defendant in court. (See § 1305, subds. (b)-(c).) 'If the defendant appears . . . within 180 days of the date of forfeiture . . . the court shall, on its own motion at the time the defendant first appears in court on the case in which the forfeiture was entered, direct the order of forfeiture to be vacated and the bond exonerated.' (§ 1305, subd. (c)(1).)

"As occurred here, the surety insurer may move, 'based upon good cause,' for an extension of up to 180 additional days. (§ 1305.4.) Thus, logically (although not explicitly stated in the statute), the appearance of the criminal defendant within the extended period authorized by section 1305.4 requires the forfeiture to be vacated and the bond to be exonerated. The statutory scheme does not explicitly authorize additional extensions of the 180-day bond exoneration period." (Seneca, supra, 189 Cal.App.4th at p. 1079.) "A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period." (§ 1305, subd. (i).)

"There is one way to toll the bond exoneration period pursuant to statute." (Seneca, supra, 189 Cal.App.4th at p. 1079.) Under section 1305, subdivision (e), the 180-day period must be tolled if the court determines that the defendant is temporarily disabled. (Id. at pp. 1079-1080.) However, there has been no contention that Abdin was "temporarily disabled" for purposes of tolling the bond exoneration period under section 1305, subdivision (e).

"'When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture, regardless of the amount of the bail, shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound. The judgment shall be the amount of the bond plus costs, and notwithstanding any other law, no penalty assessments shall be levied or added to the judgment.' (§ 1306, subd. (a).)" (Seneca, supra, 189 Cal.App.4th at p. 1080.)

Similar to Seneca, a notice of forfeiture was mailed after Abdin failed to appear in court, and the surety obtained an extension of the initial 185 days in order to move to vacate the forfeiture and exonerate the bond. The bond exoneration period here accordingly was extended to June 8, 2009. The court denied the motion to vacate the forfeiture and exonerate the bond because the People elected to seek extradition. As the court pointed out in Seneca, the only way to toll the bond exoneration period is if the defendant is temporarily disabled within the meaning of section 1305, subdivision (e), and there was no such contention here. The bond exoneration period therefore ended on June 8, 2009, and summary judgment was entered pursuant to section 1306, subdivision (a). There was no authority in the statute for the court's statement at the July 2 hearing that it would require a progress report about the extradition from the district attorney.

The statute at issue here is section 1305, subdivision (g), which provides as follows: "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." (§ 1305, subd. (g), italics added.)

Under the express language of the statute, the court shall vacate the forfeiture and exonerate the bond if the prosecuting agency has elected not to seek extradition. Here, the district attorney specifically said it was seeking extradition, although the process was taking a long time.

In Seneca, as here, the bail agent complied with the requirements of section 1305, subdivision (g), and the prosecutor indicated she would seek extradition, but there was no evidence the extradition process was initiated by the end of the bond exoneration period. Similar to respondent, the surety in Seneca argued that, "by not pursuing extradition in a timely fashion," the People "effectively 'elect[ed] not to seek extradition' under section 1305, subdivision (g)." (Seneca, supra, 189 Cal.App.4th at p. 1081.)

The court in Seneca rejected the surety's argument, stating: "A bail bond is not exonerated simply because the People have not completed (or even initiated) extradition of the defendant before the end of the bond exoneration period. In the case of an out-of-custody criminal defendant who flees to a foreign jurisdiction and is identified by the bail agent in compliance with section 1305, subdivision (g), the bond is exonerated if the criminal defendant is returned to the court within the bond exoneration period (§ 1305, subd. (c)) or the prosecutor elects not to extradite (§ 1305, subd. (g)). Otherwise, judgment must be entered in the amount of the bond. (§ 1306, subd. (a).) The statutory scheme does not authorize additional extensions or tolling of the bond exoneration period in the circumstances presented." (Seneca, supra, 189 Cal.App.4th at p. 1082.)

Pursuant to Seneca and section 1305, subdivision (g), the bond here could be exonerated if either Abdin was returned to the court or the prosecutor elected not to extradite. Neither of those conditions was met. The trial court's decision to exonerate the bond therefore was inconsistent with the statute and so constituted an abuse of discretion. (Lexington, supra, 189 Cal.App.4th at p. 1246.) The order must be reversed.

DISPOSITION

The order setting aside the bond forfeiture, reinstating and exonerating the bond is reversed. Appellant shall recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.