Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF130266 James T. Warren, Judge.
Nunez & Bernstein and E. Alan Nunez for Appellant.
Pamela J. Walls, County Counsel, and Patricia Munroe, Deputy County Counsel, for Respondent.
No appearance for Defendant.
OPINION
MILLER, J.
The trial court denied appellant Safety National Casualty Corp.’s (Safety National’s) two sets of motions to vacate the forfeiture on a bail bond and to exonerate the bail bond. Safety National contends that the trial court erred by denying its first set of motions because the court did not have jurisdiction to declare a forfeiture of the bail bond. Safety National contends that the trial court erred by denying its second set of motions because (1) defendant’s arrest warrant was not entered into the national database; and (2) the prosecution elected to not extradite defendant. We affirm the judgments.
FACTUAL AND PROCEDURAL HISTORY
Miguel Sanchez (defendant) was charged with (1) aggravated sexual assault (sodomy) of a child under the age of 14 years (Pen. Code, § 269, subd. (a)(3)); (2) sexual penetration by means of force, violence, duress, menace, or fear of immediate bodily injury (§ 289, subd. (a)(1)); and (3) willfully committing a lewd or lascivious act upon a child under the age of 14 years by means of force, violence, duress, menace, or fear of immediate bodily injury (§ 288, subd. (b)(1)). The trial court granted defendant bail in the sum of $100,000. On June 26 or 27, 2007, Safety National posted defendant’s bail and undertook the responsibility of defendant appearing in Riverside County Superior Court. If defendant failed to appear, then Safety National agreed to pay the State of California $100,000.
All further statutory references will be to the Penal Code unless indicated.
On March 27, 2008, the trial court held a hearing to arraign defendant on the information filed against him. Defendant’s trial counsel informed the court that he had a conflict of interest with representing defendant. The court did not relieve defense counsel, because the arraignment was pending; however, the court instructed the public defender’s office to determine if it would have a conflict with representing defendant. The court asked if counsel would return on April 1, 2008, so that defendant could meet with the public defender. The prosecutor requested that a bail review hearing also occur on April 1, because defendant’s bail should have been set at $1,000,000, per the bail schedule. The court scheduled the bail review hearing for April 1. At the end of the March 27 arraignment hearing, the court said to defendant, “Mr. Sanchez, you’re going to remain on the bail you’ve got posted. Come back to this courtroom on Tuesday, the 1st of April, at 1:30.” The court did not arraign defendant on the information.
On April 1, 2008, defendant failed to appear in court. Defendant’s trial counsel explained that defendant may have thought that his appearance date was April 18, due to a “calendar mix up.” However, defendant’s trial counsel said that he informed defendant of the April 1 hearing. The court found “good cause not to forfeit [defendant’s] bond, based on the misunderstanding.” The trial court issued a warrant, but held service of the warrant until April 18.
The foregoing facts are taken from a reporter’s transcript that is included within the clerk’s transcript. The minute order from April 1 reads “Current Bail Bond Forfeited. [¶] Bail Bond... [R]einstated, bail forfeiture is ordered vacated. [¶] Good Cause not to forfeit the bond. [¶] Current Bail Bond Continued.” The reporter’s transcript does not reflect the forfeiture order or the order vacating the forfeiture; we infer that the minute order is incorrect in regard to these orders. (See People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423 [“When a clerk’s transcript conflicts with a reporter’s transcript, the question of which of the two controls is determined by consideration of the circumstance of each case.”]
On April 18, 2008, defendant failed to appear in court. The prosecutor informed the trial court that the bondsman “searched everywhere” for defendant, but defendant was “avoiding him and all opportunities to come to court.” Defendant’s trial attorney said that he had tried to contact defendant, but received no response. The trial court ordered defendant’s bond forfeited. The trial court issued a bench warrant for defendant. On April 18, 2008, the Riverside Superior Court sent a notice to Safety National informing it that defendant’s bail bond was forfeited.
On December 9, 2008, Safety National filed its first set of motions to vacate the forfeiture order and exonerate the bail bond. In its motion and written reply, Safety National argued that the trial court did not have jurisdiction to order the forfeiture of the bail bond. On January 26, 2009, the trial court denied Safety National’s motions.
On April 17, 2009, Safety National filed a second set of motions to vacate the forfeiture and exonerate the bail bond. In its second set of motions, Safety National asserted that, on March 27, 2009, it learned that defendant was a citizen of Mexico, and that he had been arrested in Mexico. Mexican authorities agreed to hold defendant for 36 hours, but would not hold him for a longer period unless the prosecuting agency produced a notice of extradition. On March 27, 2009, the bondsman contacted the “Fugitive Investigations unit” within the Riverside County District Attorney’s Office (DA’s office), and informed an investigator of defendant’s arrest in Mexico. The investigator said that the DA’s office was unable to provide extradition documents at that time. Safety National argued that it did “everything reasonable to exonerate the bond” and that it should not be punished for the prosecutor’s decision to not extradite defendant. The trial court found that Safety National failed to meet its burden of proving that the DA’s office elected not to extradite defendant. Consequently, the trial court denied Safety National’s motions.
DISCUSSION
All of Safety National’s contentions concern the trial court’s denials of the motions to vacate the forfeiture on a bail bond, and to exonerate the bail bond. “We apply an abuse of discretion standard in evaluating a trial court’s denial of a motion to vacate [a] bail forfeiture. [Citation.] However, because trial courts exercise a limited statutory discretion in ordering bail forfeitures and the issues are jurisdictional, we are required to carefully review the record to ensure strict statutory compliance. [Citations.]” (People v. Bankers Ins. Co. (2009) 171 Cal.App.4th 1529, 1532-1533.)
A. JURISDICTION
1. APRIL 1 FAILURE TO APPEAR
Safety National contends that the trial court lost jurisdiction to declare the bail bond forfeited on April 18, because it should have declared the bail forfeited on April 1. We disagree.
“Bail forfeiture statutes are jurisdictional and, if not strictly followed, the court loses jurisdiction to later declare a forfeiture of the bond. [Citations.]” (People v. Bankers Ins. Co., supra, 171 Cal.App.4th at p. 1532.) The bail forfeiture statute requires that a trial court declare a defendant’s bail forfeited “if, without sufficient excuse, a defendant fails to appear for...: (1) Arraignment” or, (2) “Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required.” (§ 1305, subd. (a)(1) & (a)(4).) However, if the trial “court has reason to believe that sufficient excuse may exist for the failure to appear, [then] the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant. [¶] If, after the court has made the order, the defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant’s arrest may be ordered issued.” (§ 1305.1.) The determination of whether an excuse is sufficient is within the trial court’s discretion. (People v. Harco Nat. Ins. Co. (2005) 135 Cal.App.4th 931, 934.) No rigid rules have been developed for determining whether a defendant may have a sufficient excuse for failing to appear; therefore, “‘a case-by-case analysis is always performed. [Citation.]’ [Citation.]” (People v. Ranger Ins. Co. (2005) 135 Cal.App.4th 820, 823-824 (Ranger).)
Prior to April 1, defendant had appeared for all of his scheduled hearings. At the April 1 hearing, defendant’s trial counsel said that he notified defendant of the April 1 hearing, but then explained that defendant was absent due to a “calendar mix up.” Counsel’s explanation was not entirely clear, but he seemed to contend that defendant confused “4/1/08” with “4/18”; which is why defendant believed that hearing was scheduled for April 18. Given defendant’s track record of appearing in court, it was reasonable for the trial court to find that defendant’s failure to appear was due to a miscommunication between defendant and his trial counsel. Accordingly, we conclude that the trial court did not abuse its discretion by finding that a sufficient excuse may have existed for defendant’s failure to appear.
Defendant was present in the courtroom at arraignments on June 21, 2007, January 11, 2008; settlement conferences on July 2, 2007, July 16, 2007, August 7, 2007, September 14, 2007, October 19, 2007, November 2, 1007; preliminary hearings on November 14, 2007, December 19, 2007; and information arraignments on February 6, 2008, February 21, 2008, February 28, 2008, March 27, 2008.
Safety National contends that the trial court abused its discretion because (1) there was no evidence that defendant believed the hearing date was April 18, rather than April 1; (2) defendant was expressly told to appear in court on April 1; (3) April 18 was never mentioned as a hearing date; and (4) defendant’s trial counsel stated that he notified defendant of the April 1 hearing date.
When a defendant fails to appear for a scheduled court proceeding, it is presumed that he does not have a sufficient excuse for his absence. The burden of rebutting this presumption rests upon defendant’s counsel or those who are interested in avoiding a forfeiture. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907; see also People v. Harco, supra, 135 Cal.App.4th at p. 934.)
Defendant’s appearance at every court proceeding prior to April 1 was a matter of court record. Defendant’s trial attorney stated that he notified defendant of the April 1 hearing, but believed that there may have been a miscommunication where “4/1/08” was understood to be “4/18.” (See Ranger, supra, 135 Cal.App.4th at p. 824 [“[T]he trial court may rely on the representations of defense counsel.”].) We do not believe that the trial court’s reliance on (1) the court’s record, and (2) counsel’s representations, cause the court’s finding to be arbitrary or exceed the bounds of reason. (See People v. Olguin (2008) 45 Cal.4th 375, 384 [defining an abuse of discretion].) Accordingly, we find Safety National’s arguments to be unpersuasive.
2. APRIL 18 FAILURE TO APPEAR
Safety National contends that the trial court lacked jurisdiction to declare the bail bond forfeited on April 18 because there was no specific court order commanding defendant to appear in court on April 18. We disagree.
“‘[S]ection 1305.1 has no requirement of actual knowledge of the continued date as a prerequisite for a declaration of forfeiture. Instead, section 1305.1 directs, “[i]f, after the court has made the order, the defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant’s arrest may be ordered issued.”’ [Citation.] The operative date for notice purposes is the date the bailee first failed to appear as ordered, not the continuance date set by the court.” (Ranger, supra, 135 Cal.App.4th at pp. 824-825.)
Defendant received notice of the April 1 hearing date. There was nothing requiring that defendant receive notice of the April 18 hearing date in order for the trial court to declare defendant’s bail forfeited. Accordingly, we are not persuaded that the trial court erred.
B. NATIONAL DATABASE
Safety National contends that the trial court erred by denying its second set of motions because defendant’s bench warrant was not entered into the national arrest warrant database. We disagree.
The clerk of the court must direct “the appropriate law enforcement agency to enter each bench warrant issued on a private surety-bonded felony case into the national warrant system (National Crime Information Center (NCIC)).” (§ 980, subd. (b).) If the law enforcement agency “fails to enter the bench warrant into the national warrant system (NCIC), and the court finds that this failure prevented the surety or bond agent from surrendering the fugitive into custody, prevented the fugitive from being arrested or taken into custody, or resulted in the fugitive’s subsequent release from custody, the court having jurisdiction over the bail shall, upon petition, set aside the forfeiture of the bond and declare all liability on the bail bond to be exonerated.” (§ 980, subd. (b).)
A translated letter from the Commander of the Municipal Police in San Vicente, Baja California, Mexico, was included with Safety National’s second set of motions. The letter reflects that defendant was detained in Mexico “for consuming intoxicating beverages on a public thoroughfare.” The Commander wrote that his agency received phone calls “from abroad” requesting that defendant be held longer than 36 hours, but that it was not possible to hold defendant longer than the 36-hour period. The Commander wrote, “He was looked up in the arrest warrants system, but [defendant] did not have any active arrest warrants in the national system.”
It is unclear from our reading of the letter what is meant by “the national system”; the letter was authored by a person in Mexico, and we cannot determine if “the national system” refers to a Mexican database or an American database. Further, it is unclear from the letter who searched the database, and what terms, e.g., name, age, etc., were used to search the database. In sum, the letter does not prove that the law enforcement agency failed to enter defendant’s warrant into the NCIC warrant database. Accordingly, we conclude that the trial court did not err by denying Safety National’s motions based upon an alleged failure to enter defendant’s warrant in the NCIC warrant database.
Safety National argues, in its supplemental opening brief, that when Mexican authorities “searched the national warrant system they found no active arrest warrant and were thus compelled to release [defendant].” In other words, Safety National’s brief does not shed any light on whether Mexican authorities searched an American or Mexican warrant database. Accordingly, we find Safety National’s argument to be unpersuasive.
C. EXTRADITION
Safety National contends that the trial court erred by not granting its second set of motions because the prosecuting agency elected to not extradite defendant. We disagree.
“In all cases where a defendant is in custody beyond the jurisdiction of the court that ordered the bail forfeited, 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....” (§ 1305, subd. (f).)
In support of its motion, Safety National submitted (1) the letter described ante, from the Commander of the Municipal Police in San Vicente; (2) the declaration of a Safety National bail agent; and (3) the testimony of the same Safety National bail agent.
The declaration reflects that on March 27, 2009, the bail agent learned that defendant was detained in Mexico. The bail agent then contacted Mexican authorities who refused to hold defendant longer than 36 hours, “unless they received a notice of extradition from warrants and detainers from the [R]iverside authorities.” The bail agent declared that he contacted the prosecuting agency, and was informed that it “could not provide any extradition documents at this time.” The bail agent told “the authorities” that he would drive to San Vicente to arrest defendant, but was informed that defendant would be released “shortly, ” and if the bail agent arrested defendant without extradition documents, then the bail agent “would be charged for kidnapping in Mexico.”
At the hearing on the motion, the bail agent testified that he called the DA’s office, but was informed by Mr. Lodi, an investigator at the DA’s office, that extradition papers could not be produced “because the county counsel was out.” The bail agent telephoned the DA’s office again, and Mr. Lodi told the bail agent that “he was going to see what he can do.” “[A] few days later” the bail agent telephoned the DA’s office, but Mr. Lodi’s outgoing voicemail message said that he was “out of the office for a few days.” The bail agent testified that Mr. Lodi eventually said that “he cannot provide any paper” because it had to be approved by county counsel, but the deputy county counsel was away on her honeymoon. Mr. Lodi told the bail agent that he would talk to county counsel.
The evidence provided by Safety National demonstrates that the prosecuting agency could not immediately produce extradition documents; however, it does not show a decision to not seek extradition of defendant. Accordingly, we conclude that the trial court did not err by denying Safety National’s motions, because Safety National did not provide evidence of the prosecuting agency’s decision to not extradite defendant.
Safety National argues that the DA’s office deferred to county counsel on the issue of extradition. Safety National asserts that “[t]he district attorney’s inaction and failure to respond was in effect an election not to extradite within the meaning of the statute, and [therefore] the surety was entitled to exoneration of the bail bond.” Contrary to Safety National’s position, it has not shown inaction and a failure to respond; rather, it has shown coordination between agencies that was slow to progress due to various employees being on vacation. Nothing in Safety National’s evidence demonstrates that the DA’s Office elected not to extradite defendant. Consequently, we find Safety National’s argument to be unpersuasive.
DISPOSITION
The judgments are affirmed. Costs on appeal are awarded to respondent. (§ 1305.3.)
We concur: RAMIREZ P. J., KING J.