Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Martin L. Herscovitz, Judge. No. SJ003150. Affirmed.
Nunez & Bernstein, E. Alan Nunez for Defendant and Appellant.
Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel, and Gary P. Gross, Principal Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Accredited Surety and Casualty Company (Accredited) appeals from a judgment forfeiting the bail it posted to secure the release from custody of a criminal defendant. Accredited contends the court lacked jurisdiction to declare bail forfeited. In the alternative, Accredited contends its bond was exonerated by operation of law because federal law prevented the defendant from returning to this country and that equitable principles entitled it to have the appearance period tolled in order to extradite the defendant from Peru. We affirm.
BACKGROUND
On July 27, 2006, Accredited posted a bond for $125,000 for the release from custody of Christian Torres who had been charged with assault on a peace officer (Pen. Code, § 245, subd. (c)) and with eluding or fleeing from a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)). Torres was ordered to appear on August 7, 2006.
On August 7, 2006, Torres did not appear. Torres’s counsel informed the court that after Torres had been released on bail the Immigration and Customs Enforcement agency (ICE) had taken him into custody and was detaining him. He said that he would attempt to secure Torres’s release from federal detention in order to have him appear on the state charges. In response, the court exonerated the bond, issued a bench warrant, and set the new bail amount at $500,000 but apparently held the warrant. Defense counsel requested the court to set a date for Torres’s next appearance. The court stated that it would set a date once counsel telephoned to confirm that he had arranged for Torres’s release from federal detention.
Two days later on August 9, 2006, when counsel had not yet called and neither Torres nor his counsel had appeared, the court declared bail forfeited, issued a bench warrant, and set bail at $500,000. The court mailed notice of the forfeiture to Accredited and its bail agent on August 10, 2006.
On September 6, 2006, Torres appeared in court with counsel. On the same date, Accredited’s bail agent, Kiperman Bail Bonds, filed a motion with the court entitled “consent to reinstate bail” which stated: “ACCREDITED SURETY AND CASUALTY COMPANY hereby notifies the Court that it does not object to the reinstatement of its Bail Bond in the above entitled case for the period of 10 days from the date of this notice....”
Counsel argued that because Torres had been in continuous custody the court had had no reason to declare bail forfeited on August 9, 2006. Counsel requested that the forfeiture be vacated and that bail be reinstated in the original amount and pointed out that Accredited agreed to reinstate the bond.
There being no objection to reinstatement of the bail bond, the court ordered the forfeiture vacated, recalled the bench warrant, and reinstated bail in the amount of $125,000.
Torres appeared in court for later hearings but did not appear on April 19, 2007, the date set for trial. On that date defense counsel informed the court that Torres had fled to Peru. The court declared bail forfeited, issued a bench warrant, set bail at $500,000, and on April 20, 2007, mailed Accredited and its bail agent notice of the forfeiture.
Nearly six months later, on October 16, 2007, Accredited filed a motion to extend the statutory time period within which to produce Torres (“appearance period”) by 180 days to April 21, 2008. On October 29, 2007, the court granted the motion.
Penal Code section 1305.4 provides: “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 (i) of Section 1305.” Further unmarked statutory references are to the Penal Code.
On April 18, 2008, Accredited moved to vacate the forfeiture and to exonerate the bond or, in the alternative, to toll the appearance period. The court denied Accredited’s motion and entered summary judgment against Accredited in the amount of $125,000 plus costs. This appeal followed.
Section 1306 specifies when a court may enter summary judgment against a surety on its bond. Subdivision (a) of this section provides: “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.”
DISCUSSION
Principles Governing Bail Statutes
Section 1305, subdivision (a) provides that “[a] court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear” when ordered to appear or when otherwise required to appear.
The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906.) “The purpose of posting bail is to insure the defendant will make his appearances in court and obey the court’s orders and judgment. Forfeiture of a bail bond is not to be viewed as a means of revenue for the government or a punishment of the surety. (People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675.)... Because the law disfavors forfeitures, sections 1305 and 1306 must be strictly construed in favor of the surety to avoid a forfeiture of the bond. ([People v. Wilshire Ins. Co. (1975)] 46 Cal.App.3d [216] at p. 220.)... Failure to follow the jurisdictional prescriptions in sections 1305 and 1306 renders a summary judgment on the bail bond void. (Burtnett [v. King (1949) 33 Cal.2d 805] at p. 807; [People v. ]Wilshire Ins. Co., supra, at p. 22l.)” (County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 16.)
Jurisdiction to Declare Bail Forfeited on August 9, 2006
Accredited asserts that by failing to declare the bail forfeited on August 7, 2006, the first time that Torres did not appear, the court lost jurisdiction to forfeit the bond and its act of doing so on August 9, 2006, was void.
We need not decide whether Accredited’s assertion regarding the original undertaking is correct because on September 6, 2006, when Torres appeared in court, Accredited agreed to reinstate the bond and filed a motion with the court expressly stating that it consented to reinstatement. Accredited’s September 6, 2006, consent to reinstatement was an entirely new contract obligating it anew to assure Torres’s appearance in court.
We note that if a defendant appears within the 180-day appearance period, either voluntarily or in custody after surrender or arrest, “[i]n lieu of exonerating the bond, the court may order the bail reinstated and the defendant released on the same bond if both of the following conditions are met. [¶] (A) The bail is given prior notice of the reinstatement. [¶] (B) The bail has not surrendered the defendant.” (§ 1305, subd. (c)(4).)
Performance Prevented by Operation of Federal Law
Accredited contends the court should have exonerated its bond because pursuant to section 1305, subdivision (d), it was “prevented from performing its obligation to return [Torres] to court by the federal government’s order barring him from reentering the country.” (Italics added.) We disagree.
Section 1305, subdivision (d) provides: “In the case of a permanent disability, the court shall direct the order of forfeiture to be vacated and the bail or money or property deposited as bail exonerated if, within 180 days of the date of forfeiture..., it is made apparent to the satisfaction of the court that both of the following conditions are met: [¶] (1) The defendant is deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities. [¶] (2) The absence of the defendant is without the connivance of the bail.”
The surety has the burden of proving that this statutory provision applies. (People v. Accredited Surety & Cas. Co. (2004) 132 Cal.App.4th 1134, 1139 [“It is the bonding company’s obligation ‘to establish by competent evidence that its case falls within the four corners’ of section 1305....”].)
Assuming that a federal order barring a defendant from reentering this country is a “detention” within the meaning of section 1305, subdivision (d), Accredited cites no support in the record for its assertion that a federal government order barred Torres from reentering the United States. Indeed, in the trial court, Accredited conceded that Torres left the country voluntarily, although claiming his departure was under threat of deportation.
Further, Accredited apparently contends that because federal law bars Torres’s return, Torres is “detained” under section 1305, subdivision (d). Assuming arguendo that a defendant is “detained” within the meaning of section 1305, subdivision (d) if federal law prevents his return, Accredited has not cited facts or law to support its claim that federal law bars Torres’s return. (Cf. People v. American Surety Ins. Co. (2000) 77 Cal.App.4th 1063, 1065, 1067-1068 [the defendant was “detained” when he was forcibly deported after being convicted of narcotics trafficking, a conviction which, for all practical purposes, made him permanently ineligible under federal law to return to this country.)
Tolling the Appearance Period to Allow for Extradition
Accredited contends that the bond should be exonerated because the trial court failed, but was required to, toll the appearance period to allow for Torres’s extradition. Accredited cites no authority for the proposition that court error in denying tolling entitles the surety to exoneration of its bond and we reject it. At most, even if we found that the court abused its discretion in denying Accredited’s motion to toll the appearance period, we would order the lower court to grant the motion to extend time.
See footnote 1, ante, for the text of section 1305.4.
Accredited also contends that principles of equity required the trial court to toll the date for Torres’s appearance under section 1305, subdivision (g) “to allow time for extradition, however long that might be.” Although tolling for a reasonable time to allow for extradition might be required where a surety had complied with the provisions of section 1305, subdivision (g), and the district attorney had not yet determined whether to extradite a defendant pursuant to section 1305, subdivision (g) (or was in the process of extradition), no evidence in this record establishes that Accredited had met the requirements of section 1305, subdivision (g), or that the district attorney was considering extradition.
Section 1305, subdivision (g) provides: “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.”
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: MALLANO, P. J., JOHNSON, J.