Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County Super. Ct. No. SJ003229, Henry J. Hall, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel and Melissa A. McCaverty, Deputy County Counsel for Plaintiff and Respondent.
CHAVEZ, J.
Appellant, Indiana Lumbermens Mutual Insurance Company (Surety) appeals from an order denying its motion to vacate forfeiture and to exonerate bail after the failure of criminal defendant Vardan Vardanyan (Vardanyan) to appear in court. Surety also appeals from the summary judgment entered on the forfeiture.
CONTENTIONS
Surety contends that the bond it posted to ensure Vardanyan’s appearance was exonerated when the district attorney elected not to extradite Vardanyan from the country of Georgia. Surety further argues that, if the district attorney requires more time to determine whether or not to extradite, or if the district attorney elects to extradite, Surety is entitled to relief by a tolling of the exoneration period.
FACTUAL AND PROCEDURAL HISTORY
A criminal information was filed against Vardanyan alleging a felony violation for grand theft. An arrest warrant issued. The arrest warrant was recalled on July 12, 2007, after Surety’s agent issued a bail bond for Vardanyan, with an appearance set for August 2, 2007. Vardanyan failed to appear for his arraignment without sufficient excuse. A bench warrant for his arrest was issued and bond was forfeited. On August 3, 2007, a notice of forfeiture was mailed.
On February 27, 2008, the trial court ordered the exoneration period extended to May 27, 2008.
On May 27, 2008, a motion to vacate forfeiture and exonerate bail was filed. The motion was set for hearing on June 23, 2008. The motion was made pursuant to Penal Code section 1305, subdivision (f), which states, in pertinent part:
All further statutory references are to the Penal Code unless otherwise indicated.
“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....”
Relief was sought on the ground that the defendant was in custody outside of California and that, upon being informed of the defendant’s location, the district attorney elected not to extradite. An attached declaration from Surety’s investigator stated that the defendant had been arrested in the country of Georgia.
On May 27, 2008, Surety’s agent sent a facsimile to the district attorney inquiring as to whether that office would extradite the defendant. A letter was also sent to the district attorney requesting that office’s assistance in extraditing the defendant. As of the date of the filing of the motion, the district attorney had not responded to Surety’s inquiries regarding extradition.
The hearing on the motion was continued to October 15, 2008. At the hearing, the deputy district attorney argued that the People could not make a “meaningful election whether or not to extradite the defendant from Georgia because of the nonexistence of a bilateral condition treaty between Georgia and the United States.”
The court denied the motion to extend or vacate the forfeiture, and entered summary judgment for respondent. The court held that “the bonding company has an obligation, particularly when you have people who have extensive foreign ties, to do something other than come in here and argue or hide behind some illusory defense in Penal Code section 1305 to ensure that the defendants are here in court.”
On October 20, 2008, summary judgment was issued and the clerk mailed the notice of entry of judgment on the forfeited bond to Surety and its agent. On December 10, 2008, Surety filed its notice of appeal from the order denying its motion to vacate forfeiture and from the summary judgment.
DISCUSSION
I. Standard of review
Reviewing courts apply an abuse of discretion standard in evaluating a trial court’s denial of a motion to vacate bail forfeiture. (People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1383.) The court’s determination “should not be disturbed on appeal unless an abuse of discretion appears in the record.” (Ibid., citing People v. United Bonding Ins. Co. (1970) 12 Cal.App.3d 349, 353.) Our interpretation of section 1305, subdivision (f) as applied to the facts of this matter, concerns a pure question of law and is subject to de novo review. (People v. Fairmont Specialty Group (2009) 173 Cal.App.4th 146, 151.)
II. Section 1305, subdivision (f)
Surety’s main argument is that, once it informed the prosecutor of the location of the defendant, it was the prosecutor’s responsibility to promptly commence extradition proceedings. On May 27, 2008, the district attorney was informed of the defendant’s location. The district attorney did not respond with an election regarding extradition. By this failure to respond, Surety argues, respondent elected not to extradite within the meaning of the statute, and Surety is released from all liability under the bond.
Respondent argues, as it did below, that the prosecuting agency could not make a meaningful election as to whether to extradite the defendant because extradition was not feasible. Respondent cites County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 544, which held: “If the situation is such that the prosecutor has no meaningful choice because extradition is not feasible, the prosecutor cannot elect whether or not to seek extradition. Thus, a statutory condition to vacating the forfeiture and exonerating the bond cannot be met.”
The deputy district attorney, in her declaration to the trial court, described in detail the steps she took to determine whether or not extradition of Vardanyan was feasible. After two unsuccessful efforts to gain information regarding extradition from the United States Office of Internal Affairs in Washington, D.C., she was referred to Betsy Burke, who was described as the one who deals specifically with the country of Georgia. Ms. Burke said that “the United States cannot seek extradition from Georgia because we do not have a bilateral extradition treaty. [Burke] advised [her] that only in cases alleging the most serious offenses, such as terrorist acts, would the U.S. engage in any negotiations to seek the return of a fugitive through extradition alternatives such as deportation or expulsion.”
Thus, respondent argues, extradition was not feasible. (County of Orange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795, 802 (County of Orange). Therefore, there could be no meaningful election as to whether to seek extradition, and the conditions for forfeiture relief were not satisfied. While the courts have held that the government has a “‘constitutional duty to make a diligent, good faith effort to bring a defendant to trial promptly... [d]ue diligence does not require the government to pursue goals that are futile.’” (Ibid., citing U.S. v. Blanco (2nd Cir. 1988) 861 F.2d 773, 778.)
Surety argues in response that the holding in County of Orange was confined to the facts of that case. In County of Orange, the deputy district attorney who was the extradition specialist for the office testified that he had never successfully extradited a fugitive from Mexico where the charge was not a heinous crime. (County of Orange, supra, 61 Cal.App.4th at pp. 803-804.) The court held that “[e]xtradition will be deemed infeasible when the host country, as a matter of policy and practice, refuses to grant extradition requests in the category of cases involved in the controversy at hand.” (Id. at p. 803.) The court declared that “the circumstances of each case must be examined to determine whether the defendant’s extradition is feasible.” (Id. at p. 804.)
The circumstances of this case are comparable to those in County of Orange. The deputy district attorney’s declaration made it clear that extradition from the country of Georgia was not feasible. Thus, there could be no meaningful election as contemplated by section 1305, subdivision (f).
Surety next argues that the language of section 1305, subdivision (f) requires respondent to “seek” extradition. To “seek,” Surety argues, means “to try.” The statute does not limit its directive to cases where success is a foregone conclusion. However, the facts set forth by the deputy district attorney show that she did make efforts to determine whether extradition would be feasible. Upon finding out that it was not feasible, she was not required to further pursue a futile goal. (County of Orange, supra, 61 Cal.App.4th at p. 802.)
In its reply brief, Surety argues that the “primary factor” in determining whether or not to extradite a particular fugitive is the nature of the crime. Here, Surety argues, the prosecutor’s real motivation for declining to extradite was based on the nature of the crime – auto theft. If the crime is not a heinous or serious crime, Surety argues, the prosecutor should act “honestly” and state that extradition will not be sought. Surety cites no authority for this argument. And, contrary to Surety’s position, the County of Orange decision holds that once it is determined that extradition is not feasible, there can be no meaningful election. (County of Orange, supra, 61 Cal.App.4th at p. 802.) Extradition of Vardanyan from the country of Georgia was simply not an option, and the prosecutor had no meaningful choice in the matter.
III. Equitable tolling of exoneration period
Surety next argues that, even where the district attorney requires more time to determine whether or not extradition will be sought or if he elects to extradite, Surety is entitled to relief by way of a tolling of the extradition period. Surety sets forth the principles of equitable tolling, which will “suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” (Lantzy v. Centex Homes (2003)31 Cal.4th 363, 370.)
Surety fails to explain how this argument is relevant to the facts. As respondent points out, at no time did Surety request that the court toll the time further. Nor would tolling of the time have helped Surety. The court denied its motion because extradition was not feasible. Further tolling of the time period would not have changed this outcome. We therefore decline to address this argument further.
IV. Conclusion
The trial court did not abuse its discretion in denying Surety’s motion to vacate forfeiture of its bond. The entry of summary judgment based on the forfeiture was proper.
DISPOSITION
The order and judgment are affirmed. Respondent is awarded its costs of appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, ASHMANN-GERST, J.