Opinion
B196987
5-16-2008
COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. RANGER INSURANCE COMPANY, Defendant and Appellant.
Nunez & Bernstein and E. Alan Nunez, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, Ralph L. Rosato, Assistant County Counsel, Doraine F. Meyer, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Ranger Insurance Company, surety on a bail bond issued on behalf of a criminal defendant, appeals from an order denying its motion for exoneration of the bond and the subsequent entry of summary judgment. Ranger sought exoneration under Penal Code section 1305, subdivision (g). We agree with the trial court that the statutory conditions for exoneration were not met and affirm.
Unless otherwise specified, statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On April 25, 2005, Ranger posted a $30,000 bond for the release of "Librado Lugo" who had been arrested and charged under the name "Manuel Garcia." Garcia appeared in court on July 13, 2005 and entered a plea of nolo contendere to four charges, one for sale or transportation of a controlled substance and three for possession of controlled substances for sale. Garcias case was continued to August 19, 2005, for sentencing. Garcia did not appear on that date. Accordingly, the court declared bail forfeited. Notice was mailed that same day, causing the period within which Ranger could move to set aside the forfeiture or exonerate the bond to commence running.
Rangers investigators later came to believe the defendants true name was "Manuel Arellano." He will be referred to as "Garcia."
Under section 1305, subdivision (a), the trial court shall "declare forfeited the undertaking of bail" when the defendant fails to appear in court without a satisfactory excuse. Notice of forfeiture is to be mailed to the surety and bail agent within 30 days thereafter if the amount of the bond or money or property deposited exceeds $400. (§ 1305, subd. (b).) The surety and bail agent have 185 days after notice of forfeiture is mailed to move to vacate the forfeiture and exonerate the bond. (§ 1305, subds. (b), (c)(2), (g) and (i); People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658.) Alternatively, they can move to extend the 185-day period on a showing of "good cause." (§ 1305.4.)
In January 2006, Ranger filed a motion to extend the period. The court granted the motion and the time Ranger had to locate Garcia or move to set aside the forfeiture or exonerate the bond was extended to August 28, 2006. During the extended period, Ranger filed a motion to toll, which the court granted, extending time to November 27, 2006. Near the end of that period, Ranger filed its motion to exonerate the bond, and the court tolled the exoneration period to December 1, 2006 to allow time for the motion to be heard.
In support of the motion to exonerate, Ranger submitted a declaration from its investigator, Kevin Gizinos. Gizinos described his efforts to locate Garcia, culminating in receipt of information that Garcia was living with his mother in Tijuana, Mexico. In July 2006, after learning Garcias location, Gizinos contacted Head Deputy District Attorney Michael Grosbard to inquire whether the district attorneys office intended to extradite Garcia. Grosbard agreed to approve extradition if he received a request for extradition from the arresting agency or officer. Gizinos attempted to contact the arresting officer, but the officer did not return Gizinoss call.
In August 2006, Gizinos spoke with other personnel from the district attorneys office in an attempt to obtain (1) approval for extradition, (2) a letter to assist the investigators in dealing with Mexican authorities, or (3) a "U.F.A.P." warrant. None of those things were provided. However, Gizinos learned that a different member of the district attorneys office, Diana Carbajal, had the authority to approve extradition.
U.F.A.P. is an acronym for "Unauthorized Flight to Avoid Prosecution," an offense targeted by 18 U.S.C. section 1073, under which federal warrants are issued permitting federal law enforcement agents "to apprehend state fugitives, release them to local authorities in the state of arrest, and allow extradition to the state in which the federal offense was committed." (U. S. v. Love (S.D.N.Y. 1977) 425 F.Supp. 1248, 1250; accord, Meuse v. Freeh (D.Mass. 2006) 421 F. Supp. 2d 365, 370.)
On September 18, 2006, Jesus Sanchez, a colleague of Gizinos who had gone into Mexico, informed Gizinos that he (Sanchez) and the Mexican Judicial Police had located Garcia and "needed the authority to hold the fugitive sent via facsimile." Gizinos immediately contacted Carbajal. However, when Gizinos spoke with her, Carbajal reiterated that the unit did not order extradition at the request of bail bondsmen and further informed Gizinos that she would not approve extradition for Garcia even if the investigating officer had issued the request.
After reviewing the evidence, the court denied the motion to exonerate. It thereafter entered judgment on the bond. Rangers appeal followed.
Under section 1306, subdivision (a), "[w]hen 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 . . . shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound."
DISCUSSION
"`The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court." (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657, quoting People v. Wilcox (1960) 53 Cal.2d 651, 656-657.) "When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. [Citation.] The surety that posted the bond then has a statutory `appearance period in which either to produce the accused in court and have the forfeiture set aside, or to demonstrate other circumstances requiring the court to vacate the forfeiture. If the forfeiture is not set aside by the end of the appearance period, the court is required to enter summary judgment against the surety. [Citation.]" (People v. American Contractors Indemnity Co., supra, at p. 657, fn. omitted.)
Forfeiture of bail is a statutory procedure governed by sections 1305 through 1308 of the Penal Code. "Because the law abhors forfeitures, these statutes are to be strictly construed in favor of the surety. [Citation.]" (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552; accord, People v. Lexington National Ins. Co. (2007) 147 Cal.App.4th 1192, 1201.) "In adopting a rule of strict construction the courts concern is not so much for the bail bond companies, to whom forfeiture is an everyday risk of doing business, but for those who bear the ultimate weight of the forfeiture, family members and friends who have pledged their homes and other financial assets to the bonding companies to secure the defendants release." (County of Los Angeles v. American Contractors Indemnity Co. (2007) 152 Cal.App.4th 661, 666.)
Section 1305 describes a number of circumstances under which forfeiture of a bond may be set aside or vacated and the bond exonerated. (People v. Accredited Surety & Casualty Co. (2004) 132 Cal.App.4th 1134, 1138) The surety or bail agent moving to set aside the forfeiture or exonerate the bond under its provisions bears "the burden of coming forward with a request [for relief] and making the necessary showing within the statutory time frame . . . ." (People v. American Bankers Ins. Co. (1991) 233 Cal.App.3d 561, 570.) The burden requires the surety or bail agent "`to establish by competent evidence that its case falls within the four corners of [the pertinent provision of section 1305]." (People v. Ramirez (1976) 64 Cal.App.3d 391, 398, quoting People v. United Bonding Ins. Co. (1969) 272 Cal.App.2d 441, 445-446, italics omitted, [denial of motion to vacate forfeiture and exonerate bond affirmed where declarations attached to motion were "totally insufficient"].)
Here, Ranger sought to set aside the forfeiture and exonerate the bond under section 1305, subdivision (g), which 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."
The trial court ruled that Ranger "failed to comply with Penal Code section 1305[, subdivision] (g)." Respondent County of Los Angeles contends the courts ruling was plainly correct because Ranger failed to procure an affidavit from a local law enforcement officer establishing that Garcia was or had been detained in Mexico. We agree. The relief from forfeiture permitted under section 1305, subdivision (g) applies by the express terms of the statute only where the defendant "is temporarily detained, by the bail agent, in the presence of a local law enforcement official" and "is positively identified by that law enforcement official as the wanted defendant in an affidavit signed under penalty of perjury . . . ." Gizinoss declaration indicated only that Sanchez and the Mexican Judicial Police had "located" Garcia. The declaration did not establish that Garcia had been detained. Nor did Ranger provide an affidavit from an official of the Mexican Judicial Police confirming Garcias identity.
Appellant contends the bond should be exonerated under section 1305, subdivision (g) because the evidence is clear the district attorneys office did not intend to seek extradition of Garcia and "[i]t is not the object of the statute to put the surety [through] a variety of hoops for the sole purpose of complying with its provisions." In People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, the surety similarly argued that once the district attorney made clear that it did not intend to extradite the defendant, it would have been an "idle act" to detain him in the presence of a Mexican law enforcement official or obtain an affidavit from a Mexican law enforcement official. (Id. p. 649.) The court disagreed: "[W]e can only speculate what the response of the district attorney would have been had [the defendant] been detained and identified by a Mexican law enforcement officer as the statute requires." (Id. at p. 650.) Here, too, the failure of Ranger to follow section 1305 leaves open the possibility of a different response from the district attorneys office had it complied with the statute.
Appellant seeks to rely on County of Los Angeles v. American Contractors Indemnity Co., supra, 152 Cal.App.4th 661. There, the surety provided an affidavit — from the Zone Coordinator of the State Ministerial Police for the State of Guerrero, Mexico — stating that the defendant was in his presence temporarily detained and that the defendant had been positively identified, but the district attorney declined to seek extradition. (Id. at p. 664.) The county contended the affidavit was insufficient because it failed to meet certain requirements contained in the Evidence Code and the Code of Civil Procedure generally applicable to affidavits and declarations executed in foreign countries. Specifically, (1) the affidavit was not made under penalty of perjury of the laws of the State of California (see Civ. Proc. Code § 2015.5); (2) the affidavit was not authenticated by a member of the United States foreign services stationed in Mexico (see Evid. Code § 1454); and the affidavit was not sworn before a consular officer of the United States or a Mexican judge (see Civ. Proc. Code § 2014). The court concluded that an affidavit from a foreign law enforcement official offered under section 1305, subdivision (g), need not meet these requirements because: "[T]he affidavit was offered into evidence at the bail exoneration hearing to show [the surety] had met certain requirements of section 1305(g). It showed [the affiant] was a law enforcement officer of the State of Guerrero; it stated [the affiant] had positively identified [the defendant] as the man temporarily detained in his presence by [the bail agent]; and it was signed under penalty of perjury." (County of Los Angeles v. American Contractors Indemnity Co., supra, 152 Cal.App.4th. at p. 668.) The Legislature "undoubtedly knew requiring a bail agent in a foreign country to comply with the kind of technicalities cited by the County would result in few if any bail jumpers ever being returned to California to face trial." (Ibid.) Therefore, the provision only requires the bail agent "to temporarily detain the defendant and bring him before a local law enforcement officer to determine his identity and find out whether the prosecutor in California will seek the defendants extradition," not "find a local judge willing to take the officers sworn affidavit" or "a United States consular official who can certify the genuineness of the law enforcement officers signature." (Ibid.)
The holding in County of Los Angeles v. American Contractors Indemnity Co. does not assist Ranger here. Ranger did not simply fail to comply with "technicalities" governing foreign affidavits and declarations found in other statutes. It failed to obtain an affidavit from a local law enforcement official, one of the essential requirements of section 1305, subdivision (g). Although the statute must be "strictly construed in favor of the surety" to avoid forfeiture, the requirement of an affidavit signed under penalty of perjury by a local law enforcement official is set forth in clear and unambiguous language, which we cannot ignore or interpret away. (See People v. Loeun (1997) 17 Cal.4th 1, 9 ["`If there is no ambiguity in the language of the statute, "then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs""]; Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826 ["When interpreting a statute our primary task is to determine the Legislatures intent. [Citation.] In doing so[,] we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent. [Citation.]"].) The requirement of an affidavit from a local law enforcement official serves two important purposes. First, it ensures that formal extradition requests to foreign governments are not issued on faulty information concerning the location of the absent defendant; second, it ensures that a surety or bail agent seeking to exonerate a bond in the absence of an extradition request has provided accurate information to the court. Rangers failure to meet this essential requirement of section 1305, subdivision (g) left the trial court with no basis on which to grant the motion for exoneration. Thereafter, section 1306, subdivision (a) and the lapse of the extended/tolled period within which to move to set aside forfeiture or exonerate the bond required entry of summary judgment on the bond. Accordingly, the order denying Rangers motion and the summary judgment subsequently entered must be affirmed.
DISPOSITION
The judgment is affirmed.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.