Opinion
NOT TO BE PUBLISHED
Appeal from an order and judgment of the Superior Court of Orange County No. 05SF0499, David A. Thompson, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel and Leon J. Page, Deputy County Counsel for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Indiana Lumbermens Mutual Insurance Company (Surety) appeals from an order denying its motion to vacate forfeiture of a bail bond it posted for the release of Kenneth Brooks from custody and from the subsequent summary judgment on the bond. Surety argues it was entitled to relief from the forfeiture of its bond because Brooks was interviewed by officers of the Los Angeles Police Department but they failed to arrest him. Surety’s argument lacks merit. The order denying relief from forfeiture is affirmed.
FACTS
On July 7, 2006, Surety posted a $150,000 bail bond to secure the release of Brooks. Brooks had been charged with identity theft, second-degree burglary, and grand theft. He pleaded guilty to all counts on September 12, but remained free on bail pending a sentencing hearing set for October 27. Brooks failed to appear for sentencing on three occasions, and, on December 15, 2006, the court issued a no bail bench warrant and ordered the Surety’s bond forfeited.
Pursuant to Penal Code sections 1305, subdivision (i), and 1305.4, Surety obtained extensions of time through January 14, 2008, to attempt to vacate the forfeiture and exonerate the bond. On December 20, 2007, Surety filed its motion requesting relief from the forfeiture, specially setting it for hearing on January 9, 2008. The motion was a “bare bones” affair, containing a brief memorandum, and a series of unauthenticated exhibits, one of which was a largely illegible batch of documents purporting to be a Los Angeles Police Department report, and supporting witness statements, regarding the arrest of one Alton Howard on charges he attempted to murder Brooks (the arrest report). The County of Orange did not lodge any objection to this unauthenticated, hearsay (and thus inadmissible) evidence, so we are compelled to consider it.
All further statutory references are to the Penal Code.
The arrest report states that Los Angeles police officers responded to an “ambulance shooting call” near Vicksburg Avenue and Century Boulevard. Brooks was being treated at the scene for a gun shot wound to the left side of his ear. The treating paramedics advised the officers that Brooks needed to be “transported immediately to UCLA Westwood Medical Hospital for treatment.” One of the officers rode with Brooks during transport to the hospital.
According to the arrest report, four “bail bonds men advised officers that they owned the two vehicle[s] that were parked within [the] crime scene. They further advised that they where [sic] initially following Victim Brooks for jumping bail out of Orange County. The Bail bonds men were armed with semi-auto handguns and were conducting surveillance....” The officers were “not... able to determine if the Four Bail Bonds men were involved in the Shooting.” The officers “confiscated their weapons at scene and they were transported to Pacific Station pending an Attempt Murder Investigation.” Other officers interviewed the “Four Bail Bonds men” at the Pacific Station, determined they were not involved in the shooting, returned their weapons to them, and released them.
Witness statements taken at the Pacific Station from two of Surety’s investigators were attached to the arrest report. But these statements provide little else of relevance. According to the witness statement from one of the investigators, he had been “on surveillance” at the scene while working in “bail recovery.” He then described what he had seen regarding the shooting. The other investigator stated he had been “conducting a surveillance... in search of a warrant skip (Kenneth Brooks)” and then described what he had seen.
DISCUSSION
Section 1305, subdivision (c), sets forth the basic rule governing relief from forfeiture and exoneration of a bail bond where the absconding defendant is taken into custody or arrested in a county other than where his case is located. “If, outside the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the [forfeiture period as extended] the court shall vacate the forfeiture and exonerate the bail.” (§ 1305, subd. (c)(3).) For purposes of this statute, the word “‘arrest’ includes a hold placed on the defendant in the underlying case while he or she is in custody on other charges.” (§ 1305, subd. (h).)
Surety acknowledges that “Brooks was not placed under arrest.” Moreover, there is no evidence that Orange County authorities in the “underlying case” were ever contacted, or that a “hold [had been] placed on [Brooks] in the underlying case,” or, for that matter, that Brooks was ever “in custody on other charges.” According to the arrest report, following the shooting, Brooks was given medical treatment and treated as a victim. He was not taken into custody by anyone.
Surety argues that the Los Angeles police officers were negligent in failing to arrest Brooks; that they had a duty “to check for warrants, particularly in view of information from the bail agents that he was wanted on a warrant....” But even if we assume the Los Angeles police officers were negligent in not following up with a warrant check on Brooks while he was being treated for his injuries, the statutory condition for vacating the forfeiture was simply not met — Brooks was not “surrendered to custody by the bail,” nor was he “arrested in the underlying case” (§1305, subd. (c)(3)), nor was he “in custody on other charges” while a “hold [had been] placed on [him] in the underlying case...” (§ 1305, subd. (h)). As our Supreme Court has often stated, “We have declined to follow the plain meaning of a statute only when it would inevitably have frustrated the manifest purposes of the legislation as a whole or led to absurd results.” (People v. Belleci (1979) 24 Cal.3d 879, 884.) Here, the plain meaning of the condition for exoneration of bail is that the absconding defendant be held in custody on the underlying offense, either by the bail agent surrendering defendant to custody, or by defendant’s arrest in the underlying case, or by having a hold placed on defendant in the underlying case while in custody on other charges. Brooks was never in custody. The mere failure of police officers to perform a warrant check is not a substitute for taking the defendant into custody.
The only case cited by Surety as “instructive” for the case at hand does not assist its argument. In People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791 (Far West), the defendant skipped bail while awaiting trial in Alameda County. Bail agents located him in Georgia, where they took the defendant into custody and turned him over to the local sheriff. (Id. at p. 793.) The local sheriff in Georgia contacted the Oakland Police Department to inquire whether it would be extraditing the defendant. The Oakland Police teletyped their response: “‘release [the] hold’” on the defendant. The court exonerated the bail, despite the statutory designation of the prosecuting agency as the appropriate authority to make the extradition decision under section 1305, subdivisions (f) and (g). After all, the bail agents had in fact taken the defendant into custody, had delivered him to the custody of the local sheriff, and the defendant had been released from the “hold” on instructions from law enforcement in the county where the underlying offense was pending. These facts bear no similarity to the instant case where Brooks was never in custody, and where neither local law enforcement nor the district attorney had frustrated the bail agents’ efforts by authorizing the release of Brooks from custody.
Recently, in a case resembling Far West, although decided under section 1305, subdivision (c)(2) instead of subdivisions (f) and (g), the defendant skipped bail, but was arrested a short time later on a shoplifting charge. The arresting police agency discovered the outstanding bench warrant and contacted the police department in the city where the bench warrant had been issued. (County of Los Angeles v. Fairmont Specialty Group (Apr. 21, 2009, B204778) ___ Cal.App.4th ___ [2009 WL 1058667].) The police department in the city where the warrant had been issued advised the arresting agency “not to arrest [the defendant] on the... warrant due to medical concerns.” (Id. at *1.) The Second District Court of Appeal held that bail was exonerated because the defendant was in custody on other charges and, from the moment the arresting officer learned of the outstanding warrant, the defendant “was subject to a ‘hold... in the underlying case’ within the meaning of [section 1305] subdivision (h), and thus ‘arrested in the underlying case under subdivision (c)(2).” (Id. at *3.) Here, in contrast, Brooks was never in custody on other charges. He was merely being treated for his injuries as a victim of a shooting.
“The burden is upon the bonding company seeking to set aside the forfeiture to establish by competent evidence that its case falls within the four corners of [the] statutory requirements [of section 1305].” (People v. American Bankers Ins. Co. (1992) 4 Cal.App.4th 348, 354.) Surety failed to meet its burden. The mere negligence, if any, of a law enforcement agency in failing to check for outstanding arrest warrants for Brooks, a shooting victim, does not establish either that defendant was “surrendered to custody by the bail” or that defendant was “arrested in the underlying case.” Accordingly, relief from bail forfeiture was properly denied.
DISPOSITION
The order and judgment are affirmed.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.