Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08NF2502, Thomas M. Goethals, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Nicole M. Walsh, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendant Accredited Surety and Casualty Company (Accredited Surety) appeals from a summary judgment entered after the trial court denied Accredited Surety’s motion seeking, inter alia, an order tolling the time available for the exoneration of a bail bond. Accredited Surety contends the court should have tolled the statute on the exoneration period because the requirements of Penal Code section 1305, subdivision (g) had been met. (All further statutory references are to the Penal Code.)
We affirm. For the reasons we explain in detail post, the requirements of section 1305, subdivision (g) were not met in this case. The trial court therefore did not err by denying Accredited Surety’s motion.
BACKGROUND
On February 19, 2009, Accredited Surety, through its bail agent, posted a bail bond in the amount of $100,000 to secure the release of criminal defendant Juan Antonio Gutierrez. Gutierrez did not appear for his arraignment on February 25, and the court ordered the bail bond forfeited in open court.
Notice of the forfeiture of the bail bond was mailed to Accredited Surety and the bail agent on February 26, 2009. The notice stated in part: “You are hereby notified that the surety bond posted by you on behalf of the above named defendant has been ordered forfeited by the Court pursuant to Penal Code [section] 1305. [¶] Pursuant to Penal Code 1305, the forfeiture will become final 186 days from the date of mailing of this notice unless, before that date, you obtain a court order setting aside such forfeiture, or the statute is tolled. [¶] Entry of summary judgment will be requested pursuant to Penal Code Section 1306 upon the expiration of the time allowed by law if the forfeiture order has not been set aside or the statute tolled pursuant to Penal Code 1305.”
On February 26, 2009, the deputy clerk of the trial court sent a notice of the felony bond forfeiture to the extradition deputy of the district attorney’s office, which stated: “The private surety bond posted on the above case was forfeited on 02/25/2009. Pursuant to Penal Code Section 980 (b) and 1196 (b), this Court requires a $200,000.00 Bench Warrant issued for the above defendant, be entered into the National Warrant System (NCIC).”
On September 18, 2009, the trial court ordered the “180 days bail bond forfeiture period extended” to March 18, 2010.
On March 18, 2010, Accredited Surety filed a motion seeking an order vacating forfeiture and exonerating bail or, in the alternative, tolling the time available for exoneration of bail bond (the motion). The motion was supported by evidence that (1) a witness told investigators that two years earlier, he had visited Gutierrez on the fourth or fifth floor of an apartment complex called “Colonia Cinco Senores” in Oaxaca, Mexico; (2) Gutierrez was believed to have been living with his mother and siblings at that apartment complex; (3) on March 4, 2010, Orange County Deputy District Attorney Ray Armstrong was briefed on the status of the investigation into Gutierrez’s whereabouts and Armstrong expressed the intention to seek Gutierrez’s extradition; (4) U.S. Marshals Service investigators and Mexican government officials were contacted “to coordinate investigative efforts and pinpoint Mr. Gutierrez’ location in Oaxaca”; (5) on March 17, 2010, the Office of the Attorney General of Mexico notified the U.S. Marshals Service that an individual fitting Gutierrez’s description had been seen at that apartment complex on an unspecified date and that “deep research” was being conducted “in order to obtain all possible information about this individual”; and (6) the Office of the Attorney General of Mexico suggested the U.S. Marshals Service request a provisional arrest warrant because Gutierrez is a Mexican national.
The record also contains a notification of extradition decision stating the Orange County District Attorney’s decision to exercise the right to extradite Gutierrez from Mexico.
The trial court denied the motion and, pursuant to section 1306, ordered summary judgment on the forfeited bail bond against Accredited Surety in the amount of $100,000, plus interest. Accredited Surety appealed.
DISCUSSION
Accredited Surety argues the trial court erred by denying the motion and ordering summary judgment against it because under section 1305, subdivision (g), “[w]here there is an election to extradite, the surety is entitled to a tolling of the exoneration period.” For the reasons we explain post, Accredited Surety’s argument is without merit.
Under section 1305, subdivision (a), the trial court must declare bail forfeited if a criminal defendant fails to appear in court when lawfully required to do so. The surety has 185 days from the date the court clerk mails notice of the forfeiture (required for any bond exceeding $400) to secure the criminal defendant’s presence in court. (§ 1305, subds. (b), (c).) If the criminal defendant appears in court within that timeframe, the court shall, “on its own motion at the time the defendant first appears in court on the case in which the forfeiture was entered, direct the order of forfeiture to be vacated and the bond exonerated.” (§ 1305, subd. (c)(1); see People v. Seneca Ins. Co. (2010) 189 Cal.App.4th 1075, 1079 (Seneca).)
As discussed by a panel of this court in Seneca, supra, 189 Cal.App.4th at page 1079, under section 1305.4, “the surety insurer may move, ‘based upon good cause, ’ for an extension of up to 180 additional days. [Citation.] Thus, logically (although not explicitly stated in the statute), the appearance of the criminal defendant within the extended period authorized by section 1305.4 requires the forfeiture to be vacated and the bond to be exonerated. The statutory scheme does not explicitly authorize additional extensions of the 180 day bond exoneration period.”
Here, the record shows the court granted one 180 day extension of the bond exoneration period through March 18, 2010. Accredited Surety does not argue in this appeal that it was statutorily entitled to any further extension of the exoneration period.
As for tolling of the bond exoneration period, in Seneca, supra, 189 Cal.App.4th at pages 1079 1080, the appellate court stated: “There is one way to toll the bond exoneration period pursuant to statute. Section 1305, subdivision (e), requires the ‘tolling of the 180 day period provided in this section during the period of temporary disability, provided that it appears to the satisfaction of the court that the following conditions are met: [¶] (1) The defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities. [¶] (2) Based upon the temporary disability, the defendant is unable to appear in court during the remainder of the 180 day period. [¶] (3) The absence of the defendant is without the connivance of the bail. [¶] The period of the tolling shall be extended for a reasonable period of time, at the discretion of the court, after the cessation of the disability to allow for the return of the defendant to the jurisdiction of the court.’” Accredited Surety does not contend Gutierrez has been temporarily disabled within the meaning of section 1305, subdivision (e).
Accredited Surety contends the trial court should have granted the motion to at least toll the bond exoneration period 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.” Section 1305, subdivision (g) does not provide for tolling of the bond exoneration period.
In any event, our record does not show that Gutierrez was ever “temporarily detained, by the bail agent, in the presence of a local law enforcement officer of the jurisdiction in which the defendant is located” or he was “positively identified” by that law enforcement officer “as the wanted defendant in an affidavit signed under penalty of perjury” within the meaning of section 1305, subdivision (g). (Cf. Seneca, supra, 189 Cal.App.4th at p. 1081 [“bail agent complied in January 2009 with the identification procedures set forth in section 1305, subdivision (g)”].) At most, the evidence produced by Accredited Surety in support of the motion showed the investigators might have found the apartment complex where Gutierrez had been living and that an individual who resembled him was seen at that apartment complex. Thus, section 1305, subdivision (g) was inapplicable and the trial court did not err by denying the motion accordingly.
Even if Gutierrez had been temporarily detained and positively identified within the meaning of section 1305, subdivision (g), the record showed the Orange County District Attorney’s Office expressed the intention to extradite Gutierrez; section 1305, subdivision (g) conditions vacatur of the forfeiture and exoneration of the bond on the prosecution’s election “not to seek extradition after being informed of the location of the defendant.”
Accredited Surety argues that notwithstanding the prosecution’s expressed intention to extradite Gutierrez, it is entitled to a tolling of the bond exoneration period under section 1305, subdivision (g) because “[i]t is not the intention of the statutes that the forfeiture be enforced where the defendant is available for extradition.” In the opening brief, Accredited Surety further contends: “It is also arguable that if the prosecuting agency does not promptly undertake the actions required of it to achieve extradition, the surety is relieved of obligation under the bond.” Accredited Surety’s argument continues: “In order to engage the extradition process, the prosecutor must apply for a provisional arrest warrant which allows the arrest of a fugitive until the extradition package is prepared or he must prepare the extradition package. If that is not promptly done, the fugitive will not be provisionally arrested or will be released if the extradition package is not timely prepared. Here, those actions remained to be performed by the prosecutor, and the proper action on the part of the trial court was to grant a tolling to allow the prosecutor to act.”
In Seneca, the appellate court rejected such an interpretation of section 1305, subdivision (g). The Seneca court acknowledged it is “‘well settled that the law disfavors forfeitures, and that this disfavor extends to the forfeiture of bail’” and that “‘“[t]he 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.”’” (Seneca, supra, 189 Cal.App.4th at p. 1081.) The Seneca court further stated, “‘“[i]n matters of this kind there should be no element of revenue to the state nor punishment of the surety.”’” (Ibid.)
Notwithstanding these legal principles, the Seneca court concluded: “Having reviewed the statutory scheme and pertinent cases, we conclude the People put forth the correct interpretation of the text of section 1305, subdivision (g). A bail bond is not exonerated simply because the People have not completed (or even initiated) extradition of the defendant before the end of the bond exoneration period. In the case of an out-of-custody criminal defendant who flees to a foreign jurisdiction and is identified by the bail agent in compliance with section 1305, subdivision (g), the bond is exonerated if the criminal defendant is returned to the court within the bond exoneration period (§ 1305, subd. (c)); or the prosecutor elects not to extradite (§ 1305, subd. (g)). Otherwise, judgment must be entered in the amount of the bond. (§ 1306, subd. (a).) The statutory scheme does not authorize additional extensions or tolling of the bond exoneration period.” (Seneca, supra, 189 Cal.App.4th at p. 1082, italics added.) The Seneca court further stated, “[e]xoneration of the bond is contingent on the return of the criminal defendant to face justice in California, not the initiation of the extradition process. We are loathe to impose nonstatutory deadlines on prosecutors to initiate the process of extradition or to otherwise require prosecutors to pursue extraditions on a particular timetable.” (Id. at p. 1083.)
Accredited Surety does not argue in its appellate briefs that the prosecution had engaged in bad faith, “the prosecutor’s management of the extradition process consisted of an effort to obtain summary judgment against [Accredited Surety], ” or Gutierrez “would have been returned to California before the end of the bail exoneration period if the extradition process had begun promptly.” (Seneca, supra, 189 Cal.App.4th at p. 1083.)
Here, as in Seneca, supra, 189 Cal.App.4th at page 1082, Accredited Surety “already received its one time extension of 180 days authorized by section 1305.4 and [it] did not qualify for statutory tolling under section 1305, subdivision (e).” We find no error.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.