Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1405404, Donald E. Shaver, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
John P. Doering, County Counsel, and Alice E. Mimms, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
In this bail forfeiture action, Bankers Insurance Company (Bankers) appeals from an order denying its motion to vacate forfeiture and exonerate bail or, alternatively, to toll the time available for exoneration of bail. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
On June 29, 2009, Flores was booked into jail on violations of Health and Safety Code sections 11360, subdivision (a) and 11359 for transporting 19 pounds of marijuana. That same day, Garcia Family Bail Bonds (Garcia), as Bankers’s bail agent, executed a $50,000 bail bond to secure Flores’s release. On July 29, 2009, Flores failed to appear for a court hearing and the trial court ordered bail forfeited. The following day, the court served Bankers and Garcia with the notice of forfeiture.
In November 2009, a recovery agent for Garcia located Flores in Tecalitlan, Jalisco, Mexico. With the help of a local law enforcement officer, the recovery agent confirmed Flores’s identity and had him fingerprinted and photographed. From Mexico, the recovery agent called an investigator with the district attorney’s office, Steve Jacobson, and informed him Flores was in his custody.
On December 31, 2009, Bankers filed a motion to vacate the forfeiture and exonerate the bond pursuant to Penal Code section 1305, subdivision (g), on the ground that it had informed the Stanislaus County District Attorney in writing that Flores had been temporarily detained and positively identified by local law enforcement in Mexico and was awaiting a response as to whether the district attorney would elect to extradite him. Bankers argued that if the district attorney elected not to extradite Flores, the court should exonerate the bond, but if the district attorney elected to extradite him, the court should toll time on the bond to allow the extradition to be completed.
All further statutory references are to the Penal Code, unless otherwise stated.
Stanislaus County opposed the motion on the grounds: (1) it had elected extradition when investigator, Steve Jacobson, told Garcia’s co-owner on November 19, 2009 that he could not wait to see Flores, and on November 25, 2009 that upon receipt of the appropriate paperwork, he would follow the same process as an earlier extradition case; (2) the district attorney’s office did not receive the letter from Bankers requesting it to state whether it would seek to extradite Flores, as the letter was misaddressed; (3) the documentation submitted to show Flores’s identity was defective; and (4) an election could not be made because extradition from Mexico was not feasible.
In support of the last contention, the County submitted Jacobson’s declaration, in which he stated that through his employment at the district attorney’s office and participation with the extradition of foreign nationals from Mexico wanted for murder in Stanislaus County, he had become familiar with the extradition treaty between the United States and Mexico, which was signed in Mexico City on May 4, 1978.
Jacobson explained that in June 2009, during the course of an investigation of a bail motion regarding another defendant who he sought to have extradited from Mexico, he spoke with United States Department of Justice attorney Donna Lebowitz, who is assigned to the Mexico unit of the Office of International Affairs Criminal Division. Lebowitz and her colleagues prepare all requests for extradition from Mexico. Lebowitz told him the Mexican government was assisting them on a case-by-case basis for serious violent felonies, such as murder, serious child molestation and violent sexual assaults, where substantial incarceration is involved, including potential life sentences, but “[r]un of the mil[l] average, routine cases are not going to happen.” Lebowitz explained that before negotiating an extradition from Mexico, the foremost consideration is the seriousness of the predicate crime, with the suspect’s criminal history also taken into account. Local authorities would need to have a warrant entered, approving extradition in all states and territories of the United States. Lebowitz stated that even if everything was approved for extradition within the United States, a crime involving a five year sentence would not be approved internationally.
Jacobson opined that based on the guidelines Lebowitz provided and his law enforcement experience, attempting extradition of Flores “for this non-heinous crime which does not carry a substantial period of incarceration would be futile and not available to a local prosecutor.” In his experience, it is common knowledge among law enforcement professionals and the courts that Mexico’s extradition treaties are too restrictive and significantly limit the ability of law enforcement agencies to bring criminal suspects to trial. Jacobson stated the district attorney on Flores’s case had indicated that if Flores pled guilty, he likely would recommend a 365 day sentence of incarceration, and Jacobson believed it would be nearly impossible to have Flores extradited for this crime and sought after disposition. Jacobson noted that the proposed sentence, which with good time credits would likely result in Flores serving less than one year, would not meet the requirements of Article 2 of the treaty, which requires for extradition “‘deprivation of liberty the maximum of which shall not be less than one year.’”
The County also submitted a declaration from Turlock Police Sergeant James Silveira, who arrested Flores and assisted in the investigation of the bail motion. Silveira stated that on January 15, 2010, he spoke with Lebowitz, who advised him that the Mexican government was assisting her office on a case-by-case basis for serious violent felonies, and she must weigh factors such as sentencing and the severity of the crime against the investigative, legal and transportation costs involved. After Silveira told Lebowitz the facts of Flores’s case, she stated that the Office of International Affairs would not accept the case for extradition proceedings. Silveira also stated that a district attorney had reviewed the criminal file on this case and if Flores pled guilty, he likely would recommend a 365 day sentence.
In reply, Bankers argued the County had not met its burden of proving that Mexico, as a matter of policy and practice, refused to grant extradition requests in cases such as Flores’s. Bankers asserted that Mexico had made dramatic changes in its extradition policies and the number of extraditions from Mexico to the United States had increased since 1995. In support of this assertion, Bankers filed a request for judicial notice of a number of newspaper articles, press releases from the Department of Justice and the United States Embassy in Mexico, and a report from the United States Embassy in Mexico.
At the March 23, 2010 hearing on the motion, the court granted Bankers’s request to take judicial notice of the report from the United States Embassy in Mexico, but denied the request to take judicial notice of the newspaper articles and press releases. The report states that the United States government is working closely with Mexican counterparts to effectively use the bilateral extradition treaty and other legal mechanisms to ensure the shared border does not serve as a barrier behind which fugitives from justice might hide, and the overwhelming majority of fugitives extradited by Mexico are Mexican citizens wanted in the United States “for the most serious crimes, including murder, rape, sexual offenses against children, kidnapping, and drug trafficking.” The report notes that in January 2007, Mexico extradited four major drug traffickers to the United States, including a drug kingpin, and of the 79 extraditions from Mexico to the United States between January 1, 2007 and November 15, 2007, 40 percent were drug-related. The report also states that aside from extraditions, Mexican immigration authorities, in cooperation with United States law enforcement agencies, were aggressively using Mexican immigration laws to deport non-Mexican fugitives to the United States, and since 2005, Mexico had deported between 150 and 200 fugitives to the United States.
After hearing oral arguments, the court denied Bankers’s motion. In a written decision, the court found: (1) Bankers had proven Flores was temporarily detained in Mexico and identified by local law enforcement as required by section 1305, subdivision (g); (2) the statements of investigator Jacobson did not amount to an election to extradite, which decision must be made by the district attorney; and (3) the County had proven extradition from Mexico was not feasible, as shown by Jacobson’s declaration, therefore the district attorney was excused from electing to extradite since extradition from Mexico for low level narcotics cases remains unfeasible. Summary judgment on the forfeited bond was entered on April 22, 2010, and Bankers timely appealed.
DISCUSSION
Section 1305 provides that bail is to be forfeited if the defendant fails to appear when lawfully required to do so and sets forth situations when the forfeiture must be vacated and the bond exonerated. Bankers sought to vacate forfeiture and exonerate its bond under the statutory provision of 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 question presented here is whether, under the facts of this case, the Stanislaus County District Attorney elected not to seek Flores’s extradition. While a surety is entitled to relief when the prosecuting agency elects not to seek extradition, “[w]hen extradition is not feasible, there can be no meaningful election whether to seek extradition, and the conditions for forfeiture relief have not been satisfied.” (County of Orange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795, 802 (County of Orange); see also County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 544 (County of Los Angeles) [“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.”]) “Extradition 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.” (County of Orange, supra, 61 Cal.App.4th at p. 803.) Thus, a trial court properly denies a motion to vacate a forfeiture order when the record “clearly proves gaining [defendant’s] extradition from Mexico was not feasible.” (Id. at pp. 804-805.)
Flores does not contend that the holdings in these cases are incorrect. By arguing that he presented sufficient evidence to show that extradition from Mexico in this case was feasible, he implicitly concedes the feasibility of extradition is the appropriate standard for determining whether the conditions for forfeiture relief have been satisfied. We accept this concession and assume, without deciding, that feasibility is the proper standard.
“The feasibility of extradition in a particular case is a question of fact ….” (County of Los Angeles, supra, 173 Cal.App.4th at p. 544.) “Each case must be evaluated individually to determine the feasibility of obtaining extradition under the circumstances presented.” (County of Orange, supra, 61 Cal.App.4th at p. 804, fn. 5.) Here, the County presented evidence that Mexico had a policy and practice of refusing to grant extradition requests on low level drug cases such as Flores’s. According to Lebowitz, the Mexican government would assist only with extraditions for serious felonies involving substantial sentences, and a case such as Flores’s, which Bankers admitted below carried at most a four year prison sentence, would not be approved for extradition. Based on this record, the trial court concluded extradition of Flores was not feasible and Bankers was not entitled to relief under section 1305, subdivision (g).
Bankers contends it “presented the court below with a plethora of information showing that Mexico’s extradition policies have changed and that Mexico routinely allows extradition of its nationals for prosecution in the United States[, ]” and in light of those changed policies, the court erred in ruling extradition was not feasible. Bankers asserts the news articles and press releases it submitted show Mexico’s current extradition policies to be a matter of common knowledge, and therefore no expert testimony or evidence was required for their admission, citing People v. Avila (2009) 46 Cal.4th 680, 721, in which our Supreme Court concluded the prosecutor’s statements during closing argument in the penalty phase of a death penalty case that the defendant would have his physical needs met and be able to read, write and enjoy friendships if he received a life sentence without possibility of parole was not improper testimony because these circumstances are matters of common knowledge, and McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 99-100, which states the general rule that expert testimony is unnecessary where the fact sought to be proved is one within the general knowledge of laymen.
To the extent Bankers is arguing the court abused its discretion when it denied Bankers’s request for judicial notice of the news reports and press releases, it has not shown error, as Mexico’s extradition policies are not a matter of common knowledge. Moreover, even if there was error, the news reports and press releases, as well as the report from the United States Embassy of which the court took judicial notice, do not show that Mexico has a practice and policy of extraditing its nationals for low level drug offenses such as Flores’s. Instead, they show that while extraditions have increased over the years, Mexico is extraditing only those defendants accused of serious crimes. They do not establish that Mexico was willing to extradite criminals charged with crimes such as Flores’s, i.e. the transportation of 19 pounds of marijuana, and therefore do not support a finding that extradition of Flores was feasible. The trial court’s finding that an attempt to extradite Flores would be futile is supported by substantial evidence.
The news reports and press releases consist of the following: (1) a January 19, 2001 New York Times article reporting that Mexico’s Supreme Court ruled that two Mexican citizens, one charged as a cocaine kingpin in a United States court with smuggling more than 2, 200 pounds of cocaine into the United States and the other charged as a chief lieutenant in another drug cartel, could be extradited to the United States; (2) a January 20, 2007 press release from the Department of Justice of a statement by Attorney General Alberto R. Gonzales listing 15 “major drug defendants and other criminals” the Mexican government had extradited to the United States; (3) a January 27, 2007 Los Angeles Times article reporting that Mexico’s attorney general said that after extraditing four top drug cartel leaders, he planned to send more suspects to face United States trials, that aggressive extradition was “emerging as the second prong of Mexican President Felipe Calderon’s get-tough approach to the drug gang violence that killed more than 2, 000 people nationwide last year[, ]” and the extradition of 17 Mexican suspects in January set a pace that would easily surpass the 2006 record of 63 extraditions; (4) an August 28, 2007 press release from the United States Embassy in Mexico stating that Mexico had extradited a Mexican national to the United States to fact methamphetamine trafficking charges who was the 64th fugitive extradited by Mexico, noting that the alleged crimes of the fugitives that had been extradited that year were “the worst of the worst, ” with 26 extradited for drug trafficking, 21 for murder, 14 for violent sexual offenses, one for alien smuggling, one for kidnapping for ransom and one for theft of United States Treasury checks; (5) a December 30, 2008 press release from the United States Embassy in Mexico stating that in 2008 Mexico had extradited 85 fugitives, breaking 2007’s record of 83, 24 of which were extradited for drug trafficking and related money laundering, 38 for murder, 13 for violent sexual offenses, five for other violent crimes, four for document fraud and counterfeiting and one for alien smuggling; (6) a June 29, 2009 press release from the United States Embassy in Mexico stating that Mexico had extradited 54 fugitives to the United States in 2009 so far, including 11 wanted for murder and 13 for committing sexual assaults on child victims, as well as one who was wanted in two states for trafficking multi-ton shipments of marijuana and cocaine to the United States and another who would stand trial for federal narcotics trafficking and money laundering as part of a drug trafficking organization which shipped thousands of kilograms of cocaine from Colombia to the United States; and (7) a November 1, 2009 Department of Justice press release announcing that the Mexican government had extradited 11 defendants to the United States, who were accused of various crimes, including murder, sex offenses, drug trafficking and money laundering, and that with these defendants, Mexico had extradited a record 100 defendants to the United States in 2009, and that Attorney General Eric Holder was looking forward to meeting with Mexico’s attorney general to discuss additional ways they, as law enforcement partners, could “work together to hold such defendants, particularly alleged leaders and associates of drug cartels, accountable.”
Bankers also contends that, where the district attorney requires more time to determine whether extradition will be sought or if he or she elects to extradite, it is entitled to relief by way of a tolling of the exoneration period. Bankers 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.) Bankers, however, fails to explain the relevancy of this argument to the facts. The court denied the motion because extradition was not feasible, not because the district attorney required more time to make an election or elected to extradite. Further tolling of the exoneration period would not have changed the outcome. We therefore decline to address this argument further.
We note that another appellate court recently held in People v. Seneca Ins. Co. (2010) 189 Cal.App.4th 1075 (Seneca), that when an out-of-custody criminal defendant flees to a foreign jurisdiction and is identified by the bail agent in compliance with section 1305, subdivision (g), the bond is exonerated if either the criminal defendant is returned to court within the bond exoneration period or the prosecutor elects not to extradite, otherwise judgment must be entered in the amount of the bond, and the statutory scheme does not authorize additional extensions or tolling of the bond exoneration period when the prosecutor elects to extradite but the extradition is not completed within the exoneration period. (Seneca, supra, 189 Cal.App.4th at p. 1082.) In its reply brief, Bankers argues this case was decided wrongly. We need not reach the issue, since the prosecutor here never elected to extradite Flores.
DISPOSITION
The judgment is affirmed. The People are awarded costs on appeal.
WE CONCUR: Wiseman, Acting P.J., Levy, J.