Opinion
B224296
12-30-2011
THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE COMPANY, Defendant and Appellant.
Office of the County Counsel, Ruben Baeza, Jr., Assistant County Counsel, and Melissa A. McCaverty, Deputy County Counsel, for Plaintiff and Respondent. Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA109434)
APPEAL from an order of the Superior Court of Los Angeles County, Burt Barnett, Judge. Affirmed.
Office of the County Counsel, Ruben Baeza, Jr., Assistant County Counsel, and Melissa A. McCaverty, Deputy County Counsel, for Plaintiff and Respondent.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Bankers Insurance Company appeals from an order of the superior court denying its motion to vacate forfeiture and exonerate its bond pursuant to Penal Code sections 1305 and 1306. We affirm.
Further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 10, 2009, appellant posted a $30,000 bond for the release of criminal defendant Marvin Alexander Mutz. Mutz was charged with failure to disclose origin of recording or audiovisual work (§ 653w, subd. (a)) and counterfeit of registered mark (§ 350, subd. (a)(2)). After Mutz failed to appear at his arraignment on March 6, 2009, the bond was ordered forfeited. The notice of forfeiture was printed and mailed on March 6, 2009.
Appellant filed a motion to extend the exoneration period pursuant to section 1305.4. The court granted the motion and extended the period to March 11, 2010.
On January 5, 2010, appellant filed a motion to vacate forfeiture and exonerate the bond, arguing that the defendant had been located in Guatemala and identified by local law enforcement, but the district attorney had not yet decided whether to seek extradition.
The People opposed the motion, on the basis that extradition was not possible because the charged crimes are not covered by the United States' extradition treaty with Guatemala. The People argued that appellant had failed to meet its burden under section 1305, subdivision (g), because the district attorney had not elected not to seek extradition, but rather was unable to make an election under the terms of the treaty.
The statute requires the court to vacate the forfeiture and exonerate the bond where the defendant is not in custody and is beyond the jurisdiction of the state, and is temporarily detained by the bail agent, who has complied with certain identification procedures, "and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant." (§ 1305, subd. (g).)
Appellant then filed the declaration of the bail enforcement agent, who stated that he contacted the district attorney's office in November 2009 after locating the defendant in Guatemala. The district attorney stated that it would not extradite at that time but asked for the defendant's fingerprints and pictures for further investigation.
On March 8, 2010, the People filed the declaration of a deputy district attorney in the extradition unit, who reiterated that the defendant was charged with offenses that are not extraditable offenses under the extradition treaty between the United States and Guatemala and attached a copy of the treaty. The district attorney therefore was unable to make a meaningful election to extradite the defendant.
The court denied appellant's motion to vacate forfeiture and exonerate the bond on March 9, 2010. On March 23, 2010, the clerk of the superior court sent a demand notice to appellant. The notice stated: "This is to advise you that 180 days has elapsed since the bond hereinafter set forth was ordered forfeited by the court, and of the mailing of the notice of forfeiture. The records show that this forfeiture was not set aside within the 180 day period provided in section 1305 of the Penal Code. Your contractual promise to pay has become absolute. [¶] Demand is hereby made that you tender your check or draft payable to the clerk of the Los Angeles Superior Court in the amount set forth below. Your prompt reply will prevent the filing of summary judgment and the necessary assessment of costs and interest. [¶] No further notice will be given. If payment is not made within 30 days of this notice, summary judgment will be entered."
The $30,000 bond was paid on April 5, 2010, and the "summary judgment packet" was returned to the court on April 27, 2010, because of the payment. Summary judgment was not entered. Appellant appealed from the denial of its motion to vacate forfeiture and exonerate the bond.
DISCUSSION
Appellant challenges the trial court's decision on two grounds. First, it contends that the bond must be exonerated because the court failed to enter summary judgment as required by section 1306, subdivision (c). Second, appellant contends that the court erred in denying its motion because it fulfilled the requirements of section 1305, subdivision (g), and the People elected not to seek extradition of the defendant.
"'The abuse of discretion standard applies to the trial court's resolution of a motion to set aside a bail forfeiture [citation], subject to constraints imposed by the bail statutory scheme.' . . . 'The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' [Citation.]" (County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542-543 (Fairmont).) "The law disfavors forfeitures, and we must construe the relief statutes in favor of the surety. [Citations.] In those instances in which the statute requires the court to act in a particular way, an act inconsistent with the statute is an abuse of discretion. [Citations.]" (People v. Lexington National Ins. Co. (2010) 189 Cal.App.4th 1242, 1246 (Lexington).)
I. Failure to Enter Summary Judgment
Appellant's first challenge to the court's denial of its motion is based on section 1306, subdivision (c), which provides as follows: "If, because of the failure of any court to promptly perform the duties enjoined upon it pursuant to this section, summary judgment is not entered within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated."
"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. (§ 1305, subd. (a).) The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1).) The trial court may also toll the appearance period under certain circumstances, or extend the period by no more than 180 days from the date the trial court orders the extension, provided that the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension. (§§ 1305, subds. (e), (i), 1305.4.)
"After the appearance period expires, the trial court has 90 days to enter summary judgment on the bond. (§ 1306, subds. (a), (c).) If summary judgment is not entered within the statutory 90-day period, the bond is exonerated. (§ 1306, subd. (c).)" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658, fns. omitted.)
Appellant argues that, because the trial court never entered summary judgment, the bond should be exonerated pursuant to section 1306, subdivision (c). This statute does not, however, address the situation presented here, in which payment was made before summary judgment could be entered.
People v. Wyatt (1982) 132 Cal.App.3d 749, is instructive. In Wyatt, the surety issued bail bonds and obtained an indemnification secured by collateral from an individual. After bail was forfeited, the clerk of the court mailed the surety a notice of order forfeiting bail and a demand for payment. The surety made payment in response to the demand and then obtained reimbursement from the individual indemnitor. The individual indemnitor appealed from the denial of his motion to vacate the forfeiture and return the bail. Similar to appellant here, the indemnitor's basis for demanding return of the bail was the failure of the superior court to enter summary judgment against the surety pursuant to section 1306.
The statute has been amended several times, but the pertinent provision, requiring bail to be exonerated if the court fails to enter summary judgment within 90 days, remains the same. (See Wyatt, supra, 132 Cal.App.3d at p. 752, quoting the statute.)
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On appeal, the court acknowledged that section 1306 is to be strictly construed. Nonetheless, the court reasoned that, "[e]ven though a failure to enter a summary judgment within the prescribed time period will bar the court from collecting on the judgment, there is nothing in the statute which prevents the court from accepting voluntary satisfaction of the obligation during the period and prior to the entry of the judgment." (Wyatt, supra, 132 Cal.App.3d at p. 752.)
We agree with the reasoning of Wyatt. "Once [appellant] satisfied its acknowledged obligation there was no longer any need or in fact any basis for entering a judgment against [appellant]. The statute establishes the procedure for the court to enforce the obligation of the bail when enforcement is required. It cannot be reasonably construed as barring the court from accepting voluntary payment." (Wyatt, supra, 132 Cal.App.3d at p. 753; cf. People v. Cox (1988) 202 Cal.App.3d 574, 580 (Cox) [where the appellant paid the bond after receiving notice of entry of judgment, he was not entitled to reimbursement, even though the superior court failed to enter summary judgment within 90 days, because "[t]here is nothing unfair about requiring the agent and the company to forego recovery of an amount paid pursuant to a contractual obligation involving a risk explicitly assumed and for which the agent has been paid a premium"].)
"'Once collection on the underlying obligation is made during the statutory period, the provisions of Penal Code section 1306 become irrelevant. [Citation.]' [Citation.]" (Cox, supra, 202 Cal.App.3d at pp. 577-578.) Appellant is not entitled to exoneration of the bond based on the failure of the court to enter summary judgment after appellant paid the bond.
II. Election not to Extradite
Appellant's second contention is that the trial court erred in denying its motion to vacate forfeiture and exonerate the bond because the district attorney elected not to extradite the defendant. Appellant does not challenge the People's assertion that the defendant was not charged with extraditable offenses under the treaty between Guatemala and the United States, but instead argues that the People have not established that they have sought extradition in spite of the treaty.
Section 1305, subdivision (g), provides as follows: "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."
"When 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 (Ranger).)Moreover, "[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.) In Ranger, the prosecution presented evidence of "Mexico's demonstrated reluctance to extradite its own nationals for nonheinous offenses," and the surety offered no evidence in contradiction. (Id. at p. 804.) The court thus held that the prosecution was not required to make a formal request for extradition. (Ibid.;see also Lexington, supra, 189 Cal.App.4th at p. 1247 [extradition was not feasible in the absence of an extradition treaty, so the surety was not entitled to relief from forfeiture].)
The defendant here was charged with failure to disclose origin of recording or audiovisual work (§ 653w, subd. (a)) and counterfeit of registered mark (§ 350, subd. (a)(2)). The declaration and the extradition treaty filed by the People indicate that these are not extraditable offenses. Appellant has not offered any evidence in contradiction. Where, as here, "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." (Fairmont, supra, 173 Cal.App.4th at p. 544.) Appellant is not entitled to relief from forfeiture of the bond under section 1306, subdivision (g).
DISPOSITION
The order denying the motion to vacate forfeiture and exonerate the bond is affirmed. Respondent shall recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.