Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC818552.
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1. introduction
Bankers Insurance Company (surety) appeals from the denial of its three-part motion to vacate forfeiture, exonerate a $20,000 bail bond, and set aside a summary judgment. The issue presented by this appeal is whether surety’s motion, based on finding the defendant in custody in Nevada, was timely under Penal Code section 1305 when it was filed 230 days after the mailing of a notice of forfeiture.
Unspecified section references are to the Penal Code. Unspecified subdivision references are to section 1305.
The only part of section 1305 pertaining to motions to vacate forfeiture and exonerate a bond provides in part that “[a] motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period.” (Subd. (i).) When a notice of forfeiture is required to be mailed, as in this case, the 180-day period is extended by five days from the date of mailing. (Subd. (b).)
In full, subdivision (i) states: “A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period. The court may extend the 30-day period upon a showing of good cause. The motion may be made by the surety insurer, the bail agent, the surety, or the depositor of money or property, any of whom may appear in person or through an attorney. The court, in its discretion, may require that the moving party provide 10 days prior notice to the applicable prosecuting agency, as a condition precedent to granting the motion.”
As a practical matter, the relevant period is usually 185 days based on the addition of five days for mailed notice of forfeiture to the surety and bail agent. However, since section 1305 repeatedly refers to a 180-day period, we will follow that convention.
Noting that section 1305 is not explicit regarding the timing of a motion for relief from forfeiture “under subdivision (c)(3), ” the Supreme Court has determined that the Legislature intended such motions to be filed within the 180-day period or any extension thereof. (People v. Indiana Lumbermens Mut. Ins. Co. (2010) 49 Cal.4th 301, 308 (Lumbermens).) For the reasons stated below, we will affirm the judgment after concluding that the same limitation applies to the motion in this case, making it untimely when filed more than 180 days after the mailing of the notice of forfeiture.
The time extension contemplated here is not the automatic five-day extension for mailing, but instead a court order extending the 180-day period under section 1305.4. The trial court may “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.)” (People v. American Contractors Indem. Co. (2004) 33 Cal.4th 653, 658.) There was no such motion or order to extend time in this case.
2. procedural history
On April 20, 2009, the Santa Clara County Superior Court declared a bail forfeiture and issued a bench warrant when Joseph Edmonds (Edmonds) failed to appear in a pending criminal case. On May 5, 2009, the court clerk mailed surety and its bail agent, Pacific Coast Bail Bonds, a notice of the forfeiture advising that it would become final on November 6, 2009 “unless the defendant is surrendered to the court or to custody before 180 days.” Section 1305 provides in part that a defendant has 180 days after the mailing of the notice of forfeiture to appear “either voluntarily or in custody after surrender or arrest in court.” (Subd. (c)(1).)
On December 10, 2009, a summary judgment was timely entered against surety for $20,000 due to Edmonds’ continuing failure to appear. Notice of the judgment was mailed to surety and the bail agent. Surety’s motion to vacate the forfeiture, set aside the summary judgment, and exonerate the bond was filed on December 21, 2009, and was denied on March 8, 2010.
A summary judgment of forfeiture must be entered within 90 days after the date upon which it may first be entered. (§ 1306, subd. (c).)
Surety’s motion did not claim that surety or its bail agent had surrendered Edmonds to custody within 180 days of the mailed notice. Instead, surety presented a copy of an inmate booking information form reflecting that Edmonds had been arrested and booked on October 6, 2009, in Washoe County, Nevada. Among the charges was that he was a fugitive from justice according to a “warrant issued outside of Nevada” “poss marij Santa Clara County Calif **no bail**.” This form was released to Pacific Coast Bail Bonds on December 17, 2009. Edmonds’ arrest in Nevada appears to have occurred 30 days before the expiration of the 180-day period.
3. timeliness of surety’s motion
On appeal, surety seeks to distinguish Lumbermens, contending that “where the defendant’s arrest and hold in the underlying case are unknown to the surety or its bail agent, Penal Code section 1305, subdivision (c)(3) does not require that a motion for exoneration be filed before the expiration of the 180-day period.” (Capitalization omitted.) Respondent agrees that subdivision (c)(3) applies, but argues that Lumbermens dictates the result in this case.
Subdivision (c)(3) states in full: “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 180-day period, the court shall vacate the forfeiture and exonerate the bail.” Subdivision (h) states: “As used in this section, ‘arrest’ includes a hold placed on the defendant in the underlying case while he or she is in custody on other charges.” It is immediately apparent that subdivision (c)(3) contains no express provision for a motion for relief from forfeiture. The only part of section 1305 that mentions such a motion is subdivision (i) (quoted ante, in fn. 2).
In Lumbermens, supra, 49 Cal.4th 301, bail was forfeited and a bench warrant was issued by Los Angeles County. (Id. at p. 304.) Well within 180 days of that forfeiture, the bail agent surrendered the defendant to the San Bernardino County Sheriff, who booked him on local drug charges and also placed a hold on him in the Los Angeles County case. The defendant was sent to prison on the San Bernardino County charges without the surety filing a motion to vacate the forfeiture in Los Angeles County within the 180-day period.
Lumbermens resolved a conflict in authority about “when a motion for relief from forfeiture of bail must be made if an absconding defendant is arrested or surrendered in a county other than the jurisdiction where the case is pending.” (Id. at p. 304.) As quoted above, the court concluded that the 180-day period applies to “motions under section 1305 (c)(3).” (Id. at p. 308.)
In reaching that conclusion, the Supreme Court explained some of the provisions of the statute: “Under section 1305, a court appearance or return to custody in the county where the case was filed is treated differently from a return to custody outside the county. If the defendant appears during the 180-day period, ‘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. If the court fails to so act on its own motion, then the surety’s or depositor’s obligations under the bond shall be immediately vacated and the bond exonerated.’ (§ 1305, subd. (c)(1).) The same disposition is required if the defendant is returned to custody within 180 days in the county where the case was filed, but released before making a court appearance. The court must act on its own motion to reinstate and exonerate the bond, and if it fails to do so exoneration is accomplished by operation of law. (§ 1305, subd. (c)(2).)
“On the other hand, when the defendant is returned to custody outside the county within the 180-day period, the statute provides only that ‘the court shall vacate the forfeiture and exonerate the bail.’ (§ 1305, subdivision (c)(3), hereafter section 1305(c)(3).) In this circumstance, the court is not directed to act on its own motion, and there is no provision for immediate exoneration if the court does not act.” (Id. at p. 305.) The court reasoned that a motion by the surety is required in that situation “because the court may not know that the defendant is in custody outside the county.” (Id. at p. 306.) Based on the differences among subdivisions (c)(1), (c)(2), and (c)(3), the Supreme Court concluded that “the Legislature has reasonably required that when the defendant is returned to custody outside the county, it is incumbent on the surety to bring a motion for relief from forfeiture.” (Id. at p. 313.)
Omitted here is the Lumbermens court’s footnote 4, which quoted the full text of subdivision (c)(3).
Subdivision (c)(3) describes only two situations: the out-of-county surrender of a defendant to custody by the bail agent and the out-of-county arrest of a defendant in the underlying case. Since Lumbermens involved the surrender of a defendant, surety in this case argues that “[t]he Supreme Court did not have before it and did not address the circumstance where the defendant is arrested by authorities outside the county.” We agree that Lumbermens is distinguishable in that respect, but we disagree with both parties that subdivision (c)(3) even applies to this case. All the scenarios described in subdivision (c) involve either a defendant’s voluntary appearance, surrender to custody by the bail, or arrest in the underlying case either in the original county or another county in California. Other parts of section 1305 apply to what happened here, where the defendant was taken into custody in another state.
Subdivision (f) states: “In all cases where a defendant is in custody beyond the jurisdiction of the court that ordered the bail forfeited, 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.”
People v. Ranger Ins. Co. (1998) 61 Cal.App.4th 812 (Ranger) concluded that subdivision (f), and not subdivision (c)(3), applied when the defendant was in custody in a foreign country, Sri Lanka. (Id. at pp. 818-819.) Although the opinion suggested that subdivision (f) would not apply if the defendant were in a sister state, the Ranger court did not have those facts before it.
When presented with the case of a defendant located in custody in the state of Kentucky, People v. Accredited Surety and Cas. Co. (2004) 132 Cal.App.4th 1134, 1143 (Accredited) applied the reasoning of Ranger, but concluded that subdivision (f) does apply to arrests made in another state. Analyzing the intent of the Legislature by giving effect to all terminology in the statue, the Accredited court determined that “[i]t is section 1305, subdivision (f) that applies when extradition is an option, not section 1305, subdivision (c)(3). The language utilized in section 1305, subdivision (f) ‘contemplates the defendant being apprehended outside of California, either in another state or a foreign country, since the term “extradition” connotes just such a situation. In legal parlance, a criminal defendant awaiting trial and confined in another county within the state is not “extradited, ” he is “transferred” to the original venue for trial. Subdivision (f), then, would apply “in all cases” where the defendant is apprehended, is subject to extradition, and extradition is declined by the prosecutor.’ ” (Id. at p. 1145, quoting People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791, 795; cf. People v. Lexington Nat. Ins. Corp. (2010) 181 Cal.App.4th 1485, 1491-1492.) Any other interpretation would render other provisions of section 1305 meaningless. (Accredited, supra, 132 Cal.App.4th at pp. 1144-1145.)
Subdivision (f), like subdivision (c)(3), and unlike subdivisions (c)(1) and (2), contains no provision requiring the court to act on its own motion when the exonerating circumstances arise. Accordingly, it follows from Lumbermens that the burden is on the surety to make a motion to vacate the forfeiture and exonerate the bond. Subdivision (i) remains the only part of section 1305 to describe when such a motion should be filed. We believe the holding of Lumbermens interpreting subdivision (c)(3) is equally applicable to the circumstances described in subdivision (f). In order to have a forfeiture vacated and a bond exonerated when “a defendant is in custody beyond the jurisdiction of the court that ordered the bail forfeited, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant... ” (subd. (f)), a surety must file a motion to vacate and exonerate within 180 days of the mailing of the notice of forfeiture.
With surety’s misplaced focus in this case on subdivision (c)(3), it has made no argument that the exonerating circumstances described in subdivision (f) were present. In this appeal based on the clerk’s transcript, the record contains no information about any prosecutorial decision regarding extradition.
Surety instead protests in essence that it is impossible for a surety to file a motion within 180 days so long as the surety remains ignorant of the defendant’s whereabouts, including being in custody out of state. We recognize that a surety cannot predicate a motion on an unknown fact, but the statute does allow a diligent surety to obtain an extension of time by making a timely motion under section 1305.4 to extend the 180-day period for good cause. “Given the underlying policy of avoiding forfeitures in favor of bringing defendants before the court, a trial court, faced with a section 1305.4 motion for extension, should draw all inferences in favor of the surety. [Citation.] The good cause showing under section 1305.4 is a low threshold for the movant. If the surety demonstrates good cause by showing due diligence in the initial 180 days, a reasonable likelihood of success of capturing the defendant in a subsequent 180 days, and any other relevant circumstances, the court should grant the motion.” (People v. Accredited Sur. and Cas. Co., Inc. (2006) 137 Cal.App.4th 1349, 1358.)
On the other hand, section 1305.4 should not be viewed “as giving a surety carte blanche to sit on its hands for six months and then come running into court at the last minute with a bare-bones declaration that leaves huge gaps in the facts, and expect a trial court to simply roll over and give an extension.” (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 682.)
In light of various statutory protections for sureties, Lumbermens, supra, 49 Cal.4th 301 rebuffed policy arguments for extending the statutory time for a motion to vacate, urging that such arguments would be better addressed to the Legislature. “Section 1305 allows the surety 180 days, a generous period, to obtain relief by locating the defendant and bringing him to custody, or by showing the court that the defendant’s absence is due to disability or out-of-state custody. The surety may obtain an extension of the 180-day period upon a timely showing of good cause. (§ 1305.4.)
In addition to the availability of an extension under section 1305.4, there are sections 1305, subdivision (d) [defendant’s permanent inability to appear]; 1305, subdivision (e) [defendant’s temporary inability to appear]; and 980, subdivision (b) [bench warrant not entered into National Crime Information Center warrant registry].
“The surety’s contractual obligation on its bond is the same whether the defendant eventually returns to custody in the county where bail was granted, or elsewhere. The statutory 180-day period is also the same, and the Legislature has reasonably required that when the defendant is returned to custody outside the county, it is incumbent on the surety to bring a motion for relief from forfeiture. The deadlines and procedures for seeking relief have been tailored to accommodate the interests of the surety, which appropriately bears the burden of compliance with the statutory requirements.” (Id. at p. 313.)
Surety asserts in its opening brief, without citation to any supporting declarations or testimony, that “the defendant was arrested by Nevada authorities on the Santa Clara County warrant and Santa Clara County was notified of his arrest. The surety and its bail agent were not aware of the arrest until after the 180-day period had expired. A motion for exoneration of bail was brought by the surety promptly upon learning of the arrest.” In its reply brief surety claims, again without record support, that “[i]t was upon receiving notice of the entry of the judgment that the bail agent looked into the matter and discovered that the defendant had been arrested in Nevada.... ”
If a surety must file a motion within the 180-day period and show due diligence in order to obtain a time extension, it would be anomalous to find that no such motion is required when a surety simply claims ignorance of the defendant’s whereabouts. While the existing record provides no support for the conclusion that surety was aware of the defendant’s arrest within the 180-day period, neither does it support the assertion that Santa Clara County was so notified by Nevada authorities. In any event, it was surety who undertook to guarantee the defendant’s appearance in Santa Clara County Superior Court within 180 days of the court’s mailing of a notice of forfeiture. In this case, surety has not attempted to demonstrate diligence in locating the defendant. As 180 days passed without a motion to extend time, a motion to toll time, or a motion to vacate forfeiture, we conclude as a matter of law that surety’s motion for relief from forfeiture was untimely.
4. Disposition
The order denying surety’s motion is affirmed.
WE CONCUR: RUSHING, P.J., DUFFY, J.