Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 05NF2029 Roger B. Robbins, 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
RYLAARSDAM, ACTING P. J.
We affirm the trial court’s order refusing to toll the bail exoneration period following forfeiture of the bail bond.
BACKGROUND
California law governing bail bonds works this way: An insurance company, usually referred to as a “surety, ” files a written document with the court promising that a criminal defendant will appear in court at a given time, and if not, the insurance company will pay a given amount of money, i.e., bail. (See Pen. Code, § 1287, all statutory references in this opinion are to the Penal Code.) If the defendant fails to appear as promised, the court must declare the bail forfeited. (§ 1305, subd. (a).)
Forfeiture, however, does not mean the court receives the amount of the bail immediately. Under section 1305, the court clerk must first notify the surety of the forfeiture, and the surety then has about half a year (180 days plus another five for the clerk’s mailing of the notice) to bring the defendant back to court. (§ 1305, subd. (c)(1); see People v. Seneca Insurance Company (2011) 189 Cal.App.4th 1075, 1079 (Seneca).) To secure the presence of the defendant, California law empowers sureties to go out and arrest the defendant themselves -- at least as long as the arrest takes place “at any place within the state.” (§ 1301.) If, after such an arrest or for other reason the defendant returns to court, the court “shall direct the order of forfeiture vacated and the bond exonerated, ” i.e., the surety need not pay the money promised. (§ 1305, subd. (c)(1); see also Seneca, supra, 189 Cal.App.4th at p. 1079.)
But even after half a year, the surety may not have to pay the money. The surety may request the court, “for good cause, ” for an order extending the 180-day period. (§ 1305.4.) Any extension, however, is absolutely limited to 180 days. (Ibid. [“The court, upon a hearing and a showing of good cause, may order the period extended to a time not exceeding 180 days from its order.”].)
However, there are still two more possible escape routes for the surety. First, if within the initial 180 days, the defendant is deceased, or “permanently unable to appear in court due to illness, insanity or detention by military or civil authorities, ” the surety is off the hook. (§ 1305, subd. (d).) (Of course, the absence of the defendant must be “without the connivance” of the surety. (Ibid.)) In such a case of permanent disability, the court must direct the forfeiture be vacated and the bail exonerated. (Ibid.)
Second, if within the 180 days provided for by section 1305, the defendant is only “temporarily disabled, ” the court must toll the 180-day period. Interestingly enough, the grounds for such tolling are virtually identical to those of permanent disability, including detention by civil authorities. (§ 1305, subd. (e) [“In the case of a temporary disability, the court shall order the tolling of the 180-day period... 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.”].) The obvious difference is if the defendant is deceased.
In this case, the surety company, Fairmont Specialty Group, filed an undertaking promising Vicente Amaya would appear in court on various Vehicle Code offenses. He didn’t, and on December 4, 2008 the court ordered the bail bond forfeited. The clerk mailed notice of forfeiture on December 5, 2008. The 180 days of section 1305 thus began running.
On June 25, 2009, the court ordered the 180-day period on Amaya’s bail bond extended to December 4, 2009, i.e., extended to a year to the day from when he originally skipped bail. June 25 is about 17 days after the 185-day period ostensibly expired, but we may assume that Fairmont filed a motion to extend or toll within the 180-day period, which would have been good enough. (See § 1305, subd. (i) [motion filed within the 180-day period may be heard within 30 days of the expiration of the 30-day period].) We say assume, because Fairmont, in this appeal, has provided us with no record (either by way of any moving papers in the clerk’s transcript or by way of reporter’s transcript of the hearing) that sheds any light on the motion.
In any event, on December 1, 2009 -- at most four days before the extended 180 days was set to expire -- the surety, Fairmont Specialty, filed a motion to “toll” the period. The motion was supported by these facts: On July 17, 2009, Fairmont’s bail agent received information that the defendant Amaya “had been located in Mexico.” Specifically, he had been brought before a Mexican police officer in Santa Maria del Oro, in the state of Durango, identified by the officer, and “temporarily held” in that officer’s presence. There was no indication that he was arrested by the officer or held in custody in Mexico. Less than two weeks later, on July 29, the bail agent requested the Orange County District Attorney’s Office to extradite Amaya. Three and a half months went by and, in mid-November, the district attorney’s office confirmed it was “pursuing extradition” of Amaya from Mexico.
The motion was supported by the argument that the surety should be given the opportunity to await the “final outcome” of the extradition proceedings without suffering the penalty of a judgment requiring the payment of the bail. County Counsel opposed the motion, arguing that there was no showing Amaya fell within the definition of “temporarily disabled” under the tolling statute, essentially because he hadn’t been detained by Mexican authorities, and detention by those authorities (or the other, nonapplicable statutory indicia of temporary disability) was required for tolling.
The motion was granted on December 12, 2009. Appellant Fairmont has not furnished a reporter’s transcript showing why. The minute order does not give any indication. The order was that the “180 days bail bond forfeiture period” was “extended” to June 11, 2010.
On June 10, 2010, the day before the second extension was set to expire, Fairmont made yet another motion to toll time, this time around adding, as possible alternative relief, a request to vacate forfeiture and exonerate bail. The only new fact in this motion was that a bail agent had confirmed Amaya’s continued residence in Santa Maria del Oro, Durango, Mexico, and that the district attorney’s office had “been contacted” for an “update” on Amaya’s extradition status. There was nothing in the motion indicating any sort of response from the district attorney’s office. And there was certainly nothing to indicate that the district attorney’s office had elected not to extradite.
But there was a new argument. Fairmont argued that it should not be penalized for the time the district attorney’s office took in making up its mind deciding whether to extradite a fugitive. The legal authority for the argument was subdivision (g) of section 1305, which provides that if: (1) the defendant “is not in custody and is beyond the jurisdiction of the state, ” (2) 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 (3) “the prosecuting agency elects not to seek extradition after being informed of the location of the defendant” (italics added), then the trial court has no choice but to “vacate the forfeiture and exonerate the bond.”
Moreover, Fairmont argued for equitable tolling as well: Fairmont had taken “all steps possible” to secure the defendant’s return, and was thus completely dependent on the district attorney’s office pursuing its duty to extradite him. In that regard, Fairmont cited principles of contract law to the effect that if a creditor makes performance of an obligation impossible, the obligation is excused. (See Civ. Code, § 1511.)
Fairmont’s moving papers could not be definite about whether the district attorney’s office had made an election, one way or the other, to extradite Amaya. A supporting declaration from an employee of Fairmont’s counsel merely stated that the district attorney’s office had been requested to provide “an update on the status of the extradition” of Amaya, but there was nothing indicating it had received an answer to its request.
County Counsel’s opposition to the motion did provide a definite answer. Points and authorities filed in opposition to Fairmont’s motion stated: “Surety is not entitled to exoneration pursuant to Penal Code section 1305(g) because the Orange County District Attorney’s Office (‘OCDA’) has elected to extradite.” However, other than bald statements to the effect that the district attorney’s office had made a firm election to extradite, there was no declaration or other evidentiary material to that effect.
This request for a third extension was denied July 8, 2010. Again, we have no reporter’s transcript to elucidate the court’s thinking at the hearing. Within the month Fairmont filed a notice of appeal. It also declared its intention to proceed without a reporter’s transcript.
DISCUSSION
1. Section 1305, Subdivision (g)
The main argument in the opening brief is that the mandatory relief subdivision within section 1305, namely subdivision (g) which provides for exoneration when the prosecutor “elects not to seek extradition, ” is silent about what happens when the prosecutor does elect to seek extradition, and therefore should be read to require mandatory exoneration so as to avoid a forfeiture.
The argument is untenable, most obviously because it renders the language “elects not to seek extradition” surplus. As Fairmont itself asserts (without irony), its reading of section 1305, subdivision (g) would require exoneration “if the state elects not to extradite or if it extradites.” That is the same as saying the “elects not to extradite” language in subdivision (g) is meaningless, since the election not to extradite could make no difference: either way, subdivision (g) would apply. Statutes, of course, should not be read to render terms surplus. (In re Estate of Clementi (2008) 166 Cal.App.4th 375, 381 [“we must avoid interpretations of statutes that render their terms meaningless”].)
Fairmont’s reading of section 1305 subdivision (g) has also been repudiated recently by this court, in Seneca, supra, 189 Cal.App.4th 1075, 1081-1083. There we held that a prosecutorial election not to extradite is necessary for the subdivision to apply. (Id. at p. 1081.)
In Seneca we also said something equally applicable to the case at hand. Citing section 1305.4, we noted that the power to extend section 1305’s 180-day period is a “one-time” only affair, and in that case the surety had already received that one-time extension. (Seneca, supra, 189 Cal.App.4th at p. 1082.) The same may be said here.
2. Equitable Tolling
Seneca was decided just a few months before the opening brief in this case was filed, and the surety there sought a petition for review from the Supreme Court. That petition was pending at the time the opening brief was filed in this case. Review was denied about a month after. To their credit, Fairmont’s counsel, who were also counsel for the surety in Seneca, realize that Seneca disposes of their section 1305, subdivision (g) argument.
But, in their reply brief, Fairmont’s counsel still assert that an equitable residuum from the opening brief has survived Seneca. In stark terms that equitable argument can be characterized this way: It is simply unfair for the prosecutor to delay making a decision on extradition and, in effect, run out the clock on any possibility of bond exoneration.
This equitable argument was touched on by our decision in Seneca, where we recognized the danger that “prosecutors could have their cake and eat it too by intentionally delaying the initiation of extradition of defendants beyond the exoneration period.” (Seneca, supra, 189 Cal.App.4th at pp. 1082-1083.) In Seneca, however, we noted that there was no “actual bad faith in the sparse record provided to this court.” (Id. at p. 1083.) And in any event, we also said that equitable tolling based on delay of extradition (so as to preclude the operation of section 1305, subdivision (g)) simply was incompatible with the “clear deadline for the period of exoneration” under the statutory scheme. (Seneca, supra, 189 Cal.App.4th at p. 1083.) Hence the surety’s arguments would have been better made to the Legislature. (Ibid.)
This case, however, does require some further elaboration on our Seneca decision. Both Seneca and this case have essentially been attempts to punch equitable holes into a statutory scheme that simply will not allow for them. In both Seneca and this case, the surety has brought cases on a palpably inadequate appellate record (e.g., no reporter’s transcripts) that were dead on arrival because the key motion was filed way too late in the process. By the time the order appealed from was made, the surety had clearly used up its “one-time” only extension. (See Seneca, supra, 189 Cal.App.4th at p. 1082 [“Seneca already received its one-time extension of 180 days authorized by section 1305.4 and Seneca did not qualify for statutory tolling under section 1305, subdivision (e).”].) The adequacy of the appellate record is important because to the degree that the application of some subdivision of section 1305 might be a matter of discretion, a reporter’s transcript would be necessary to evaluate whether or not that discretion was abused or perhaps not even exercised at all.
But we also note that in both Seneca and in this case, the district attorney’s office was given plenty of time to decide whether to extradite or not to extradite before the hearing on the motion that ultimately would be denied and result in the appeal. In Seneca, the district attorney’s office was informed in mid-November 2008 about the fugitive’s whereabouts in Korea, but still hadn’t made up its mind by October 2009 when the surety’s motion to toll, or alternatively vacate forfeiture and exonerate bail, was made. (See Seneca, supra, 189 Cal.App.4th at p. 1079 [“The People opposed the motion; in their written opposition, the People noted the lack of written evidence of an extradition election by the prosecutor....”].)
In the present case, the district attorney’s office was informed of the fugitive’s whereabout in late July 2009. There was no indication the office made any definite decision on whether to extradite or not until about 11 months later, in June 2010, and that indication only came by way of a statement in points and authorities, as distinct from a declaration. The office’s definite, but arguably belated decision, unilaterally removed any possibility of the application of section 1305, subdivision (g), which only applies where the prosecutor has elected not to seek extradition.
As in Seneca, this court is “loath to impose nonstatutory deadlines on prosecutors to initiate the process of extradition or to otherwise require prosecutors to pursue extraditions on a particular timetable.” (Seneca, supra, 189 Cal.App.4th at p. 1083.) To elaborate, extradition is a delicate, time-consuming and labor-intensive process, and a busy prosecutor’s office must husband its resources.
That said, we express no opinion as to whether subdivision (g) might indeed apply if the applicable motion were made well before the “one-time” extension was set to expire, and the appellate record were sufficient to show that the prosecutor’s office was simply delaying making a decision in order to have extradition and forfeiture too. Simply put, there may indeed be a case where delay on a decision to extradite will amount to a de facto election not to extradite under section 1305, subdivision (g), and thus the delay will make the statute applicable. This case, however, is simply not it.
DISPOSITION
The order is affirmed. However, in the interests of justice each side will bear its own costs on appeal.
WE CONCUR: BEDSWORTH, J., IKOLA, J.