Opinion
A149763
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City and County of San Francisco Super. Ct. No. CPF-16-515230)
Financial Casualty & Surety, Inc. (FC Surety) appeals from a judgment entered after the trial court denied its motion to vacate the forfeiture of a $75,000 bond. FC Surety contends it was entitled to relief under Penal Code section 1305, subdivision (c)(3), which requires the court to vacate forfeiture and exonerate bail if, outside the county where the case is located, the defendant (1) is surrendered to custody by the bail or (2) is arrested in the underlying case. FC Surety also contends the San Francisco City Attorney lacked standing to object to the motion to vacate forfeiture because it was not "the prosecuting agency" on the case. We reject the contentions and affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
FC Surety, through its bail agent, The Bail Hotline Bail Bonds (bail agent), posted $75,000 bail to secure criminal defendant Charles Allen's release from custody in San Francisco. On June 25, 2015, when Allen failed to appear in court, the trial court issued a bench warrant and declared the bond forfeited. Notice of the forfeiture was mailed on July 16, 2015, indicating that FC Surety's obligation to pay the bond would become absolute on January 17, 2016.
On January 12, 2016, the bail agent filed a motion for an extension of time to find Allen. In support of the motion was a declaration by fugitive recovery investigator Marco Alcaraz setting forth the efforts he had made since August 2015 to find Allen, including surveillance work and social media searches.
Alcaraz further declared that he learned on November 17, 2015, that Allen had called a bail agent employee on his way to Alameda County, Santa Rita Jail, to say he "was about to 'turn[] himself in to avoid further problems with the company.' " Over the next few days, Alcaraz ran inmate searches to see whether Allen was in fact in custody, but was unable to locate him. Finally, on November 27, 2015, Alcaraz ran a statewide inmate search using Allen's name and date of birth and found a match in Contra Costa County, West County Jail. Alcaraz called the jail and learned that Allen was not booked on the San Francisco warrant; however, the jail's sheriff technician assured Alcaraz that the jail staff "would do a warrant check on [Allen] before his release and that at that time any warrants the [Allen] had would be found."
On December 18, 2015, Alcaraz learned that Allen was released from Contra Costa County, West County Jail, "and was never picked up by San Francisco County on his warrant. On this day I also learned that [Allen's] warrant in San Francisco was under a different date of birth I had and from the one he was booked under at Contra Costa. His San Francisco warrant date of birth was under 7/27/87." Alcaraz stated he believed he could find Allen if given more time. The trial court granted an extension of time to July 15, 2016.
On June 30, 2016, the bail agent filed a motion to vacate forfeiture and exonerate bail under section 1305, subdivision (c)(3), which provides, "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 [set by subdivision (c)(1)], the court shall vacate the forfeiture and exonerate the bail." The bail agent asserted it was entitled to relief under that section because it found Allen in custody in Contra Costa County, West County Jail, in December 2015. The bail agent claimed Allen was also "arrested" within the time period because the San Francisco Sheriff's Department placed a hold on him by delivering a warrant abstract to him while he was in custody in Alameda County, Santa Rita Jail.
The bail agent submitted several documents in support of its motion, including: (1) a fax cover sheet dated December 1, 2015, from the bail agent to the Contra Costa Sheriff's Office, informing the office of the San Francisco warrant and requesting a hold; (2) a fax cover sheet dated December 9, 2015, from the bail agent to the San Francisco Sheriff's Department, informing the department that Allen is in custody in Contra Costa County, West County Jail, and requesting "an abstract to be sent"; and (3) a teletype dated November 16, 2015, addressed "From: San Francisco Co[unty]" "To:[]Santa Rita Jail," stating, "Please place our hold and advise disposition . . . ." The two fax cover sheets listed Allen's date of birth as December 15, 1984. The teletype listed Allen's date of birth as July 2, 1987.
On July 20, 2016, the San Francisco City Attorney, as "Attorneys for Plaintiff People of the State of California," filed an opposition to the motion, arguing the evidence was inadequate to show that Allen was ever " 'surrendered to custody by the bail or arrested in the underlying case . . . .' " The city attorney asserted the documents showed, at most, that the bail agent requested a hold, not that a hold was actually placed.
At a July 25, 2016 hearing on the motion, the trial court granted the bail agent's request for more time to produce documents. Thereafter, the bail agent filed declarations by its attorney, Matthew Singer, and its employee Selena Morgan. Singer declared that on December 1, 2015, he called the San Francisco Sheriff's Department and the Contra Costa Sherriff's Office to request a hold on Allen. He declared, "I faxed up verification documentation to both Sheriff'[s] offices with identifying information on [Allen] so they could easily identify [him]."
Singer further declared that on December 9, 2015, he received a response from the San Francisco Sheriff's Department advising him to contact the Contra Costa Sheriff's Office to obtain a warrant. He therefore contacted the Contra Costa Sheriff's Office, Records & ID Unit, "to inquire about a warrant abstract being sent to the San Francisco County Jail. I was advised that a warrant abstract had been sen[t] to the jail to secure a hold on [Allen]."
Morgan confirmed in her declaration that the faxes submitted with the motion were faxed to the indicated parties on the dates shown on the documents. She declared that she never received a response from the Contra Costa Sheriff's Office. She did receive a handwritten response from the San Francisco Sheriff's Department that stated: "Contact Contra Costa County Sheriff for info on their warrants. Thank you. P.S. We do not send 'abstracts' to bail agencies."
At the continued August 1, 2016 hearing, the city attorney argued the bail agent had failed to meet the requirements of section 1305, subdivision (c)(3). The trial court asked, "Where is the defendant, just in the wind? Do we know?" The city attorney responded, "That's what I assume. Because I don't think this proves to the Court he is in Contra Costa County or [there is] a hold on him. So time is up."
The trial court stated, "Well, Mr. Singer's declaration indicates that . . . he was told that a warrant abstract had been sent to the jail to secure the hold." The city attorney responded, "Right, but he says a warrant abstract had been sent from Contra Costa to San Francisco." The city attorney pointed out that it was "the opposite," i.e., a warrant abstract should have been sent from San Francisco to Contra Costa. The city attorney also noted that fugitive recovery investigator Alcaraz admitted in his declaration that Contra Costa County, West County Jail, released Allen, which showed a hold was never effectuated.
The trial court asked what FC Surety's remedy would be if the court were to deny the motion to vacate forfeiture and exonerate bail. The city attorney responded that the bail agent could apply for relief if it located Allen within 20 days of the judgment. The court denied FC Surety's motion, and judgment was entered in favor of the People of the State of California (the People), and against FC Surety, in the amount of $75,000 plus costs.
DISCUSSION
A. Motion to Vacate Forfeiture
FC Surety contends the trial court erred in denying its motion to vacate forfeiture and exonerate bail because it satisfied the requirements set forth in section 1305, subdivision (c)(3). We disagree.
A bail bond " 'is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond.' " (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) If a criminal defendant out on bail fails to appear in court when lawfully required to do so, the trial court must declare the bail forfeited. (§ 1305, subd. (a)(1).) The clerk must mail notice of forfeiture to the surety, which then has 185 days (180 days plus an additional 5 days for mailing)—sometimes referred to as the appearance period—to produce the defendant and have the forfeiture set aside. (§ 1305, subds. (b)-(c); People v. Western Ins. Co. (2012) 204 Cal.App.4th 1025, 1030.)
The surety may seek an extension of the appearance period of up to another 180 days upon a showing of good cause. (§ 1305.4.) During the appearance period, the surety is entitled to move to have the forfeiture vacated and the bond exonerated on grounds specified in the statute. (§ 1305, subd. (c)(1); People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 658.) This appeal relates to section 1305, subdivision (c)(3), which provides: "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." (§ 1305, subd. (c)(3).) The word "surrender" for purposes of this section means that the surety takes physical custody of a defendant before attempting to deliver the defendant to the court. (People v. Amwest Surety Ins. Co. (1991) 229 Cal.App.3d 351, 355-356.) The word "arrest" includes "a hold placed on the defendant in the underlying case while he or she is in custody on other charges." (§ 1305, subd. (i).)
If, at the end of the appearance period, forfeiture has not been vacated, the trial court must enter summary judgment against the surety. (§ 1306, subd. (a).) Upon a showing of "good cause," a surety may move to vacate the forfeiture "within 20 days from the mailing of the notice of entry of judgment . . . ." (§ 1305.6, subd. (b).)
"The purpose of bail and of its forfeiture . . . is to ensure the accused's attendance and obedience to the criminal court, not to raise revenue or to punish the surety." (People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 42.) Thus, "as a general rule, the statutes governing bail are strictly construed to avoid forfeiture." (People v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th 548, 556.) "The law disfavors forfeitures in general and bail forfeitures in particular. . . . This policy of strict construction to avoid forfeitures protects the surety 'and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody . . . .' " (Id. at pp. 555-556.)
The surety bears " 'the burden of coming forward with a request [for relief from forfeiture under section 1305] and making the necessary showing within the statutory time frame . . . .' " (People v. Accredited Surety & Casualty Co. (2004) 132 Cal.App.4th 1134, 1139.) "It is the bonding company's obligation 'to establish by competent evidence that its case falls within the four corners' of section 1305." (Ibid.)
"Ordinarily, appellate courts review an order denying a motion to vacate the forfeiture of a bail bond under an abuse of discretion standard. [Citation.] When the appellate court is deciding only legal issues, however, such as jurisdictional questions and matters of statutory interpretation, the abuse of discretion standard does not apply. [Citation.] When the facts are undisputed and only legal issues are involved, appellate courts conduct an independent review." (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.)
FC Surety contends that exoneration was mandatory under section 1305, subdivision (c)(3), for two reasons: (1) because he was "arrested in the underlying case" in Alameda County or Contra Costa County; and (2) because he was "surrendered to the custody by the bail" in Contra Costa County.
1. An Arrest in the Underlying Case
FC Surety claims there was sufficient evidence to show that Allen was "arrested in the underlying case" in Alameda County or Contra Costa County because "the bail agent submitted both a copy of the warrant abstract which established that [Allen's] warrant was served on him while in custody in Alameda County, and a declaration signed under penalty of perjury that the bail agent confirmed the hold had been placed in Contra Costa County." However, the two documents on which FC Surety relies—a November 16, 2015 teletype and the declaration of the bail agent's attorney, Singer—do not support its position.
FC Surety asserts that a teletype dated November 16, 2015, establishes that a hold was placed on Allen, i.e., that he was served with the San Francisco warrant while he was in custody in Alameda County. The teletype, however, is simply a request from "San Francisco Co[unty]" to "Santa Rita Jail" that states, "Please place our hold and advise disposition . . . ." There is nothing in the record indicating Alameda County ever processed or responded to the teletype, and there is no evidence that Allen was ever served with the warrant.
In fact, there was very little evidence that Allen was ever even in custody in Alameda County. The bail agent's fugitive recovery agent, Alcaraz, declared that he learned on November 17, 2015, that Allen had called "a bail bond company employee" to say he was going "to 'turn[] himself in to avoid further problems with the company.' " There was, however, no indication that Allen followed through with this plan, as there was no evidence—documentary or otherwise—that he was actually in custody in Alameda County at any time. In fact, Alcaraz admitted that he was unable to locate Allen in Alameda County even though he immediately conducted multiple inmate searches for him. The evidence was insufficient to show that Allen was in custody in Alameda County or that a hold was placed on him while he was there.
FC Surety alternatively asserts that the declaration of the bail agent's attorney, Singer, establishes that a hold was effectuated in Contra Costa County. FC Surety relies on the portion of Singer's declaration in which Singer states: "On December 9, 2015, I personally contacted the Contra Costa Sheriff Department, [Records & ID Unit] to inquire about a warrant abstract being sent to the San Francisco County Jail. I was advised that a warrant abstract had been sen[t] to the jail to secure a hold on [Allen]." This statement by Singer, however, does not establish that a hold was placed on Allen while he was in custody in Contra Costa County. Rather, as the city attorney pointed out below at the hearing on the motion to vacate, this statement proved only "the opposite," i.e., that a warrant abstract was sent from Contra Costa to San Francisco. In fact, all of the documentary evidence in the record, including Singer's December 1, 2015 fax to Contra Costa County, shows, at most, that a request for a hold was made, not that one was actually effectuated.
Moreover, it was questionable whether Allen was ever in custody in Contra Costa County. As noted, Alcaraz declared that he found "a match" in Contra Costa County while conducting inmate searches using Allen's name and date of birth. However, after the Charles Allen who was found in Contra Costa was released without being "picked up" on his San Francisco warrant, Alcaraz realized that the date of birth he had, as well as the date of birth of the individual who was in custody in Contra Costa, were different from the date of birth that was listed on the San Francisco warrant. In other words, the Charles Allen who was booked in Contra Costa County was likely not the same Charles Allen who was being sought in connection with this bond.
According to Alcaraz, the San Francisco warrant listed Allen's date of birth as "7/27/87." The date of birth that the bail agent's attorney provided to the various sheriff's offices when he requested a hold was December 15, 1984.
Because there was insufficient evidence to support a finding that Allen was in custody in either Alameda County or Contra Costa County, or that he was served with the San Francisco warrant in either county, the requirement of "an arrest" as set forth in section 1305, subdivision (c)(3), was not met.
2. Surrendered to Custody
FC Surety claims it satisfied the requirement of surrendering Allen "to the custody by the bail" because it located Allen in Contra Costa County, informed the Contra Costa Sheriff's Office of the outstanding San Francisco warrant, and informed the San Francisco Sheriff's Department that Allen was in custody in Contra Costa. FC Surety claims it is entitled to relief because it was "through no fault of the surety" that Contra Costa County released Allen despite being aware of an outstanding San Francisco warrant.
FC Surety relies on a series of cases in which a surety was absolved of liability where the defendant was released from custody due to an error by law enforcement or another governmental entity. In People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791, 798, for example, the court exonerated bail based on equitable principles where the bail agent had done everything in its power to apprehend and return the defendant to custody, but the police department mistakenly released the defendant. In People v. Fairmont Specialty Group (2009) 173 Cal.App.4th 146, where law enforcement knew about an outstanding warrant but declined to place the defendant in custody, the court exonerated bail, stating, "To accept that authorities may willfully ignore a lawful warrant and still collect from the sureties involved is at odds with section 1305, which in general requires exoneration when the defendant's absence from court is entirely the fault of the authorities in the jurisdiction where the case is located." (Id. at p. 154.) In People v. American Contractors Indemnity Co. (1999) 76 Cal.App.4th 1408, a bail agent investigator located the defendant and asked officers to arrest him, but the officers declined to do so because a warrant check for the defendant came back negative, due to the failure on the part of the county to enter the warrant into the system. The court held, "the factual showing by the surety virtually compels the conclusion that the failure to enter the warrant in this case prevented the bond agent from surrendering the defendant into the custody of the police officers for arrest." (Id. at p. 1417.)
The cases are inapposite because here, the surety presented no evidence that Allen was released from Contra Costa County due to governmental error or interference. Rather, the evidence—including Alcaraz's admission that he used an incorrect date of birth when he located a Charles Allen in Contra Costa County—showed that the reason Contra Costa County released its inmate was because he was not the Charles Allen who was being sought in connection with the bond. FC Surety provided no photograph or other identifying proof that the person who was in custody in Contra Costa County was in fact the defendant in this case. It would therefore make sense that Contra Costa County would not put a hold on someone who was not a fugitive, i.e., someone who did not have an outstanding warrant. If any error occurred in this case, it was on the part of the bail agent who provided its investigator with an incorrect date of birth. Accordingly, FC Surety did not meet its burden of showing that Allen was "surrendered to the custody [of Contra Costa County] by the bail."
FC Surety argues for the first time in its reply brief that the trial court, sua sponte, "should have ordered a tolling of time due to [Allen's] custody." Its argument appears to be that because it presented evidence that Allen was in custody, the court should have provided it with additional time to return Allen to San Francisco. We do not entertain issues raised for the first time in a reply brief, in the absence of a showing of good cause why they were not raised in the opening brief. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322.) FC Surety has made no showing of good cause.
In any event, the contention fails on the merits because there was little, if any, evidence that Allen was in custody. Section 1305, subdivision (e), requires the trial court to toll the appearance period during a period of "temporary disability," which includes situations in which the defendant is in custody. Here, there was no substantial evidence that Allen was ever in custody in either Alameda County or Contra Costa County, and no evidence that he was in custody at the time of the hearing on the motion to vacate forfeiture. In fact, when the trial court asked at the hearing, "Where is the defendant, just in the wind? Do we know?" the city attorney responded, "That's what I assume." Because there was no evidence of a "temporary disability" that prevented Allen from appearing in San Francisco, the court had no duty to toll the appearance period.
B. Standing
FC Surety contends the city attorney lacked standing to object to the motion to vacate forfeiture because it was not "the prosecuting agency" on the case. FC Surety points out that it properly served the district attorney with its motion to vacate forfeiture, and argues that because the district attorney did not oppose the motion (only the city attorney did), the motion was essentially unopposed, and should have been granted. We reject the contention.
People v. International Fidelity Ins. Co. (2018) 20 Cal.App.5th 345 (International Fidelity) recently addressed this issue. There, the surety, International Fidelity, argued that because county counsel is not a "prosecuting agency" for purposes of certain bail forfeiture statutes, it lacked standing to object to the surety's request for tolling in connection with a motion to vacate forfeiture. (Id. at pp. 354-355.) International Fidelity emphasized that section 1305 previously required notice of forfeiture proceedings to be given to "the district attorney, prosecuting attorney, or county counsel," but that the statute was repealed in 1993, and the new statute refers only to notice "to the applicable prosecuting agency," i.e., the district attorney. (Id. at p. 357, italics added.)
In San Francisco, the city attorney fulfills the same role as the county counsel in other jurisdictions.
The court explained the surety's position, stating: "International Fidelity takes this change to mean that county counsel is no longer entitled to notice of bail forfeiture proceedings and may not participate in such proceedings until after any motions to vacate forfeiture or extend the appearance period have been determined and the judgment has become final. In other words, International Fidelity maintains that county counsel may properly act to enforce a final judgment but may not defend a forfeiture against sureties' attempts to discharge it or vacate the ensuing judgment." (International Fidelity, supra, 20 Cal.App.5th at p. 357.)
The court rejected International Fidelity's position, holding: "We find this interpretation untenable. While we agree with International Fidelity that county counsel is not the 'prosecuting agency' within the meaning of the bail statutes, those statutes nevertheless contemplate that [county] counsel will represent the People in forfeiture proceedings in at least some cases." (International Fidelity, supra, 20 Cal.App.5th at p. 358.) The court noted that "nothing in the legislative history of the 1993 repeal and reenactment of section 1305 indicates an intent to eliminate the role of county counsel in forfeiture proceedings . . . . The bill was described as primarily aimed at clarifying the provisions of section 1305 because the statute had been amended many times, resulting in 'conflicting interpretations of some provisions and confusion on the part of many who must implement it.' " (Id. at pp. 358-359.) The legislative analyses "referred to a few areas of substantive change, none of which indicated any change in county counsel's involvement in the forfeiture process." (Id. at p. 359.)
The court also noted that section 1305.3, which relates to fees and costs awards, provides that the "district attorney, county counsel, or applicable prosecuting agency, as the case may be, shall recover, out of the forfeited bail money, the costs and attorney's fees incurred in successfully opposing a motion to vacate the forfeiture and in collecting on the summary judgment . . . ." (International Fidelity, supra, 20 Cal.App.5th at p. 359.) Noting that the legislative history for that section provides that the " 'purpose of this bill [was] to clarify that the county counsel can recover funds expended in collecting forfeited bail money,' " the court concluded that the language and legislative history of the statute "demonstrate the Legislature's recognition that counties may choose to designate county counsel as the agency to litigate matters arising after a trial court has declared a forfeiture of bail, including motions to vacate the forfeiture. In such cases, county counsel would properly appear in the trial court proceeding despite the fact that, as here, the criminal proceeding had not yet concluded because the defendant has not been returned to court." (Id. at pp. 359-360; cf. County of San Bernardino v. Ranger Ins. Co. (1995) 34 Cal.App.4th. 1140, 1145 [" 'It seems . . . the practical and rational concept that the district attorney should be charged with all matters relating to bail up to the point where [the criminal case is concluded and] a civil suit is to be instituted,' " italics omitted].)
We agree with the analyses set forth in International Fidelity, supra, 20 Cal.App.5th 345. We see nothing in the bail forfeiture statutes that would preclude the city attorney from appearing in trial court proceedings relating to motions to vacate forfeiture. Accordingly, we reject FC Surety's contention that the city attorney lacked standing to oppose the motion to vacate forfeiture, or that the court should have granted the motion as unopposed.
In support of its position that the city attorney lacked standing, FC Surety points out that the city attorney's website states " 'the City Attorney's . . . office practices civil law—meaning it doesn't handle criminal matters.' " This statement, however, does not show the city attorney lacked standing. "While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature." (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657, italics added.) FC Surety also cites People v. Hadley (1967) 257 Cal.App.2d Supp. 871, but the case is inapposite and has been criticized by International Fidelity, supra, to the extent it suggests that county counsel has no authority to defend against sureties' attempts to vacate forfeiture. (20 Cal.App.5th at p. 358.)
DISPOSITION
The judgment is affirmed. The People are entitled to costs on appeal.
/s/_________
Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.