People v. Financial Casualty & Surety, Inc.

‘“[E]xcept for capital crimes when the facts are evident or the presumption great,” a criminal defendant has a right to be ‘“released on bail by sufficient sureties . . . .” (Cal. Const., art. I, § 28, subd. (f)(3).) The most common mechanism for obtaining release is a bail bond, which rests upon two different contracts between three different parties: The surety contracts with the government to “ ‘ “act[] as a guarantor of the defendant’s appearance in court under the risk of forfeiture of the bond,” ’ ” and the defendant contracts with the surety to pay a premium for the bond and to provide collateral in the event of his or her nonappearance. (Financial Casualty, supra, 2 Cal.5th at p. 42, quoting American Contractors, supra, 33 Cal.4th at p. 657.)

If the defendant does not appear as ordered ‘“without sufficient excuse,” the trial court can (1) declare the bond forfeited in open court (§ 1305, subd. (a)(1)), or, if the court “has reason to believe that sufficient excuse may exist for the failure to appear,” (2) continue the case for a “reasonable” period of time “to enable the defendant to appear” (§ 1305.1). Forfeiture is the general rule. (Financial Casualty, supra, 2 Cal.5th at p. 42 [“When the surety breaches [its] contract [with the government] by failing to secure the defendant’s appearance, the bond generally must be enforced”].)

Once the bond is forfeited, the surety has 185 days—that is, 180 days plus five days for mailing (because the trial court is required to notify the surety and bail agent of the forfeiture by mail within 30 days of the forfeiture (§ 1305, subd. (b)(1))—to move to vacate the forfeiture. (§ 1305, subd. (c).) This is often called the “appearance period.” (American Contractors, supra, 33 Cal.4th at p. 658.) The surety may ask for an additional 180-day extension of this period. (§ 1305.4.) Extensions may only be granted for “good cause” {ibid.), which turns on the surety’s diligence in tracking down the defendant as well as whether there is “a reasonable likelihood [that] the extension will result in the defendant’s apprehension.” {Financial Casualty, supra, 2 Cal.5th at pp. 47-50.) A court lacks the power to grant further extensions—either as a matter of statute or through its inherent equitable powers. (People v. Western Ins. Co. (2012) 204 Cal.App.4th 1025 , 1030 [ 139 Cal.Rptr.3d 479 ] (Western) [“No additional extensions of this bond exoneration period are statutorily authorized”]; id. at pp. 1032-1033 [equitable tolling unavailable].)

The surety is entitled to have the trial court vacate the bond’s forfeiture and exonerate the bond if, prior to the expiration of the 185-day period and any extension thereof, it makes one of five different showings. As

Second, the legislative history of section 1305 reinforces the plain language of subdivision (g). Our Legislature added subdivision (g) to section 1305 in 1995 to address a “recurring” chicken-and-egg “problem”: A surety was entitled to relief if it located a defendant who happened to be “in custody” in another jurisdiction (§ 1305, subd. (1)), but not if the defendant was out of custody in that jurisdiction (and few jurisdictions would arrest a defendant, and thereby place him “in custody,” absent a pending extradition request). (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1245 (1995-1996 Reg. Sess.) July 11, 1995, p. 5; People v. Frontier Pacific Ins. Co. (1999) 69 Cal.App.4th 1093 , 1096 [ 81 Cal.Rptr.2d 921 ] (Frontier) [so noting].) Subdivision (g) addressed this disparity in part by extending relief to sureties that locate an out-of-custody defendant in a foreign state or country “when the district attorney chooses not to extradite [that] defendant,” thereby giving sureties a financial incentive to track down defendants, whether or not they happened to be in custody. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1245 (1995-1996 Reg. Sess.) July 11, 1995, pp. 6-7; see also Assem. Com. on Public Safety, 3d reading analysis of Sen. Bill No. 1245 (1995-1996 Reg. Sess.) as amended July 15, 1995, pp. 1-2.) The legislative history says nothing about how a prosecuting agency is to make its choice and nothing about when it must do so. Indeed, our Legislature rejected language in a 2012 bill that would have entitled a surety to relief from forfeiture if the prosecuting agency did not make “an extradition decision within a reasonable period of time after receipt of the affidavit.” (Sen. Bill No. 989 (2011-2012 Reg. Sess.) as introduced Feb. 1, 2012; see also Tingcungco, supra, 237 Cal.App.4th at pp. 254-258 [discussing this bill].) We hesitate to read into section 1305 constraints on the prosecuting agency’s decisionmaking process when our Legislature has declined to do so. (Gikas v. Zolin (1993) 6 Cal.4th 841 , 861-862 [ 25 Cal.Rptr.2d 500 , 863 P.2d 745 ] [“a statute cannot be interpreted to include what was specifically excluded in the drafting process”]; People v. Hunt (1999) 74 Cal.App.4th 939 , 947-948 [ 88 Cal.Rptr.2d 524 ].)

Third, courts have consistently read subdivision (g) of section 1305 as leaving the timetable and criteria for deciding whether to extradite squarely in the hands of the prosecuting agency. (See John v. Superior Court (2016) 63 Cal.4th 91 , 95-96 [ 201 Cal.Rptr.3d 459 , 369 P.3d 238 ] (John) [looking to “context”]; In re Marriage of Davis (2015) 61 Cal.4th 846 , 852 [ 189 Cal.Rptr.3d 835 , 352 P.3d 401 ] [looking to public policy].) Subdivision (g) does not regulate the pace with which the prosecuting agency must pursue extradition once it decides to do so (Seneca, supra, 189 Cal.App.4th at pp. 1082-1083), and leaves it to the agency whether to agree to toll the appearance period while an extradition request is pending (§ 1305, subd. (h)

This deference to prosecutorial decisionmaking exists notwithstanding the fact that the end result will be the forfeiture of the bond. Although “equity abhors a forfeiture,” particularly when the brunt of that forfeiture falls upon the “family members and friends who have pledged their homes and other financial assets to the [sureties] to secure the defendant’s release” (County of Los Angeles v. American Contractors Indemnity Co., supra, 152 Cal.App.4th at pp. 665-666; see People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898 , 906 [ 98 Cal.Rptr. 57 , 489 P.2d 1385 ]), the above-described decisions have placed greater weight on the plain language of subdivision (g) and the competing policy it embodies—namely, that “[t]he object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court” (Wilcox, supra, 53 Cal.2d at pp. 656-657; see American Contractors, supra, 33 Cal.4th at p. 657) and that “ ‘[t]he escape of [the] defendant is the business risk of [the] bail surety [and] is precisely the situation which [the] surety guarantees against’ ” (Ranger Ins. Co., supra, 61 Cal.App.4th at p. 805, fn. 6).

To be sure, section 1305, subdivision (g) places some limits on the prosecuting agency’s conduct with regard to extradition. A prosecuting agency will be held accountable—and the bond will not be forfeited—when the prosecuting agency has made a mistake in processing an extradition request. (People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791 , 798 [ 113 Cal.Rptr.2d 448 ].) And, more relevant here, a prosecuting agency cannot in “actual bad faith” agree to extradite and then drag its feet in doing so as a means of denying the surety relief from forfeiture. (Western, supra, 204 Cal.App.4th at p. 1031; Seneca, supra, 189 Cal.App.4th at pp. 1082-1083.) A similar limitation undoubtedly constrains a prosecuting agency’s predicate decision whether to extradite in the first place and to what information it requires in order to make that decision. But there is no evidence that the prosecutor’s office in this case has acted in actual bad faith. To the contrary, there is substantial evidence to support a finding that the office’s requirement that a request for an extradition decision be accompanied by a photograph or fingerprints is part of its long-standing policy, that this policy mirrors the

The surety levels four challenges at this analysis.

First, the surety contends that upholding a prosecuting agency’s insistence upon additional documentation over and above a sworn affidavit attesting to a “positive[] identifi[cation]” of the absconding defendant effectively—and impermissibly—engrafts new requirements onto section 1305, subdivision (g) and thereby violates the separation of powers by empowering the executive branch to amend a statute enacted by the legislative branch. The surety is correct that the executive, just like the judiciary, may interpret statutes but may not rewrite them by engrafting new requirements onto them. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 , 59 [ 124 Cal.Rptr.2d 507 , 52 P.3d 685 ]; see also County of Los Angeles v. American Contractors Indemnity Co., supra, 152 Cal.App.4th at pp. 666-668 [declining to add requirement that affidavit under subd. (g) be certified as authentic in the foreign country].)

However, the prosecutor’s office’s insistence that a surety provide a photograph or fingerprints does not impermissibly amend section 1305, subdivision (g). That subdivision lays out three prerequisites to the vacatur for a defendant “not in custody” in a foreign jurisdiction: (1) that the defendant be “temporarily detained ... by the bail agent ... in the presence of a local law enforcement officer”; (2) that the local officer in a sworn affidavit “positively identify]” the defendant; and (3) that the “prosecuting agency elect[] not to seek extradition after being informed of the location of the defendant.” (§ 1305, subd. (g).) The surety urges that we construe the second requirement to limit the third—that is, that the prosecuting agency must elect whether to seek extradition solely on the basis of the affidavit showing a positive identification. We reject this argument. It is inconsistent with subdivision (g)’s plain language, which on its face erects three separate and independent requirements.

The surety’s argument also leads to an absurd result—namely, that the prosecuting agency’s decision becomes invalid if the agency (quite reasonably) says it needs corroborative evidence, but its decision remains valid if the agency says nothing. Creating an incentive for public agencies to play hide the ball is, in our view, an absurd result. (John, supra, 63 Cal.4th at p. 96.)

Second, the surety asserts that obtaining the defendant’s photograph or fingerprints when he is in a foreign country is often impossible, which

The surety relatedly argues that section 1305 erects a carefully crafted system designed to protect the interests of sureties insofar as a surety is entitled to a postponement of the appearance period if the prosecuting agency elects to extradite and entitled to exoneration of the bond if the agency elects not to extradite. Granting the agency the power not to decide, the surety reasons, places a surety in a limbo that precludes exoneration and thus is at odds with the rest of the system. We reject this argument because section 1305 does not set up the surety-friendly system the surety describes. As explained above, a surety is not entitled to a postponement of the appearance period once the prosecuting agency elects to extradite; instead, it is entirely up to the agency whether to agree to a postponement. (§ 1305, subd. (h).) And there are numerous other situations where the surety cannot recover despite its best efforts, such as when there is no extradition treaty (e.g., Fairmont, supra, 173 Cal.App.4th at pp. 544-545) or when it makes its request for a decision on extradition too close to the end of the appearance period (Tingcungco, supra, 237 Cal.App.4th at pp. 256-259). Denying the surety relief because it does not comply with a prosecuting agency’s reasonable requirements for making extradition decisions is entirely consistent with the system that section 1305 actually erects.

Lastly, the surety contends that the prosecutor’s office in this case does not really need a photograph or fingerprints corroborating the defendant’s presence in a foreign jurisdiction in order to elect whether to extradite him. In the surety’s view, the office can instead use a multistep process: It can use the affidavit to obtain a provisional arrest warrant; use the provisional warrant to arrest the defendant and obtain his fingerprints or photograph; then use the fingerprints or photograph to make an extradition request. To the extent the surety is arguing that the prosecutor’s office is proceeding in actual bad faith, we reject that argument for the reasons explained above. Moreover, the fact that a more cumbersome and potentially less effective alternative mechanism

The trial court abused its discretion when it denied the extension request on the ground that 365 days had passed since the bond had been forfeited. Some courts had followed that 365-day rule at the time the trial court made its ruling (e.g., People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193 , 1199 [ 88 Cal.Rptr.2d 713 ]), but our Supreme Court rejected it in Financial Casualty. (Financial Casualty, supra, 2 Cal.5th at pp. 44-45.)

Under the proper rule, there were still 21 days left on the clock: The court granted the first extension on August 25, 2014; a 180-day period would have lapsed on February 23, 2015, which is 21 days after the court denied the further extension on February 2, 2015.

We may nevertheless affirm on any ground in the record because our job is to review the trial court’s ruling, not its reasoning. (People v. Chism (2014) 58 Cal.4th 1266 , 1295, fn. 12 [ 171 Cal.Rptr.3d 347 , 324 P.3d 183 ].) In this case, we affirm because there was no “good cause” to grant a further 21-day extension. A showing of “good cause,” as noted above, rests upon a showing of (1) the surety’s “past diligence” in tracking down the absconding defendant, and (2) a “reasonable likelihood the extension will result in the defendant’s apprehension.” (Financial Casualty, supra, 2 Cal.5th at pp. 47—48.) Here, the surety was not moving swiftly in its efforts to track down Angulo and to inform the prosecutor’s office of those efforts: The surety did not locate Angulo until October 5, 2014, and did not request an extradition decision from the prosecutor’s office until December 8—over two months later and less than two weeks before the expiration of the first extension period on December 24, 2014. What is more, even though the prosecutor’s office informed the surety that it would need a contemporaneous photograph or fingerprints of Angulo on December 16, 2014, the surety had done nothing to secure that additional information by the February 2, 2015 hearing. For much the same reason, the surety did not establish a reasonable likelihood of apprehending Angulo—or, in this case, of obtaining the photograph or fingerprints—within the remaining 21 days. The surety’s failure to

DISPOSITION

The order denying the motion to vacate and for extension of time, as well as the judgment, are affirmed. The People are awarded costs on appeal.

Ashmann-Gerst, Acting P. J., and Goodman, J.,* concurred.