Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SJ3224, Patricia J. Titus, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel, and Joanne K. Nielsen, Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant Indiana Lumbermens Mutual Insurance Company (the surety) appeals an order denying its motion to vacate forfeiture and exonerate bail.
An order denying a motion to vacate forfeiture and exonerate bail is appealable. (County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542 (Fairmont).)
The criminal defendant, Hassan Saleh (Saleh), has fled to Lebanon. The surety contends it is entitled to relief from forfeiture and to exoneration of bail because the prosecutor, having been informed of Saleh’s location, has “elected” not to seek extradition. (Pen. Code, § 1305, subds. (f), (g).)
All further statutory references are to the Penal Code.
In order to obtain relief from forfeiture, the surety must make “a factual showing that the applicable prosecuting agent has not elected to extradite the defendant where extradition is feasible.” (People v. American Contractors Indemnity (1999) 74 Cal.App.4th 1037, 1048.) The feasibility of extradition in a particular case is a question of fact. (Fairmont, supra, 173 Cal.App.4th at p. 544.)
The United States does not have an extradition treaty with Lebanon, as conceded by the surety’s counsel. Therefore, the trial court properly found the surety failed to establish feasibility of extradition in the instant case. We perceive no abuse of discretion in the trial court’s ruling and affirm the order denying the motion to vacate forfeiture and exonerate bail.
In re Hijazi (7th Cir. 2009) 589 F.3d 401, 407; Treaties of Extradition, 18 U.S.C.A. foll. § 3181; U.S. Dept. of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2009, at 160-161 (Lebanon), available at http://www.state.gov/s/l/treaty/treaties/2009/index.htm (last visited April 19, 2010).)
FACTUAL AND PROCEDURAL BACKGROUND
On May 11, 2007, Saleh was arraigned and pled not guilty to nine counts of sale of counterfeit mark. (§ 350, subd. (a)(2).) On May 24, 2007, the surety posted a $200,000 bond for Saleh’s release. On July 6, 2007, Saleh failed to appear and bail was ordered forfeited. Notice of forfeiture was sent to the surety and to the bail agent on that same day. The forfeiture period was set to expire on January 7, 2008.
The trial court granted a motion to extend the forfeiture period for 90 days, making the new expiration date March 31, 2008.
Thereafter, the bail agent filed a second motion to extend time, which the trial court granted based on information Saleh recently had been arrested in Lebanon and was in the process of being extradited to the United States. The forfeiture period thus was extended to August 5, 2008.
On August 5, 2008, upon expiration of the extended period, the surety filed a motion to vacate forfeiture or, in the alternative, to toll time.
On September 25, 2008, the matter came on for hearing. Both the district attorney and surety’s counsel advised the trial court Saleh was no longer in custody in Lebanon.
The surety’s counsel explained, “They know where he is. [¶] The problem is Lebanon does not have formal extradition with the United States, but they have in the past allowed people to be taken or turning people over to the U.S. government, and they’re trying to work something in that nature out with this defendant.... [¶]... [¶] If there were an extradition treaty with Lebanon, the bail agency will be entitled to an exoneration under [the statute], but since there isn’t, they have been willing to continue to try to bring the defendant into the U.S. but that’s a very difficult task.” (Italics added.) Based on these circumstances, the surety requested additional time.
The district attorney objected, arguing: “The extension is usually granted on the ground there is a likelihood they will be able to [bring the criminal defendant back]... and there’s nothing new that would basically lead us to believe they’re going to be successful in getting him back, and there’s no need for an extension....”
The trial court noted efforts had been made but ruled “I’m not willing to continue this any further.” The trial court stated it was “done. Motion to continue is denied, and the bail forfeiture effective.”
On November 19, 2008, the surety filed a timely notice of appeal from the September 25, 2008 order denying its motion to vacate forfeiture and exonerate bail.
CONTENTIONS
The surety contends (1) it was entitled to exoneration where extradition was feasible and the district attorney elected not to extradite; and (2) the surety is entitled to a tolling of the exoneration period if there is an election to extradite.
DISCUSSION
1. Standard of appellate review.
“A determination on a motion to set aside a bail forfeiture is discretionary and will not be disturbed on appeal unless an abuse appears in the record.” (People v. American Contractors Indemnity, supra, 74 Cal.App.4th at p. 1043.) However, “ ‘[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. 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.’ ” (Fairmont, supra, 173 Cal.App.4th at p. 543.)
2. Section 1305, subdivisions (f) and (g); provisions for relief from forfeiture when prosecuting agency “elects” not to seek extradition.
The 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. (Fairmont, supra, 173 Cal.App.4th at p. 543.) Section 1305 provides bail is to be forfeited if the defendant fails to appear when lawfully required to do so. (Ibid.) That section also sets forth situations when the forfeiture must be vacated and the bond exonerated. (Ibid.)
In the instant case, the surety invoked section 1305, subdivisions (f) and (g).
Section 1305, subdivision (f) provides: “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.” (Italics added.)
Similarly, section 1305 states at subdivision (g): “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.” (Italics added.)
In County of Orange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795, the prosecuting agency did not seek extradition from Mexico of a Mexican national convicted of drug offenses. The Court of Appeal affirmed the trial court’s decision not to vacate the forfeiture order, stating when “extradition is not a feasible option for the prosecuting agency,” its failure to seek extradition is not an election not to do so because “[t]he term elect implies a choice of options.” (Id. at p. 802.) “Extradition 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.) The reviewing court concluded that “[b]ecause the record here clearly proves gaining [defendant’s] extradition from Mexico was not feasible” the trial court properly denied the motion to vacate the forfeiture order. (Id. at pp. 804-805.)
Thus, “if a request for extradition is not feasible and therefore would be futile, ‘ “there can be no meaningful election whether to seek extradition, and the conditions for forfeiture relief have not been satisfied.” ’ [Citations.] It is well established that ‘[n]o election can be made by anyone between something and nothing. There is no alternative. The term necessarily connotes at least two things between which a choice can be made....’ [Citations.] [¶] If the situation is such that 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.)
3. Surety failed to establish feasibility of extradition in the instant case.
In order to obtain relief from forfeiture, the surety must make “a factual showing that the applicable prosecuting agent has not elected to extradite the defendant where extradition is feasible.” (People v. American Contractors Indemnity, supra, 74 Cal.App.4th at p. 1048.)
The feasibility of extradition in a particular case is a question of fact. (Fairmont, supra, 173 Cal.App.4th at p. 544.) Feasible “means ‘practicable--i.e., capable of being done or carried out. It does not mean “possible” or “probable”....’ (Garner, Modern Legal Usage (2d ed. 2001) p. 351.)” (Id. at p. 545, fn. 3.)
Here, there is substantial evidence to support the trial court’s determination that in this case, it was not feasible to obtain extradition of Saleh from Lebanon, a country with which the United States does not have an extradition treaty, for Saleh’s alleged involvement in counterfeiting activities. The surety asserted efforts were being made to bring Saleh back to the United States, but conceded “that’s a very difficult task” in the absence of an extradition treaty.
Moreover, in addition to requiring the surety to show extradition in a given case is feasible, section 1305, subdivision (f) requires the surety to show the defendant is “in custody.” Similarly, section 1305, subdivision (g), requires a showing the defendant has been “detained” in the presence of local law enforcement. Here, the record reflects Saleh at one time had been arrested in Lebanon, but at the time of the September 25, 2008 hearing on the motion to vacate forfeiture and exonerate bail, Saleh was no longer in custody. Therefore, the surety’s motion to exonerate bail was meritless for this additional reason.
In sum, on this record, the trial court acted within its discretion in refusing to vacate the forfeiture or order exoneration of the bond.
4. No merit to surety’s request to toll time.
The surety further contends it is entitled to a tolling of the exoneration period if there is an election to extradite. The argument is unavailing.
Because the record reflects extradition is not feasible and therefore cannot be elected, the trial court acted within its discretion in refusing any further extension of time.
DISPOSITION
The order denying the surety’s motion to vacate forfeiture and exonerate the bail bond is affirmed. Plaintiff and respondent County of Los Angeles shall recover its costs on appeal.
We concur: KITCHING, J., ALDRICH, J.