Opinion
F060629
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. LEXINGTON NATIONAL INSURANCE CORPORATION, Defendant and Appellant.
Nunez & Bernstein; E. Alan Nunez for Defendant and Appellant. Kevin B. Briggs, County Counsel, and Michael R. Linden, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F08904538)
OPINION
THE COURT
Before Cornell, Acting P.J., Poochigian, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Pena, Jr., Judge.
Nunez & Bernstein; E. Alan Nunez for Defendant and Appellant.
Kevin B. Briggs, County Counsel, and Michael R. Linden, Deputy County Counsel, for Plaintiff and Respondent.
Lexington National Insurance Corporation (Lexington) was the surety on a bail bond issued to secure Noe Gaona Gomez's release pending trial. The bond was ordered forfeited when Gomez failed to appear at his sentencing hearing. Lexington assigned investigators to attempt to locate Gomez. Although progress was made in locating Gomez, he was not apprehended during the initial 180-day exoneration period. (Pen. Code, § 1305, subd. (c).) Lexington moved for an extension of the exoneration period pursuant to section 1305.4. The trial court denied the motion and judgment was entered on the bond.
All statutory references are to the Penal Code unless otherwise stated.
Lexington argues the trial court abused its discretion in denying its motion for an extension of the exoneration period. We agree and will reverse the judgment and direct the trial court to enter an order granting the motion.
FACTUAL AND PROCEDURAL SUMMARY
On July 7, 2008, Lexington issued a bond in the amount of $68,070 through its agent Ajua Bail Bonds to secure the release of Gomez. On May 28, 2009, Gomez pled no contest to felony violation of Health and Safety Code sections 11378 and 11379, subdivision (a), as well as a misdemeanor violation of Vehicle Code section 12500, subdivision (a). He remained on bail and was ordered to appear on July 10, 2009, for sentencing. Gomez failed to appear as ordered. The trial court issued a bench warrant and ordered bail forfeited. Notice of the forfeiture was served on Lexington. Lexington moved within the statutory period (filed January 8, 2010, heard February 18, 2010) for an extension of time to present Gomez pursuant to section 1305.4. The trial court denied the motion. Judgment was entered on the bond on February 23, 2010.
DISCUSSION
Applicable law
Section 1268 et seq. provides for bail to those accused of a crime. The purpose of bail is to ensure the attendance of the defendant and obedience to court orders. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 725.) When a defendant who has posted bail fails to appear when required to do so, the trial court must declare the bond forfeited. (§ 1305, subd. (a).) If a corporate surety has posted a bond, the clerk of the court is required to mail notice to the surety and its agent advising that bail has been forfeited. (Id., subd. (b).) This notice begins the running of a 185-day period (180 days plus five if the notice was mailed) (ibid.) in which the surety is allowed to produce the defendant and have the bond exonerated (id., subd. (c)). If the surety is unable to produce the defendant within the initial 185-day period, it "may file a motion, based upon good cause, for an order extending the 180-day period provided in" section 1305. (§ 1305.4.)
Lexington filed a motion for an extension pursuant to section 1305.4, which the trial court denied for lack of good cause. The issue is whether the trial court erred in denying Lexington's motion. We review the trial court's order for an abuse of discretion. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679 (Ranger I).) The trial court abuses its discretion when its decision exceeds the bounds of reason when considering all of the circumstances. (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.)
Ranger I defined the term "good cause" as requiring "an explanation of what efforts [the surety] made to locate [the defendant] during the initial 180 days, and why such efforts were unsuccessful." (Ranger I, supra, 81 Cal.App.4th at p. 681.) The appellate court cautioned, however, that section 1305.4 does not give "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." (Ranger I, at p. 682.) Efforts taken after the initial 180-day period are not relevant to the issue of whether good cause exists for an extension. (People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 644, 649 (Ranger II).)
To ease the reader's task, we will refer to the individual or entity that posted the bond, arranged for the bond, or otherwise was responsible for the forfeiture of funds if the defendant was not returned to custody as the surety. Similarly, we will refer to the individual who was attempting to locate the defendant as the investigator, regardless of his or her actual title.
In People v. Accredited Surety and Casualty Co., Inc. (2006) 137 Cal.App.4th 1349 (Accredited), the Third District Court of Appeal expanded the definition of "good cause" to include a requirement that the surety establish a "reasonable likelihood" the surety will capture the defendant during the extension period. (Id. at p. 1357.)
Relevant cases
Review of several cases will provide a framework for our analysis. In Ranger I the appellate court concluded the trial court did not abuse its discretion when it denied a section 1305.4 motion. To support its motion, the surety submitted a declaration that stated the file was forwarded to an investigator after all attempts by the surety to locate the defendant had failed. The investigator reviewed the case file and "obtained all necessary documents to effect the defendant's arrest." (Ranger I, supra, 81 Cal.App.4th at p. 684.) The investigation "produced a positive address on the above entitled matter" in Mexico. (Ibid.) In addition, the investigator learned the "defendant is a member of a band named 'Fortaleza Nortena De Tijuana.[']" (Ibid.)
The appellate court found this declaration to be deficient. "The declaration does not state what efforts had been made, when they were made, or when [the investigator] received the file. Further, the declaration does not state how or by what process [the investigator] was able to locate [the defendant]. Nor does [the investigator] explain what a 'positive address' was, how he was able to find it, how he knew it was a bona fide address for [the defendant], and whether the address was still good. Finally, the declaration gives no details on why it is significant that [the defendant] 'is a member of a band named "Fortaleza Nortena De Tijuana."'" (Ranger I, supra, 81 Cal.App.4th at p. 682.) The appellate court then summarized its holding: "At risk here is over $75,000. If [the surety] wanted to protect that money, it should have commenced an adequate investigation right after March 26, 1998, and should not have been afraid to spell out all the details of its efforts to the trial court. The cursory declaration that was filed in this matter is incomplete. The trial court's ruling did not exceed the bounds of reason. Instead, we find the decision inherently reasonable." (Ibid.)
In People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122 (Alistar),the trial court denied the surety's section 1305.4 motion. In support of its motion, the surety filed a "detailed declaration" that two months after the defendant failed to appear, the file was assigned to an investigator. (Alistar, at p. 128.) The investigator learned the telephone numbers for defendant and his brother were disconnected; he left a message for the brother at the brother's place of employment. The investigator also conducted a database search and found a possible address for the defendant. The investigator checked this address and an address for the defendant's sister. The defendant's sister stated she would tell the defendant the investigator was looking for him. The investigator contacted the local police agency and provided them with the information in his possession. The investigator received a message from the defendant's brother advising him the defendant was in Mexico and would not be returning and added that he would not tell the investigator where the defendant was, even if he knew. The investigator stated he believed the defendant was still in the area because the sister had not mentioned that he had left for Mexico and concluded that with an extension he expected to locate the defendant.
The appellate court concluded that the surety "provided sufficient evidence that its investigator ... had made a concerted effort to locate defendant. The two-month delay in commencing the investigation is not a sufficient basis for denying [the surety's] motions. [The investigator's] declaration shows that he made a reasonable attempt to locate defendant, although it might have been advantageous to begin the investigation sooner." (Alistar, supra, 115 Cal.App.4th at pp. 128-129.)
In Accredited the trial court denied the surety's section 1305.4 motion. The surety submitted the declaration of its investigator in support of the motion. The investigator stated that shortly after the bond was forfeited, he learned the defendant was staying with a friend. The investigator conducted surveillance at the address and talked with several individuals whom he thought might be the defendant.
Shortly thereafter, the investigator learned that the defendant was living with family members at another location. The investigator contacted the local police department and set up surveillance of the address. After four hours the investigator and the authorities entered the residence and discovered the defendant had fled.
A fugitive recovery specialist was employed a few weeks later. Two possible addresses for the defendant were obtained and investigated. The defendant was not at either address.
The investigator then contacted the defendant's relatives and learned he had fled to Illinois. The defendant's family in Illinois confirmed the defendant was in the state but did not have an exact location where he was residing.
The following month the investigator learned the defendant had stolen a check, bought a vehicle, and was seen coming and going at a local address. The investigator discovered that the defendant had been seen in the company of a female, learned what type of vehicle she drove, and learned an address connected with the female. Surveillance was set up at this new address.
The following month the investigator learned from a family member that the defendant was hiding out in an apartment complex. Local police authorities were contacted and the apartment was surrounded and searched. The defendant was not there. They obtained another address where the defendant may have been hiding.
The investigator concluded his declaration by stating that he had known the defendant his entire life, and he was confident he would locate the defendant because the defendant had few places to go and the family was cooperating in the attempt to locate him.
The appellate court concluded that the surety had shown due diligence in attempting to locate the defendant and, accordingly, the trial court had abused its discretion in denying the surety's section 1305.4 motion. (Accredited, supra, 137 Cal.App.4th at pp. 1358-1359.) "Even though he was not able to capture [the defendant] in the first 180 days, [the investigator] was able to consistently gather information about [the defendant]. He learned where [the defendant] resided at various times, with whom he associated, and what actions he had taken, such as stealing a check from his chiropractor. Nothing in the declaration suggested [the investigator] would not continue to gather this sort of information. The declaration also stated that [the defendant's] family was actively cooperating, that [the defendant] had few places to go, and that [the investigator] felt confident he could return [the defendant] to custody in another 180 days. The People offered no facts to counter these statements." (Id. at p. 1359.)
In Ranger II, the trial court denied the surety's section 1305.4 motion. In support of its motion, the surety filed a declaration that stated it believed the defendant had fled to Mexico and was staying with his mother. The surety assigned the file to an investigator. After the initial 180-day period expired, but before the section 1305.4 motion was heard, the surety informed the trial court it had located the defendant in Mexico. The defendant was detained as anticipated, but the district attorney declined to extradite him to the United States. Based on these facts, the surety moved to vacate the forfeiture and have the bond exonerated pursuant to section 1305, subdivision (g), which permits exoneration if the defendant is detained in a foreign country and the district attorney declines to extradite the defendant. The trial court denied the section 1305.4 motion and determined the motion to exonerate the bond was therefore moot.
Section 1305, subdivision (g) states in full: "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."
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The appellate court concluded that the trial court did not abuse its discretion when it denied the surety's section 1305.4 motion.
"All circumstances considered, we cannot conclude that the trial court exceeded the bounds of reason in determining that [the surety] failed to demonstrate good cause. [Citation.] [The surety] had been informed of the probable whereabouts of [the defendant] as of July 8, 2005, yet by the 180-day date of December 3, 2005, it would appear [the surety] had made no effort whatsoever to confirm the information. Simply obtaining a probable address in Mexico, without confirming the same or doing more, is insufficient. [Citation.] [The surety] did not send [the investigator] to Mexico to make the confirmation until December 19, 2005. [The surety] gives no explanation as to why it made no earlier effort. It only indicates that the ball was in the district attorney's court, to decide whether or not to extradite.
"There are too many gaps in the record for us to jump to this conclusion. The motion to extend was unaccompanied by any declaration of [the investigator]. We do not know to whom he placed calls on September 1, 2005, whether to a contact known to handle extradition decisions or to a receptionist who was uncertain as to where to route the calls. We have no idea whether the calls resulted in substantive telephone conversations or whether [the investigator] just left messages and had no idea whether they were ever received by an individual equipped and authorized to respond to them. We also do not know the nature or content of the purported October 26, 2005 letter, or again, the particular addressee. On the one hand, we don't know if the letter was couched in purely speculative terms, such as, 'What do you generally do if we locate a guy in
Mexico?' On the other hand, we don't know if the letter provided concrete information on [the defendant], such as the nature of the charge against him and his exact whereabouts.
"The only thing apparent from the record is that once [the surety] realized its time had expired, it decided it had better get [the investigator] down to Mexico to confirm that, in fact, [the defendant] was at his mother's home there. This does not 'demonstrate that [the surety] diligently attempted to locate and capture the defendant during the initial 180 days.' [Citation.]" (Ranger II, supra, 150 Cal.App.4th at pp. 646-647.)
In County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018 (Fairmont),the trial court denied the surety's section 1305.4 motion. The surety provided the following information to support its motion. The investigator stated that the surety had contacted courts, jails, family members, friends, employers, and other secondary sources in an attempt to locate the defendant. When these efforts failed to locate him, the surety checked court records and various law enforcement Web sites to determine if the defendant was in custody. The investigator contacted the indemnitor on the bond for his assistance. The indemnitor stated he believed the defendant was in Mexico and he would check with the defendant's wife to confirm his belief. A week later the indemnitor informed the investigator that the defendant's wife confirmed the defendant was in Mexico. The indemnitor promised to inform the investigator of the defendant's telephone number. The investigator also conducted surveillance at various addresses where the defendant had lived. No one at these addresses had any information about the defendant's current whereabouts. Three months later the investigator again contacted the indemnitor, who informed the investigator that the defendant was living in Mexico and was planning on returning to the United States to resolve the criminal matter. The investigator declared that he was confident he would be able to locate the defendant if an extension was granted.
The appellate court concluded the trial court did not abuse its discretion when it denied the surety's section 1305.4 motion. "[The surety] was informed [the defendant] was in Mexico in mid-October 2006. Yet [the investigator] did nothing with this information and made no further efforts to secure an address or a telephone number for [the defendant] in Mexico until late January 2007. Nothing in [the investigator's] declaration suggests he ever interviewed [the defendant's] wife or even asked for her address or telephone number to seek more information about [the defendant's] whereabouts. Instead of pursuing this potential lead, [the investigator] seemingly ignored it and instead conducted surveillance at local addresses the [surety] had already determined were not productive." (Fairmont, supra, 164 Cal.App.4th at p. 1029.)
Lexington's showing before the trial court
We now turn to the evidence Lexington presented to the trial court. Lexington filed the declaration of Jerry Anderson in support of its motion. In his declaration Anderson stated that he was hired on October 23, 2009, to locate Gomez (bond was forfeited on July 10, 2009). In the two months before the file was assigned to Anderson, another investigator had canvassed Gomez's last known address, conducted surveillance at a bar known to be frequented by Gomez, and visited a business known to be frequented by Gomez. Although the investigator did not locate Gomez, he did observe Gomez's girlfriend driving Gomez's car and learned that Gomez may have fled to his sister's residence in San Diego.
Anderson began his investigation when he received the file. By November 4, 2009, Anderson had identified Gomez's sister, obtained her phone number, and obtained her address in San Diego from her phone number. Two days later an investigator went to the address and discovered no one lived there. A canvass of the neighborhood revealed that Gomez's sister had moved out of the residence approximately three months prior.
Two days later Anderson located an address for Gomez's sister's husband in San Diego through a database search. Five days later an investigator went to the house and interviewed Gomez's sister's husband. The investigator learned that Gomez had not been seen in approximately five months and that it was believed Gomez had fled to Mexico. The investigator obtained an e-mail address being used by Gomez and from this address learned that Gomez was living in Michoacán, Mexico.
Approximately two weeks later, investigators again went to the residence of Gomez's sister's husband and spoke with him and with Gomez's sister. She confirmed that Gomez had returned to Michoacán, Mexico, and was living with his mother.
Anderson then contacted the district attorney's office to determine if it wanted to extradite Gomez to the United States.
Analysis
When comparing the showing in this case with the above discussed cases, it is clear that the showing made by Lexington was sufficient. In the first two months after the bond was ordered forfeited, Lexington's investigators checked Gomez's last known address and other places he had been known to frequent. When Anderson received the file, he located two addresses for Gomez's sister, and eventually was able to speak with her directly. He confirmed Gomez was living in Mexico with his mother and contacted the district attorney's office to determine if it would extradite Gomez.
To summarize, Lexington's investigators had confirmed the state in Mexico in which defendant was residing; they had spoken with Gomez's sister and brother-in-law, who appeared to be cooperating with investigators; and they had contacted the district attorney's office to determine if Gomez would be deported.
Lexington consistently was able to develop leads on Gomez's location and had acted diligently in its pursuit of him. This case is unlike Ranger II where the surety discovered early on in the exoneration period that the defendant was in Mexico and did nothing else. Here, Lexington discovered late in the exoneration period that Gomez had fled to Mexico. Unlike Ranger II, Lexington did not wait five months for the district attorney's office to decide whether to extradite Gomez.
Unlike Ranger I, the declaration filed by Lexington contained the type of details that established it had acted diligently in attempting to locate Gomez. Leads were developed and followed, and the matter did not sit idle for any appreciable amount of time. And unlike Fairmont, Lexington did not sit on its hands for three months after learning that Gomez had fled to Mexico.
Instead, this case is similar to Alistar and Accredited, where the surety's declaration established consistent efforts by the investigators to locate the defendant and success in those efforts that had not yet led to the apprehension of the defendant. Those efforts, however, did establish that it was likely Gomez would be returned to custody if the district attorney decided to extradite him.
Lexington's showing was not perfect. The investigator could have explained who he contacted in the district attorney's office and how long the district attorney was expected to take to make a decision. The investigator also could have provided more information about the conversations with Gomez's sister and Gomez's current address. Nonetheless, sufficient information was provided to establish that Lexington had been diligent in its attempts to locate Gomez and that continued efforts likely would lead to Gomez's apprehension. Because Lexington adequately described the efforts it made to locate Gomez and explained why those efforts were unsuccessful, it established good cause for an extension of the exoneration period pursuant to section 1305.4. Lexington also provided sufficient information to conclude that it was likely that Gomez would be returned to custody should the exoneration period be extended. Accordingly, the trial court abused its discretion when it denied Lexington's motion.
DISPOSITION
The judgment on the bond is reversed. The trial court is ordered to vacate its order denying Lexington's motion for an extension of the exoneration period and enter a new order granting Lexington a 180-day extension of the exoneration period pursuant to section 1305.4.