Opinion
A154681
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. PHILADELPHIA REINSURANCE CORPORATION, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CPF18516098)
Philadelphia Reinsurance Corporation (Surety) filed a motion to extend time on bail forfeiture, the trial court denied the motion, and summary judgment was entered against the Surety. On appeal, the Surety contends the trial court abused its discretion in denying the extension motion. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On June 24, 2017, the Surety posted a $40,000 bond for the release of Hilario Hernandez Martinez (defendant) from custody.
On June 26, 2017, defendant failed to appear for a court hearing, and the trial court declared the bail forfeited pursuant to Penal Code section 1305.
Further statutory references are to the Penal Code.
On July 17, 2017, a notice of forfeiture was mailed to the Surety. The notice informed the Surety its obligation to pay the bond would become absolute on January 18, 2018, the 185th day following mailing of the notice.
On January 12, 2018, the Surety moved to extend time on bail forfeiture for 180 days pursuant to section 1305.4, arguing it established good cause for an extension by diligently pursuing efforts to locate defendant. The motion included declarations from Amanda Poso, an investigator in the pre-investigations unit, and Patrick Flores, a fugitive recovery investigator.
Section 1305.4 provides in relevant part, "the surety insurer, the bail agent, the surety, or the depositor may file a motion, based upon good cause, for an order extending the 180-day period . . . . The motion shall include a declaration or affidavit that states the reasons showing good cause to extend that period. 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." --------
Poso declared she checked in-custody records in seven counties and did not find defendant in custody; on July 20, 2017, she called a telephone number for defendant, and the number was not in service; and she called defendant's girlfriend, who stated she had not talked to defendant in months and heard he was in Pittsburg. Poso called a telephone number for the indemnitor, Raquel Castro. A woman answered the phone, and the woman hung up after Poso identified herself. Poso left messages for Castro at that number and another telephone number. Poso spoke to Castro's mother, who said she would "try to relay the message." Poso tried to contact defendant's mother, his reference, and a friend of defendant's. In August, she checked local jails to see if defendant was in custody. On August 10, she emailed Castro. Poso found Castro's Facebook profile through her cell phone number and, on August 28, sent her a Facebook message. On August 29, the case was referred to another investigator.
Flores declared that he began attempting to locate defendant on September 6, 2017. On September 11, he called defendant's mother and left a detailed message. Flores spoke to Castro, who said she was no longer defendant's girlfriend, but she could get a message to him. On September 20, he "conducted extensive surveillance" at a residence in Pittsburg that had been listed as defendant's address on his bail application. He spoke to a neighbor, who did not recognize defendant from a photograph. Flores knocked on the front door at defendant's address and no one answered. He continued surveillance and saw no activity.
On September 29, Flores called defendant's mother again, and the call went to voicemail. He returned to defendant's address in Pittsburg, which was also defendant's mother's address. Flores spoke to a different neighbor, who said an elderly woman in a wheelchair lived at defendant's address. The neighbor recognized defendant but had not seen him in many months. He said he would call Flores if he saw defendant.
On October 7, Flores conducted a social media search on defendant and Castro. He sent defendant a friend request. On October 16, he "conducted an online IRB database search" on defendant and his mother, which showed the same address in Pittsburg that Flores had surveilled. He found an address for Castro in Santa Rosa.
On October 25, Flores spoke to Castro again. She said she didn't have much contact with defendant, but she spoke to his mother on occasion. She thought defendant was staying in Pittsburg with his mother.
On November 3, 2017, Flores went to an address in San Jose associated with Castro. A neighbor said she had seen a person who looked like defendant working on a car two weeks earlier. The neighbor, whom Flores referred to as the "CI," did not want to get involved but would if she could remain anonymous.
On November 10, Flores found another address in San Jose for Castro and conducted surveillance there. A neighbor had seen a man who looked like defendant working on a car a couple of weeks earlier. She said the police came one day, and she never saw the man who looked like defendant again.
On November 22, the CI called Flores and said she had seen a man matching defendant's description outside in a hallway talking to a Hispanic male. Flores was over an hour away, and by the time he arrived at the location, defendant was not there. Flores canvassed the area and followed up with the CI.
On December 1, Flores went to defendant's residence in Pittsburg. Neighbors said they had seen the defendant before driving a black Honda Accord. They thought defendant used to live at the Pittsburg residence but now only came by occasionally. Flores knocked on the door at the Pittsburg residence and there was no answer.
On December 15, Flores called defendant's ex-wife's number, but it was disconnected. He called defendant's mother. She said defendant was not home, and she would give him the message that Flores called when he got home from work.
On December 29, Flores returned to the Pittsburg residence. He saw an elderly woman in a wheelchair leave the house with a Hispanic woman who may have been defendant's mother. The Hispanic woman left, and Flores approached the woman in the wheelchair. He asked for defendant, and the woman said he wasn't home. She said he comes home after 3:00 p.m., but sometimes he doesn't come home for days. Flores waited but there was no further activity at the address.
On January 5, 2018, Flores called defendant's mother again asking for defendant. She said he didn't live there and "rushed [Flores] off the phone." Flores believed she was not being truthful and was protecting defendant, who he believed still lived with her in Pittsburg.
Flores concluded, "I believe through my continued investigation into where the defendant has been seen recently at [the address] in the city of Pittsburg, CA along with the (CI) that lives near [Castro's] address giving me information, I am confident that I will locate and apprehend the defendant and return him back to the custody of the court."
The City Attorney opposed the Surety's motion to extend time, arguing the declarations failed to establish good cause. "[A]t most, Surety only provides the court with information regarding its efforts to locate Defendant, without a demonstration of reasonable likelihood of apprehension. . . . Surety is requesting more time to continue to surveil the same residence [in Pittsburg] that they have surveilled 5 times in order to apprehend the Defendant without any success. Surety has allegedly questioned neighbors and Defendant's mother regarding whether Defendant lives at the [Pittsburg] address, and both disavow that Defendant lives there."
On February 6, 2018, the court heard argument on the Surety's motion. The Surety's counsel argued, "Both the reasonable likelihood and due diligence are low standards" and, in this case, there were two addresses where defendant had been seen, which "is more than enough to show a reasonable likelihood." City counsel responded that the Surety had not established a reasonable likelihood of apprehension. The trial court denied the Surety's extension motion, finding good cause did not exist.
On March 19, summary judgment was entered against the Surety.
DISCUSSION
"When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (§ 1305, subd. (a).) The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1)).)" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658, fn. omitted.)
"Section 1305.4 permits an extension of the appearance period only on the surety's showing of good cause. Because the underlying policy of sections 1305 and 1305.4 is to avoid forfeitures and bring defendants before the court rather than to generate revenue for the county, the good cause showing has been described as a ' "low threshold" ' for the surety. [Citations.] A trial court's determination whether the surety has shown good cause to extend the appearance period is reviewed on a deferential abuse of discretion standard; we reverse only if the trial court's decision is unreasonable." (People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 46-47 (Financial Casualty).)
A court deciding a motion to extend time may consider "the surety's diligence up to the time the extension is sought" and whether the surety has shown "a reasonable likelihood the extension will result in the defendant's apprehension." (Financial Casualty, supra, 2 Cal.5th at p. 47.) As to the question of the reasonable likelihood of apprehension, our high court has explained, "In light of the policy of avoiding forfeitures and favoring bringing defendants to justice, all that the court can demand is a showing of a reasonable likelihood of success, not a certainty or high probability, and the surety's declarations should be read liberally for inferences that would support good cause." (Id. at pp. 49-50.)
The Surety argues the trial court abused its discretion because it was required to construe inferences in the supporting declarations in favor of the movant. The Surety asserts Flores "was consistently able to develop information into the location of the defendant, and there were numerous sightings of the defendant in the areas being searched."
Respondent maintains on appeal that the declarations supporting the Surety's motion established neither diligence nor a reasonable likelihood of apprehension. He argues, "[A]ll of Surety's efforts to locate the Defendant had been fruitless. Despite receiving evidence to the contrary, Surety believed Defendant would be found at [the address in] Pittsburg, CA. Yet, Surety had surveilled that residence on 5 different occasions and was unable to secure the Defendant at that location. Since Surety had no additional leads, it was not reasonable to assume they would apprehend Defendant if additional time was granted."
The problem with respondent's position is that it requires reading Flores's declaration with suspicion, ignoring his statements that support his belief that he will be able to apprehend defendant, but that is the opposite of the standard we should use. (See Financial Casualty, supra, 2 Cal.5th at p. 50 [declarations should be read liberally for inferences of good cause].) Respondent cites "evidence to the contrary" to Flores's belief that defendant could be apprehended at the Pittsburg address. But Flores also had evidence from defendant's mother and the elderly woman in the wheelchair who lived at the residence indicating that defendant did live at the address. Neighbors of the Pittsburg residence recognized defendant and saw him at the residence occasionally. In addition, Flores had two other addresses in San Jose where defendant had been seen recently. These locations were associated with Castro; in both sightings, defendant had been working on his car. Flores developed a contact in San Jose (the CI) who had already alerted him once when she saw defendant and presumably would be willing to do so again, and a neighbor in Pittsburg also told Flores he would call if he saw defendant. This was more than enough evidence to support Flores's statement of "confiden[ce] that [he] will locate and apprehend the defendant and return him back to the custody of the court." Respondent, on the other hand, "failed to provide any evidence refuting that good cause existed for granting an extension." (People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122, 129 [reversing summary judgment and directing trial court to grant the motion for a 180-day extension where the surety's investigator provided evidence of concerted effort to locate the defendant].)
The declarations of Flores and Poso certainly cleared the low threshold for establishing diligence and a reasonable likelihood the extension would result in defendant's apprehension. The trial court's finding of no good cause appears to be based on an unduly high standard for the showing of likelihood of success and was an abuse of discretion.
DISPOSITION
The summary judgment entered against the Surety is reversed. The trial court is directed to vacate its order of February 6, 2018, denying the Surety's motion to extend time and to enter a new order granting the motion for a 180-day extension. To the extent the Surety was obligated to pay the forfeiture, the trial court is directed to refund all monies paid. The Surety is awarded costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.