PEOPLE v. FINANCIAL CASUALTY & SURETY

Appellant’s Petition for Review

Cal.September 22, 2015

5999446 a) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA No. THE PEOPLE Court of Appeal Plaintiff and Respondent, Second District — Division 5 No. B251230 Vv. Superior Court of California FINANCIAL CASUALTY & SURETY, Los Angeles County INC., No. PAO71174 Hon. Harvey Giss Defendant and Appellant. SUPREME COURT PETITION FOR REVIEW FILED SEP 22 2015 Frank A. McGuire Clerk Deputy CRC 8.25(b) John M. Rorabaugh (SBN # 178366) 801 Parkcenter Dr Ste 205 Santa Ana, CA 92705 (714) 617-9600 baillaw@usa.net Attorney for Real Party in Interest and Appellant Financial Casualty & Surety, Inc. IN THE SUPREME COURTOF THE STATE OF CALIFORNIA No. THE PEOPLE, Plaintiff and Respondent, Court of Appeal y Second District — Division 5 , No. B2512380 OSCAR GRIJALVA, Defendant, Superior Court of California FINANCIAL CASUALTY & Los Angeles County SURETY,INC., No. PA071174 Real Party in Interest. Hon. Harvey Giss PETITION FOR REVIEW John M. Rorabaugh (SBN # 178366) 801 Parkcenter Dr Ste 205 Santa Ana, CA 92705 (714) 617-9600 baillaw@usa.net Attorney for Real Party in Interest and Appellant Financial Casualty & Surety, Inc. TABLE OF CONTENTS Page TABLE OF CONTENTS. .......cccceeeeeseesseceeseseeessseseureeeessseaeeenseeneeens 2 TABLE OF AUTHORITIES. ou... cece ceeecceesssecssseeseeeeeeeseseeeeneaeeeenes 4 I. ISSUES PRESENTED FOR REVIEW..................eeesseeees 6 Il. WHY REVIEW SHOULD BE GRANTED...ee 7 A. The Heightened Good Cause Standard Adopted by the Court of Appeals Conflicts with Prior Opinions and is Against Public Policy Becauseit Discourages and Prevents Bondsman from Locating and Apprehending Fleeing Fugitives.............. 7 B. This Decision Conflicts With Williamsburg and the Plain Language of Penal Code section 1305.4 by Limiting the Bondsman’s Extended Appearance Period to 365 Calendar Days................+ 10 C. This Opinion Raises an Important Question of Law Regarding What Information a Bondsman is Required to Provide to a Prosecuting Agency to be Entitled to a Tolling of time Under Penal Code section 1305(h). .........ccccccsseesseceeeesseetereeneeesssseeeeeeres 12 Il. STATEMENT OF THE FACTS AND CASE... 15 TV. ARGUMENT...........ccccececseseecesceesssnseeesessnenceusaeeeeeuensussenseseas 16 A. The Heightened Good Cause Standard Adopted by the Court of Appeals Does Not Comport with the Public Policy Goals of Penal Code section 1305.4 of Encouraging the Return of Fugitive Defendants to Custody...........cccecsssscececeeseceeeeeeseesseeeesenens 16 B. Because the Public Policy Underlying Penal Code section 1305.4 is to Encourage Bail Agents to Locate and Return Fugitives to Custody, the Statutory Phrase “from the dateof its order” Should be Interpreted Based on its Plain Meaning ..... 19 C. The Court Should be Authorized to Grant a Tolling of Time Under Penal Code §1305(h) Where a Prosecutor Elects to Extradite and Agrees to the Tolling .00......eee cesses enseseeeeeenereeeeerens 23 V. CONCLUSION............::::ccccecsessceeccesssneceeeseeseeeesenseananeeseeens 30 CERTIFICATE OF COMPLIANCE..........eeceecsseceeeeeeseeeeeetseees 31 PROOF OF SERVICE..........ccccsccccssececessseeeesseeeereesseceeseesseesesessaeaes 32 TABLE OF AUTHORITIES Page Cases: Cnty. of Los Angeles v. Sur. Ins. Co. (1984) 152 Cal-App.3d 16 ccccsccscessssssssssssssssessestestessesteesesees 29 Cnty. of Los Angeles v. Williamsburg Nat'l Ins. Co. (2015) 285 Cal.App.4th 944 oo... ccccccsscccesseceeeetneeeeneeeseeeeees 10 In re Anthony T. (2012) 208 Cal.App.4th 1019 ...ecscssessssessesseeseessteesseeeees 18 Owens v. Superior Court of L.A. Cty. (1980) 28 Cal.8d 288 ......cceccccccccccccsssceesssseeecsessnneeeecesseeeessteseeeees 9 People v. Accredited Sur. & Cas. (Accredited 2) (2015) 239 Cal.App.4th 293 cc.cccscscccssscscecsesssesstssessseseeateees 9 People v. Accredited Sur. & Cas. Co., Inc. (Accredited 1) (2006) 137 Cal.App.4th 1349 oo... eccecccccsssssneceeeesneeeenens 8, 20 People v. Alistar Ins. Co. (Alistar) (2003) 115 Cal.App.4th 122 w.cecccssssessessesessesesen 8, 9, 17, 18 People v. Am. Contractors (2004) 33 Cal.4th 653 .......cccccccccccsseccsssceeceesseseeeceeerseeersaaenees 12 People v. Am. Contractors Indem.Co. (2007) 152 Cal.App.4th 661 oo... cccccecesecesssessenseeeeeeeeses 17, 29 People v. Bankers Ins Co. (2010) 182 Cal.App.4th 1877 oo. ccccccccssssseceessssstecersteeeessenes 20 People v. Calvert (1954) 129 CalApp.2d 693 o.cceccccsesssssesssssesssstestseseestessesees 13 People v. Granite State Ins. Co. (2003) 114 Cal.App.4th 758 cucccccsssssssssssssssssssesstesesessesees 20 People v. Indiana Lumbermens Mut. Ins. Co. (2010) 49 Cal.4th 801 oo... ccccccccescecsneeeeessneesesaeerseaeeesaeeenees 21 People v. Natl Auto. & Cas. Ins. Co. (2002) 98 Cal.App.4th 277 .....cccccccccssccssssssececsssssenecessesseeenees 13 People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638 o.ccccsccscssscesesscsessvessessesnesteseesees 20 People v. Ranger Ins. Co. (Ranger) (2000) 81 Cal.App.4th 676 ......ccecccsccssssccsccccceccececeeeeessnsseceseeees 8 People v. Taylor Billingslea Bail Bonds (Billingslea) (1999) 74 Cal.App.4th 1193 oo... eecccccssessseteeecesestaeeeees 19, 20 People v. Wilcox Ins. Co. (1960) 53 Cal.2d 651 v...ceccccccccccsesssecesssssseeceeeaeeesceeeesesssersaseess 13 Statutes: Pen. Code, § 1805 ...cccccccccccececeeccessssseessesnecanceeaeeeeseeseeenes passim Pen. Code, § 1805.4cccccccccccseccessseeesesssseeesessneaeesseseeens passim Pen. Code, § 1806 ......cccceccseceessccssensseecesceeeeeeeseseessseenenenaes 12, 13, 18 Constitutions: Cal. Const., art. VI, § 6 o....ceccccececccccessseceeeseseceeesessseesseeessesssnessenes 6 Court Rules: Cal. Rules of Court, rule 8.500 ou...eeececceseseeesseeseseeeeeees 6,7 Other: Cal. S.B. No. 989 (2012) oo.eeecccssccceeeeeeeseeeneeeeeeeeneenees 25, 26, 28 TO HONORABLE CHIEF JUSTICE TANI GORRE CANTIL-SAKAUYE AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Pursuant to California Rules of Court Rule 8.500, Accredited Surety & Casualty Companyrespectfully petitions for review the following opinion of the Second Appellate District, Division Five which wasfiled andcertified for full publication August 12, 2015. In the alternative it is requested that this opinion be de- published. A copy of the opinion authored by the Honorable Richard Kirschner, Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuantto article VI, section 6 of the California Constitution, is attached as Exhibit 1 to this petition. I. ISSUES PRESENTED FOR REVIEW a. Should the good cause standard under Penal Code section 1305.4, require the surety to demonstrate a reasonablelikelihood of success, when there is a public policy in favor of encouragingthereturn of fugitives to court? b. Whena diligent and competent investigation has been found, should the burden shift to the people to show that an investigation is not reasonably likely to succeed? c. Where the plain language of Penal Code section 1305.4 allows extensionsof the 185-day appearance period for up to 180 days from the dateof the order, and the order may beissued upto 30 daysafter the end of the appearance period, may the surety receive extensions beyond 365 calendar days from the mailing of the notice of forfeiture? d. Does an agreementwith a prosecuting agency to toll time under 1305(h) for the extradition of a defendant from a foreign jurisdiction require the bondsmanto detain the defendant to complete a Penal Code section 1305, subdivision (g) affidavit, even where the prosecuting agencyobjects to the bondsmancontacting the defendant? II. WHY REVIEW SHOULD BE GRANTED California Rules of Court, rule 8.500(b) states that the Supreme Court may orderreview of a court of appeals decision “Ilw]hen necessary to secure uniformity of decision or settle an important question of law.” Review of this case is necessary for both reasons. A. The Heightened Good Cause Standard Adopted by the Court of Appeals Conflicts with Prior Opinions andis Against Public Policy Because it Discourages and Prevents Bondsman from Locating and ApprehendingFleeing Fugitives The good cause standard adopted by the Court of Appeals in this case conflicts with both prior opinions interpreting good cause under Penal Codesection 1305.4 and the underlying public policy of encouraging the return of fugitives to custody. In no prior case has a reasonable likelihood of success been given equal weight to the diligence of the investigation. Here, the court found that “[t]o constitute good cause both duediligence and a reasonable likelihood of recapture must be shown.[citations omitted] Both are equally important circumstances in determining‘good cause.’ (Accredited, supra, at p. 1358).” (Ship Op.p. 7) This is an incorrect characterization of the holding in People v. Accredited Sur. & Cas. Co., Inc. (2006) 137 Cal.App.4th 1349 (Accredited 1), and directly conflicts with the analysis of good cause under Accredited 1. The Accredited 1 opinion specifically stated “It is more vital to the good cause inquiry, and therefore essential, that the surety showsit has been diligently attempting to capture the defendant during the 180 days.” (Id. at p. 1356.) In twoof the first cases to analyze the good cause standard undersection 1305.4, People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676 (Ranger), and People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122 (Alistar), as modified (Jan. 23, 2004), the court phrased the necessary showingfor good cause as requiring “(1) an explanation of what efforts the surety made to locate the defendant during the initial 180 days, and (2) whysuchefforts were unsuccessful.” (/d. at p. 127.) Under the good cause standard set forth in Alistar and Ranger an explanation of why efforts were unsuccessful goes more toward the competency of the investigation than a forecast of its outcome. In Accredited 1 the court modified the good cause standard from Alistar and Ranger by requiring a showing of a “reasonable likelihood of success” as well as diligence. However, the court in Accredited 1 was quick to pointout thatsinceit is often impossible to know whyan investigation is unsuccessful, the diligence of the investigation matters more to the findingof good cause. While the reasons whyefforts were unsuccessful are relevant to determine whether good cause has been shown, as Accredited points out, an effort to capture a defendantis often unsuccessful simply because the defendant wasnot captured. A surety cannot always know how or whya defendantavoids location and capture. It is more vital to the good causeinquiry, and therefore essential, that the surety showsit has been diligently attempting to capture the defendant during the 180 days. (Alistar, supra, 115 Cal.App.4th at p. 1356.) The present case and People v. Accredited Sur. & Cas. (2015) 239 Cal.App.4th 293 (Accredited 2) which also has a petition for review pending before the Court, have increased the good cause showing required under Penal Codesection 1305.4 in a manner ! that is inconsistent with the purpose of the statute and requires ! inappropriate prognostication by the trial court. There is no public policy served by bail agents being forced to stop diligent investigationsfor the sole reason that the court believes the investigation is unlikely to succeed. Evaluating whetheror not an investigation will succeed is impossible. The Accredited 1 case borroweda standardfor good cause from Owens v. Superior Court of L.A. Cty. (1980) 28 Cal.3d 238 but here, unlike in Owens there is no countervailing interest of judicial economy. There is no policy of judicial economy thatis served by requiring likelihood of success to be of an equal weight to the diligenceof the investigation. As pointed out in Alistar, there is no benefit to the State in stopping the investigation other than thecollection of a forfeiture. (Alistar, supra, 115 Cal.App.4th at p. 129.) As noted in Accredited 1 it is often impossible to know whyefforts are unsuccessful. The diligence of the effort is the more important inquiry. The courts to date have struggled to define good cause within this context. This is madeclear in this decision and Accredited 2 wherethe court also held that the likelihood of success is a factor that should be weighed heavily even in the face of a competent anddiligent investigation. This Court has not articulated a standard for good cause under Penal Codesection 1305.4, and review of this Court is therefore necessary to determine precisely what that standard should be. B. This Decision Conflicts With Williamsburg and the Plain Language of Penal Code section 1305.4 by Limiting the Bondsman’s Extended Appearance Period to 365 Calendar Days Penal Code section 1305.4 states, in pertinent part: “The court, upon a hearing and a showingof good cause, may order the period extended to a time not exceeding 180 days from its order. A motion maybefiled and calendared as provided in subdivision (j) of Section 1305.” This decision holds that the maximum extension provide by Penal Code section 1305.4 is 365 days from the date of the mailingof the notice of forfeiture. In so holding the decision expressly disagrees with the recent decision of Cnty. of Los Angeles v. Williamsburg Nat'l Ins. Co. (2015) 235 Cal.App.4th 944 (review denied) and the plain language of Penal Code section 1305.4. This gives us four distinct interpretations on how to calculate the 180-day period to extend time. In the mostrestrictive sense the bondsman would get a maximum of 365 days but would not 10 be allowed to present evidenceof investigative activity which occurred while the motions were pending. The second interpretation is that the bondsmangets 365 days but can use evidence of activities conducted while the hearing was pendingto establish good cause. The third interpretation is that the bondsman gets 180 day extension from the date ofthefirst hearing on a motion to extend time, but the time remainsactive while any additional extension motion is pending. The fourth interpretation is that the bondsmanis entitled to 180 active investigative days, and the time while motions are pending do not count against that total 180-day period. In this case, the notice of forfeiture was mailed on August 24, 2012. The 185th day after that mailing was February 25, 2013. On February 20, 2013, Suretyfiled its first motion to extend the exoneration period pursuant to section 1305.4. On March 20, 2013 the court granted the extension motion and ordered time extended to August 1, 2013. On August 1, 2013 the suretyfiled a motion to further extendtime, or in the alternative toll time. This motion was heard and denied on August 26, 2013. (Slip Op.3). Therefore, depending on whichofthe four interpretations of the 180-day extension period is used in the calculation, the August 26, 2013 hearing date waseither(a) the last day of the bondsman’s 365 day period; or (b) the 159th day of the extended period, thus entitling the surety to 21 additional active days; or lastly (c) the 134th day of the appearanceperiod, thus entitling the surety to 46 additional active days. Asnotedin this decision, the Court has neverdirectly addressed the issue of what ”180 days from its order” means in the context of extending time under Penal Codesection 1305.4. 11 The Court of Appeals below noted that the Court stated in dicta in People v. Am. Contractors (2004) 33 Cal.4th 653 that “thetrial court may. . .extend the period by no more than 180 days from the date the trial court orders the extension.” (Id. at p. 658.) The court further stated “... the opinion is devoid of any analysis of whether“from its order” means 180 days from thelast day of the appearanceperiod, or 180 days from the date of a subsequent order extending the appearance period.” (Slip. Op. 14). Therefore the court in this case recognized that there is an ambiguity in the statute that leads to several possible interpretations of “from its order”in this context. It is clear from the above analysis that review by this Courtis required to determine whichof these interpretations is correct, thus ensuring consistency of decision from the lower courts, and avoiding unnecessarylitigation. C. This Opinion Raises an Important Question of Law Regarding WhatInformation a Bondsmanis Required to Provide toa Prosecuting Agencyto be Entitled to a Tolling of time Under Penal Code section 1305(h). The legislature enacted California Penal Codesection 1305 andrelated provisions governingbail forfeiture in furtheranceof this State’s long established policy of disfavoring bail forfeiture: The law traditionally disfavors forfeitures and this disfavor extendsto forfeiture of bail... Thus, Penal Code sections 1305 and 1306 dealing with forfeiture of bail bonds mustbestrictly construedin favor of the surety to avoid the harshresults of a forfeiture. 12 The standardreview, therefore, compels us to protect the surety, and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody, in order to obtain the corporate bond... . Sections 1305 and 1306 are said to be ‘jurisdictional prescriptions.’ . .. ‘Failure to follow the jurisdictional prescriptions in sections 1305 and 1306 renders a summary judgment on the bail bond void...’ ... [i]t is well established in the case law that Penal Code sections 1305 and 1806 are subject to precise and strict construction.’ (People v. Nat'l Auto. & Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 287-288.) The object of bail and its forfeiture is to ensure the attendance of the accused and his obedienceto the order and judgmentof the court. In mattersof this kind, there should be no elementof revenueto the state nor punishmentof the surety. (People v. Wilcox Ins. Co. (1960) 53 Cal.2d 651, 657; People v. Calvert (1954) 129 Cal.App.2d 693.) Consistent with this policy, the legislature recently enacted Penal Code section 1305, subdivision (h), which allows the surety and/or bail agent to request an ordertolling the 180-day period to set aside bail forfeiture. Penal Code section 1305, subdivision (h) reads asfollows: § 1305(h). In cases arising undersubdivision(g),if the bail agent and the prosecuting agency agree that additional timeis needed to return the defendant to the jurisdiction of the court, and the prosecuting 13 agency agreesto the tolling of the 180-day period, the court may, on the basis of the agreement,toll the 180-day period within whichto vacate the forfeiture. The court mayordertolling for up to the length of time agreed uponby theparties. (Pen. Code, § 1305, subd.(h).) This statute allows the courts to avoid imposing a highly prejudicial forfeiture when a surety and a prosecuting agency have agreed that a tolling of time is needed to extradite a defendant and return them to the jurisdiction of the Court. An international extradition is exactly the type of scenario that Penal Code section 1305, subdivision (h) was designed to address. The extradition process can be lengthy andit is often unlikely that it can be completed within the fully extended appearance period even whenthe defendantis located and an extradition decision is made immediately. It can take years to get approval for an international arrest warrant. (See 7 FAM 1629 State Department) The present case presents the question of how Penal Code section 1305, subdivision (g) and section 1305, subdivision (h) relate to each other, as Penal Codesection 1305, subdivision (h) contains the phrase“[i]n cases arising under subdivision(g).” Penal Code section 1305, subdivision (h) was intendedto give the prosecutors morecontrol over the bail forfeiture process while an extradition is in process. This decision artificially limits the prosecutor’s authority by requiring the bail agent to complete a Penal Code section 1305, subdivision (g) affidavit prior to being 14 entitled to a tolling of time under Penal Codesection 1305, subdivision (h) even where the prosecutor does not want the bail agent to detain the defendant. Accordingly, this Court’s review is necessaryto fix the system by settling an important question of law, as well as creating uniformity of law betweenthe intentof the legislature and decisions of the Court of Appeal. III. STATEMENT OF THE FACTS AND CASE On February 29, 2012, Financial Casualty & Surety,Inc., through its agent, Bail Hotline, posted bail bond No. FCS1250-929280 for the release of defendant Oscar Grijalva from custody pendingcriminal proceedings against him. (CT 23-24; Slip Op. at 3). On August 23, 2012, the defendantfailed to appearin court, and the bail was declared forfeited and a bench warrant issued. (CT 31; Slip Op. at 3). A notice of forfeiture was mailed on August 24, 2012. (CT 32; Slip Op. at 3). The 185th day after such mailing was February 25, 2013. (Ibid). On February 20, 2013, a motion to extend the exoneration period pursuantto section 1305.4 wasfiled. (CT 34-36; 1-33; Slip Op.at 3). At the hearing on March20, 2018, the trial court ordered the period extended 134 days to August 1, 2013. (CT 38; Slip Op. at 3). On August 1, 2013, a second motion to extend the exoneration period, or in the alternativeto toll the time, wasfiled. (CT 52-53; 39-67; Slip Op. at 3). The motion was supported by the 15 declaration of the surety’s investigator, Cesar McGuire which detailed the diligent and extensive investigation that he had conducted. (CT 64-60; Slip Op.at 4-5). The motion was heard on August 26, 2013, at which time the trial court denied the motion. (CT 71; Slip Op.at 5). Despite the *considerable efforts” made by the investigators to locate the defendant the trial court did not believe that there was a reasonablelikelihood of success in capturing him.(Slip Op at6). In denying the motion, the trial court explained that the “365 days have long expired” and that the “year has runout.” (RT2 B-1:17—21). A notice of appeal wasfiled on August 26, 2013. (CT 72-74; Slip Op. at 6). Summary judgmenton theforfeiture was entered on September4, 2013. (CT 75-76). On August 12, 2015 the SecondDistrict Court of Appeals affirmedthe ruling of the trial court in a published opinion. On September 8, 2015 the Court of Appeals denied Appellant’s petition for re-hearing. IV. ARGUMENT A. The Heightened Good Cause Standard Adoptedby the Court of Appeals Does Not Comport with the Public Policy Goals of Penal Code section 1305.4 of Encouraging the Return of Fugitive Defendants to Custody In the Ranger and Alistar cases, the court phrased the necessary showingfor good cause as requiring “(1) an explanation 16 of whatefforts the surety madeto locate the defendant during the initial 180 days, and (2) whysuch efforts were unsuccessful.” (Alistar, supra, 115 Cal.App.4th at p. 127.) It is hard to see how the policy of returning fugitive defendants to custody is served by stopping diligent, competent investigations. As noted by anothercourt, “[t]here is a public interest at stake here as well—the return of fleeing defendantsto face trial and punishmentif found guilty. Given the limited resources of law enforcement agencies, it is bail bond companies, as a practical matter, who are most involvedin looking for fugitives from justice.” (People v. Am. Contractors Indem. Co. (2007) 152 Cal.App.4th 661, 666.) Thus, the State is a primary beneficiary of an ongoing diligent investigation to return a fugitive to custody. Even a small chance of successis beneficial. There can be circumstances where this might be inappropriate to grant such an extension, such as whena defendant has voluntarily fled to a country without an extradition treaty with the United States. But, in a situation like that, the bondsman has nothingleft that they can reasonably do. As long asthereis activity that the bondsmancandiligently perform, public policy favors continuingthat activity. The burden should be on the People to demonstrate that further efforts would be unproductive. Where the underlying policy favors a finding of good cause, courts have shifted the burden to the other side to produce evidence to show whythereis not good cause. [I]n view of the policy favoring an Indianchild's placement according to statutory placement preferences, the party opposing the placement has the burden to showthereis good cause not to follow 17 the preferences. (§ 361.31, subd. G); BIA Guidelines, 44 Fed.Reg. 67584, 67594-67595,§F.1, 3 (Nov. 26, 1979).) (In re Anthony T. (2012) 208 Cal.App.4th 1019,fn 6.) In Alistar, supra, 115 Cal.App.4th 122, as modified Jan. 23, 2004, the court noted that the People failed to provide any evidence refuting the good cause showing by the bondsman. The People, on the other hand,failed to provide any evidence refuting that good causeexisted for granting an extension. There was thus no reasonable justification for not allowing Alistar additional time to locate defendant, particularly since the law disfavors forfeitures and favors returning to custody fleeing defendants. Sections 1305 and 1306 are to be strictly construed in favorof the surety to avoid harshresults. [fn omitted] (Alistar, supra, 115 Cal.App.4th at p. 129.) Since the policies underlying Penal Code section 1305.4 favor the granting of extensions, the burden of refuting good cause should fall upon the People. In the present case, like in Alistar, no evidence was presented by the County which would refute the good cause established by the bondsman’s declarations. Therefore the original standard requiring an explanation of whytheinitial investigation was unsuccessful, as established in Ranger and Alistar and requiring the People to demonstrate a lack of good causefits more closely with the policies underlying extensions and the Court should adopt that standard. 18 B. Because the Public Policy Underlying Penal Code section 1305.4 is to Encourage Bail Agents to Locate and Return Fugitives to Custody, the Statutory Phrase “from the date of its order” Should be Interpreted Based on its Plain Meaning In evaluating a timeperiodit is essential to determine the first day of that period. In People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193 (Billingslea), the court found that Penal Codesection 1305.4 allowed a 180-day extension from the last day of the original 185-day period. At the time of Billingslea all extension motions had to be heard within the appearance period. Thusthe Billingslea standard gave the greatest term of extension available, since the hearing on the motion might occur before the last day of the appearance period. In 1999 Penal Code section 1305 and 1305.4 were amendedto allow a hearing within 30-days of the expiration of the appearance period. The language “from the date of its order” was not changed. This decision fails to distinguish the primary reason for the Williamsburg finding—that Penal Code section 1305 and 1305.4 were amendedafter the Billingslea decision to providefor a hearing outside the 185 day window,while retaining the language in Penal Codesection 1305.4 that the extension can be granted from the date of the court’s order. The court in Williamsburg noted “[w]e disagree with this argument, which strains credulity. Taylor Billingslea was decided before the California legislature enacted the 1999 amendment. Wefail to 19 see how a case decidedbefore a statutory amendment became effective can provide any guidance on its interpretation.” (Billingslea, supra, 74 Cal.App.4th at fn. 7.) Noneof the other authorities relying on Billingslea referred to or considered this subsequent statutory amendment. (See People v. Bankers Ins Co. (2010) 182 Cal.App.4th 1377, Accredited 1, supra, 137 Cal.App.4th 1349, People v. Granite State Ins. Co. (2003) 114 Cal.App.4th 758) When Penal Codesection 1305.4 was originally enactedit did not contain any provisionsfor the conducting of a hearing outside the 185 day period. The 1999 amendments to Penal Codesection 1305.4 and Penal Code section 1305, subdivision (i) (renumbered (j)) allowed the hearingof the motion to extend time to be made after the 185-day period and within thirty daysof thefiling of the motion. While the hearing on the motion does not automatically extend the appearanceperiod, it allows the appearanceperiod to be extendedor tolled from the hearing date. Therefore the appearanceperiod isstill active on the date of the hearing. “The trial court, having set the motion to extend for hearing on January 23, 2006, retained jurisdiction on that date either to leave the expired exoneration period untouched,orto,in effect, reinstate and extendit.” (People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 649) The amendedstatute provides a time period for the Courts and representatives of the State to considerthe bail agent’s motion. Each case must be evaluated to determineif there is a proper showing, whether the surety madethe showing, and whether the state will oppose any motionsfiled within the appearance period. 20 In People v. Indiana Lumbermens Mut. Ins. Co. (2010) 49 Cal.4th 301 the court recognized that the legislative intent for Penal Code section 1305, subdivision (i) (renumbered 1305(j)) was to ensure that sureties had the full use of their appearance period to locate and apprehend defendantsby allowingthe hearingto be heard outside the appearance period provided the motion was timely filed. The sponsor states that bail agents often are not aware that a defendant has abscondeduntil very close to the endof the 180-day period. Agents may be hard pressed to file a motion to toll and extend the 180-day period within those 180 days. The provisions requiring the bail agent to give 10 days notice to the prosecutorprior to the hearing of any motions also impair the bail agent's ability to obtain exoneration of bail. (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 476 (1999-2000 Reg. Sess.) as amended July 6, 1999, pp. 6-7,italics added.) Thus, the Legislature moved the provision allowing a 30-day grace period for hearings from subdivision (c) to subdivision (i) of section 1305, in order to makeit available to sureties movingto toll or extend the 180-day period. (People v. Indiana Lumbermens Mut. Ins. Co., supra, 49 Cal.4th 301.) Since the enactment of Penal Codesection 1305, subdivision (j) (formerly (i)) the courts have struggled to construe the meaning of “from the date of its order” when determining the maximum allowable extension under the statute. Based on a readingof the plain languageof the statute “from the dateofits 21 order” would mean exactly that—180 daysfrom the dateof the order granting the extension of time. Underthis interpretation, the bondsman would beentitled to 180-days from the date that the order wasentered into, not 180 days from the expiration of the appearanceperiod. In addition, a problem appears in cases suchasthe present where the bail agent wasinitially granted a partial extension, and later filed a second motion requesting the balance of the 180 days which they were entitled to underthe statute. The Williamsburg court analyzed this problem and determined that upon a showingof good causethe bail agent wasentitled toa total of 180-days of extended time, and that the time counted from the date of each order. Thus, were a bondsmangiven a 120-day extension of time, and on the last day of that extension filed a motion to further extend time,at the date of the hearing on the second extension motion the bondsman would beentitled to an additional 60-days, and the time where the motion was pending would not count against that period. Underthe interpretation of Williamsburg, the Surety in this case would have been entitled to a further extension of 46 days once they established good cause. In the present case, the court of appeals correctly calculated the length of the initial extension of time to be 134 days from the date of the hearing of March 20, 2013. (Slip. Op. 9) However, the court did disagreed with Williamsburg’s interpretation that the bondsman wasentitled to receive the full 46-day extension at the August 26, 2013 and For example, in Accredited the court did not specify the maximum term of extension, but refused to allow the bondsman 22 to present information obtained after the 185-day period but prior to the hearing which would havebeen relevant for the establishmentof good cause. Underthis decision it is presumed that the bondsmanwill be allowed to continue an investigation through the 365 day period without reference to the time where the motion is pending outside the 185-dayperiod. Since the enactment of Penal Codesection 1305, subdivision (j) (formerly (i)) the courts have haddifficulties construing the meaningof the phrase “may orderthe period extended to a time not exceeding 180 days from its order” when determiningthe maximum allowable extension under Penal Codesection 1305.4. Based on a reading of the plain language of the statute “from its order” would mean exactly that—180 days from the date of the order granting the extension of time. Underthis interpretation, the bondsman would be entitled to 180-days from the date that the order wasentered into, not 180 days from the expiration of the appearanceperiod. C. The Court Should be Authorized to Grant a Tolling of Time Under Penal Code §1305(h) Where a Prosecutor Elects to Extradite and Agreesto the Tolling Penal Code section 1305, subdivision (h) provides that a Court maytoll the exoneration period to allow for the extradition of a fugitive. § 1305(h). In cases arising under subdivision(g), if the bail agent and the prosecuting agency agree that additional timeis needed to return the defendant to 23 (Pen. the jurisdiction of the court, and the prosecuting agency agreesto thetolling of the 180-day period, the court may,on the basis of the agreement,toll the 180-day period within whichto vacate the forfeiture. The court mayorder tolling for up to the length of time agreed upon by the parties. Code, § 1305, subd. (h), emphasis added.) Here the court of appeals held that the Suretyis not entitled to a tolling of the exoneration period pursuant to Penal Code § 1305(h) because the Surety failed to show that the criminal defendant in this case was “temporarily detained, by the bail agent, in the presence of a local law enforcementofficer of the jurisdiction in which the defendantis located, and is positively identified by that law enforcementofficer as the wanted defendantin an affidavit signed under penalty of perjury, and the prosecuting agencyelects not to seek extradition after being informedof the location of the defendant.” (County’s opposition 4:16—17.) In setting forth this argument the Countyis outlining the requirements of Penal Code § 1305(g), not Penal Code § 1305(h). Penal Code § 13805(g) reads as follows: § 1305(g). In all cases of forfeiture where a defendant is not in custody and is beyondthejurisdiction of the state, is temporarily detained, by the bail agent, in the presence of a local law enforcementofficer of the jurisdiction in which the defendantis located, andis positively identified by that law enforcementofficer as the wanted defendant in an affidavit signed under penalty of perjury, and the prosecuting agencyelects not to seek extradition after being informedof the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on termsthatare 24 just and do not exceed the terms imposedin similar situations with respect to other formsof pretrial release. (Pen. Code, § 1305, subd.(g).) To begin the Surety is not asking for exoneration of its bond, but ratherfor a tolling in order to expend more resourcesto aid in the extradition of the defendant. Therefore, the precise requirements of Penal Code section 1305, subdivision(g), requiring exoneration of the bond, are not applicable. Moreover, Penal Code section 1305, subdivision (h) is only applicable to cases where prosecutors have madeanelection to extradite the defendant. Thus, again, Penal Code section 1305, subdivision (g)’s requirement that the “prosecuting agency elects not to seek extradite” obviously is also not applicable to this case. In short, this is not a motion to exonerate bail pursuant to Penal Code section 1305, subdivision (g), and motions filed undersection 1305, subdivision (h) should not be decided based upon the requirements of Penal Code section 1305, subdivision(g). Instead, this is a motion to toll the exoneration period in a case where “a defendant is not in custody and is beyond the jurisdiction of the state” anda tolling of time is needed in order for an international extradition to take place. Hence,this is a case arising out of the circumstances of Penal Codesection 13805, subdivision (g). Andthis is precisely the situation that Penal Code section 1305, subdivision (h) was enacted to address. The legislative intent for Penal Codesection 1305, subdivision (h) can be foundin the history of California Senate Bill No. 989 25 (2012), titled “SB 989, Vargas. Bail: extradition.” (See: http:/leginfo.legislature.ca.gov/faces/billNavClient.xhtml.) The final amended summaryof SB 989 readsasfollows: SUMMARY:Provides that, in specified cases,if the bail agent and the prosecuting attorney agree that additionaltime is neededto return the defendant to the jurisdiction of the court, the court may, on the basis of the agreement,toll the 180-day period within whichto vacate the forfeiture for the length of time agreed upon by the parties. Specifically, this bill: 1) Requires, in addition to any other notice required by law, the movingparty of a motion to vacate a bond forfeiture or to extend the 180-day period, to give the applicable prosecuting agency a written notice at least 10 court days before a hearing. 2) Provides that the 10-day notice requirementis a condition precedent to granting the motion. (Cal. S.B. No. 898 (2012), Assembly Floor Analysis.) Nowhere in thefinal analysis of SB 989, which became Penal Code section 1305, subdivision (h), is it required that a bail surety fully comply with Penal Code section 1305, subdivision (g) in order to obtain a tolling of time. Rather, the focus of Penal Code section 1305, subdivision (h) wasto allow for prosecutors and bail sureties to come to an agreement regardinga tolling of the exoneration period in extradition cases — and that prosecutors were properly noticed of such a request. The Assembly Committee on Public Safety further analyzed the need for Penal Code section 1305, subdivision (h): 26 Argumentin Support: According to Two Jinn,Inc. dba Aladdin Bail Bonds, "This modest bill would allow the court to postponethe forfeiture of bail bonds in cases where additional timeis necessary to extradite defendants from foreign jurisdictions. Importantly, the forfeiture could be postponed only whenthe local prosecutor agrees to a postponement. Thebill gives district attorneys complete control over whether any postponements will be granted. Thebill also adds a notice requirement so that prosecutors will be informed of any motions broughtby bail agents relating to bond exoneration. "The bill will further the principal purpose of Penal Codesection 1305 by promoting the location and return of fugitives from justice. Under the current law,if the 180-day clock is drawingto a close, bail agents maybe unwilling to risk the expenseof traveling to foreign jurisdictions to attempt to locate a fugitive, even if they have a strong probability of locating him. This is because while they may locate the fugitive within the 180-day window, they know that the extradition process is unlikely to be completed prior to the time at which they mustforfeit the bond. In a perverse way,the longer a fugitive can elude authorities, the greater the chance he will escape entirely, because there is an economic disincentivefor bail agents to attempt to recapture him. SB 989 will changethis to accomplish the original purpose — encouragebail agents to spend every last momentof the 180-day window attempting to locate fugitives." 5) Argument in Opposition: According to the California District Attorneys Association, "This association hashistorically raised concerns about providing bail agents with additional timeto avoid the forfeiture of bail given the extensive consideration already provided by current law. That 27 said, if this bill is amendedto clarify that a prosecutor's decision relative to whether the 180-day period should be extendedis (1) final and (2) not appealable by the bail agent, we would removeour opposition." (Cal. S.B. No. 989 (2012), Assembly Public Safety.) In the end SB 989 waspassed andenactedinto law as Penal Code section 1305, subdivision (h) on January 1, 2013 without any language requiring a bail surety to fully comply with Penal Code section 1305, subdivision (g) before Penal Code section 1305, subdivision (h) had anyeffect. The legislature could have written Penal Code section 1305, subdivision (h) to say in cases “meeting every requirement of [Penal Code section 1305, subdivision (g)].” Instead, the legislature used the word “arising” andthelegislative history is concentrated on the extradition of bail fugitives. In this context the word “arising” in Penal Code section 1305, subdivision (h) makesa lot moresense. That is becauseif the extradition of fugitive is being sought,it is probably counterproductive to tip that fugitive off to an investigation into the fugitive’s whereabouts by requiring a bail surety to “temporarily detain” a defendant and obtain an “affidavit” before a tolling of time can be granted. There is a high likelihood that a fugitive that hasfled to a foreign country will run further once it is known that investigators have located him/ her. In fact the prosecutors Federal and foreign law enforcement are likely to forbid a bondsmanfrom contacting a defendantfor which an international warrantis being obtained. Accordingly, Penal Codesection 1805, subdivision (h) allows for a tolling of time as long as prosecutors are properly noticed of 28 such a request and agreeto a tolling. In this case, prosecutors were properly notified but did not respond to the request prior to the hearing. If prosecutors agree that the exoneration period shouldbe tolled in this case, Penal Code section 1305, subdivision (h) authorizes the Court to grant such a request. Moreover, as a tolling in this case is being requested so that the Surety can aid in, as well as payfor, the extradition of the defendant,this is exactly the reason that Penal Code section 1305, subdivision (h) was enactedinto law. Here, the Surety is not asking to be dischargedfrom its obligations. The Surety is actually requesting that it be allowed to continue to expend resources to bring the defendant back to Court. The Surety has resources otherwise unavailable to prosecutorsin this case that the Surety can utilize to aid in the defendant’s extradition. “[T]he quantum of proof necessary to support a tolling orderis less than that necessary to obtain an actual discharge on the defendant’s appearance.” (Cnty. of Los Angeles v. Sur. Ins. Co. (1984) 152 Cal.App.3d 16, 23-24.) Should prosecutorsin this case agreeto a tolling of time, Penal Code section 1305, subdivision (h) allows the court to grant such a tolling. This decision’s blanket prohibition against Penal Codesection 1305, subdivision (h) tollings without a Penal Code section 1305, subdivision (g) affidavit is unnecessary and counter-productive. A Penal Codesection 1305, subdivision (g) affidavit is one method for bail agents to inform prosecutors of a defendant’s location. (People v. Am. Contractors Indem. Co., supra, 152 Cal.App.4th 661). This affidavit must be completed in order to obtain an exonerationif the People do not wish to pursue an extradition. 29 However whenan extradition is being prepared more discrete methodsof identifying defendants are necessary to prevent them from further fleeing. These factors can only be properly evaluated by a prosecutor. Therefore the court should not impose a particular methodof informing a prosecutorof the location of a defendant when an extradition is being pursued. V. CONCLUSION For all of the above reasonsit is requested that the Supreme Court grant review of this matter. In the alternative,it is requested that this opinion be ordered decertified for publication. Respectfully submitted, Dated: September 20, 2015 By: /s/ John M. Rorabaugh John M. Rorabaugh Attorney for Real Party in Interest and Appellant 30 CERTIFICATE OF COMPLIANCE This brief is set using 138-pt Century Schoolbook. According to TypeLaw.com, the computer program usedto prepare this brief, this brief contains 6,399 words, excludingthecover,tables, signature block, andthiscertificate. The undersignedcertifies that this brief complies with the form requirements set by rule 8.204(b) and contains fewer words than permitted by rule 8.204(c), rule 8.360(b), or by Orderof this Court. Dated: September 20, 2015 By: /s/ John M. Rorabaugh John M. Rorabaugh Attorney for Real Party in Interest and Appellant 31 EXHIBIT1 Filed 8/12/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA COURT OF APPEAL — SECONDDIST. FILED Aug 12, 2015 JOSEPHA. LANE,Clerk THE PEOPLE B251230 J. DUNN Deputy Clerk SECOND APPELLATE DISTRICT DIVISION FIVE Plaintiff and Respondent, (Los Angeles County Super. Ct. No. $J003872) V. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant. APPEALfromanorder of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed. E. Alan Nunez for Defendant and Appellant. Office of the County Counsel, Brian T. Chu, Principal Deputy County Counsel, for Plaintiff and Respondent. Financial Casualty & Surety, Inc. (Surety) appeals the trial court’s order denying its second motion to further extend the appearance period under Penal Code’ section 1304.5 or, in the alternative, to toll the running of time on the extended appearance period. Surety argues the trial court abusedits discretion in denying its second extension motion and maintains that the 180-day extension permitted by the statute is to be measured from the date the court granted the first extension, rather than the date the exoneration period would have expired in the absence of an extension. Surety failed to demonstrate good cause to justify a second extension. Weaffirm. STATUTORY SCHEME “T]he ‘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 underthe risk of forfeiture of the bond.’ (People v. RangerIns. Co. (1994) 31 Cal.App.4th 13, 22.) Thus, whenthere is a breach ofthis contract, the bond should be enforced. (See Peoplev. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675.)” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657-658.) “Section 1305, subdivision (a) requires the trial court to declare a forfeiture ofbail when a defendantfails to appear in court without a satisfactory excuse. The clerk of the court is required to mail notice of the forfeiture to the bail agent within 30 days of the forfeiture. (§ 1305, subd. (b).)” (People v. Granite State Ins. Co. (2003) 114 Cal.App.4th 758, 762.) Once a notice of forfeiture is mailed, the surety has 180 days (plus five days for mailing of the notice) to move to vacate the forfeiture and exonerate the bondon the ground the defendant has voluntarily appearedor is in custody following his or her arrest. (§ 1305, subds. (b), (c)(1).) Within the 185-day period, section 1305.4 allows the surety to file a motion, based on good cause, for an order extending the 185-day period, “not exceeding 180 days from its order.” Section 1305, subdivision (j) provides “a motion filed in a timely manner ' All further statutory references are to this code. 2 within the 180-day period maybe heard within 30 daysof the expiration ofthe 30 day requirement.” (§ 1305, subd.(j).) STANDARD OF REVIEW A trial court’s ruling on a motion for extension undersection 1305.4 is reviewed for abuse of discretion. (County ofLos Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1028; People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 644.) Thetrial court is said to have abused its discretion when its decision exceeds the bounds of reason, all circumstances being considered. (People v. Seneca Ins. Co. (2004) 16 Cal.App.4th 75, 80.) A trial court’s ruling based onits interpretationof a statute on uncontestedfacts is a question of a law subject to de novo review. (CountyofLos Angeles y. Fairmont Specialty Group (2009) 173 Cal.App.4th 146, 151.) FACTUAL AND PROCEDURAL BACKGROUND On February 29, 2012, Surety posted a bail bondin the amountof $1,240,000 for the release of defendant Oscar Grijalva (Grijalva) in his prosecution for attempted murder and related charges. On August 23, 2012, Grijalva failed to appearin court. The court declaredhis bail forfeited and issued a bench warrant. A notice of forfeiture was mailed the next day, on August 24, 2012. The 185th day after that mailing was February 25, 2013. On February 20, 2013, Surety filed its first motion to extend the exoneration period pursuant to section 1305.4. The motion was heard on March 20, 2013. The court granted the motion and ordered the period extended 134 days to August 1, 2013. A second motion to further extend the exonerationperiod,or in the alternative to toll the runningofthat period, was filed on August 1, 2013 (23 days before the one-year anniversary ofthe forfeiture notice mailing), and was heard on August26, 2013 (the same day the one-year period lapsed). The motion was denied. Attached to the motion was Surety’s investigator, Cesar McGuire’s, declaration of the action he had taken to apprehend Grijalva. In sum, the declaration revealed the following efforts between February 19 and July 31, 2013: McGuire contacted Grijalva’s relatives on multiple occasions between March and July 2013 to learnofhis whereabouts; offered to pay a $100,000 reward to Grijalva’s sister if she persuaded Grijalva to turn himself in; raised the reward from $100,000 to $200,000, and posted the updated information on websites and publicized the information in California and Mexico; conducted surveillance at addresses in Taft, Bakersfield, Sylmar, and Arleta, California and interviewed neighbors and local businesses to gather information on Grijalva; followed Grijalva’s motherandsister to Rosarito, Baja California, and inquired at the hotel at which they were staying if Grijalva looked familiar; contacted law enforcementin Rosarito; and ran want ads on Facebook throughout Tijuana, Rosarito, Ensenada and Baja California. Unfortunately, none of this resulted in a confirmed sighting of Grijalva, or a verified location. In June 2013, McGuire learned through a Facebook messagethat the Harpy gang had a clique close to the Mexican border at Tijuana. Because he had earlier received information that Grijalva may have been a memberofthis gang, McGuire went to Tijuana and spoke with local law enforcement regarding the Harpy gang. The Tijuana authorities confirmed the presence of the Harpy gang and agreed to contact McGuire if they sighted Grijalva. Again this proved fruitless. It produced no sightings, or additional information. On July 22, 2013, McGuire received a call from an informant claiming to have information about Grijalva’s whereabouts. McGuire met with the informant on July 24, 2013, and wastold he knew Grijalva’s family personally; Grijalva was “in Tijuana” butit might take “sometimeto get actual detailed information” because he didn’t wantit to be “obvious he was gathering information.” McGuire’s declaration is devoid of a factual foundation for the informant’s claimed knowledge Grijalva was in Tijuana. On July 26, 2013, an unnamed U.S. law enforcement officer who stated that he handlesall fugitives outside the U.S. advised McGuire that unnamed law enforcement officials in Mexico claimed they had an informant who knew Grijalva. Again nothing, no sightings or confirmed locations were producedfrom this 11th hour,third hand information. During the August 26, 2013, hearing the trial court denied the second motion for an extension, finding a lack of good causeas reflected in the following colloquy: “(Counsel]: So the court has jurisdiction to grant 180 day extension from the [March] 20th date, which is September 1 6th, which is a Monday; and I know the court has been operating under the understandingthat it can only grant an extension for 365 daystotal, but that’s not what the statute and case law states. It allows the court to grant an extension froma full 180 [days] from the date of the order.” “The Court: That’s discretionary. I’ll deny that request. There is no good cause — “(Counsel: The good causeis based onthe diligence and likelihood of success, which the declarations amply show that’s a very low threshold; and the court’s have held it’s abuse of discretion to deny an extension with far less details and less success than in this case. I would ask the court to grant the extension to the time period of 9/16. This defendantis very close to being able to be returned to the court. “The Court: There is no declaration. There is nothing — “Counsel: There is a declaration. “The Court: There is no declaration that supports that. They think he’s somewhere in Tiyuana. “Counsel: Working with the marshals, who have been identified with the defendant. “The Court: Sir, Pll deny your request. Bail remains forfeited.” In sum, in denying the motion, although the Surety had made considerable efforts to locate Grijalva, the trial court did not find based on the information provided there was a reasonable likelihood Grijalva would be apprehended if an extension were granted. “They think he’s somewhere in Tijuana” was not enough. Suretytimely filed a notice of appeal. DISCUSSION 1. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN CONCLUDING SURETY FAILED TO SHOW GOOD CAUSE TO EXTEND THE APPEARANCEPERIOD A SECOND TIME AFTER PREVIOUSLY RECEIVING A 134-DAY EXTENSION. At any time within the 185-day period — referred to as the “appearance”or “exoneration” period — the surety may seek an order extending the period. “A further extension is not automatic. [A surety] has to earn additional time by showing good cause.” (People v. Ranger, supra, 81 Cal.App.4th at p. 681.) “The court may, if good cause is shown for doing so, order the period extended‘to a time not exceeding 180 days from its order.’ (§ 1305.4; see § 1305, subd.(i).) Where several shorter extensions are granted, the courts have held that section 1305.4 allows ‘an extension of no more than 180 days past the 180th day [effectively the 185-day] period set forth in section 1305.” (People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193, 1199, 88 Cal.Rptr.2d 713; (TaylorBillingslea ); see also People v. Granite State Ins. Co. (2003) 114 Cal.App.4th 758, 768, 7 Cal.Rptr.3d 887 (Granite State ) [‘[w]e agree . . . that the exoneration period can only be extended an additional 180 days once’].) Once the appearanceperiod has elapsed withoutthe forfeiture having beenset aside, the court ‘shall enter a summary judgment against each bondsman namedin the bond’in the amountof the bond plus costs. (§ 1306, subd. (a).)” (People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 1377, 1380.) “Given the underlying policy of avoiding forfeitures in favor of bringing defendants before the court, a trial court, faced with a section 1305.4 motion for extension, should draw all inferences in favor of the surety. [Citation.] The good cause showing under section 1305.4 is a lowthreshold for the movant. If the surety demonstrates good cause by showing due diligence . . . , a reasonablelikelihood of success of capturing the defendantin a subsequent[extension period], and any other relevant circumstances, the court should grant the motion.” (People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1358 (Accredited).) | To constitute “good cause” both due diligence and a reasonable likelihood of recapture must be shown. (County ofLos Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th at pp. 1028-1029 (Fairmont); Accredited, supra, 137 Cal.App.4th at p. 1357.) Both are equally important circumstances in determining “good cause.” (Accredited, supra, at p. 1358.) Surety argues the showingof“diligent, consistent and reasonable efforts to locate a fugitive is the measure of good cause.” Surety is wrong; moreis required. There are only four published cases interpreting the good cause requirement of section 1305.4: Fairmont, supra, 164 Cal.App.4th 1018; People v. RangerIns. Co. (2000) 81 Cal.App.4th 676 (Ranger), People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122 (Alistar), and Accredited, supra, 137 Cal.App.4th 1349. Each case considered the likelihood of recapture as part of the circumstances demonstrating good cause, although Accredited (supra, at p. 1349) and Fairmont(supra, at p. 1022) were the only cases to do so explicitly. In Fairmont, supra, 164 Cal.App.4th 1018, a case factually similar to ours, our colleagues in Division Seven found the facts presented by the surety insufficient to establish good cause to grant an extension. There the investigator’s declaration indicated the pre-investigation unit of Bad Boys Bail Bonds had contactedcourts,jails, the defendant's family members, friends, employers and other secondary leads. Those efforts had provedfruitless, and the defendant's case wassent to the skip trace departmentfor 7 research. The investigator had reviewedthe file, obtained the defendant's booking photograph and checked the defendant's bench warrantstatus with the court. He checked daily through various law enforcement websites to see whether the defendant wasin custody. He also explained he had telephoned the indemnitor, Juan Carlos Zurita, and left a message. Later, he went to Zurita's home and spoke to him directly. Zurita said he believed the defendant was in Mexico, and promisedto call the defendant's wife to get more information. (/d., at p. 1022.) One weeklater, Zurita called and told the investigator that the defendant's wife had confirmed the defendant was in Mexico. Zurita told the investigator he would call him later with the defendant's telephone number in Mexico, whichhefailed to do. Thereafter, the investigator conducted periodic surveillance at various local addresses: the defendant's home address when arrested; an alternative home addressfor the defendant, which had since been torn down; and a residence address for the defendant's son, at which other persons were living. No oneat any ofthese locations had sighted the defendant or knew his current contact information. Three months later, the investigator telephoned Zurita. Zurita advised him the defendant wasstill living in Mexico. Zurita said another friend, Martin Sanchez, had talked to the defendant in Mexico andthe defendant told Sanchez he was planningto return to the United States to resolve the case. The investigator declared that with Sanchez's assistance, Zurita was either going to learn the defendant's location in Mexico or find out when the defendant planned to return to this country. The investigator concludedhis declaration with his “opinion,that if granted additional time, in light of the new informationobtained, and with the assistance of [Zurita] and the informant, the defendant will be apprehended and surrenderedto the court.” (Fairmont, supra, 164 Cal.App.4that pp. 1022-1023.) At the hearing on Fairmont's motion to extend time, the prosecutor did not oppose Fairmont's request because he did not consider it “that unreasonable.” (Fairmont, supra, at p. 1023.) The court nevertheless denied the motion, explaining, based on “what's been provided the court, I don’t really believe an extension of time will necessarily assist bails [sic] bonds in finding [the defendant]. Even based on the bails [sic] bonds’ declaration,it appearsthat [the defendant] is in Mexico, avoiding this case, knowing that there's a warrantout for his arrest.” The trial court entered summary judgment against Fairmont which wasaffirmed on appeal. (Fairmont, supra, 164 Cal.App.4th at p. 1023.) In Ranger, supra, 81 Cal.App.4th 676, the investigator’s declaration indicated he had located a positive address for the defendant in Rosarito, Mexico, andthat the defendant was a member of a band. The declaration contained no explanation of howthe investigator learnedor verified this information. Because of the paucity of information, the appellate court found the surety had not demonstrated good cause to have the time extended. The court held a showing of good cause “means an explanation of what efforts [the surety] madeto locate [the defendant] during the initial 180 days, and why such efforts were unsuccessful.” However, in reaching this determination, the court also consideredthe fact that the statement did not indicate how the investigator had located defendant, how he knew hehad a bonafide address or the significance of defendant’s membership in a band. Withoutthese facts, the court could draw no reasonable inference aboutthe likelihood of recapturing defendant. Thus, in considering the lack of these facts, the court concluded there was an absence of good cause. (/d. at pp. 678-682.) In Alistar, supra, 115 Cal.App.4th 122, the investigator had found a newaddress for the defendant and obtainedthe help of local police. The conduct of the defendant’s family members indicated he was in the area and that they were in contact with him. The investigator had a confirmed address for the defendant’s sister. The defendant’s brother called him and offered to pay the bond. The appellate court considered the fact that the agent had cooperation from the family and good reason to believe the defendant was currently in a particular geographic area. These facts allowed the court to draw the reasonable inference that, with an extension of time, the defendant waslikely to be recaptured. (/d. at pp. 128-129.) In Accredited, supra, 137 Cal.App.4th 1349, the Court of Appeal found an abuse of discretion in the denial of the surety’s section 1305.4 motion because the investigator 9 knew wherethe defendant resided at various times, with whomhe associated, and what actions he had taken. He learned when the defendantfled to Illinois and wasable to confirm that information. He learned when the defendant returned to Sacramento. He discovered the identities of people who were helping the defendant and wherethey lived. He had a long-term relationship with both defendant and his family. The defendant's family was actively cooperating with the investigator to bring the defendant to court. The appellate court found the surety had demonstrated good cause because the declaration provided facts from which a court could reasonably infer that an extension of time would serve the purpose of returning the defendant to court. (/d. at pp. 1353-1354, 1359.) By contrast, in this case the bail agent had been consistently unable to gather verifiable information about Grijalva or his whereabouts. Much ofthe information he obtained wasfalse or proved fruitless. Despite his conversations with some members of Grijalva’s family, it appears none were cooperating or hadthe slightest idea where Grijalva was, where he waslikely to be or with whom. Not only had Grijalva’s trail growncold, it was nonexistent. In both Alistar, supra, 115 Cal.App.4th 122 and Accredited, supra, 137 Cal.App.4th 1349 the investigator or bail agent was consistently able to gather information about the defendant and his whereabouts. Further, they were able to provide information that indicated they had a general idea of where the defendant might be and had prospects for obtaining additional information which would eventually lead to his recapture. The existenceofthis factual information gave rise to an inference there was a reasonable likelihood of capturing the defendant, and is what distinguishes those cases from the one before us. In Accredited and Alistar, there were verifiable facts from which reasonable inferences aboutthe likelihood of capture could be drawn. In this case there are no such facts. A showingof a reasonable likelihood of recapture is an important circumstance to be considered in determining good cause for an extension. Although the good cause 10 showing undersection 1305.4 is low, it is not non-existent. (Accredited, supra, 137 Cal.App.4th at p. 1358.) Simply, it was not metin this case. Westrictly construe the relevant statutory provisions in favorof the surety, but it is the surety who bears the burden of establishing that it falls within the statutory requirements for relief. (People v. Ranger, supra, 139 Cal.App.4th at p. 1564.) As Surety failed to carry its burden, the trial court did not abuse its discretion in denying the second motion to extend the appearanceperiod. Surety’s central argumentin its brief on appealis that the trial court erred in denying the requestedreliefbased on its mistaken belief it lacked discretionary authority to further extend the extension period: “Thetrial court here did not fault the surety for the efforts made to locate the defendant. Rather, it was under the erroneous impression that the ‘year has run out.’” Surety then arguesthat, at the time the court ordered the initial extension of the appearance period on March 20, 2013, it was authorized to extend the period until September 16, 2013, that is, 180 days from the date of its prior order. Thus, in its second extension request, Surety sought to obtain the additional 46 days which it claims the court was authorized to grant on March 20, butdid not. Asexplained above, we find abundant evidence in the record that the trial court denied the second extension motion based on its conclusion that Surety had failed to establish a reasonable likelihood an additional 46-day extension would result in the return of Grijalva to the court’s custody. Wehaveserious doubt Surety was entitled to an additional 46 days based on relevant case law. In TaylorBillingslea, supra, 74 Cal.App.4th 1193 the trial court had previously granted several extensions of the appearance period. On the day before the one-year anniversary of the mailing of the notice of bond forfeiture,the trial court denied the surety’s request for an additional seven-day extension, stating there was “no authority in either case law or the statute that would permit me to extendthetolling period for more th{a]n 180 days.” (/d. at p. 1197.) Division Fourof this Court affirmedthatruling. After granting that “[t]he language in section 1305.4 is somewhat ambiguous,”the 11 appellate court reviewedthelegislative history of the statute. It concluded, “Guided by the language of the statute and the explanation ofits provisions provided by the legislative counsel, we are of the opinion that the Legislature intended section 1305.4 to allow an extension of no more than 180 dayspast the 180-day [now 185-day] period set forth in section 1305.” (/d. at p. 1199.) Subsequent cases have cited Taylor Billingslea in support of the proposition that the maximumperiod during whicha surety may vacate the forfeiture is 365 days from the date of mailing of the notice of forfeiture. (See, for example, People v. Granite State Ins. Co., supra, 114 Cal.App.4th at p. 768 [“Weagree. . . that the exoneration period can only be extended an additional 180 days once.”’); People v. Bankers Ins. Co., supra, 182 Cal.App.4th at p. 1382 [“[T]he statute allows an extension of the appearance period ‘of no more than 180 days’ past the 185-day period provided by section 1305”]; People v. Accredited Surety and Casualty Co., Inc. (2013) 220 Cal.App.4th 1137.) In the last cited case, People v. Accredited Surety and Casualty Co., Inc., supra, 220 Cal.App.4th 1137, a notice of bail forfeiture was mailed to the surety on January 18, 2011. On July 22, 2011, 185 dayslater, the surety filed a motion to extend the appearance period pursuant to section 1305.4, which motion wasset for hearing on August 5, 2011. The People conceded that the extension request was supported by good Ceecause, and “‘suggested that the statutory deadline should be extended in this matter for 180 days fromthe date of the order purporting to extend the deadline to January 31, 2012.’” (Ud. at p. 1141.) On April 26, 2012, summary judgment wasentered on the forfeiture. Contending that the extended exoneration period authorized by statute expired no later than January 18, 2012 (365 daysafter service the notice of forfeiture), the surety challenged the validity of the summary judgment, claiming that it was entered beyond the 90-day period authorized by section 1306, subdivision (cy and was therefore void. In response, 2 Section 1306, subdivision (a) provides that when the exoneration period has lapsed without the forfeiture being set aside, the trial court shall enter summary judgmentin the 12 the People maintainedthatthe trial court’s extension of the appearance period to January 31, 2012 was properas that date was within 180 days of the court’s August 5, 201] extension order. Citing Taylor Billingslea, supra, 74 Cal.App.4th 1193, People v. Granite, supra, 114 Cal.App.4th 758 and People v. Bankers Inc. Co., supra, 182 Cal.App.4th 1377, the Court of Appealrejected this analysis: “All of the cases that have addressed the ambiguity in section 1305.4 have concludedthat this is not a correct readingofthe statute.” (/d. at p. 1147.) Consequently, the court concluded that, “{u]nder the construction of section 1305.4 adopted by every court that has thus far considered the question, the summary judgment in the present case was enteredafter the expiration of the 90-day time period permitted by section 1305, subdivision (c).” (People v. Accredited Surety and Casualty Co., Inc., supra, 220 Cal.App.4th at p. 1149.) Thus, this case holds that the 180-day extension authorized by section 1305.4 is to be measured from the date the exoneration period would have expired in the absence of an extension, rather than from the date the court granted the extension; or in other words, 365 days from the mailing of the notice of forfeiture. Without explicitly repudiating this holding, our colleagues in Division Four recently cameto the opposite conclusion in County ofLos Angeles v. Williamsburg (2015) 235 Cal.App.4th 944 (“Williamsburg”). In that case, a notice ofbail forfeiture was mailed to the surety on July 23, 2012, giving the surety until January 24, 2013 to produce the defendant. On January 22, 2013, the surety moved to extend the appearance period pursuant to section 1305.4; the motion washeard on February 1, 2013, and the appearance period was extended to July 20, 2013. The surety filed a second motionto extend the appearanceperiod on July 22, 2013 (the first court day after July 20, 2013), with hearing set for August 11,2013. Thetrial court denied the motion without a hearing on July 22, 2013. While the issue on appeal was simply whether the surety had a statutory right to a hearing onits extension motion, the court explained in a footnote in amountof the bond, plus costs. Subdivision (c) of that section providesthat in the event “summary judgmentis not entered within 90 days after the date upon which it mayfirst be entered, the right to do so expires and the bail is exonerated.” 13 dicta that the “plain text” of section 1305.4 “clearly states that any extension runs from the date the court issues an order granting an extension.” In reaching this conclusion the court cited a nine-word paraphrase contained in People v. American Contractors Indemnity Co., supra, 33 Cal.4th 653, 658 (American Contractors), “‘[T}he trial court may . . . extend the period by no more than 180 days fromthe date the trial court orders the extension, providedthat the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension. [Citations.]’ Emphasis added.)” (Williamsburg, supra, at p. 951, fn. 7, underscore added.) As our discussion makesclear, we disagree with the dicta of the Williamsburg court. American Contractors, supra, 33 Cal.4th at pp. 662-663,held the premature entry of summary judgment following a bail forfeiture renders the judgment voidable, notvoid. In dicta, in the introduction to the opinion, the Supreme Court described in general terms the process by which a surety may extend the appearance period: “[T]hetrial court may _.. extend the period by no morethan 180 days fromthe date the trial court orders the extension ....” (Id., at p. 658, emphasis added.) Section 1305.4 actually states the court may orderthe appearanceperiod “extended to a time not exceeding 180 daysfrom its order” (emphasis added.) The gravamenofthe Supreme Court holding, premature entry of summary judgmentrenders the judgment voidable, not void, did not require an analysis of the meaningofthe phrase “from its order” in section 1305.4. Therefore the opinion is devoid of any analysis of whether “from its order” means 180 days from the last day of the appearance period, or 180 daysfromthe date of a subsequentorder extending the appearanceperiod. 2. THE TOLLING PROVISION OF SECTION 1305, SUBDIVISION (H) DOES NOT APPLY TO THE FACTSOFTHIS CASE. Surety also contendsthatit wasentitled to a tolling of the appearance period under section 1305, subdivision (h). We do not agree. 14 Subdivision (g) of section 1305 states: “In all cases of forfeiture where a defendantis not in custody and is beyondthe jurisdiction of the state, is temporarily detained, by the bail agent, in the presence of a local law enforcementofficer of the jurisdiction in which the defendantis located, and is positively identified by that law enforcementofficer as the wanted defendantin an affidavit signed under penalty of perjury, and the prosecuting agencyelects 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 imposedin similar situations with respect to other formsofpretrial release.” (§ 1305, subd. (g).) Subdivision (h) of the statute provides: “In casesarising under subdivision(g), if the bail agent and the prosecuting agency agree that additional time is needed to return the defendant to the jurisdiction of the court, and the prosecuting agency agrees to the tolling of the 180-day period, the court may,on the basis of the agreement, toll the 180-day period within which to vacate the forfeiture. The court may ordertolling for up to the length of time agreed upon by the parties.” (§ 1305, subd. (h).) “The geographic scope of section 1305, subdivision (g)is set forth in simple language: It applies when a defendantis detained by bail agents “beyondthe jurisdiction ofthe state.’ Plainly, this includes situations in which the defendant is located in another country.” (County ofOrange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795, 800.) Thus, in order to benefit from the tolling provision of the statute, Grijalva must have been temporarily detained by the bail agent and have beenidentified by a law enforcement officer in the foreign jurisdiction. Neither of these predicates were present at the hearing on Surety’s extension request: The investigator’s declaration madeclear that Grijalva had never been located, muchless detained and identified by a local law enforcement officer. Relief under subdivision (g), and consequently under subdivision (h), is simply not available when the accused was never temporarily detained by the bail agent in the presenceof a local law enforcementofficer, or positively identified by that law 15 enforcementofficer. (People v. Accredited Surety & Casualty Co. (2004) 132 Cal.App.4th 1134, 1146.) Moreover, tolling can be granted only with the agreementof the prosecutor. While Surety represents that “the prosecuting agency was very interested in having the defendant returned to court, and the extradition deputy wasinclinedto agree to a tolling,” at the extension hearing,it conceded,“I agree that at this moment[the prosecutors] haven’t made an agreementto dothat.” Consequently, as the trial court ruled,the tolling provision of section 1305, subdivision (h) was unavailable in this case. For the foregoing reasons, we conclude that Surety hasfailed to establish that the trial court erred in denying its motion to extend the appearance period. Accordingly, we affirm. DISPOSITION The orderis affirmed. The County of Los Angeles is awarded costs of appeal. CERTIFIED FOR PUBLICATION KIRSCHNER,J.” Weconcur: MOSK,Acting P.J. KRIEGLER,J. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 16 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PROOF OF SERVICE I declare: At the timeof service I was at least 18 years of age and not a party to this legal action. My businessaddressis 801 Parkcenter Dr Ste 205, Santa Ana, CA, 92705. I serveddocument(s) described as PETITION FOR REVIEW as follows: By mail I enclosed a copy of the document(s) identified above in an envelope and deposited the sealed envelope(s) with the US Postal Service with the postage fully prepaid. The envelope(s) were mailed on September21, 2015 and addressedasfollows: Los Angeles County Counsel Brian Chu, Principal Deputy County Counsel 648 Kenneth Hahn Hall of Administration 500 W. Temple Street Los Angeles, CA 90012 Los Angeles County Superior Court Hon. Harvey Giss, Judge 210 W. Temple Street. Los Angeles, CA 90012 32 Financial Casualty & Surety, Inc 3131 Eastside Ct. #600 Houston, TX 77098 I am a resident of or employed in the county where the mailing occurred. The mailing occurred from Santa Ana, CA. By electronic service On September21, 2015, I served from myelectronic address (and no error wasreported) a copy of the document(s) identified aboveasfollows: Second District Court of Appeals Division Five (By Electronic Copy) I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct. Dated: September 21, 2015 By: /s/ Jared Rorabaugh Jared Rorabaugh 33