APPEAL from a judgment of the Superior Court of Los Angeles County, James N. Bianco, Judge. Affirmed. (Los Angeles County Super. Ct. No. SJ2995).
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PUBLICATION
Under Penal Code section 1305, subdivision (g),*fn1 when bail is forfeited because a defendant has fled the jurisdiction of California, if the local law enforcement agency "elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond...." We hold that when an extradition request would be futile or not feasible, no election can be made, and the forfeiture will not be vacated and the bond will not be exonerated. We further hold that there is sufficient evidence to support the trial court's conclusion that it was not feasible for the fugitive to be extradited from Honduras.
Defendant and appellant Fairmont Specialty Group (Fairmont) posted a $30,000 bail bond for the release from custody of Carlos Montes, who had been charged with a drug offense-violation of Health and Safety Code section 11351.5 (possession of cocaine base for sale). Violating an order, Montes failed to appear at a hearing, and the bond was forfeited. Fairmont filed a motion to vacate the forfeiture and exonerate the bond on the ground that the prosecuting agency elected not to extradite Montes, a Honduran national who had been detained and identified in Honduras by Fairmont's agent.
Plaintiff and respondent County of Los Angeles (County) submitted a declaration of Deputy District Attorney Diana Carbajal, who was assigned to the Extradition Services Unit and was responsible for evaluating cases for suitability for extradition and for preparing the necessary documentation to submit to the Office of International Affairs (OIA), an office within the Criminal Division of the United States Department of Justice. The OIA processes all extraditions from foreign states.
In her declaration, Ms. Carbajal stated that since the 1988 Vienna Drug Convention (United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, entered into force Nov. 11, 1990, 1582 UNTS 164, 28 ILM 493 (1989)), there has been only one extradition of a Honduran citizen to the United States for drug offenses. She further stated that her search of the records revealed that since 1988, the Los Angeles District Attorney's office had attempted on seven occasions to extradite from Honduras a citizen of Honduras, and none of those attempts was successful. Ms. Carbajal, in her legal argument, noted that the bilateral extradition treaty between the United States and Honduras does not require either state to deliver its own citizens to the other. (Treaty for the Extradition of Fugitives from Justice, Signed Jan. 15, 1909, entered into force July 10, 1912, 37 Stat. 1616; Supplementary Extradition Convention, signed Feb. 21, 1927, entered into force June 5, 1928, 45 Stat. 2489 (Treaty).) She also pointed out that the Constitution of Honduras does not allow extradition of its citizens. (See VII, A.P. Blaustein & G.H. Flanz, eds., Constitutions of the Countries of the World, Booklet 1 (1997), Republic of Honduras, Art. 102, p. 23 ["No Honduran may be extradited nor handed over to the authorities of a foreign state"].) Fairmont supplied no rebuttal evidence on the issue of whether extradition in this case was feasible.
The trial court found that under County of Orange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795 (County of Orange), it was not feasible to extradite Montes from Honduras. The trial court denied the motion to vacate the forfeiture and to exonerate the bond and entered summary judgment in favor of the County on the forfeited bond. Fairmont timely filed a notice of appeal from the orders denying the motion and granting summary judgment.
An order denying a motion to vacate or set aside a forfeiture and exonerate the bail bond is an appealable order. (County of Los Angeles v. Fairmont Specialty Group (April 21, 2009, B204778) __ Cal.App.4th __ [2009 Cal.App. LEXIS 580 *4]; People v. Ranger Ins Co. (1996) 51 Cal.App.4th 1379, 1382.)*fn2 "The abuse of discretion standard applies to the trial court's resolution of a motion to set aside a bail forfeiture (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195 [126 Cal.Rptr.2d 172] (Legion)), subject to constraints imposed by the bail statutory scheme. '[W]hen a statute requires a court to exercise its jurisdiction in a particular manner, to follow a particular procedure, or to act subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.' (People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1384 [59 Cal. Rptr. 2d 777] (Ranger '96).) "'The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus, Penal Code sections... dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture." [¶] The standard of review, 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.' (County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62 [208 Cal.Rptr. 263] (Surety Ins. Co.).)" (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1491-1492; see People v. American Contractors Indemnity (1999) 74 Cal.App.4th 1037, 1043 ["a determination on a motion to set aside a bail forfeiture is discretionary and will not be disturbed on appeal unless an abuse appears in the record"].) As the Supreme Court has noted, however, "the abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.) Accordingly, we review the interpretation of section 1305, subdivision (g) de novo (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799), and the trial court's finding of lack of feasibility under the substantial evidence test.
B. Section 1305, Subdivision (g)
"'The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court.'" (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657.) Section 1305 provides that bail is to be forfeited if the defendant fails to appear when lawfully required to do so. That section sets forth situations when the ...