APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Reversed. (Los Angeles County Super. Ct. No. BA340385)
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PUBLICATION
A defendant convicted by jury of two felonies failed to appear for sentencing, resulting in the forfeiture of bail. The surety moved to exonerate the bail under Penal Code section 1305, subdivision (f),*fn1 on the basis the defendant was in custody in Chechnya and the District Attorney had refused to extradite. The District Attorney opposed exoneration, arguing there had been no such election because the United States and Chechnya had no extradition treaty.
Relying on the reasoning of People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791 (Far West), the trial court ruled the surety had done all that it could by finding the defendant in Chechnya and, weighing the equities, determined bail should be exonerated. On the District Attorney's timely appeal, we reverse, holding the absence of an extradition treaty with Chechnya precludes relief from forfeiture under section 1305, subdivision (f), and the trial court abused its discretion in granting relief based on consideration of the equities present in this case.
Soslan Savlokhov was charged by the District Attorney of Los Angeles County with battery with serious bodily injury (§ 243, subd. (d)) and assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Lexington National Insurance Company (Lexington), the surety, posted bond in the amount of $50,000 to secure Savlokhov's release on May 19, 2008. On February 4, 2009, a jury convicted Savlokhov of both counts and further found that he had personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Savlokhov, who remained released on bail after conviction, was ordered to return for sentencing on February 26, 2009.
Savlokhov failed to appear for sentencing and bail was forfeited. A bench warrant was issued in the amount of $300,000. After the clerk's notice of the forfeiture was duly mailed, a motion by Lexington to vacate the forfeiture and exonerate bail was denied, but a later motion pursuant to section 1305.4 to extend time to surrender a fugitive for 180 days was granted.
Lexington's Second Motion to Exonerate and the Trial Court's Ruling
Lexington filed a second motion to vacate the forfeiture and exonerate bail on October 9, 2009. The motion argued Savlokhov was arrested on August 5, 2009, in Argun, Grozny District, Republic of Chechnya. Relying on section 1305, subdivision (f), Lexington contended it was entitled to exoneration of the bond because Savlokhov was in custody and the District Attorney had refused to extradite.
The motion was supported by the declaration of Julie Martin, a paralegal in the office of counsel for Lexington. Martin had sent a letter to the District Attorney, indicating Savlokhov was "located and arrested" in Chechnya. She requested that the District Attorney indicate whether there would be an election to extradite.
Attached to Martin's letter was a translation of a "Suspect Detainment Report" from the Republic of Chechnya, Office of Investigations. According to the report, a Russian citizen named "Soslan Savlokov," with a date of birth of July 29, 1981,*fn2 was arrested in Chechnya on August 5, 2009, after driving an automobile under the influence of narcotics and causing an accident resulting in injury to others. The report indicated "Savlokov" was "placed in police custody/Preliminary Incarceration Unit" in the City of Argun. The original report, written in what both parties describe as the Cyrillic alphabet, was also attached to the letter.*fn3
The District Attorney opposed the motion in writing, noting that the only basis for relief in Lexington's motion was the refusal of the prosecutor to extradite a fugitive in custody under section 1305, subdivision (f). Lexington was not entitled to relief, according to the opposition, because the District Attorney had not made an election against extradition under section 1305, subdivision (f), as there is no extradition treaty between the United States and Chechnya. The prosecutor's affidavit and supporting documents established the absence of an extradition treaty with Chechnya under title 18 United States Code section 3181.
At a hearing on October 27, 2009, the trial court confirmed the District Attorney's position that an election to extradite could not be made because there is no extradition treaty with Chechnya. The court expressed the opinion that under the reasoning in Far West, supra, 93 Cal.App.4th 791, the surety did all that it could and it was impossible to obtain the fugitive. The prosecutor responded that Far West was distinguishable because the sheriff in that case had released a hold; in this case, the warrant for Savlokhov remained extant.
The trial court reiterated its belief the surety had done "everything" it could do, including identifying where Savlokhov is located. The court accepted responsibility for not remanding Savlokhov after the verdict and weighing the equities, ruled that Lexington was entitled to relief. The prosecutor responded that equitable considerations are not part of section 1305, subdivision ...