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People v. Financial Casualty & Surety Inc.

California Court of Appeals, Second District, Second Division

April 3, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

         APPEAL from an order and judgment of the Superior Court of Los Angeles County No. SJ4027. Norm Shapiro and David Fields, Judges. Affirmed.

          Law Office of John Rorabaugh, John M. Rorabaugh and Robert Tomlin White for Defendant and Appellant.

          Mary C. Wickham, County Counsel, Ruben Baeza, Jr., Assistant County Counsel, and Joanne Nielsen, Principal Deputy County Counsel, for Plaintiff and Respondent.

          HOFFSTADT, J.

         When a court forfeits a bail bond, the bond's surety is subsequently entitled to vacatur of that forfeiture if the defendant is later found out of state as long as (1) the defendant “is temporarily detained” by the “bail agent[] in the presence of a local law enforcement officer, ” (2) the local officer submits a sworn affidavit “positively identif[ying]” the defendant, (3) and “the prosecuting agency elects not to seek extradition after being informed of the location of the defendant.” (Pen. Code, § 1305, subd. (g).)[1] Can the prosecuting agency refuse to make an election-and effectively deny the surety vacatur-unless the surety also provides the agency with a photograph or fingerprints to verify the defendant's presence in the foreign jurisdiction? We conclude the answer is “yes.” Because the surety in this case did not comply with the prosecuting agency's request and was not reasonably likely to do so in the remaining 21 days before its window to seek vacatur closed, we affirm the trial court's denial of the motion to vacate the bond and its related order granting summary judgment on the bond.

         FACTS AND PROCEDURAL BACKGROUND

         In October 2013, Juan Carlos Pena Angulo (Angulo) was charged with (1) transporting and selling a controlled substance (Health & Saf. Code, § 11379, subd. (a)), (2) possessing a controlled substance for sale (id., § 11378), and (3) using a false compartment with the intent to store, smuggle, or transport a controlled substance (id., § 11366.8, subd. (a)). Defendant and appellant Financial Casualty & Surety, Inc. (the surety) authorized its agent to issue a $100, 000 bail bond guaranteeing Angulo's court appearances.

         Angulo did not appear in court on February 4, 2014. The trial court issued a “no bail” warrant for Angulo's arrest. The court also stated on the record that the bond was forfeited and mailed a copy of its forfeiture order to the surety and its agent. Pursuant to law, the order gave the surety 185 days-until August 8, 2014-to locate Angulo and produce him in court. On August 1, 2014, the surety requested an extension of time to locate Angulo. On August 25, 2014, the trial court granted the surety an extension until December 24, 2014.

         On October 5, 2014, an investigator for the surety and an officer of the Fugitive Recovery Unit of the Baja California Mexico State Police stopped Angulo on the main street of the tourist center in Tijuana, Mexico. They identified him based on his booking photo and driver's license photo. The Mexican officer determined that Angulo was a Mexican national who was not wanted for any crimes in Mexico, which meant the officer could not “forcibly detain or arrest [Angulo] for questioning nor obtain fingerprints or photos.” They let Angulo go. The investigator and Mexican officer executed sworn affidavits to these facts.

         Over two months later, on December 8, 2014, the surety submitted the affidavits to the Los Angeles County District Attorney's Office (the prosecutor's office) and asked whether it would seek extradition.[2] Eight days later, on December 16, 2014, the prosecutor's office responded that it was “unable to make an extradition election” because it was “unable to confirm the identity of the defendant... because [the surety] ha[d] not provided us, ” as per its office policy, “with fingerprints or a photograph taken while the defendant was detained in Mexico.”

         On December 24, 2014, the surety filed a motion (1) seeking to vacate the bond's forfeiture and exonerate the bond, and alternatively (2) seeking until February 23, 2015, to provide a photograph or fingerprints.[3] Further briefing followed.

         At a February 2, 2015 hearing, the trial court denied the motion to vacate the forfeiture and exonerate the bond and declined to grant the surety additional time to obtain a photograph or fingerprints because Angulo had absconded more than 365 days earlier. On February 5, 2015, the court granted summary judgment for $100, 435-the amount of the bond plus costs-against the surety.

         The surety filed a motion to set aside the judgment on grounds unrelated to this appeal, which the trial court denied.

         The surety filed this timely appeal.

         DISCUSSION

         The surety argues that the trial court erred in (1) denying its motion to vacate the forfeiture and to exonerate the bond, and (2) declining to grant a further 21-day continuance to allow it the opportunity to obtain Angulo's photograph or fingerprints. Both orders are appealable. (County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542 (Fairmont) [“An order denying a motion to vacate or set aside a forfeiture and exonerate the bail bond is an appealable order”]; § 1305.5 [specifying to which court of appeal such orders must be directed]; People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 39 (Financial Casualty) [appeal of order denying continuance of appearance period].)[4]

         I. Motion to Vacate Forfeiture and Exonerate Bond

         A. Bail bond ...


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