Opinion
E062952
01-20-2017
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN CONTRACTORS INDEMNITY CO., Defendant and Appellant.
Law Office of John Rorabaugh and John M. Rorabaugh for Defendant and Appellant. Jean-Rene Basle, County Counsel, and John R. Tubbs II, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVRS1403191) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Reversed with directions. Law Office of John Rorabaugh and John M. Rorabaugh for Defendant and Appellant. Jean-Rene Basle, County Counsel, and John R. Tubbs II, Deputy County Counsel for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant, American Contractors Indemnity Co. (ACIC), the surety on a $50,000 bail bond, appeals the order denying its motion to set aside the summary judgment on the forfeiture of the bond. Before the summary judgment was entered, the court denied ACIC's motion to extend the 180-day appearance period for discharging the forfeiture, solely on the ground the motion was untimely filed after the 180-day period expired, and without determining whether ACIC demonstrated good cause for extending the appearance period. (Pen. Code, § 1305.4.) ACIC later moved to set aside the summary judgment, claiming its motion to extend the 180-day period was timely filed and asking the court to reopen the appearance period. That motion also was denied.
All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, the record indisputably shows, the People concede, and we agree, that ACIC's motion to extend the appearance period was timely filed. The People argue, however, that the motion was properly denied, not because ACIC did not show good cause to extend the appearance period, but because the motion was served on the district attorney rather than on county counsel. The People represent that, in San Bernardino County, county counsel, not the district attorney, is tasked with handling all post-forfeiture proceedings in bail matters, and ACIC was therefore required to serve the motion on county counsel.
Section 1305.4 requires the moving party on a motion to extend the appearance period to serve notice of the motion on "the prosecuting agency." Applying settled principles of statutory construction and viewing section 1305.4 in the wider context of the bail forfeiture statutes (§ 1305 et seq.), we conclude the Legislature intended the term "prosecuting agency," as it is used in section 1305.4 and throughout the bail forfeiture statutes (§ 1305.4) to mean the agency prosecuting the defendant who was released on the bail. In this case, the prosecuting agency was the district attorney, because the district attorney filed the charges against the defendant for which the defendant was released on the bail. In the ordinary state court criminal prosecution, the prosecuting agency will be the district attorney, but in some cases it could be a city attorney or another agency.
Thus, ACIC's motion to extend the appearance period was both timely filed and properly served on the prosecuting agency, the district attorney. The People have forfeited their alternative claim that the motion was ineffectively served on the district attorney's Fontana branch office, which was closed on August 21, 2014, when the motion was served by mail, and that the motion should have been served on the district attorney's Rancho Cucamonga office, which was open at the time of the service.
Lastly, we conclude that the proper remedy in this case is not to exonerate the bail, as ACIC claims, but to remand with directions to the trial court to determine whether ACIC demonstrated good cause to extend the appearance period. If so, the appearance period must be reopened, for a period not to exceed 180 days, in order to give ACIC an opportunity to return the defendant to custody and exonerate the bail.
II
BACKGROUND
A. The Bail Statutes, Overview
When a defendant released on bail fails to appear in court as lawfully required and without sufficient excuse, the court must declare the bail forfeited in open court. (§ 1305, subd. (a); People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 762.) If the bail exceeds $400, the court clerk must serve notice of the forfeiture on the surety and its bail agent by mail, at their addresses listed on the bond, within 30 days of the date the bail is declared forfeited. (§ 1305, subd. (b).) The surety then has 185 days from the date the notice of forfeiture is mailed (180 days plus five days for service by mail) to obtain relief from the forfeiture on certain statutory grounds. (§ 1305, subds. (c)-(e); People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 999-1000.)
The 180-day period is known as the appearance period, and may be extended by up to an additional 180 days upon the filing of a motion, supported by a showing of good cause. (§ 1305.4; People v. United States Fire Ins. Co., supra, 242 Cal.App.4th at p. 1000.) If the surety fails to obtain relief from the forfeiture within the appearance period, including any extensions, the court is required to enter summary judgment on the bail, plus costs, within 90 days of the expiration of the appearance period. (§ 1306, subds. (a), (c); see People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658.) B. Facts and Procedural Background
In 2013, ACIC filed bond No. AUL-2092728, in the amount of $50,000, to secure the appearance in court of defendant Julio Palafox Villalobos. On February 13, 2014, the defendant failed to appear for his arraignment and the bond was ordered forfeited. (§ 1305, subd. (a).) On February 19, 2014, the clerk mailed a notice of forfeiture to ACIC and its bail agent. (§ 1305, subd. (b).)
As the parties and this court agree, the appearance period expired on Monday, August 25, 2014. The 185th day following the clerk's February 19, 2014 mailing of the notice forfeiture was Saturday, August 23, 2015. Hence, the following Monday, August 25, 2014, was the last day to file a motion to extend the appearance period. (Pen. Code, § 1305.4; Code Civ. Proc., § 12a.)
On Thursday, August 21, 2014, ACIC filed a motion to extend the appearance period, supported by a declaration from investigator David Adams explaining the efforts he had made to locate the defendant and his belief that, if given additional time, the defendant could be located and returned to court. ACIC served the motion on the Fontana branch office of the district attorney for San Bernardino County. The motion was not served on county counsel, and no opposition to the motion was filed.
The declaration of Adams is incomplete; only its first page is included in the record, and it appears that two additional pages are missing. It appears that the two missing pages contain Adam's explanation of why there was good cause to extend the appearance period.
A hearing on the motion was held on September 19, 2014, the date indicated in the notice of motion. ACIC appeared through its bail agent, but no one appeared from the offices of the district attorney or county counsel. The court denied the motion on the ground it was untimely filed without reaching the merits of the motion, that is, without determining whether ACIC demonstrated good cause to extend the appearance period. (§ 1305.4.)
The reporter's transcript of the September 19 hearing shows that the court and the bail agent mistakenly believed the appearance began running the day after February 13, 2014, the date the forfeiture was declared, rather than the day after February 19, the date the notice of the forfeiture was mailed. (§ 1305, subd. (b).) The court pointed out that the notice of forfeiture stated that "[t]he 180th day" was "08/18/14," but in this respect the notice of forfeiture was incorrect. As the court observed, Monday, August 18, was the 186th day after February 13, and the bail agent agreed that the motion had to be filed 185 days after February 13. Thus, both the court and the bail agent mistakenly believed the appearance period began running the day after February 13 rather than the day after February 19.
On October 27, 2014, the clerk mailed a notice of entry of the summary judgment on the bond to ACIC and the bail agent. On December 9, 2014, ACIC moved to set aside the summary judgment, claiming the motion to extend the appearance period was erroneously denied as untimely and asking the court to reopen the appearance period so the defendant could be located and returned to custody.
ACIC served the motion to set aside the summary judgment on county counsel but not on the district attorney. County counsel filed opposition, conceding the motion to extend the appearance period was timely filed but arguing it was properly denied because it was not served on county counsel, and county counsel was "the prosecuting agency" upon whom notice of the motion was required to be given pursuant to section 1305.4. Among other things, county counsel also argued that extending the appearance period was strictly governed by statute and could not be equitably tolled. County counsel did not claim that the service by mail of the motion on the district attorney's Fontana branch office was defective or was not received.
ACIC filed a reply, arguing that, for purposes of section 1305.4, the district attorney was "the prosecuting agency" and the party upon whom ACIC was required to serve its motion to extend the appearance period. (§ 1305.4.) Counsel for ACIC did not appear at the January 13, 2015 hearing on ACIC's motion to set aside the summary judgment, but a deputy county counsel appeared on behalf of the People. The court took the matter under submission and denied the motion in a February 9, 2015 order. The order states "[e]quitable tolling is not allowed by statute," but does not otherwise indicate the basis of the order denying ACIC's motion to set aside the summary judgment. ACIC appeals from the order denying its motion to set aside the summary judgment.
III
DISCUSSION
A. Standard of Review
An order denying a motion to extend the appearance period (§ 1305.4) is not an appealable order, but is reviewed on appeal from the summary judgment on the bail bond. (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 79-80.) Ordinarily, the order is reviewed for an abuse of discretion. (Id. at p. 80.) But when the facts are undisputed and only legal issues are presented, such as jurisdictional questions and matters of statutory interpretation, the abuse of discretion standard does not apply, and we review the order de novo. (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.)
"The forfeiture of bail and related proceedings are a matter of statutory procedure governed by sections 1305 through 1308. [Citation.]" (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709.) "'"Certain fixed legal principles guide us in the construction of bail statutes. The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citation.] Thus, [the bail forfeiture statutes] must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture. [Citation.]"' [Citation.] '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.' [Citation.]" (People v. American Contractors Indemnity Co. (2015) 238 Cal.App.4th 1041, 1044.) B. In This Case, the District Attorney Was "the Prosecuting Agency" Upon Whom Notice of the Motion to Extend the Appearance Period Was Required to Be Served (§ 1305 .4)
Section 1305.4 states that, "[n]otwithstanding Section 1305, the surety insurer, the bail agent, the surety, or the depositor may file a motion, based upon good cause, for an order extending the 180-day appearance period provided in that section. . . . In addition to any other notice required by law, the moving party shall give the prosecuting agency a written notice at least 10 court days before a hearing held pursuant to this section as a condition precedent to granting the motion." (italics added.)
The People argue that, although ACIC's motion to extend the appearance period was timely filed, it was properly denied because it was not served on county counsel. We accept the People's representation that, in San Bernardino County, county counsel has been tasked with handling all post-forfeiture proceedings in bail matters since 1995, including any necessary oppositions to motions to extend the appearance period. ACIC counters the district attorney was the prosecuting agency in this case, and ACIC's motion was properly served on the district attorney.
This dispute requires us to determine whether, in this case, county counsel or the district attorney was the "prosecuting agency" for purposes of section 1305.4. In addition to its use in section 1305.4, the term "prosecuting agency" appears in section 1305, subdivisions (f), (g), (h), and (k), and in sections 1305.3 and 1305.6. The term "prosecuting agency" is not defined in any of these statutes or in any of the other statutes governing bail forfeitures and related proceedings. (§§ 1305-1308.)
We conclude that the term "prosecuting agency," as used in section 1305.4, and in all of the bail forfeiture statutes (§ 1305 et seq.) means the agency prosecuting the defendant released on the bail. Construing the term "prosecuting agency," in any given case, as meaning the agency or representative of the People that happens to be tasked with handling the bail forfeiture-related matter at issue, as the People urge, would result in inconsistent applications of sections 1305, 1305.3, 1305.4, and 1305.6.
In this case, the prosecuting agency was the district attorney, because the district attorney was the agency that filed the charges against the defendant, Julio Palafox Villalobos, for which the defendant was released on bail. In the ordinary state court criminal prosecution, the "prosecuting agency" will be the district attorney, but in other cases it may be a city attorney or another agency. Nothing in the bail forfeiture statutes (§ 1305 et seq.) requires "the prosecuting agency" to be the district attorney, but the charging document, which is filed in the case before bail is posted, reveals the identity of the prosecuting agency.
1. The "Prosecuting Agency" Means the Agency Prosecuting the Defendant
In construing statutes, our goal is to ascertain the Legislature's intent "so that we may adopt the construction that best effectuates the purpose of the law." (People v. Albillar (2010) 51 Cal.4th 47, 54-55.) "We first examine the words of the statute, 'giving them their ordinary and usual meaning and viewing them in their statutory context, because the statutory language is usually the most reliable indicator of legislative intent.'" (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 919.) We must also construe the words of the statute within the context of the overall statutory scheme. (People v. Rizo (2000) 22 Cal.4th 681, 685.) "'If the language of the statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to determine the Legislature's intent is unnecessary.'" (People v. Taylor (2009) 46 Cal.4th 1205, 1212.)
We begin with the term "prosecuting agency" as it is used in subdivisions (f), (g), and (h) of section 1305. These provisions concern the prosecuting agency's decision whether to seek extradition of a defendant who is in custody outside the jurisdiction of the court where the bail was posted, or who has been detained by the bail agent in another jurisdiction. In such cases, if the prosecuting agency elects not to seek extradition of the defendant, the court is required to vacate the forfeiture and exonerate the bond "on terms that are just . . . ." (§ 1305, subds. (f), (g).) If the prosecuting agency and bail agent agree additional time is needed to return the defendant to the jurisdiction of the court where bail was posted, the court may toll the 180-day appearance period up to the length of time agreed upon by the parties. (§ 1305, subd. (h).)
In the context of section 1305, subdivisions (f) through (h), it is apparent that the Legislature intended "prosecuting agency" to mean the agency prosecuting the defendant. The agency that filed the charges against the defendant for which the defendant was released on bail is the agency that would determine whether to seek extradition of the defendant back to the jurisdiction where the bail was posted, in order to face the charges the prosecuting agency filed against the defendant. (See § 1305, subds. (f), (g).) The agency that filed the charges against the defendant is also the agency that would agree with the bail agent that additional time is needed to return the defendant to the jurisdiction of the court where the bail was posted. (§ 1305, subd. (h).)
Additionally, the procedural and notice provisions of section 1305, subdivisions (j) and (k), which apply to all motions to exonerate bail or toll the 180-day period on any of the grounds specified in section 1305 (see § 1305, subds. (c)-(h)), are mirrored in section 1305.4. Together, these statutes subject all motions that are required to be filed within the 180-day period to the same procedural and notice requirements. Subdivisions (j) and (k) of section 1305 require the moving party on any motion to exonerate the bail or to toll the 180-day period to give "the prosecuting agency" at least 10 court days' notice before the hearing, and the notice is "a condition precedent to granting the motion." Section 1305.4 likewise provides that a motion to extend the appearance period "may be filed and calendared" as provided in subdivision (j) of section 1305, which requires that notice of the motion must be served on the "prosecuting agency" at least 10 court days before the hearing; and that the notice is "a condition precedent to granting the motion." Motions under sections 1305 and 1305.4 are likewise to be made by the surety insurer, the bail agent, the surety, or the depositor of money or property. (§§ 1305, subd. (j), 1305.4.) These overlapping procedural and notice provisions, coupled with the plain meaning of "prosecuting agency" in section 1305, subdivisions (f) through (h), indicate that the Legislature intended "prosecuting agency" to have the same meaning as used throughout section 1305 and section 1305.4.
The phrase "applicable prosecuting agency" appears in section 1305.3, which states: "The district attorney, county counsel, or applicable prosecuting agency, as the case may be, shall recover, out of the forfeited bail money, the costs incurred in successfully opposing a motion to vacate the forfeiture and in collecting on the summary judgment prior to the division of the forfeited bail money between the cities and counties in accordance with Section 1463." (Italics added.) By its plain terms, section 1305.3 allows either the district attorney, county counsel, or the applicable prosecuting agency that incurred costs in successfully defending the bail forfeiture or in collecting the forfeited bail money, to recover those costs from the forfeited bail money. (See People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 926 [directing court to award "the People" its costs incurred pursuant to § 1305.3].)
As the People point out, the language of section 1305.3 shows the Legislature understood that the agency that is tasked with and that incurs costs in defending the bail forfeiture or in collecting the forfeited bail money (post-forfeiture proceedings) will not necessarily be the district attorney and could be county counsel, as it was in this case. The People rely on section 1305.3 as their authority for tasking county counsel with handling all post-forfeiture proceedings in San Bernardino County. Though we agree that section 1305.3 shows the Legislature contemplated that post-forfeiture proceedings may be handled by agencies other than the district attorney, including county counsel, the statute does not indicate that the "applicable prosecuting agency" (§ 1305.3) will necessarily be the agency tasked with handling such post-forfeiture proceedings, as the People argue. The statute's use of the word "or" in referring to "the district attorney, county counsel, or applicable prosecuting agency, as the case may be" (§ 1305.3, italics added), shows the Legislature understood the "applicable prosecuting agency" may but will not necessarily be the district attorney or county counsel, and may but will not necessarily be the agency that is tasked with and that incurs costs in handling post-forfeiture proceedings. In the context of section 1305.3, and in the contexts of sections 1305 and 1305.4, it is apparent that the Legislature intended "applicable prosecuting agency" to mean the agency prosecuting the defendant, and understood that the applicable prosecuting agency may or may not be the agency tasked with handling post-forfeiture proceedings.
The phrase "applicable prosecuting agency" also appears in section 1305.6, which requires that notice of a motion to exonerate the bond, as provided in that section, be given to the "applicable prosecuting agency." (§ 1305.6, subd. (c).) The notice provision of section 1305.6 parallels the notice provisions of sections 1305.4 and 1305, subdivision (k), which parallel each other. We discern no reason "applicable prosecuting agency," as used in sections 1305.3 and 1305.6, should have a different meaning than "prosecuting agency" as that term is used elsewhere in the bail forfeiture statues. (§§ 1305, 1305.4.) In all of these contexts, the plain and ordinary, and the only practical meaning of "prosecuting agency" is the agency prosecuting the defendant.
Our construction of "prosecuting agency" as the agency prosecuting the defendant affords certainty and consistency, and avoids confusion and unfairness, in the application of the bail forfeiture statutes. (§ 1305 et seq.) As the People concede, the agencies tasked with handling post-forfeiture matters differ in jurisdictions throughout California, and practices in any jurisdiction may change from time to time. But to the ordinary person reading the bail forfeiture statutes, "prosecuting agency" simply means the agency prosecuting the defendant. All sureties, bail agents, surety insurers, and depositors should be able to rely on this common sense meaning of "prosecuting agency" in complying with the bail forfeiture statutes, including in determining whom to serve with motions in post-forfeiture proceedings. (§§ 1305, subd. (k), 1305.4, 1305.6.) When, as in this case, the prosecuting agency is not the agency tasked with handling post-forfeiture proceedings, the prosecuting agency is in the best position to ensure that the noticed motion or other matter is referred to the agency tasked with handling it.
Government Code section 26529 provides: "(a) In counties that have a county counsel . . . county counsel shall defend or prosecute all civil actions and proceedings in which the county or any of its officers is concerned or is a party in his or her official capacity. . . ." The People suggest that, pursuant to this statute, county counsel is the only authorized "prosecuting agency" in San Bernardino County for purposes of the bail forfeiture statutes. (§ 1305 et seq.) We disagree because, as discussed, the bail forfeiture statutes do not refer to this provision, but use the term "prosecuting agency," which ordinarily means the agency prosecuting the defendant.
The People's argument that ACIC is an experienced bail surety and should have known county counsel was tasked with responding to ACIC's section 1305.4 motion does not apply to sureties, surety insurers, bail agents, or depositors unfamiliar with whether an agency other than the prosecuting agency is tasked with handling the post-forfeiture matter at issue. ACIC complied with section 1305.4 by serving its motion to extend the appearance period on the district attorney, because in this case the district attorney was the prosecuting agency—the agency that filed the charges against the defendant for which the defendant was released on bail.
2. The Ranger and Hadley Decisions
Two appellate court decisions, this court's 1995 decision in Ranger, and the 1967 superior court appellate department (County of Santa Clara) decision in Hadley, have observed that the district attorney "'is the proper representative of the People to receive notices in [bail] forfeiture proceedings.'" (County of San Bernardino v. Ranger Ins. Co. (1995) 34 Cal.App.4th 1140, 1144-1145 (Ranger); People v. Hadley (1967) 257 Cal.App.2d Supp. 871, 878-879 (Hadley).) As we explain, Ranger and Hadley are based on former versions of the bail forfeiture statutes, and nothing in either decision is contrary to our conclusion in this case that "prosecuting agency," as used in the current bail forfeiture statutes (§ 1305 et seq.), is the agency prosecuting the defendant, which in most cases will be the district attorney.
In Ranger, the bail agent moved to set aside the summary judgment on the bail forfeiture, the motion was denied, and the bail agent appealed. The bail agent served county counsel with notice of its motion to set aside the summary judgment and with notice of the appeal, but neither county counsel nor the district attorney filed a respondent's brief in the appeal. The district attorney ignored a letter from this court asking "whether the district attorney was . . . the proper attorney of record for the county on this appeal." (Ranger, supra, 34 Cal.App.4th at pp. 1143-1145.) Adopting the reasoning of Hadley, Ranger concluded that county counsel was the proper party to represent the People on the appeal from the summary judgment. (Ranger, supra, at pp. 1145-1146.)
In Hadley, the bail agent moved to exonerate the bail but did not give the district attorney or any other agency notice of the motion. The hearing proceeded ex parte, the motion was granted, and the People appealed. (Hadley, supra, 257 Cal.App.2d Supp. at pp. 872-873.) Although at the time the motion was made, no statute required that notice of the motion be given, Hadley concluded that notice was required because the proceedings were adversarial in nature. (Id. at pp. 875-877.) For guidance on remand, Hadley explained that "the district attorney's office, as distinguished from the county counsel's office, is the proper representative of the People to receive notices in forfeiture proceedings," while county counsel was the proper representative of the People "for the collection of an obligation created by a bail bond." (Id. at pp. 878-879.)
Ranger adopted Hadley's reasoning in concluding that county counsel, rather than the district attorney, should have represented the People on the bail agent's appeal from the denial of the motion to set aside the summary judgment. As Hadley observed and Ranger agreed, Government Code section 26521 required the district attorney to "prosecute all recognizances forfeited in the courts of record" and, "except as provided in Penal Code sections 1305 and 1306," to "prosecute all . . . forfeitures" accruing to the state or the county. Government Code section 27642 by contrast, required county counsel to "discharge all the duties vested in law in the district attorney other than those of a public prosecutor." (Italics added.) Based on Government Code sections 26521 and 27642 and "practical considerations," Ranger and Hadley agreed that bail forfeiture proceedings are public prosecutorial functions, to be performed by the district attorney, but the collection of a summary judgment on a forfeited bail bond is a civil function to be performed by county counsel. (Ranger, supra, 34 Cal.App.4th at pp. 1144-1145; Hadley, supra, 257 Cal.App.2d Supp. at pp. 878-879.)
Hadley and Ranger cited Government Code section "2762" (Ranger, supra, 34 Cal.App.4th at p. 1145; Hadley, supra, 257 Cal.App.2d Supp. at p. 878), but there is and never has been a Government Code section 2762. The courts must have intended to cite Government Code section 27642. There has been no substantive change to Government Code sections 26521 or 27642 since Ranger and Hadley were decided.
Hadley observed and Ranger agreed that "[i]t seems clear that the existence of bail and its influence to ensure the presence of the defendant is inextricably a part of the prosecution process, and thus becomes the concern of the district attorney. From a practical point of view, that office, being closely related to law enforcement agencies as compared with the county counsel's office, where the duties are largely civil, is in a far better position to inquire and present evidence to the court on such matters . . . relating to incarceration of the defendant . . . . When, however, the state or the county require legal representation for the collection of an obligation created by a bail bond, such a proceeding is wholly unrelated to the prosecution procedure and should be accomplished by the county counsel's office." (Hadley, supra, 257 Cal.App.2d Supp. at pp. 878-879; Ranger, supra, 34 Cal.App.4th at p. 1145.)
Neither Ranger nor Hadley applied this distinction between public prosecutorial and civil functions in construing the notice provision of section 1305.4, or any of the current bail forfeiture statutes. (§ 1305 et seq.) Section 1305.4 was not enacted until 1996 (Stats. 1996, ch. 354, § 1, p. 2452), and was amended in 1999 (Stats. 1999, ch. 570, § 3, p. 3956), after Ranger was decided in 1995 and Hadley in 1967. Section 1305.3 was first enacted in 1993 and was amended in 1994 to read as stated above. (Stats. 1994, ch. 170, § 1, p. 1637.) In its former, 1993 version, section 1305.3 read: "'The applicable prosecuting agency shall recover, out of the forfeited bail money, the costs incurred in successfully opposing a motion to vacate the forfeiture prior to the division of the forfeited bail money . . . .'" (Historical and Statutory Notes, 51 West's Ann. Pen. Code (2004 ed.) foll. § 1305.3, p. 503.) Senate Bill No. 1649 (Reg. Sess. 1994-1995), which amended section 1305.3 to read as it currently reads, explained: "Existing law provides that the applicable prosecuting agency shall recover, out of the forfeited bail money, the costs incurred in successfully opposing a motion to vacate the forfeiture. . . . [¶] This bill, in addition, would authorize the district attorney and county counsel to recover costs under this provision. . . ." (Italics added.) Nothing in the legislative history of sections 1305.3 or 1305.4 is inconsistent with our conclusion that, under the current bail statutes (§ 1305 et seq.) the "prosecuting agency" is the agency prosecuting the defendant.
Sections 1305.3 and 1305.4 were taken from former section 1305, which as amended in 1990 and which was in effect at the time Ranger was decided in 1995, required service of a post-forfeiture motion on the prosecuting agency "specified by the board of supervisors . . . ." Former section 1305 provided: "Unless waived by the district attorney, other prosecuting attorney, or county counsel, as the case may be, no order discharging the forfeiture of the undertaking or deposit shall be made without notice by the bail to the district attorney, prosecuting attorney, or county counsel, as specified by the board of supervisors after consultation with the county counsel and the district attorney, who may request a hearing within 10 days after receipt of the notice. The notice may be given by the surety insurer, its bail agent, the surety, or the depositor of money. . . . The court shall then set the date, time, and place of hearing and give notice to the district attorney, prosecuting attorney, and county counsel and to the bail. The district attorney, prosecuting attorney, or county counsel, as the case may be, shall recover the costs incurred in successfully opposing a motion to discharge the forfeiture . . . from the forfeited bail money." (Stats. 1990, ch. 1073, § 2, pp. 4442-4444; see Ranger, supra, 34 Cal.App.4th at p. 1146.)
As the People acknowledge, the current version of section 1305 is dissimilar to the 1990 version of section 1305, which was in effect at the time Ranger was decided. The current version of section 1305 does not provide that notice of a post-forfeiture motion must be made "to the district attorney, prosecuting attorney, or county counsel, as specified by the board of supervisors . . . . " (Former § 1305.) Instead, and as discussed, the current bail forfeiture statutes, including section 1305, require notice of post-forfeiture motions on "the prosecuting agency." (§§ 1305, subd. (k), 1305.4, 1305.6.) C. The People Have Forfeited Their Ineffective Service Claim
We recognize that the current version of section 1306, like the version in effect when Ranger was decided, provides: "The district attorney or county counsel shall" demand payment of the summary judgment. (See Ranger, supra, 34 Cal.App.4th at p. 1146.) But section 1306 does not indicate that county counsel or the district is necessarily the "prosecuting agency" for purposes of section 1305, 1305.4 or 1305.6.
The People next argue that even if, as we have concluded, the district attorney was "the prosecuting agency" upon whom ACIC was required to serve notice of its motion to extend the appearance period, the motion was properly denied even though it was timely filed because it was served by mail on the district attorney's Fontana branch office, which "ceased to exist" on June 24, 2014 and which was closed when the motion was served on August 21, 2014. On this record, the People have not shown that service on the Fontana branch office was ineffective.
As noted, neither the district attorney nor county counsel filed opposition to or appeared at the September 19, 2014, hearing on ACIC's motion to extend the appearance period. We recognize this could mean the district attorney did not receive ACIC's mailed notice of the motion. (§ 1305.4.) The People, however, have forfeited their ineffective service claim by failing to raise it in opposition to ACIC's motion to set aside the summary judgment. (Otsuka v. Balangue (1949) 92 Cal.App.2d 788, 792 [plaintiff waived right to complain on appeal that proof of service was defective by failing to question the proof of service or the service in the trial court].)
Furthermore, on this record, the People have not shown that ACIC's service by mail on the district attorney's Fontana branch office was improper. Service by mail is to be made "at the office address as last given by that person on any document filed in the cause and served on the party making service by mail." (Code Civ. Proc., § 1013, subd. (a).) The record does not include any documents filed by the district attorney which were served on ACIC or the bail agent. The record shows, however, that the bail bond was filed in the Fontana district of the superior court in December 2013. In addition, the People concede the Fontana branch office of the district attorney did not close until June 24, 2014, and was open when ACIC filed the bail bond in December 2013 and when the clerk of court mailed the notice of forfeiture on February 19, 2014. Thereafter, nothing happened in the case until August 21, 2014, when ACIC filed and served its motion to extend the appearance period. The person to be served "has the burden of notifying the court of any change of address," and the failure to so notify the court "does not enable [that party] to claim improper notice." (Westervelt v. Robertson (1981) 122 Cal.App.3d Supp. 1, 8.) The record does not show that the district attorney notified the court that it had closed its Fontana branch office, or that service on the district attorney had to be made at its Rancho Cucamonga branch office.
ACIC's service by mail on the Fontana branch office of the district attorney created a rebuttable presumption that the district attorney received the notice. (Evid. Code, § 641 ["A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail"]; Bear Creek Master Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 1486 [presumption of receipt may be rebutted by denial of receipt, and court must then determine whether the letter was received].) The People did not claim in the superior court that the district attorney did not receive ACIC's notice of the motion. Whether the district attorney received the notice is a factual issue which may not be raised for the first time on appeal. D. Remand Is Necessary to Determine Whether ACIC Demonstrated Good Cause to Extend the Appearance Period (§ 1305 .4)
In support of their claim that the Fontana branch office of the district attorney was closed on August 21, 2014, the People cite two Internet news releases in their respondent's brief. The first is a February 24, 2014 news release by the superior court stating: "Effective May 27, 2014 Criminal Felony and Misdemeanor cases from the Fontana District will be filed and heard in the Rancho Cucamonga District located at 8303 North Haven Avenue, Rancho Cucamonga, CA." The second is a June 16, 2014 news release from the district attorney's office, stating: "Following the San Bernardino County Superior Court's announcement that all Criminal Felony and Misdemeanor cases from the Fontana District will be filed and heard in the Rancho Cucamonga District, the District Attorney's Office has moved its Fontana Criminal Division to a new location. Effective June 23, 2014, all Fontana Criminal Operations will be relocated and fully operational at 10535 Foothill Blvd[.], Suite 235, Rancho Cucamonga, [CA] 91730." As indicated, this evidence was not presented to the superior court, and the court was not called upon to determine whether ACIC served notice of its motion to extend the appearance period to the proper address of the district attorney, or whether the district attorney received ACIC's notice. --------
As the parties and this court agree, ACIC's motion to extend the appearance period was erroneously denied on the ground it was untimely filed. August 25, 2014 was the last day to file and serve the motion, and the motion was timely filed and served on the district attorney—the prosecuting agency in this case—on August 21, 2014. (§ 1305, subd. (b).) The court did not reach the merits of the motion; it did not determine whether ACIC demonstrated good cause to extend the appearance period. (§ 1305.4.)
ACIC argues the appropriate remedy in this case is to exonerate the bond, given that the motion to extend the appearance period was timely filed. We disagree. Although the bond statutes must be strictly construed to protect the surety (People v. American Contractors Indemnity Co., supra, 238 Cal.App.4th at p. 1044), in this case the bail agent agreed with the court at the hearing on the motion that the motion was untimely filed, and did not ask the court to determine whether ACIC demonstrated good cause to extend the appearance period. The appropriate remedy, therefore, is to remand the matter to allow the trial court to determine whether ACIC demonstrated good cause. If the court finds ACIC made this showing, the appearance period must be reopened, for a period not to exceed 180 days, as the court deems appropriate. (§ 1305.4.) If the defendant appears in court before the court can make this determination, or within the reopened appearance period, if any, the bail bond must be exonerated. (See § 1305, subd. (c).)
IV
DISPOSITION
The summary judgment on the bail bond is reversed. The matter is remanded to the superior court with directions to conduct further proceedings consistent with this opinion. The parties shall bear their respective costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.