Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 507610
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I.
Introduction
Appellant Fairmont Specialty Group (Fairmont) appeals from an order denying its motion for relief from bail forfeiture or to toll time and from the subsequent summary judgment entered in favor of the People (respondent). Fairmont maintains that it was entitled to exoneration of the bond because it filed a timely motion for exoneration on the basis that the defendant, Charles Caradine, was in custody in Arizona, was permanently unable to appear, and the prosecuting agency chose not to seek extradition. (Pen. Code, §§ 1305, subds. (d), (g).) It alternatively maintains that the court erred in not tolling time under section 1305, subdivision (e), based on the “temporary disability” of the defendant’s incarceration in Arizona. Respondent argues that the court could not order tolling because Fairmont had already received an extension of the appearance period, and that, in any event, Fairmont’s motion was not accompanied by competent evidence demonstrating that the individual in custody in Arizona was actually the defendant. We reverse and remand.
Unless otherwise indicated, all further statutory references are to the Penal Code.
II.
Background
On March 25, 2006, Fairmont issued bail bond number R7512505231 to secure the appearance of defendant Charles Caradine in the amount of $55,000. On May 8, 2006, Caradine failed to appear as ordered. The court ordered forfeiture of the bail and issued a bench warrant for Caradine’s arrest. On May 24, 2006, the court mailed notice of bail forfeiture to Fairmont and the bail agent, Bad Boys Bail Bonds (Bad Boys). On December 12, 2006, the court granted Fairmont’s motion to extend the time for bail forfeiture until May 24, 2007.
People v. Caradine (Super. Ct. S.F. City and County, 2006, No. 2226767.)
On May 23, 2007, Fairmont and Bad Boys filed a motion to vacate forfeiture and to exonerate the bond, or in the alternative, to toll time. With the motion, they filed the declarations of Scott R. Jones (Jones), a fugitive recovery agent employed by Bad Boys, and Mikal P. Ward (Ward), a fugitive recovery agent in Arizona, as well as three documents referred to in the declarations. The document entitled “Maricopa County Sheriff’s Office Booking Detail Report” indicates that a “Joseph Caradine” was arrested on January 20, 2007, and booked the following day. The document lists his birth date as December 29, 1970, and a social security number, the same social security number that appears in Caradine’s San Francisco case records. The document entitled “California Department of Corrections, Sacramento Warrant Abstract,” dated March 8, 2007, is for Charles Otis Caradine, aka Joseph Caradine, and identifies his birth date as October 28, 1968, with an alternate birth date of December 29, 1970. It states, “We will extradite as a parole violator.” The third document, identified as an “Arizona Department of Corrections Inmate Record,” shows the name Joseph Caradine, born on December 29, 1970. It states he was sentenced to a three-year term, beginning May 8, 2007.
Jones’s declaration indicated he learned on March 6, 2007, that an individual identified as Joseph Caradine, with a birth date of December 29, 1970, was in custody in the Maricopa County jail in Arizona. Jones learned from Caradine’s mother-in-law that Caradine had been arrested and had identified himself as Joseph Caradine, who was actually his brother. Bad Boys hired Ward to assist the company in locating Caradine in Arizona, and provided Ward with information and photographs of Caradine received from his parole officer.
Jones stated he called the Maricopa County jail and received permission for Ward to “go into their facility with the defendant’s photos and attempt to make a positive identification match of Joseph Caradine with the defendant.” Ward called Jones and told him he had provided the pictures of Caradine, which showed his face and distinctive tattoos, to a female jail sergeant who “used them to positively identify their inmate, Joseph Caradine, with the defendant, Charles Caradine.” Jones asked Ward to obtain a copy of the booking register for Joseph Caradine and fax that paperwork to him.
Jones also declared that on March 7, 2007, he contacted Caradine’s parole officer, Todd Schaffer of the California state parole office in Merced, and informed him that Caradine was in custody in Arizona under the name Joseph Caradine. Schaffer told him he would have Charles Caradine’s fingerprints sent to the Maricopa County jail so that “further positive identification” could be made, and would then “place a detainer on the defendant as a parole absconder . . . .” On March 8, 2007, Schaffer called Jones and informed him they had positively identified the individual in the Maricopa County jail as Charles Otis Caradine, and placed a detainer. Jones called the jail himself and confirmed the hold.
Over the next two months, employees of Bad Boys called the Maricopa County jail four times to confirm Caradine was still in custody there. On May 11, 2007, Jones learned that Caradine had received a three-year prison sentence to be served at the Arizona State Department of Corrections. On May 15, 2007, Jones called a representative of the Arizona Department of Corrections, who told him that “no detainer from California parole had followed [Caradine] from the Maricopa County Jail.” When Jones informed parole officer Schaffer, he told Jones “he would have to go through the same process as before” by sending the defendant’s fingerprints to the Arizona Department of Corrections. Jones stated he received a fax from Schaffer on May 18, 2007, which consisted of “a copy of the clets warrant abstract he had sent to the Maricopa County Jail requesting a no bail detainer . . . .” The abstract listed Joseph Caradine as an alias for Charles Caradine.
“CLETS” is an acronym for California Law Enforcement Communications System. It was established in 1965 to provide “ ‘an efficient law enforcement communications network available to all [public agencies of law enforcement].’ ” (People v. Morris (2008) 166 Cal.App.4th 363, 371, fn. 9, quoting Gov. Code, § 15151.)
Ward’s declaration confirmed the interactions with Jones and the information Ward had provided to Jones. Ward also stated he had obtained a copy of the Maricopa County jail booking register for Joseph Caradine and faxed it to Jones.
The court continued the matter twice, the first time from June 11, 2007, until July 24, 2007, and the second time until August 2, 2007. On June 28, 2007, Fairmont and Bad Boys filed a reply brief with Jones’s supplemental declaration. In his supplemental declaration, Jones stated that on June 27, 2007, he had a telephone conversation with Inspector Matthews of the San Francisco Police Department. Jones asked Inspector Matthews “if it was possible for them to match the defendant . . . to the individual incarcerated at the [Arizona Department of Corrections] under Joseph Benjamin Caradine by comparing their individual FBI numbers.” Jones declared that Inspector Matthews called him back the same day to inform him that the FBI numbers for defendant and the individual incarcerated in Arizona were the same, and that it was her belief the two men were the same person, though she was not willing to document that in writing. Inspector Matthews also informed Jones that “due to the ordinary nature of the crime for which the defendant stands accused the SFPD would not place a hold for extradition on the defendant . . . .”
The parties argued the motion on August 2, and the court continued the hearing for its ruling until August 24, 2007. On that date, the court orally issued its ruling, stating, “I am going to agree with the City Attorney’s office. There was an extension of 185 days. The Court did toll the—that extension of 185 days. [¶] And the evidence that was gathered during that tolling was not competent evidence, although it was a lead. And in fact I remember reading the case—and you all probably know the case I am talking about—where there was an arrest, they knew they had an arrest, but it was still not within the time frame. And the court is exercising its discretion and denying the motion to vacate the forfeiture and exonerate the bail and in the alternative to toll the time on the bail bond. [¶] . . . [¶] And I have to note for the record that this is a very interesting issue because it was right after the tolling that there was confirmation that we did in fact have Mr. [Caradine]. [¶] And I will note for the record he is in custody. He is coming back.”
On September 6, 2007, the court entered summary judgment in favor of respondent. This timely appeal followed.
III.
Discussion
A. Standard of Review
We review the trial court’s denial of a motion to set aside an order of forfeiture for abuse of discretion. (People v. Accredited Surety & Casualty Co. (2004) 132 Cal.App.4th 1134, 1139-1140.) We likewise review an order denying an extension of time under section 1305.4 for abuse of discretion. (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.) We conduct a de novo review of the trial court’s conclusions on issues of statutory construction. (People v. Lexington National Ins. Co. (2007) 158 Cal.App.4th 370, 374, fn. 4.)
B. Bail Bond Forfeiture Procedure
To provide context to the issues raised, we summarize the law regarding bail bond forfeiture. “While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature. [Citation.] ‘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.’ [Citations.] . . . ‘In matters of this kind there should be no element of revenue to the state nor punishment of the surety.’ [Citation.] Nevertheless, the ‘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 under the risk of forfeiture of the bond.’ [Citation.] . . . [¶] When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond.” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657-658 (American).)
The statutes regarding forfeiture of bail bonds must be strictly construed in favor of Fairmont. “ ‘ “The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail.” ’ ” (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195, citing People v. American Contractors Indemnity Co. (2001) 91 Cal.App.4th 799, 805.) The bail bond forfeiture statutes, therefore, “must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture.” (People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 769.) Additionally, “[t]here is a public interest at stake here . . . —the return of fleeing defendants to face trial and punishment if found guilty. Given the limited resources of law enforcement agencies, it is bail bond companies, as a practical matter, who are most involved in looking for fugitives from justice. . . . [I]f the bonding company has no assurance that once it has located the absconding defendant its bail will be exonerated . . . the company has no financial incentive to undertake the search.” (County of Los Angeles v. American Contractors Indemnity Co. (2007) 152 Cal.App.4th 661, 666.)
Bail forfeiture proceedings are governed by sections 1305 through 1308. Section 1305 provides in relevant part: “(a) A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for [particular procedural events]: [¶] . . . [¶] (c)(1) If the defendant appears either voluntarily or in custody after surrender or arrest in court within 180 days of the date of forfeiture or within 180 days of the date of mailing of the notice if the notice is required under subdivision (b), the court shall, on its own motion at the time the defendant first appears in court on the case in which the forfeiture was entered, direct the order of forfeiture to be vacated and the bond exonerated. If the court fails to so act on its own motion, then the surety’s or depositor’s obligations under the bond shall be immediately vacated and the bond exonerated. . . .”
The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1).) The trial court may also toll the appearance period under certain circumstances, or extend the period by no more than 180 days from the date the trial court orders the extension, provided that the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension. (§§ 1305, subds. (e), (i); 1305.4; American, supra, 33 Cal.4th at p. 658, fn. 2.) After the appearance period expires, the trial court has 90 days to enter summary judgment on the bond. (§ 1306, subds. (a), (c).) If summary judgment is not entered within the statutory 90-day period, the bond is exonerated. (§ 1306, subd. (c).) Section 1306 provides in relevant part: “(a) When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture, regardless of the amount of the bail, shall enter a summary judgment . . . . ” (See American, supra, at p. 657.)
C. Issues Raised on Appeal
Fairmont claims on appeal that the court erred in denying its motion to set aside forfeiture of the bail bond under section 1305, subdivision (d) on the basis that Caradine was permanently unable to appear, and under section 1305, subdivision (f) on the ground that Caradine was in custody beyond the court’s jurisdiction and the prosecuting agency elected not to seek extradition. Fairmont also argues that the court had a mandatory duty to toll the appearance period during the time Caradine was in custody in Arizona, and that its failure to do so deprived the court of jurisdiction and exonerated the bond. Finding the last contention dispositive, we address it first.
D. Tolling Based on Temporary Disability
Fairmont argues that the trial court erred in denying its motion to toll the appearance period during Caradine’s “temporary disability” while he was in custody in Arizona. Respondent maintains that the court lacked jurisdiction to toll the appearance period, claiming that a surety must choose between extending the appearance period under section 1305.4 and tolling the appearance period under section 1305, subdivision (e), but cannot do both. Because Fairmont had obtained an extension of the appearance period until May 24, 2007, respondent claims the court was foreclosed from tolling the appearance period. It asserts that a surety “can either move to toll the appearance period, or it can move to extend that period[;] . . . [it] only gets one chance to make that motion, and, once it makes a choice, it cannot change its mind.”
The arguments of counsel, and statements by the trial court, blur the distinctions between three different procedures: tolling the appearance period, extending the appearance period, and vacating forfeiture and exonerating the bond. Tolling the appearance period is a procedure substantively different and entirely distinct from extending the appearance period or exonerating the bond, and requires a lesser standard of proof. “In the case of a temporary disability, the court shall order the tolling of the 180-day period provided in this section during the period of temporary disability, provided that it appears to the satisfaction of the court that the following conditions are met: [¶] (1) The defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities. [¶] (2) Based upon the temporary disability, the defendant is unable to appear in court during the remainder of the 180-day period. [¶] (3) The absence of the defendant is without the connivance of the bail.” (§ 1305, subd. (e).) Additionally, “[t]he period of tolling shall be extended for a reasonable period of time, at the discretion of the court, after the cessation of the disability to allow for the return of the defendant to the jurisdiction of the court.” (Ibid.)
In contrast, the purpose of extending the appearance period under section 1305.4 is to allow the surety additional time to “adduce evidence to justify vacating the forfeiture and exonerating the bond.” (People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193, 1199 (Billingslea).) Extending the appearance period requires the surety to meet a different burden of proof: the motion must include declarations or affidavits demonstrating “good cause.” (§ 1305.4.)
Respondent maintains that “the California Supreme Court made it clear that a court may either ‘toll’ or ‘extend’ the appearance period; it cannot do both,” relying on the court’s use of the word “or” in the following passage from American: “The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. [Citation.] During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds . . . . The trial court may also toll the appearance period under certain circumstances, or extend the period by no more than 180 days from the date the trial court orders the extension, provided that the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension.” (American, supra, 33 Cal.4th at p. 658, italics added.) The court in American, however,did not consider or decide the issue of whether the trial court could toll the appearance period if an extension already had been granted, and accordingly provides no authority on that point. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
Respondent also urges that allowing a surety to seek an order tolling the appearance period after the court has granted an extension of the appearance period is contrary to the “[L]egislature’s desire for finality.” Relying on Billingslea, supra, 74 Cal.App.4th at page 1199, it claims “dragging the forfeiture period on indefinitely, ‘would violate the policy and spirit of the statutory framework within which section 1305.4 is found which strongly favors limiting the amount of time a surety has to challenge forfeiture.’ ” Again, respondent fails to make any distinction between a motion to extend the appearance period under section 1305.4 and an order tolling the 180-day period under section 1305, subdivision (e). Billingslea held that the surety can receive only one 180-day extension of the appearance period, not that tolling of that time period is prohibited. (Billingslea, supra, at p. 1199.) Moreover, the Billingslea court recognized the different purpose for obtaining an extension under section 1305.4: “to adduce evidence to justify vacating the forfeiture.” (Billingslea, at p. 1199.)
Respondent next contends Fairmont failed to meet its burden of submitting “competent” evidence prior to the expiration of the appearance period, because the declarations it filed in support of the motion contained hearsay statements and the documents lacked authentication or foundation. This assertion fails for three reasons: the parties do not dispute that Caradine was in custody in Arizona prior to expiration of the extended appearance period; Fairmont submitted supporting evidence with its timely filed motion adequate to meet the reduced burden of proof necessary for tolling; and respondent failed to preserve its evidentiary objections for appeal.
Respondent does not make this “no competent evidence” claim in its argument regarding the motion to toll, relying solely on its claim that tolling is prohibited once an extension has been granted.
First, the parties do not dispute that Caradine actually was in custody in Arizona prior to May 24, 2007, the last day of the extended appearance period on which Fairmont timely filed its motion. The time in which the motion could be heard was properly extended by the court under section 1305, subdivision (i). The factual grounds on which tolling is based, however, must be in existence prior to the expiration of the appearance period. (People v. Seneca Ins. Co., supra, 116 Cal.App.4th at pp. 82-83.) The trial court found at the hearing on August 24, 2007, that: “for the record . . . it was right after the tolling that there was confirmation that we did in fact have Mr. [Caradine]. [¶] And I will note for the record he is in custody. He is coming back.” (Italics added.) In any event, although certainty of identity may have been delayed, by the time of the hearing there could be no serious dispute that defendant, during the latter portion of the extension period, had been incarcerated in Arizona.
It appears the trial court confused the extended appearance period expiring on May 24, 2007, with a “tolling” of the appearance period.
Secondly, the burden of proof necessary to toll the appearance period based on a defendant’s “temporary disability” is significantly lower than the burden of proof necessary to vacate a forfeiture or to extend the appearance period. “Under section 1305, the quantum of proof necessary to support a tolling order is less than that necessary to obtain an actual discharge on the defendant’s appearance.” (County of Los Angeles v. Surety Ins. Co. (1984) 152 Cal.App.3d 16, 23-24 (Surety Insurance).) “In the case of a temporary disability, the court shall order the tolling of the 180-day period provided in this section during the period of temporary disability, provided that it appears to the satisfaction of the court that the following conditions are met: [¶] (1) The defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities.” (§ 1305, subd. (e)(1), italics added.) “The language of section 1305 . . . is significantly different with respect to the quantum of evidence which the surety must produce to discharge the forfeiture of its undertaking after actual appearance of the defendant and the quantum necessary to support the type of order challenged on this appeal. . . . [T]o obtain temporary relief, it is only necessary that ‘it is made to appear to the satisfaction of the court that the defendant is temporarily disabled . . . .’ ” (People v. Resolute Ins. Co. (1975) 46 Cal.App.3d 249, 256 (Resolute), citing § 1305.) The court went on to explain: “We do not believe that the Legislature’s use of different words was inadvertent. The word ‘show’ is synonymous with ‘establish’ or ‘prove.’ [Citations.] ‘Appear,’ on the other hand, has been equated with ‘seem’ and ‘have the semblance or aspect of being; seem or seem likely; without implying reality or unreality.’ ” (Resolute, at p. 256, citing Hancock Oil Co. v. Hopkins (1944) 67 Cal.App.2d 218, 221.) As the court in Surety Insurance explained, “[T]he declaration attached to appellant’s motion papers, stating receipt of information that the defendant was in custody in another jurisdiction, was adequate to permit a tolling order on the basis of temporary disability.” (Surety Insurance, at p. 24.)
Here, the evidence submitted was sufficient for it to “appear” to the court that Caradine was actually in custody in Arizona prior to the expiration of the appearance period. The declarations and documents filed with Fairmont’s motion demonstrated that the San Francisco defendant Caradine and the Caradine in custody in Arizona were the same individual. Notably, the Arizona records indicated that the individual in custody in Maricopa County had the same social security number as the San Francisco defendant Charles Caradine. The Maricopa County booking report describes the individual as Joseph Caradine, with a birth date of December 29, 1970, and a social security number. The San Francisco court docket indicated that Charles Caradine has the same social security number. Caradine’s parole officer faxed a warrant abstract for “Charles Otis Caradine,” showing an alias of Joseph Caradine and an alternate birth date of December 29, 1970. The additional information available to the court at the time of the hearing certainly made it appear that Caradine, in fact, had been in custody in Arizona since January 2007, and would be returned. In that Caradine was actually in custody during the 180-day exoneration period, he was temporarily disabled within the meaning of section 1305, subdivision (e).
Respondent’s final claim is that the evidence filed in support of the motion was not competent because it consisted of “inadmissible hearsay,” unauthenticated documents, and lacked foundation. Respondent, however, never obtained a ruling on its evidentiary objections in the trial court. “[A] mere objection is insufficient. To preserve an evidentiary objection for appellate review, the objecting party must also obtain a ruling on the objection from the trial court.” (Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, 569.) The court’s statement that “the evidence that was gathered during the tolling was not competent evidence, although it was a lead,” does not suffice as a ruling on any specific evidentiary objection.
Though the evidentiary objections were not preserved, we note that Fairmont was required to submit evidence in the form of declarations. “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Cal. Rules of Court, rule 3.1306(a); Code Civ. Proc., § 2009.) Documents such as those submitted here may be authenticated without live testimony (see, e.g., Evid. Code, §§ 1411, 1420) and may come within exceptions to the hearsay rule. (People v. Morris, supra, 166 Cal.App.4th at p. 367 [“CLETS rap sheets have been found to be admissible under the public record exception to the hearsay rule”].) And, of course, statements in the declarations or documents not offered for the truth of the matter stated are not inadmissible hearsay. For example, the social security number attributed to Caradine in the Maricopa County jail records was not offered to prove it was indeed Caradine’s social security number, but was evidence that the San Francisco defendant and the individual incarcerated in Arizona were the same person.
E. Exoneration Based Upon Permanent Disability Or Waiver Of Extradition.
Fairmont additionally contends that the order forfeiting the bond should be vacated and the bond exonerated pursuant to section 1305, subdivisions (d) and (g).
Pursuant to section 1305, subdivision (d), the surety is entitled to have the order forfeiting bail vacated and the bond exonerated when the defendant is “permanently unable to appear in Court.” There is no reasonable interpretation of the word “permanently” which would provide that the imposition of a three-year prison sentence in another jurisdiction is permanent. Nor is there any indication in the statutory scheme that any particular prison term is “too long” for a temporary tolling. Fairmont provides no authority to support its proposition of permanent disability. The trial court correctly rejected that claim.
The election of “the prosecuting agency” not to seek extradition can, in certain circumstances, lead to exoneration of the bond pursuant to section 1305, subdivision (g). Fairmont did not establish, however, such an election. Firstly, it is questionable that section 1305, subdivision (g) applies to an incarcerated defendant since it refers to one “not in custody” and “temporarily detained, by the bail agent.” Assuming that the section 1305, subdivision (g) does apply where the bail agent has located a defendant as incarcerated in another jurisdiction, there still must be an “election” by the prosecuting agency. Here, the trial court was presented with no evidence of a determination by the district attorney. Rather, the court was presented with the mere opinion of a local police officer that “due to the ordinary nature of the crime” she did not expect to place an extradition hold. The trial court was within its discretion to find insufficient evidence of a waiver of extradition, especially since the parole officer for the defendant had indicated that extradition for parole violation would occur.
IV.
Disposition
The summary judgment upon the forfeiture is reversed. The matter is remanded so that the trial court can schedule a further hearing upon the status of the tolling and to determine if subsequent events have resulted in exoneration of the bond or, under new facts, a judgment upon forfeiture is appropriate.
We concur: MARCHIANO, P. J., MARGULIES, J.