Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV071062
RAYE, J.The surety, International Fidelity Insurance Company (Fidelity), appeals from the summary judgment entered in favor of the People on the forfeiture of its bond. Fidelity contends the bond was exonerated when its attempts to locate defendant Vincenzo Evangelista and return him to custody were hindered or prevented by Yolo County agents, the trial court lost jurisdiction to grant relief from the forfeiture once the exoneration period had expired, and the summary judgment was void for lack of jurisdiction. We shall affirm.
RELEVANT STATUTORY FRAMEWORK
When a defendant has been granted bail and fails to appear without sufficient cause for an ordered appearance, the court is required to declare bail forfeited. (Pen. Code, § 1305, subd. (a).) The surety then has 180 days from notice of forfeiture to produce the defendant or show that he or she is otherwise in custody. Producing the defendant in court or showing evidence he or she is otherwise in custody vacates the forfeiture and exonerates the bond. (§ 1305, subd. (c)(1).) The 180-day period is known as the exoneration period. (People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 641.) The exoneration period is extended by five days for mailing of the notice of forfeiture. (§ 1305, subd. (b).) Prior to the expiration of the exoneration period, the surety may file a motion, based upon good cause, for an order extending the exoneration period, and the court may grant an extension of no more than 180 days. (§ 1305.4; People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193, 1199.) The surety may also request a tolling of the exoneration period if there is a period of temporary disability that prevents the defendant from appearing in court within the exoneration period. Such disability must be caused by the defendant’s illness, insanity, or detention by military or civil authorities. (§ 1305, subd. (e).)
All further statutory references are to the Penal Code.
Following forfeiture and the expiration of any exoneration or tolling period without the forfeiture’s having been set aside, the court “shall” enter summary judgment on bail forfeiture. (§ 1306, subd. (a).) If summary judgment is not entered within 90 days after the date upon which it may first be entered, the court loses the authority to enter such a judgment and the bond is automatically exonerated. (§ 1306, subd. (c).)
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 20, 2005, Fidelity posted a $50,000 bond on behalf of defendant. On July 27, 2005, defendant failed to appear because he suffered a broken leg while in Naples, Italy. The court found sufficient cause to excuse the failure to appear and the bond was not forfeited. The matter was continued to September 20, 2005.
On September 20, 2005, defendant again failed to appear and the bond was declared forfeited. Notice of forfeiture was sent on September 21, 2005.
Fidelity filed a motion on March 21, 2006, to extend the exoneration period, setting the hearing date for April 5, 2006. The surety represented to the court that it had confirmed defendant was residing in Naples, Italy, had been in contact with defendant’s family in Naples, and had a specific address where he was living. The surety also indicated it was in the process of working with an Italian investigator to coordinate the detention of defendant and would be sending a bail enforcement agent to Naples to accomplish that detention. The surety sought and obtained the information that defendant was living with his family in Naples at approximately the end of January 2006. On May 1, 2006, the court extended the exoneration period to July 31, 2006.
The court indicated its intent to extend the exoneration period for 90 days, to July 30, 2006. July 30, 2006, was a Sunday and therefore the period was extended to July 31, 2006. While the extension was 90 days from the hearing date, section 1305.4 permits a maximum “extension of no more than 180 days past the 180-day period set forth in section 1305.” (People v. Taylor Billingslea Bail Bonds, supra, 74 Cal.App.4th at p. 1199.) That is, the extension under section 1305.4 runs from the expiration date of the previous exoneration period, not from the date of the hearing extending the exoneration period. Thus, the extension granted by the court was actually a 126-day extension.
On July 28, 2006, Fidelity filed a motion to toll the 180-day exoneration period or, in the alternative, to extend it. The surety’s counsel represented that defendant had been temporarily detained at his parents’ home in Naples since May 1, 2006. The Yolo County District Attorney’s office had commenced extradition proceedings, including issuance of a UFAP warrant and a provisional warrant, which triggered “the FBI and local Italian law enforcement to work together in apprehending the defendant, and placing him into custody for extradition proceedings.” In response, the People contended there was no statutory authority for a tolling under section 1305, subdivision (e) as there was no evidence defendant had been detained by appropriate authorities. The People also contended there had not been a sufficient showing of good cause to extend the forfeiture period under section 1305.
Under the Fugitive Felon Act, it is a federal offense to move or travel in interstate or foreign commerce for the purpose of avoiding prosecution. (18 U.S.C.A. § 1073.) An unlawful flight to avoid prosecution (UFAP) warrant is a federal warrant issued by a federal magistrate pursuant to the Fugitive Felon Act. It permits federal law enforcement agents to apprehend state fugitives, release them to local authorities in the state of arrest, and allow extradition. (U.S. v. Love (D.C.N.Y. 1977) 425 F.Supp. 1248, 1250.) To obtain a UFAP warrant a local law enforcement officer seeks a state or local warrant for violation of a state criminal statute. The local law enforcement officer then contacts the FBI or the United States Attorney’s Office in the district and requests that a federal officer seek a UFAP warrant. (See U.S. Dept. of Justice, U.S. Attorneys’ Manual (2001) § 9-69.420.)
In most United States extradition treaties, there is a provision that allows for the provisional arrest, by the authorities of the country where a defendant is located, of a person charged with or convicted of an extraditable offense. This is to allow for the arrest of the fugitive while the appropriate documentation for extradition is being prepared. (See U.S. Dept. of Justice, U.S. Attorneys’ Manual (2001) § 9-15.230.) The United States’s extradition treaty with Italy specifically provides for such a provisional arrest. The application for a warrant for a provisional arrest is to be made either through diplomatic channels or directly between the United States Department of Justice and the Italian Ministry of Grace and Justice. (Extradition Treaty Between the United States and Italy, October 13, 1983, 35 U.S.T. 3023, 3034, T.I.A.S. No. 10837.)
At the August 28, 2006, hearing on the matter, counsel for the surety reiterated to the court that a provisional warrant had been issued by the Italian magistrate and defendant’s location was known. Counsel believed defendant would be in custody before the end of the month. The People continued to oppose a tolling but agreed there was now enough evidence to support an extension of the exoneration period under section 1305.4. Based on the surety’s representations, the court granted the motion to extend, extending the exoneration period to September 25, 2006.
On September 21, 2006, the surety filed a motion to discharge the bail forfeiture and exonerate the bond or to toll the 180-day forfeiture period under section 1305, subdivision (e). The surety contended the trial court had improperly found good cause for defendant’s nonappearance on July 27, 2005, and had therefore lost jurisdiction to later declare bail forfeited, and that the government had interfered with the bail agent’s ability to fulfill its contractual obligations under the bond.
Alternatively, the surety sought a tolling of the exoneration period under section 1305, subdivision (e), claiming that defendant was temporarily disabled under the statute. The surety argued that defendant had been located, extradition proceedings had been commenced, and therefore defendant was unable to leave Italy, with the international warrants being “tantamount to placing the defendant in custody in Italy with virtual bars.”
At the November 13, 2006, hearing, the surety represented it had a (new) current address for defendant in Italy, which information had been provided to law enforcement, and all of the international warrants were in place. The surety indicated the UFAP warrant had issued on June 23, 2006, and the provisional warrant issued on or about July 14, 2006. Based on the surety’s representations, the court indicated it would “give a 180 day extension from today’s date. This [is] the last extension. I don’t know what’s happening but warrants are in place. People know where he is. He is either taken into custody or we are done with these proceedings.” The surety’s counsel then inquired, “That would be a tolling for the record?” The court answered: “It is tolled for 180 days. And then there are no further tollings, good cause or not. Good cause runs out in 180 days. This is a 180 day tolling period with prejudice. At 180 days there is no further means by which to ask this Court for any further time.” The surety clarified that it could come back for additional time on the tolling period if, in fact, defendant were taken into custody on these charges.
Defendant was not returned to custody and the court entered summary judgment on May 25, 2007.
DISCUSSION
I
The District Attorney Did Not Defer to County Counsel or Hinder the Surety’s Performance on the Bond
Fidelity contends the bond was exonerated when the surety’s performance was hindered or prevented by the actions of Yolo County agents, specifically the Yolo County District Attorney’s office. Defendant contends the district attorney improperly “deferred to the county counsel in taking the action required, such as issuing UFAP and provisional warrants, and in making an election whether or not to extradite. The failure to provide UFAP and provisional warrants prevented the defendant’s arrest by Italian authorities. [Citation.] Moreover, the district attorney vacillated and delayed his action to the point where contact with the defendant was lost.”
A. The District Attorney Did Not Defer to County Counsel
There is no evidence that the district attorney deferred to county counsel in taking action on the UFAP or provisional warrants, or in deciding whether or not to seek extradition of defendant. The only evidence even remotely pertaining to this issue was surety counsel’s hearsay statement that on May 12, 2006, she received a voice mail message from the extradition district attorney, Ann Hurd, indicating that her understanding in speaking with county counsel was that until defendant was in custody, there was no need to proceed with warrants. This statement was denied by county counsel.
Even if we accept the hearsay statement as true, it is not evidence that the district attorney deferred taking action on warrants or deciding whether to seek extradition at the behest of county counsel. At most, it indicates that county counsel offered an opinion to the district attorney as to whether warrants were necessary. Even the bail agent’s declaration indicates that the district attorney remained cognizant of the fact that decisions in this regard were within the purview of the district attorney’s office. Although the district attorney may have sought advice from county counsel’s office, the ultimate decisions with respect to seeking warrants and pursuing extradition remained with the district attorney’s office.
B. The District Attorney Did Not Hinder the Surety’s Performance
Nor does the evidence support the surety’s claim that the district attorney’s office was dilatory in the performance of its obligations, and thereby hindered the surety’s performance.
Prior to posting the bond, the bail agent was aware of defendant’s family members in Naples, Italy, knew the family’s address and phone number in Naples, and had been in contact with those family members. Bail was forfeited on September 20, 2005. Upon forfeiture, the surety contacted defense counsel, who informed the surety of defendant’s broken leg. “Over the next several months” the surety remained in contact with defendant’s attorney, “who indicated he believed the defendant would be making arrangements to return to California, to resolve this matter.” Not until January 11, 2006, some four months into the exoneration period, did the surety take any additional steps to return defendant to custody. Two weeks later, a friend of defendant’s family called the surety from Italy and confirmed defendant was residing with defendant’s family in Naples. As of the May 1, 2006, hearing, the surety was just making plans to send an agent to Italy.
On May 1, 2006, the surety went to the district attorney’s office to meet with the extradition deputy but was unable to do so. On May 8, 2006, the surety wrote to the extradition deputy and requested the deputy initiate a UFAP warrant and have a UFAP warrant “placed into the system.” According to the surety, on May 12, 2006, the district attorney left a message informing the surety a warrant would not be sought until defendant was in custody.
On May 31, 2006, the surety asked the district attorney for a letter of assistance. On June 6, 2006, the bail agent provided her Italian investigator with a courtesy assist letter from the district attorney’s office. That same day, the Italian investigator informed the bail agent that without an international warrant in the system, Italian officials could not assist with defendant’s apprehension and detention.
From June 7, 2006, to June 13, 2006, the bail agent continued to request an assistance letter, seeking help from county counsel in obtaining that letter. There was no further mention of a UFAP. Nor was there any communication with the extradition district attorney’s relaying what the Italian investigator had been told by Italian authorities. The requested assistance letter was written by the extradition district attorney on June 14, 2006.
As a side note and further contrary to the surety’s suggestion that county counsel somehow interfered with its ability to get assistance from the district attorney’s office, the bail agent’s declaration indicates the letter she was seeking was ultimately procured with county counsel’s assistance.
During that time frame, the surety also requested a “24/7” phone number that could be called when it had defendant detained. The surety also advised the district attorney that the investigative bail agent would be leaving for Italy on June 19, 2006. The investigative bail agent arrived in Naples on the night of June 20, 2006. Earlier that day, the Italian investigator advised the surety that the Italian officials needed a “collaboration request through diplomatic channels.” The surety did not advise the district attorney of this information.
On June 23, 2006, the investigative bail agent and the Italian investigator went to defendant’s family home. They were informed defendant had been married the previous Thursday and was currently living in Salerno, about an hour away. Defendant’s father called defendant and asked him to come to the house, and defendant did. After positively identifying defendant, the bail agent, in the presence of the Italian investigator, called the “24/7” number, apparently believing a UFAP warrant was in place, to seek an international warrant number but was unable to get one. Shortly thereafter, “all hell broke loose,” and the investigative bail agent and Italian investigator had to leave the area without defendant.
This meeting occurred at approximately 3:00 a.m. California time.
Later that day, the district attorney’s office indicated it would seek extradition of defendant and began working with the FBI. The UFAP warrant issued on June 23, 2006.
The investigative bail agent then went to Rome and met with a local FBI agent. He was instructed not to go back to the neighborhood in Naples because it was dangerous. The investigative bail agent returned to San Francisco the following day.
On July 14, 2006, the surety requested the district attorney’s office take “steps . . . for a provisional warrant to be issued.” The provisional warrant issued “[s]omewhere in [the] time frame [sic]” of July 14, 2006.
Some two months later, on September 18, 2006, the surety had the Italian investigator contact the FBI. The FBI had not been able to locate defendant. The Italian investigator reported he had conducted additional investigations because defendant no longer lived at his “registered address (with his parents) in Naples”; defendant had been married in the spring of 2006; and he had found two possible addresses for defendant in Salerno, one registered to defendant and one registered to his wife. The FBI and the surety were provided this information on September 21, 2006. Approximately two months later, at the November 13, 2006, hearing, the surety had no additional information and defendant had still not been taken into custody.
Analysis
“It is well established that where performance of the conditions of a bail bond is rendered impossible by an act of God, an act of the obligee (i.e., the People), or an act of law, the bond will be exonerated.” (People v. Amwest Surety Ins. Co. (1987) 195 Cal.App.3d 1396, 1399 (Amwest Surety).) However, there is no obligation on the part of the district attorney to assist the surety in returning a defendant to court. (People v. National Auto. & Cas. Ins. Co. (1979) 92 Cal.App.3d 481, 483 (National Auto.) [“[T]here is no legal authority for the proposition that the mere refusal by the government to extradite a defendant from a foreign jurisdiction operates to excuse the surety of performance and exonerate the bond.”]; Amwest Surety, supra, 195 Cal.App.3d at p. 1400 [“[T]he government . . . was not required to cooperate with [the surety] by taking affirmative steps to ensure that it could produce [the defendant].”].) “Only if the government took some affirmative action that rendered the surety’s performance impossible would his obligation be excused and the bond exonerated.” (People v. Amwest Surety Ins. Co. (1991) 229 Cal.App.3d 351, 356; see National Auto., supra, 92 Cal.App.3d at pp. 483-484.)
Here, the district attorney did not affirmatively act in any way that rendered the surety’s performance impossible. The surety knew defendant was in Italy with his family, and the specific address of defendant’s family in Italy, as early as September 2005. The surety failed to take any action to secure defendant’s return until January 2006, almost four months later. It was not until May 2006, almost eight months after bail was forfeited, before the surety made any plans to send an agent to Italy and requested the district attorney’s assistance in obtaining a UFAP warrant. More than a month later, some nine months after forfeiture, the surety sent an investigator to Italy.
Upon learning the surety had positively located and identified defendant, the prosecution sought and obtained a UFAP warrant. The FBI had warned the bail agent not to return to the neighborhood in Naples, but the investigative bail agent had already learned defendant no longer lived in Naples; he had moved with his new wife to Salerno. Nonetheless, the bail agent returned to San Francisco.
Approximately three weeks later, in July 2006, the surety requested for the first time that the district attorney’s office assist in procuring a provisional warrant. The provisional warrant was issued on or about the date it was requested.
The surety argues the district attorney failed to provide UFAP and provisional warrants. However, the district attorney does not “provide” these warrants. The UFAP warrant is a warrant issued by a federal magistrate. (See ante, fn. 3.) The provisional warrant is a warrant issued by a magistrate in the country from which extradition is sought. (See ante, fn. 4.) Thus, at best all the district attorney could do was initiate the process to obtain these warrants; she could not issue them herself or provide them in any way. (See County of Orange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795, 801.)
Two months later, in September 2006, the surety’s Italian investigator contacted the FBI and informed it of two possible locations in Salerno where defendant might be living with his new wife. Another two months later, in November 2006, defendant had not been taken into custody, and the surety had no new information on defendant’s whereabouts.
On this record, we fail to understand how the district attorney’s conduct hindered performance of the surety’s obligation. The district attorney did not require the surety to wait four months before taking any action to return defendant to custody. The district attorney did not require the surety to wait eight months before even asking for assistance in procuring a UFAP warrant. The district attorney did not make the surety wait nine months before sending an investigator to Italy to positively locate and identify defendant. The district attorney did not make the bail agent return from Italy, despite the issuance of the UFAP and the information that defendant lived in Salerno, not the dangerous neighborhood in Naples. Nor did the district attorney make the surety wait another two months before advising law enforcement of defendant’s change of location and marital status, information that the surety had as of June 2006.
Bail is not a joint venture to produce a defendant for trial. The responsibility for the failure to return a defendant to custody remains solely with the surety. (Amwest Surety, supra, 195 Cal.App.3d at p. 1400.) Nothing in the district attorney’s affirmative actions hindered the surety’s performance of the contract. Accordingly, this was not a basis upon which the bond should have been exonerated.
II
The Trial Court Did Not Act in Excess of Jurisdiction
Fidelity next claims the trial court had no jurisdiction to extend the exoneration period beyond September 21, 2006. To reach this conclusion, Fidelity claims the 185-day exoneration period expired on March 25, 2006. Based on that calculation, Fidelity claims the extended 180-day period under section 1305.4 expired on September 21, 2006. In this case, however, the court first extended the exoneration period to July 30, 2006, and then extended it to September 25, 2006. Accordingly, Fidelity contends the court acted without authority in extending the period to September 25, 2006. Fidelity is wrong.
Fidelity claims the 185th day was March 25, 2006. This is technically correct. However, March 25, 2006, was a Saturday. Accordingly, the next business day, and the day on which the exoneration period expired, was Monday, March 27, 2006. (People v. Ranger Ins. Co. (2002) 101 Cal.App.4th 605, 609.) An additional 180 days from March 27, 2006, was September 25, 2006. Accordingly, the court did not act in excess of jurisdiction or beyond its authority.
Of note, the correct expiration date of the exoneration period is a fact noted in the surety’s memorandum of points and authorities supporting its motion to extend. Trial counsel also advised the court that September 25, 2006, was the outermost day of the 180-day extended exoneration period. This is not the first time counsel on appeal has made a counting mistake such as this and based an appeal on that mistake. (People v. Ranger Ins. Co., supra, 101 Cal.App.4th at p. 609.) We urge counsel to be more careful on this point in the future.
III
The Summary Judgment Was Not Void
Fidelity’s last contention, relying again on its miscalculation of the exoneration period, is that the summary judgment was void for lack of jurisdiction. Specifically, Fidelity argues that after the expiration of the second exoneration period on September 21, 2006, the court had authority to do nothing but enter summary judgment within 90 days, or by December 20, 2006. As above, Fidelity has miscalculated the end date of the second exoneration period.
Furthermore, in this case, the 90-day period to enter summary judgment would not have commenced on September 21, 2006. The 90-day period to enter summary judgment under section 1306 does not commence until after any timely filed pending motions are denied. (See People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758,764, 768.) The court may hear timely filed motions up to 30 days after the exoneration period has expired, and that 30 days may be further extended on a showing of good cause. (§ 1305, subd. (i).) “[S]ummary judgment cannot be entered before the motion has been decided even if that decision occurs after the expiration of [the exoneration] period.” (People v. Granite State Insurance Co., supra, 114 Cal.App.4th at p.764.)
On September 21, 2006, the surety filed a timely motion to discharge the bail and exonerate bond or toll the forfeiture period. With the timely filing of the surety’s motion, summary judgment could not have been entered prior to the determination on the motion. The hearing was originally set for October 16, 2006, and then continued on the surety’s motion to November 13, 2006. At that point, the court granted the surety’s request for more time, and this act was not done beyond the statutory period. Time was extended to May 14, 2007. Summary judgment was entered on May 25, 2007, well within the 90-day statutory period of section 1306. Accordingly, summary judgment was not void for lack of jurisdiction.
The surety properly does not appeal this action, as it has regularly been held that having asked for the favor of more time to bring a defendant to court, the surety cannot later challenge such a grant on appeal. (People v. Frontier Pacific Ins. Co. (2000) 83 Cal.App.4th 1289, 1294; People v. National Automobile & Casualty Ins. Co. (2000) 82 Cal.App.4th 120, 126; County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 18-19.)
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.