Opinion
B226630
09-19-2011
THE PEOPLE, Plaintiff and Respondent, v. SHARKY'S BAIL BONDS, Defendant and Appellant.
Law Offices of Karine Basmadjian and Karine Basmadjian for Defendant and Appellant. Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel and Joanne Nielsen, Principal Deputy Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA360687)
APPEAL from an order of the Superior Court of Los Angeles County, Ray G. Jurado, Judge. Affirmed.
Law Offices of Karine Basmadjian and Karine Basmadjian for Defendant and Appellant.
Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel and Joanne Nielsen, Principal Deputy Counsel for Plaintiff and Respondent.
I. INTRODUCTION
The surety, Sharkey's Bail Bonds, challenges an order denying its motion pursuant to Penal Code section 1305, subdivision (g) to vacate a forfeiture order after defendant, Toros Aslanyan, failed to appear for a criminal matter. The surety claims the motion should have been granted because defendant had been located in Russia but the Los Angeles County District Attorney's Office refused to request extradition. We affirm because the trial court correctly concluded the absence of an extradition treaty (18 U.S.C. § 3181) between the United States of America and Russia precluded relief from the bail forfeiture under section 1305, subdivision (g).
All further statutory references are to the Penal Code unless otherwise indicated.
Section 1305, subdivision (g) provides, "In all cases of forfeiture where a defendant is not in custody and is beyond the jurisdiction of the state, is temporarily detained, by the bail agent, in the presence of a local law enforcement officer of the jurisdiction in which the defendant is located, and is positively identified by that law enforcement officer as the wanted defendant in an affidavit signed under penalty of perjury, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release."
--------
II. BACKGROUND
On August 14, 2009, a criminal complaint was filed against defendant for two felony violations of section 12021 and one misdemeanor charge of violating Vehicle Code section 23103, subdivision (a). Defendant was subsequently ordered to serve a 32-month term of imprisonment. On August 21, 2009, the surety posted bail on defendant's behalf in the amount of $35,000. On September 11, 2009, the bond was ordered forfeited after defendant failed to appear.
On June 9, 2010, the surety filed a motion to vacate the forfeiture order and exonerate the bond pursuant to section 1305, subdivision (g). The surety argued that it had complied with its statutory obligations because: defendant had been taken into custody by Russian authorities on May 13, 2010; defendant had been identified by photograph and fingerprints; and the district attorney was contacted but was unwilling or unable to extradite defendant.
The district attorney opposed the motion to vacate the forfeiture order. It was argued there was no election not to seek extradition within the meaning of section 1305, subdivision (g) because the United States does not have an extradition treaty with Russia. In reply, the surety asserted the district attorney's opposition was based on the presumption that Russia would not extradite defendant. But, there was no evidence that any efforts were actually made to extradite defendant.
The motion was heard on July 12, 2010. At the hearing, the surety's attorney, Karine Basmadjian, asked the trial court to read and consider a letter from defendant. The letter indicated defendant regretted fleeing the country and was willing to cooperate with the authorities and return to face his sentence. According to Ms. Basmadjian, because of a 2005 deportation order, defendant had been refused a visa from the United States government. Ms. Basmadjian conceded there was no extradition treaty between the United States and Russia. However, she asserted that Russia cooperated in some cases with extraditing defendants in an "informal" manner. According to Ms. Basmadjian, Russian authorities were more likely to consider "informal" extradition because defendant was Armenian and not a Russian citizen. None of Ms. Basmadjian's oral representations are set forth in any declaration. The motion to vacate the forfeiture order was denied. On July 16, 2010, notice of entry of judgment of forfeited bond and demand for payment was sent to the surety and its surety, Lexington National Insurance Company. This timely appealed followed.
III. DISCUSSION
The order denying a motion to set aside a forfeiture of bail is appealable if the question on appeal is whether the judgment was entered in compliance with section 1305. (People v. Indiana Lumbermens Mut. Ins. Co. (2010) 190 Cal.App.4th 823, 825, fn. 1; People v. Lexington Nat. Ins. Co. (2007) 147 Cal.App.4th 1192, 1197, fn. 2; see also County of Los Angeles v. National Auto. & Cas. Ins. Co. (1998) 67 Cal.App.4th 271, 274, fn. 1.) The trial court's determination under this statute is reviewed for an abuse of discretion and will not be disturbed on appeal unless a patent abuse appears in the record. (People v. Wilcox (1960) 53 Cal.2d 651, 656; People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 582, 586; County of Orange v. Lexington Nat. Ins. Co. (2006) 140 Cal.App.4th 1488, 1492.) However, the purpose of bail and forfeiture statutes is to insure the attendance of the accused and his or her obedience to court orders and judgments. (People v. Wilcox, supra, 53 Cal.2d at pp. 656-657; People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791, 794-795; In re Samano (1995) 31 Cal.App.4th 984, 992.) The goal of the statutes is not to raise revenue for the state or punishment to the surety. (People v. Wilcox, supra, 53 Cal.2d at p. 657; People v. Seneca Ins. Co. (2010) 189 Cal.App.4th 1075, 1081.) Moreover, because the law disfavors forfeitures and statutes imposing them, section 1305 must be construed favorably to the surety. (People v. Lexington Nat. Ins. Co., supra, 147 Cal.App.4th at p. 1201; People v. Far West Ins. Co., supra, 93 Cal.App.4th at p. 795.)
The district attorney is correct that pertinent decisional authority supports the order denying the motion to vacate the forfeiture. Although section 1305, subdivision (g) may apply when a bail agent detains the defendant in a foreign county, the circumstances of the case must be examined to determine whether extradition is feasible. (County of Orange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795, 802-805.) Before relief from forfeiture may be granted under section 1305, subdivision (g), the circumstances of each case must be examined to determine whether the bail agent has made a showing that the terms of that section have been satisfied. (County of Orange v. Ranger Ins. Co., supra, 61 Cal.App.4th at pp. 802-805.) This includes whether the bail agent has made a factual showing that the applicable prosecuting agent has not elected to extradite the defendant where extradition is feasible. (Ibid.) The Court of Appeal has held: "The term elect implies a choice of options. (See Am. Heritage Dict. (2d college ed. 1982) p. 442 [Elect means, 'To make a choice of selection.'].) And under section 1305, subdivision (g), the implication is that the prosecutor will have the option whether or not to seek extradition. When extradition is not feasible, there can be no meaningful election whether to seek extradition, and the conditions for forfeiture relief have not been satisfied." (County of Orange v. Ranger Ins. Co., supra, 61 Cal.App.4th at p. 802.) For example, section 1305, subdivision (g) does not apply when extradition is infeasible such as when the host country as a matter of public policy refuses to grant requests to extradite in an applicable category. (County of Orange v. Ranger Ins. Co., supra, 61 Cal.App.4th at pp. 802-805.) More specifically, when there is no extradition treaty between a foreign country and the United States, there is no election not to seek extradition within the meaning of section 1305 as a matter of law. (People v. Lexington Nat. Ins. Co. (2010) 189 Cal.App.4th 1242, 1246-1247 [absence of extradition treaty between the United States and Chechnya precluded relief under subdivision (f) on the basis of the prosecutor's election not to seek extradition].)
Here, defendant is in Russia. But, there is no extradition treaty between the United States and Russia. The absence of a treaty between the United States and Russia precluded the trial court from granting relief under section 1305, subdivision (g) on the basis of the prosecutor's election not to seek extradition. (See People v. Lexington Nat. Ins. Co., supra, 189 Cal.App.4th at pp. 1246-1247; County of Orange v. Ranger Ins. Co., supra, 61 Cal.App.4th at pp. 802-805.)
For these reasons, we disagree with the surety that People v. Salcido (2008) 44 Cal.4th 93, 122-126 requires a different result. In Salcido, a defendant was convicted of six counts of first degree murder and sentenced to death. The defendant had unsuccessfully sought to preclude imposition of the death penalty based on an extradition treaty between the United States and Mexico. (Id. at p. 122.) According to the defendant, the treaty was violated when the Mexican government "informally" extradited or "expelled" him to face prosecution in the United States. (Id. at pp. 118-119.) This was because American law enforcement officers purportedly obtained custody of him by intentionally misrepresenting the defendant was a United States citizen. (Id. at pp. 125- 126.) It was argued that, if Mexican authorities knew he was a Mexican national, they would have objected to the custody transfer due to the death penalty issue. (Ibid.)Our Supreme Court concluded defendant lacked standing to challenge the treaty violation between the United States and Mexico. (Id. at p. 125.) But, in any event, the treaty was neither violated nor implicated because of the "informal" cooperation between the two nations. (Id. at pp. 125-126.) Salcido has no bearing on the issues raised in this case where the Russian government does not have an extradition treaty with the United States government. In any event, nothing in the discussion in Salcido requires the prosecution to engage in "informal" proceedings with any foreign government much less one which has no extradition treaty with the United States.
IV. DISPOSITION
The order denying the motion to vacate forfeiture order and exonerate the bond is affirmed. The People of the State of California shall recover its costs on appeal from Sharkey's Bail Bonds.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J. KRIEGLER, J.