Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Rosendo Pena, Jr., Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Kevin B. Briggs, County Counsel, and Michael R. Linden, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J. and Franson, J.
United States Fire Insurance Company (USFIC) appeals from the summary judgment entered against it in the amount of $55,000, the amount of a bond it posted to secure the release of Alfredo Luis Gonzalez pending trial on criminal charges filed against him. (Pen. Code, §§ 1271, 1276 & 1306.) USFIC contends the trial court erred when it denied USFIC’s motion seeking an extension of time within which to locate and apprehend Gonzalez as permitted by section 1305.4. We conclude the trial court did not abuse its discretion in denying the motion and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
On June 18, 2009, Gonzalez was arrested for possession of methamphetamine for sale, in violation of Health and Safety Code section 11378. On June 20, 2009, a bond was posted by Mark Davis Bail Bonds in the amount of $55,000 to secure Gonzalez’s release. USFIC was the surety on the bond. On July 6, 2009, Gonzalez failed to appear for arraignment. A bench warrant was issued and the bond was forfeited. Notice of the forfeiture was mailed on July 7, 2009.
Pursuant to section 1305, subdivisions (b) and (c)(1), USFIC had until January 8, 2010 (185 days from July 7), to secure Gonzalez’s appearance or the bond would be forfeited.
On January 7, 2010, Alex Padilla Bail Bonds and USFIC filed a motion to extend the date of forfeiture pursuant to section 1305.4. Attached to the motion was the declaration of John Morgan. Morgan declared that he received notice of Gonzalez’s failure to appear and the resulting forfeiture on July 15, 2009. For the next three months Morgan verified warrant status and reviewed criminal records and credit records for Gonzalez. He also ran address checks and a verification of Gonzalez’s driver’s license and registration. For the next two months, an address known to belong to one of Gonzalez’s associates was observed by a local bail agent employee. On December 5, 2009, Morgan contacted “World Famous Bounty Hunter” Leonard Padilla (hereafter Padilla). Padilla agreed to take over the case from Morgan. Padilla had an outstanding record in locating fugitives, and in “the 20 years that Mr. Padilla has taken cases from me, he has never failed in locating the fugitive. I am sure he will be successful in locating [Gonzalez].”
A declaration from Padilla also was filed with the motion. Padilla declared that upon receiving the assignment, he contacted Gonzalez’s father, who agreed to cooperate. The father also recommended that Padilla contact Gonzalez’s girlfriend. Padilla located addresses for Gonzalez in the Los Angeles, Mountain View, and Sacramento areas, which he was in the process of checking. Padilla expressed confidence in his ability to locate Gonzalez within the next 180 days if the extension were granted.
The County of Fresno opposed the request for an additional 180 days in which to locate Gonzalez, arguing that movants had failed to establish due diligence in their efforts to locate Gonzalez and had not established a reasonable likelihood of locating him within the extended period.
The trial court continued the hearing at the request of the parties. USFIC’s agent filed supplemental declarations from Morgan and Padilla at the continued hearing. At USFIC’s request, the supplemental declarations were filed under seal.
Since both parties cited to the sealed declarations in their briefs, we inquired if either party objected to our ordering the records unsealed. Neither party posed an objection and we hereby order the records unsealed.
In his supplemental declaration, Padilla declared that on January 12, 2010, he located the guarantor of the bond and learned that Gonzalez and his girlfriend had relocated to the San Diego area. By March 2010 Padilla had contacted the mother of Gonzalez’s girlfriend and was informed that Gonzalez and the girlfriend were residing in San Ysidro, California, with a Jorge Carillo Romero. The girlfriend’s mother agreed to cooperate with Padilla and agreed to attempt to obtain a phone number and address from her daughter.
In March 2010 Padilla was contacted by a former associate of Gonzalez’s who provided an address that may have been the location where Gonzalez was residing. Padilla stated that surveillance was being conducted at Gonzalez’s father’s house and at the girlfriend’s mother’s house. Padilla asserted that hundreds of hours were spent on the investigation, as well as several thousand dollars in expenses. He assured the trial court that if given an additional 180 days, he would locate Gonzalez.
In his supplemental declaration, Morgan declared that he received notice of the forfeiture on approximately July 15, 2009. He first attempted to contact Gonzalez and the indemnitor on the bond. These efforts were unsuccessful. A few days later Morgan was contacted by Gary Smith. Smith stated he knew how to locate Gonzalez and his codefendant. Morgan later learned that Smith was the cosigner on the codefendant’s bond. Morgan also learned that the indemnitor on Gonzalez’s bond had worked with Smith, and Smith coerced the indemnitor to sign Gonzalez’s bond. The indemnitor had since obtained a temporary restraining order against Smith and had left the state. This information led Morgan to conclude that Smith was unreliable and was attempting to gather information from Morgan to assist Gonzalez in evading capture.
Morgan then described the efforts he made to locate Gonzalez. In August 2009 he began conducting surveillance at Gonzalez’s father’s house. He confirmed that the father lived at that address and that Gonzalez had contact with his father. In August Morgan also checked the address listed on Gonzalez’s driver’s license, but he could not gain any information about Gonzalez’s current whereabouts from persons at that address.
In September 2009 Morgan obtained information that Gonzalez might be residing at different homes in the Sacramento area that were controlled by an associate of Gonzalez’s. Morgan also conducted surveillance at the home of the indemnitor’s grandparents, even though he knew the indemnitor had fled the state.
In October 2009 Morgan also conducted surveillance at an address for the indemnitor, as well as interviewing various individuals around the area. Morgan learned the indemnitor did not live at the address. Morgan also learned the name of Gonzalez’s girlfriend and located an address for her.
In November 2009 Morgan learned that Gonzalez may have married his girlfriend, still had contact with her, and had been seen driving a white sports utility vehicle. Morgan also conducted surveillance at an address believed to be for one of Gonzalez’s associates. At the time of the declaration, surveillance continued at this address.
In December 2009 Morgan contacted Padilla. In mid-December surveillance was conducted at the home of the mother of one of Gonzalez’s associates in an effort to locate the associate. In late December surveillance was conducted at another address of this associate. Morgan spoke with the associate’s mother, who informed him that the associate had left the state.
On January 5, 2010, Morgan contacted one of the indemnitor’s grandparents, but obtained no useful information. On January 12 Morgan located the indemnitor’s other grandparents’ new address. The indemnitor’s grandfather had the indemnitor contact Morgan. The indemnitor stated that Gonzalez and his girlfriend were living in the San Diego area. On January 22 a new address was located for the associate of Gonzalez who had apparently left the state. The house was vacant, although a white sports utility vehicle had been seen there in the past.
In February 2010 another address for the indemnitor was found. The apartment was vacant. The indemnitor would not inform Morgan of his current location. On February 19 an address was located for the mother of Gonzalez’s girlfriend and surveillance was started a few days later. Surveillance also was started at the address for Gonzalez’s father and continued at the home of Gonzalez’s associate, who apparently had left the state.
On March 3, 2010, an address was located for Gonzalez’s girlfriend in San Ysidro, California. On March 17 another address was located for Gonzalez’s girlfriend. Morgan investigated these addresses.
On April 1, 2010, surveillance was set up at three locations associated with Gonzalez’s girlfriend because her birthday was near that time, as was Easter Sunday. Morgan concluded with his belief that he was close to locating Gonzalez and was certain he would do so within the 180-day extension period.
The trial court denied the motion, concluding that USFIC had failed to establish good cause for the extension and had failed to establish a reasonable likelihood of locating Gonzalez in the extended period.
DISCUSSION
Section 1268 et seq. provides for bail to those accused of a crime. The purpose of bail is to ensure the attendance of the defendant and obedience to court orders. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 725.) When a defendant who has posted bail fails to appear when required to do so, the trial court must declare the bail forfeited. (§ 1305, subd. (a).) If a corporate surety has posted a bond, the clerk of the court is required to mail notice to the surety and its agent advising that bail has been forfeited. (Id., subd. (b).) This notice begins the running of a 185-day period (180 days plus five because the notice was mailed (id., subd. (b)) in which the surety is allowed to produce the defendant and have the bond exonerated (id., subd. (c)). This period is referred to as the appearance period or the exoneration period. If the surety is unable to produce the defendant within the initial 185 day period, it “may file a motion, based upon good cause, for an order extending the 180-day period provided in” section 1305. (§ 1305.4.)
USFIC filed a section 1305.4 motion, which the trial court denied for a lack of good cause. The issue is whether the trial court erred in denying USFIC’s motion. We review the trial court’s order for an abuse of discretion. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679 (Ranger I).) The trial court abuses its discretion when its decision exceeds the bounds of reason when considering all of the circumstances. (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.)
Ranger I defined the term “good cause” as requiring “an explanation of what efforts [the surety] made to locate [the defendant] during the initial 180 days, and why such efforts were unsuccessful.” (Ranger I, supra, 81 Cal.App.4th at p. 681.) The appellate court cautioned, however, that section 1305.4 does not give “a surety carte blanche to sit on its hands for six months and then come running into court at the last minute with a bare-bones declaration that leaves huge gaps in the facts, and expect a trial court to simply roll over and give an extension.” (Ranger I, at p. 682.) Subsequent cases have explained that efforts taken after the initial 180-day period are not relevant to the issue of whether good cause exists for an extension. (People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 644, 649 (Ranger II).)
To ease the reader’s task, we will refer to the individual or entity that posted the bond, arranged for the bond, or otherwise was responsible for the forfeiture of funds if the defendant was not returned to custody as the surety. Similarly, we will refer to the individual who was attempting to locate the defendant as the investigator, regardless of their actual title.
In People v. Accredited Surety and Casualty Co., Inc. (2006) 137 Cal.App.4th 1349 (Accredited), the Third District Court of Appeal expanded the definition of “good cause” to include a requirement that the surety establish a “reasonable likelihood” the surety will capture the defendant during the extension period. (Id. at pp. 896-897.)
We need not consider the likelihood-of-capture requirement imposed by Accredited, or even whether we agree such a requirement should be imposed, because we conclude that USFIC cannot establish the trial court abused its discretion when it found that USFIC did not establish good cause under the Ranger I definition.
Four cases are relevant to our analysis. In Ranger I the appellate court concluded the trial court did not abuse its discretion when it denied a section 1305.4 motion. To support its motion, the surety submitted a declaration that stated the file was forwarded to an investigator after all attempts by the surety to locate the defendant failed. The investigator reviewed the case file and “obtained all necessary documents to effect the defendant’s arrest.” (Ranger I, supra, 81 Cal.App.4th at p. 684.) The investigator’s investigation “produced a positive address on the above entitled matter” in Mexico. (Ibid.) In addition, the investigator learned the “defendant is a member of a band named ‘Fortaleza Nortena De Tijuana.[’]” (Ibid.)
The appellate court found this declaration to be deficient. “The declaration does not state what efforts had been made, when they were made, or when [the investigator] received the file. Further, the declaration does not state how or by what process [the investigator] was able to locate [the defendant]. Nor does [the investigator] explain what a ‘positive address’ was, how he was able to find it, how he knew it was a bona fide address for [the defendant], and whether the address was still good. Finally, the declaration gives no details on why it is significant that [the defendant] ‘is a member of a band named “Fortaleza Nortena De Tijuana.”’” (Ranger I, supra, 81 Cal.App.4th at p. 682.) The appellate court then summarized its holding: “At risk here is over $75,000. If [the surety] wanted to protect that money, it should have commenced an adequate investigation right after March 26, 1998, and should not have been afraid to spell out all the details of its efforts to the trial court. The cursory declaration that was filed in this matter is incomplete. The trial court’s ruling did not exceed the bounds of reason. Instead, we find the decision inherently reasonable.” (Ibid.)
In People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122 (Alistar), the trial court denied the surety’s section 1305.4 motion. In support of its motion, the surety filed a “detailed declaration” that two months after the defendant failed to appear, the file was assigned to an investigator. (Alistar, at p. 128.) The investigator learned the telephone numbers for defendant and his brother were disconnected; he left a message for the brother at the brother’s place of employment. The investigator also conducted a database search and found a possible address for the defendant. The investigator checked this address and an address for the defendant’s sister. The defendant’s sister stated she would tell the defendant the investigator was looking for him. The investigator contacted the local police agency and provided them with the information in his possession. The investigator received a message from the defendant’s brother advising him the defendant was in Mexico and would not be returning and added that he would not tell the investigator where the defendant was, even if he knew. The investigator stated he believed the defendant was still in the area because the sister had not mentioned that he had left for Mexico and concluded that with an extension he expected to locate the defendant. (Id. at p. 128.)
The appellate court concluded that the surety “provided sufficient evidence that its investigator … had made a concerted effort to locate defendant. The two-month delay in commencing the investigation is not a sufficient basis for denying [the surety’s] motions. [The investigator’s] declaration shows that he made a reasonable attempt to locate defendant, although it might have been advantageous to begin the investigation sooner.” (Alistar, supra, 115 Cal.App.4th at pp. 128-129.)
In Accredited the trial court denied the surety’s section 1305.4 motion. The surety submitted the declaration of its investigator in support of the motion. The investigator stated that shortly after the bond was forfeited, he learned the defendant was staying with a friend. The investigator conducted surveillance at the address and talked with several individuals who he thought might be the defendant. Shortly thereafter, the investigator learned that the defendant was living with family members at another location. The investigator contacted the local police department and they set up surveillance of the address. After four hours the investigator and the authorities entered the residence and discovered the defendant had fled. A fugitive recovery specialist was employed a few weeks later. Two possible addresses for the defendant were obtained and investigated. The defendant was not at either address. The investigator then contacted the defendant’s relatives and learned he had fled to Illinois. He then contacted the defendant’s family in Illinois and learned the defendant was living there, but an exact location could not be determined. The following month the investigator learned that the defendant had stolen a check, bought a vehicle, and was seen coming and going at a local address. The investigator discovered that the defendant had been seen in the company of a female, learned what type of vehicle she drove, and learned an address connected with the female. Surveillance was set up at this new address. The following month the investigator learned from a family member that the defendant was hiding out in an apartment complex. Local police authorities were contacted and the apartment was surrounded and searched. The defendant was not there. They obtained another address where the defendant may have been hiding. The investigator concluded his declaration by stating that he had known the defendant his entire life, and he was confident he would locate the defendant because the defendant had few places to go and the family was cooperating in the attempt to locate him. (Accredited, supra, 137 Cal.App.4th at pp. 1353-1354.)
The appellate court concluded that the surety had shown due diligence in attempting to locate the defendant and, accordingly, the trial court had abused its discretion in denying the surety’s section 1305.4 motion. (Accredited, supra, 137 Cal.App.4th at pp. 1358-1359.) “Even though he was not able to capture [the defendant] in the first 180 days, [the investigator] was able to consistently gather information about [the defendant]. He learned where [the defendant] resided at various times, with whom he associated, and what actions he had taken, such as stealing a check from his chiropractor. Nothing in the declaration suggested [the investigator] would not continue to gather this sort of information. The declaration also stated that [the defendant’s] family was actively cooperating, that [the defendant] had few places to go, and that [the investigator] felt confident he could return [the defendant] to custody in another 180 days. The People offered no facts to counter these statements.” (Id. at p. 1359.)
In Ranger II, the trial court denied the surety’s section 1305.4 motion. In support of its motion, the surety filed a declaration that stated it believed the defendant had fled to Mexico and was staying with his mother. The surety assigned the file to an investigator. After the initial 180-day period expired, but before the section 1305.4 motion was heard, the surety informed the trial court it had located the defendant in Mexico and he was to be detained shortly. The defendant was in fact detained as anticipated, but the district attorney declined to extradite him to the United States. Based on these facts, the surety moved to vacate the forfeiture and have the bond exonerated pursuant to the section 1305, subdivision (g), which permits exoneration if the defendant is detained in a foreign country and the district attorney declines to extradite the defendant. The trial court denied the section 1305.4 motion, and determined the motion to exonerate the bond was therefore moot.
Section 1305, subdivision (g) states in full: “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.”
The appellate court concluded that the trial court had not abused its discretion when it denied the surety’s section 1305.4 motion.
“All circumstances considered, we cannot conclude that the trial court exceeded the bounds of reason in determining that [the surety] failed to demonstrate good cause. [Citation.] [The surety] had been informed of the probable whereabouts of [the defendant] as of July 8, 2005, yet by the 180-day date of December 3, 2005, it would appear [the surety] had made no effort whatsoever to confirm the information. Simply obtaining a probable address in Mexico, without confirming the same or doing more, is insufficient. [Citation.] [The surety] did not send [the investigator] to Mexico to make the confirmation until December 19, 2005. [The surety] gives no explanation as to why it made no earlier effort. It only indicates that the ball was in the district attorney’s court, to decide whether or not to extradite.
“There are too many gaps in the record for us to jump to this conclusion. The motion to extend was unaccompanied by any declaration of [the investigator]. We do not know to whom he placed calls on September 1, 2005, whether to a contact known to handle extradition decisions or to a receptionist who was uncertain as to where to route the calls. We have no idea whether the calls resulted in substantive telephone conversations or whether [the investigator] just left messages and had no idea whether they were ever received by an individual equipped and authorized to respond to them. We also do not know the nature or content of the purported October 26, 2005 letter, or again, the particular addressee. On the one hand, we don’t know if the letter was couched in purely speculative terms, such as, ‘What do you generally do if we locate a guy in Mexico?’ On the other hand, we don’t know if the letter provided concrete information on [the defendant], such as the nature of the charge against him and his exact whereabouts.
“The only thing apparent from the record is that once [the surety] realized its time had expired, it decided it had better get [the investigator] down to Mexico to confirm that, in fact, [the defendant] was at his mother’s home there. This does not ‘demonstrate that [the surety] diligently attempted to locate and capture the defendant during the initial 180 days.’ [Citation.]” (Ranger II, supra, 150 Cal.App.4th at pp. 646-647.)
A fifth case, County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018 (Fairmont), is analogous to our case. In Fairmont, the trial court denied the surety’s section 1305.4 motion. The surety provided the following information to support its motion. The investigator stated that the surety had contacted courts, jails, family members, friends, employers, and other secondary sources in an attempt to locate the defendant. When these efforts failed to locate him, the surety checked court records and various law enforcement Web sites to determine if the defendant was in custody. The investigator contacted the indemnitor on the bond for his assistance. The indemnitor stated he believed the defendant was in Mexico and he would check with the defendant’s wife to confirm his belief. A week later the indemnitor informed the investigator that the defendant’s wife confirmed the defendant was in Mexico. The indemnitor promised to inform the investigator of the defendant’s telephone number. The investigator also conducted surveillance at various addresses where the defendant had lived. No one at these addresses had any information about the defendant’s current whereabouts. Three months later the investigator again contacted the indemnitor, who informed the investigator that the defendant was living in Mexico and was planning on returning to the United States to resolve the criminal matter. The investigator declared that he was confident he would be able to locate the defendant if an extension was granted. (Id. at pp. 1022-1023.)
The appellate court concluded the trial court did not abuse its discretion when it denied the surety’s section 1305.4 motion. “[The surety] was informed [the defendant] was in Mexico in mid-October 2006. Yet [the investigator] did nothing with this information and made no further efforts to secure an address or a telephone number for [the defendant] in Mexico until late January 2007. Nothing in [the investigator’s] declaration suggests he ever interviewed [the defendant’s] wife or even asked for her address or telephone number to seek more information about [the defendant’s] whereabouts. Instead of pursuing this potential lead, [the investigator] seemingly ignored it and instead conducted surveillance at local addresses the [surety] had already determined were not productive.” (Fairmont, supra, 164 Cal.App.4th at p. 1029.)
At first blush, it appears that USFIC made substantial progress in its attempts to locate and apprehend Gonzalez, supporting its argument that the trial court abused its discretion when it found USFIC had not established good cause for an additional 180 days. Closer examination, however, reveals that most of the progress made by Morgan and Padilla occurred after the exoneration period expired. The initial exoneration period expired on January 8, 2010. Efforts to locate Gonzalez after that date were irrelevant to the question before the trial court. (Ranger II, supra, 150 Cal.App.4th at p. 649.)
Before January 8, 2010, the efforts by Morgan and Padilla were much less impressive. Morgan received notice of the forfeiture shortly after it occurred. He attempted to contact the indemnitor, without success. Morgan also conducted surveillance of the home of the indemnitor’s grandparents and another address for the indemnitor, even though he believed the indemnitor had fled the state. It is unclear what information, if any, Morgan hoped to learn from the indemnitor. Three days before the expiration of the exoneration period, Morgan contacted the grandparents of the indemnitor and learned he had left the state. There is no explanation why he did not contact the grandparents sooner.
Morgan verified warrant status, reviewed criminal and credit records, verified Gonzalez’s driver’s license and registration and verified addresses. He also had contact with Smith and eventually decided Smith was an unreliable source of information. Morgan did not indicate when he learned of Smith’s unreliability, leaving the trial court to wonder if this conclusion was reached in a short time or over an extended period of time.
Morgan conducted periodic surveillance at the residence of Gonzalez’s father, as well as the address listed on Gonzalez’s driver’s license. There is no indication that Morgan contacted Gonzalez’s father for assistance in locating Gonzalez. Nor is a reason for not doing so given. Morgan learned that Gonzalez might be residing at various addresses in the area controlled by an associate, but there is no indication that any of these addresses were put under surveillance. Morgan, however, periodically conducted surveillance at an address for another of Gonzalez’s associates.
Morgan learned of the name of Gonzalez’s girlfriend and an address for her. There is no indication that he conducted surveillance at that address or attempted to contact anyone at that address. He also learned the two may have married and were driving a white sports utility vehicle.
In December, only 30 days before the expiration of the exoneration period, Morgan employed Padilla to find Gonzalez. Surveillance was conducted at the home of an associate of Gonzalez’s. They also spoke with the mother of an associate who informed them that the associate had left the state. Padilla finally contacted Gonzalez’s father, who agreed to cooperate and told him about Gonzalez’s girlfriend. Padilla located three possible addresses for Gonzalez and was in the process of investigating them. It is unclear how these addresses were discovered or when they were discovered.
While it appears Padilla put some effort into the case once he was contacted, Morgan did very little for the first five months of the investigation. He failed to contact Gonzalez’s father, even though he had an address for him. He failed to follow up on an address where Gonzalez might have been staying, and he did not contact the girlfriend’s parents, even though he apparently knew where they lived. He spent time trying to contact the indemnitor, even though it is unclear that the indemnitor had any useful information, especially since, according to Morgan’s declaration, the indemnitor was coerced into signing the indemnity agreement.
There are huge gaps in Morgan’s declaration indicating that he did very little for extended periods of time. Nor is there any explanation for the failure to undertake many common sense tasks. The substantial progress made after the expiration of the exoneration period underscores the lack of effort made during the exoneration period. Under the circumstances of this case, we cannot say the trial court abused its discretion when it concluded that USFIC failed to establish good cause for an extension.
DISPOSITION
The judgment is affirmed.