P. v. Bankers Ins.

Filed 9/28/06 P. v. Bankers Ins. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Horan, Judge. Affirmed.

Nunez & Bernstein and E. Alan Nunez, for Defendant and Appellant.

Steve Cooley, District Attorney, Patrick D. Moran and William Woods, Deputy District Attorneys, for Plaintiff and Respondent.

__________________________

SUMMARY

Appellant Bankers Insurance Company appeals from the trial court’s orders denying extensions of time to vacate the forfeiture of a bail bond under Penal Code section 1305.4, claiming the trial court abused its discretion. We conclude the trial court acted within its discretion because appellant failed to show good cause for additional extensions of time.

BACKGROUND AND PROCEDURAL HISTORY

In May 2004, Miguel Perez Martinez was charged with possession of a controlled substance for sale and conspiracy. The court set bail at $500,000. Bankers Insurance Company issued a bond to secure Martinez’s release. Martinez appeared in court as directed on two occasions after the issuance of the bond, but failed to appear on July 1, 2004. The court declared the bond forfeited, and the clerk mailed a notice of forfeiture to Bankers on July 1, 2004. The 185th day from the mailing of notice was January 2, 2005.^[1]

On December 30, 2004, appellant filed a motion to vacate the forfeiture and exonerate the bond or for an extension of time under Penal Code section 1305.4. After the filing of the motion, the court granted appellant a total of three extensions. During the extended period, appellant withdrew its motion to vacate the forfeiture and exonerate the bond. On May 2, 2005, the court denied a further extension. Later the same day, appellant filed a new motion to vacate the forfeiture and exonerate the bond based upon the theory that Martinez was deceased. The court denied the motion on May 23, 2005.

On June 1, 2005, the trial court granted summary judgment on the forfeiture of the bail bond. Appellant timely appealed.

DISCUSSION

1. The trial court did not did not abuse its discretion by denying appellant an additional extension under Penal Code section 1305.4.

Appellant’s original motion for an extension was based upon the declarations of Sean Brown and D’Andre Collins. Brown’s declaration described his efforts to locate Martinez and his contact with Martinez’s wife and sister-in-law Cathy. He also stated he located someone in Las Vegas whom he believed was Martinez and called the Las Vegas police for assistance. The police checked “their system” and told Brown that no warrant was out for Martinez. Brown stated he called the Los Angeles County Sheriff’s Department Warrants Division, where an Officer Salazar told him “there was a non-extraditable warrant for” Martinez. The Las Vegas police refused to detain Martinez, and Officer Salazar ordered Brown to release the suspect.

Collins’s declaration described his efforts to locate Martinez and his conversations with Martinez’s wife and sister-in-law Cathy. Martinez’s wife, who lived in Pico Rivera, told Collins that Martinez was “somewhere in the area,” but she did not know where. She also told Collins that Martinez communicated with their children by mobile phone and continued to deposit money into a bank account for their children. Collins expressed confidence that Martinez was still in Southern California and, with additional time, either he or the West Covina Police Department would bring him into custody.

The trial court granted appellant an extension to March 4, 2005, for the purpose of providing additional evidence in the form of live testimony to establish that the warrant was not in the NCIC system.

On March 4, 2005, appellant provided no additional evidence in support of its motion. It informed the court that it would withdraw the portion of its original motion seeking to vacate the forfeiture and exonerate the bond, but it sought a further extension to “locate and apprehend“ Martinez. The People did not oppose the extension request, and the court extended the period to April 21, 2005.

Before April 21, 2005, appellant submitted a declaration from investigator Robert Jimenez which stated that Martinez’s sister-in-law Alicia told him Martinez was in Mexico. She expressed anger that Martinez had placed her family in fear. Martinez’s wife later told Jimenez that Martinez was in Mexico and named “the town where Miguel Martinez, his mother and brothers live.” Jimenez and his associate Lawrence Becktold went to Mexico on April 4, 2005. They met Jimenez’s uncle, Benjamin Fuentes, and the three of them “located [Martinez’s] mother” in a specified town. The next day they learned more about that town. On April 6, they,

“found the whereabouts of the defendant. My uncle, Benjamin Fuentes, found out the exact location of Miguel Martinez. He then talked to a police officer. Once the police officer found out what I was trying to do, the police officer told my uncle, ‘that guy you are looking for is untouchable.’ Benjamin told the officer he just wanted to talk to him. The officer left. About fifteen to twenty minutes passed. When the officer returned the defendant was walking behind him, the defendant, sat in front of Benjamin, and told him in Spanish, ‘What the fuck do you want with me? Do you know that I paid those fucking people the whole entire money that way no one is looking for me anywhere. I want you to get the fuck out of Mexico before I kill you and put you in the ground.’

“I was only three feet away from the defendant and made eye contact. After that, a police officer came up to me and told me, ‘You and your buddy better get out of Mexico now before we kill you three and put the three of you in the ground.’

“I told my guys to get out of there and go home. We started to walk out of the bar/restaurant when an officer told us, ‘Put your hands up and get against the wall.’ He searched all of us and took two hundred dollars out of my wallet and kept it.”

Jimenez’s declaration did not address the prospects of taking Martinez into custody or returning him to the court’s jurisdiction.

On April 21, 2005, appellant represented to the trial court it had retained “an investigator who is a specialist in getting defendants back out of Mexico, getting them in custody in Mexico when the district attorney wants to extradite. . . . They have gone over the case. They believe this is somebody they can put in custody if the D.A. wants to extradite.” Appellant requested “the rest of the extension.” Appellant also informed the court that its original theory -- that no extraditable warrant had been entered into the NCIC system -- was mistaken. The court expressed concern that appellant’s story had changed so dramatically from that set forth in the original motion. It also voiced disbelief in Jimenez’s declaration and insisted that counsel bring Jimenez in to testify. It granted an additional extension to May 2, 2005 to permit appellant to do so.

Jimenez testified at the May 2, 2005 hearing. Most of his testimony reiterated his declaration. He explained that his uncle was a police officer in Tijuana, and his uncle had “connections in the law enforcement community in Mexico.” He also added that, while in Mexico, they located Martinez’s mother by asking “locals,” one of whom said “her name is Maria and she does have sons that are here.” He testified that they did not meet Martinez in the same town where his mother resided, but in another town. They learned Martinez was in that town by asking around. It was in that town that they showed a police officer a photograph and were told, “This guy, can’t touch this guy here.” Jimenez believed the person they later met was Martinez because he had a picture of Martinez and the man said his name was Miguel Martinez. On cross-examination, Jimenez clarified that the police officer who escorted Martinez to the meeting at the restaurant stood two or three feet behind Martinez and appeared to be protecting him. Three other officers waited outside. Jimenez admitted that he heard only the beginning of the conversation between his uncle and Martinez, when Martinez stated his name and asked what they wanted with him. The remaining statements by Martinez set forth in the declaration were related by his uncle afterwards. Jimenez had not gone back to Mexico or tried to reach anyone there by telephone. He had no idea whether Martinez was still in that location.

In denying the motion for extension, the trial court again expressed its frustration with the shifting explanations for the several extension requests. It stated it would not have granted the original extension if the Collins and Brown declarations had presented an accurate version of the facts. The court described Jimenez’s testimony as weaker than his declaration because Jimenez didn’t really hear some of the things set forth in his declaration. The court did not find Jimenez’s hearsay testimony about his uncle’s statements convincing. The court continued,

“I’m frankly not convinced that Mr. Jimenez ever saw the defendant. He says he did. He may believe he did. He says he used a picture of some sort which was not shown to the court. I don’t know what he used or where he got it. . . . I’m not convinced that he even saw the defendant in Mexico. I think what he may be doing [is] relying more upon his uncle than his own perceptions of what occurred down there.

“It further strikes me that even assuming everything in that declaration is correct, and I don’t assume it could be, but assuming that it is, I don’t think it would demonstrate good cause. Good cause is more than due diligence. It’s more than looking real hard. It is also some likelihood of success it would seem to me is required. Not just that the surety is out beating the bushes. But that if the matter is extended for some period of time, there is some reasonable apprehension of success.

“Give everyone what is in the declaration, [sic] that doesn’t seem to be the case. I don’t even know if he’s still in Mexico. No one does. And certainly Mr. Robert Jimenez doesn’t know whether the defendant is in Mexico or elsewhere. And assuming he is in Mexico, there is certainly given what you allege to be the official participation of the Mexican authorities in harboring him, there seems to be no reasonable likelihood that he would be brought back before this court in a reasonable period of time. So the court does not find that good cause exists . . . .”

Appellant contends the trial court abused its discretion by denying its motion to extend the exoneration period. It claims the Brown and Collins declarations established good cause for an extension. Appellant’s opening brief makes no mention of the declaration of Robert Jimenez or any matter stated in it. Indeed, the declaration of Jimenez is part of the appellate record only because respondent requested augmentation of the record to include it. Conversely, appellant’s reply brief relies solely upon the Jimenez declaration.

Penal Code sections 1305 provides that on a defendant’s nonappearance, bail forfeiture may be ordered. In that circumstance, the surety, insurer, bail agent or depositor (surety) has 180 days from the notice of forfeiture to produce the defendant or otherwise show the defendant is in custody. Failure to do so will result in the entry of summary judgment. (Pen. Code, § 1306.) Penal Code section 1305.4, however, permits the surety to move for an order extending the 180-day period. The motion must include a declaration or affidavit showing good cause to extend the period. Upon a hearing and a showing of good cause, the trial court may extend the period up to an additional 180 days. We review the trial court’s denial of a section 1305.4 extension motion for abuse of discretion. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679 (Ranger).)

Good cause in this context requires the surety to demonstrate that it diligently attempted to locate and capture the defendant during the initial 180 days. (People v. Accredited Surety and Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1356 (Accredited).) In Ranger, supra, 81 Cal.App.4th at p. 681, the court stated a showing of good cause must also include an explanation of the reasons the surety’s efforts were unsuccessful in locating or capturing the defendant. However, “an effort to capture a defendant is often unsuccessful simply because the defendant was not captured,” and the “surety cannot always know how or why a defendant avoids location and capture.” (Accredited, supra, 137 Cal.App.4th at p. 1356.) Accordingly, it is more important for the surety to show diligence than the reasons for its failure. (Ibid.) In addition, the surety must show a reasonable likelihood it will capture the defendant if given more time. (Id. at pp. 1357-1358.) In ruling upon a motion for an extension under Penal Code section 1305.4, the trial court should draw all inferences in favor of the surety because public policy disfavors forfeitures. (Id. at p. 1358.)

The trial court granted appellant an extension to March 4, 2005 (61 days) on the basis of the Brown and Collins declarations upon which appellant relies. On March 4, the court gave appellant an additional 48-day extension to April 21, 2005. Because appellant provided no additional evidence to the court at or before the March 4 hearing, the extension to April 21 must also be attributed to the showing made in the Brown and Collins declarations. By April 21, appellant had completely abandoned its reliance upon those declarations and had changed its story. Appellant’s claim on appeal that the court should have granted additional extensions on the basis of the Brown and Collins declarations and theories it abandoned and contradicted on and after April 21 is patently meritless.

Even if appellant intended to base its claim on appeal on the Jimenez declaration, as suggested by its belated reference to that declaration in its reply brief, it has failed to establish an abuse of discretion by the trial court. Assuming the Jimenez declaration showed reasonable diligence, it failed to show a reasonable likelihood that Martinez could be captured by July 1, 2005, the last day to which an extension could be granted under Penal Code section 1305.4. Jimenez did not photograph the man he believed was Martinez. He did not state in his declaration or testimony that he knew the location of Martinez’s residence in Mexico.^[2] He met the man whom he believed was Martinez on April 6, 2005. He had had no further contact with Martinez or anyone else between that date and the hearing date, and admitted he had no idea whether Martinez still resided in Mexico. Given the time lapse, absence of follow-up, and Jimenez’s report that Martinez was angered by the visit from Jimenez and his uncle, the trial court had little or no reason to believe Martinez was still residing in the area in which Jimenez met him. Even assuming that Martinez had not moved and Jimenez in fact knew where Martinez resided, his declaration and testimony indicated that Martinez was “untouchable” in Mexico because he was under police protection. This was confirmed by the conduct of the police officers who accompanied Martinez when he met with Jimenez and his companions. The officers effectively acted as Martinez’s bodyguards. They appeared willing to threaten and attack even a fellow police officer in order to protect Martinez. This testimony vividly demonstrated the difficulty and danger, and perhaps impossibility, involved in appellant’s agents’ attempts to capture Martinez. They certainly could not expect assistance from the police. Appellant offered no additional evidence to contradict this inference or otherwise provide any reasonable basis for believing its agents could take custody of Martinez. Given the absence of evidence that Martinez still resided in the same location and the extreme difficulties apparently entailed in capturing him in Mexico, appellant failed to provide the court any basis for concluding that a reasonable likelihood existed that Martinez could be captured by July 1, 2005, or at all. Appellant therefore failed to show good cause for an additional extension.

The time period within which appellant could bring Martinez into court and be entitled to vacation of forfeiture and exoneration of its bond could not be further extended beyond the 180-day-period ending July 1, 2005. (People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193, 1199.) The trial court could toll the period upon a finding of temporary disability, as provided in Penal Code section 1305, subdivision (e). Temporary disability includes “detention by military or civil authorities.” (Pen. Code, § 1305, subd. (e)(1).) However, appellant did not demonstrate, or even suggest, a reasonable likelihood that Martinez would be detained in Mexico or anywhere else within the remaining 60 days, so that tolling might apply.^[3]

Accordingly, the trial court did not did not abuse its discretion by denying a further extension under Penal Code section 1305.4.

2. The trial court did not abuse its discretion by denying appellant’s May 2, 2005 motion.

After the trial court denied the request for an extension on May 2, 2005, appellant filed a new motion to vacate the forfeiture and exonerate the bond. Appellant’s attorney’s declaration stated that when he called appellant to inform it of the denial of the motion for extension, appellant’s employee advised him that “additional investigators had been sent to Mexico to obtain an exact address for [Martinez] in Aqua Colorado, Jalisco, Mexico. Within the last several days the newspaper in that area had carried an article involving a major armed confrontation involving drug cartels. The newspaper reported that . . . Miguel Martinez had died in the resulting gun battle.” The declaration represented that appellant was “obtaining verification of [Martinez’s] death and [appellant] expected to have that verification shortly.”

The trial court heard the motion on May 23, 2005. Appellant’s attorney represented that the investigator who had reported Martinez’s death to appellant had since disappeared. Appellant possessed no proof of Martinez’s death. The court denied the motion, saying it had “no confidence whatsoever in the representations made to” counsel.

Appellant contends the trial court abused its discretion by denying it the opportunity to obtain proof of Martinez’s death. It argues the showing made by its attorney’s declaration “was sufficient to meet at least the minimum quantum of evidence required to toll or extend the exoneration period for the purpose of allowing the surety to provide proof of death.” Penal Code section 1305, subdivision (d) provides that the trial court must vacate an order of forfeiture and exonerate bail if, within the 180 day period, “it is made apparent to the satisfaction of the court that both of the following conditions are met: (1) The defendant is deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities. (2) The absence of the defendant is without the connivance of the bail.” The court’s decision is reviewed for abuse of discretion. (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195.)

Appellant’s May 2, 2005 motion did not seek an extension of time or tolling of the time period. It simply sought vacation of forfeiture and exoneration of bail. Section 1305, subdivision (d), upon which the motion exclusively relied, does not provide for tolling.^[4] In its reply brief on appeal, appellant argues, for the first time, that the court should have granted it another extension under section 1305.4. The May 2 motion did not seek such an extension. Moreover, from the May 2 filing date to the May 23 hearing date on the motion, appellant had three weeks to obtain adequate proof of Martinez’s death. Appellant not only failed to acquire proof, it was unable to provide the court a copy of the newspaper article cited in its attorney’s May 2 declaration. It also lost touch with its investigator whose report regarding the news article was the basis for the motion. The trial court’s dissatisfaction with appellant’s showing of permanent disability was therefore imminently reasonable. It did not abuse its discretion.

Even if appellant’s motion were deemed a request for an extension of time, appellant made no showing of either diligence in attempting to obtain proof of death or a reasonable likelihood that, given additional time, it would be able to acquire the proof by July 1, 2005. No extension could be granted beyond that date. Indeed, as far as the record reveals, appellant did not attempt to provide the court with evidence of Martinez’s death at any time after the motion was denied on May 23, 2005. Given the history of the case and the highly inadequate showing of good cause, the court’s denial of an extension would not be an abuse of discretion.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] The surety has 180 days from the notice of forfeiture to produce the defendant or show that he is in custody. (Pen. Code, § 1305, subd. (c)(1).) This period is extended five days when the notice of forfeiture is served by mail. (Id. subd. (b).)

^[2] Jimenez testified he found Martinez’s “whereabouts,” traveled there, and talked to a police officer. This implies his use of the term “whereabouts” referred just to the town or village, not a residence. Jimenez’s declaration was similarly vague. He stated they found “the whereabouts of the defendant,” then his uncle “found out the exact location of Miguel Martinez” and spoke to a policeman.

^[3] Appellant cites no authority for its contention in its reply brief that tolling that would apply if the prosecution elected to extradite Martinez. Because Martinez was not even in custody, the point is moot.

^[4] Penal Code section 1305, subdivision (e), which addresses temporary disabilities, such as illness or detention, provides for tolling of the 180 day period during the period of temporary disability.