P. v. Bankers Ins. Co.

Filed 9/27/07 P. v. Bankers Ins. Co. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Reversed with directions.

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.

__________________

INTRODUCTION

Defendant Bankers Insurance Company (Bankers) appeals from an order denying its motion to vacate forfeiture of bail and to exonerate a bail bond issued on behalf of a criminal defendant, who failed to appear as ordered by the trial court. We reverse the order with directions.

FACTUAL AND PROCEDURAL BACKGROUND

On October 23, 2003, Bankers issued a $140,000 bail bond to secure the appearance of George Barraza (Barraza) in court. Barraza failed to appear for his sentencing on January 14, 2005, and the court ordered his bail forfeited. On January 26, the clerk of the court served the surety and bail agent by mail with notice that it only had 185 days in which to surrender Barraza to the court or to move to set aside the forfeiture. Unless the forfeiture was set aside and the bond reinstated within the limitations period, the suretys contractual obligation to pay the full amount of the forfeited bail would become absolute.

Michael Bogdanovich (Bogdanovich), a bail agent and investigator, immediately commenced an investigation to locate Barraza. Bogdanovich learned from Eduardo Leon, the indemnitor, that Barraza was staying with relatives in Culiacan, Mexico. Bogdanovich asked another investigator, Hagop Hovakimian (Hovakimian), to contact and inform the Los Angeles County District Attorney that Barraza was in Mexico. Hovakimian went to the district attorneys office on May 30, 2005, and left his business card and a voice mail message for Deputy District Attorney Gregory Jennings (Jennings).

The next day, Jennings telephoned Hovakimian and informed him that he was not authorized to make the decision regarding extradition. Jennings explained that a decision on extradition could not be made until Barraza was in custody and the decision would have to be made by Head Deputy Michael Yglecias (Yglecias). Based on this conversation, Hovakimian called Yglecias and also left a message with the Extradition Services Unit.

On June 14, 2005, Bogdanovich telephoned Yglecias, leaving a voicemail. On June 16, Bogdanovich faxed a letter to Yglecias, stating that bail agents had located Barraza. The next day, Bogdanovich sent another fax, this time addressed only to Prosecuting Attorney. The fax indicated that Barraza was about to be arrested by the bail agent, but would be released unless word was received concerning extradition. The letter read in part: If we do not hear from you by the time defendant is arrested by the bail agents, we will simply have the arresting agent complete the paperwork required by Penal Code Section 1305[, subdivision ](g)^[[1]^] and the defendant will be released. The bail will then be exonerated.

Jennings indicated that neither he nor Yglecias ever received either fax. Jennings had provided Bogdanovich with the fax number for Yglecias, but the number on the fax was assigned to an assistant district attorney. The secretary stated that if the fax was received in that office, it would have been forwarded to Yglecias.

On June 17, 2005, Bogdanovich flew to Mexico and contacted a law enforcement officer, Martin Campos. About 5:30 p.m., Barraza was temporarily detained, photographed, fingerprinted and a Certificate of Detention and Identification Pursuant to California Penal Code Section 1305(g) was prepared and executed by Officer Campos and Bogdanovich. The certificate quoted the provisions of Penal Code section 1305, subdivision (g), and included the following statement above the signature section: Pursuant to the above-cited language [Penal Code section 1305, subdivision (g)], I do hereby swear and affirm under penalty of perjury that the person identified in this document was detained and identified as set forth herein[.]

While Barraza was temporarily detained, Bogdanovich contacted Hovakimian in an effort to contact the extradition deputy. Hovakimian telephoned Yglecias and left a message.[2] Hovakimian also phoned the Extradition Services Unit of the district attorneys office but was informed by an unidentified clerk that [t]he person in charge was not available. He left a message, explaining that the matter was time sensitive. Neither Bogdanovich nor Hovakimian were contacted by either Yglecias or the Extradition Services Unit, and Barraza was released.

Following the message on June 17, 2005, no other attempt was made by Bogdanovich or Hovakimian to contact Yglecias or furnish the affidavit prepared in Mexico, photographs of Barraza or his fingerprint card. On July 28, 2005, just days before the end of the 185-day limitations period, Bankers filed its motion to vacate forfeiture of bail and to exonerate the bail bond.[3]

On December 2, 2005, the trial court issued a memorandum opinion and order in which it denied without prejudice Bankers motion to vacate bail forfeiture and exonerate the bail bond. The motion was denied on the grounds that the certificate executed by Officer Campos did not comport with Penal Code section 1305, subdivision (g). Specifically, the court observed: The certificate is not an affidavit, as required by . . . section 1305(g). Civil Procedure Code section 2015.5 permits an unsworn declaration or certificate to be used in place of an affidavit if the declaration or certificate states that it is so certified or declared under the laws of the State of California. The certificate here does not include that required language. It therefore is invalid and cannot be used as evidence. SeeKulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601. [] Accordingly, Banker[s] motion is denied without prejudice. Notice of entry of the order was not given.

On February 23, 2006, pursuant to Penal Code section 1306, subdivision (a), the court entered summary judgment in favor of the County of Los Angeles and against Bankers in the amount of $140,000, plus court costs of $320, for a total of $140,320. Clerks notice of entry of judgment on forfeited bond and demand for payment was mailed to Bankers and A Bail Bonds on February 24, 2006. Bankers did not appeal from the summary judgment, which became final in April 2006.

On May 18, 2006, less than 180 days after entry of the December 2, 2005 order denying Bankers motion without prejudice, Bankers filed a timely notice of appeal from that order. (Cal. Rules of Court, rule 8.104(a)(3).)

CONTENTIONS

Bankers contends that the trial court misconstrued Penal Code section 1305, subdivision (g), to require compliance with Code of Civil Procedure section 2015.5. Bankers further contends that the prosecutors inaction and silence was an election not to extradite requiring exoneration of the bond. For the reasons set forth below, we agree with Bankers.[4]

DISCUSSION

Section 2015.5 Is Inapplicable to the Bail Statutes

As previously detailed, the trial court determined that the certificate executed by Officer Campos was not an affidavit contemplated by Penal Code section 1305, subdivision (g), in that it failed to recite that it was certified or declared under the laws of the State of California as required by Code of Civil Procedure section 2015.5.[5] Bankers challenges the trial courts determination, contending that section 2015.5 is inapplicable to the bail statutes. We agree.

After this case was fully briefed, Division Seven of this court issued its opinion in County of Los Angeles v. American Contractors Indemnity Co. (2007) 152 Cal.App.4th 661. Division Seven concluded that Penal Code section 1305, subdivision (g), does not require that the affidavit be sworn to under the laws of the State of California. (County of Los Angeles, supra, at pp. 666-669.) We agree with Division Sevens analysis and conclusion and conclude that County of Los Angeles compels reversal on our facts.

In the instant case, Officer Campos signed a certificate under penalty of perjury identifying the defendant as the wanted individual. This sufficed to comply with Penal Code section 1305, subdivision (g).

The People Elected Not to Extradite

The People contend that they never received notice as required by Penal Code section 1305, subdivision (g), and had no obligation to decide whether or not to extradite Barraza. We disagree.

The People were informed of Barrazas location by telephone and fax messages. All that is required to compel the prosecuting agency to make an election whether or not to seek extradition is to be informed of a defendants location. That was done here. The silence and inaction of the People is deemed an election not to extradite. The fact that the Legal Policies Manual of the district attorneys office indicates that a decision as complicated as whether or not to seek extradition cannot be made quickly does not change the clear language of Penal Code section 1305, subdivision (g). The bail is to be exonerated for a fleeing defendant if the bail bond agency locates the defendant in another jurisdiction and brings him before a local law enforcement officer and the People elect not to seek the defendants extradition. Bankers satisfied the requirements of Penal Code section 1305, subdivision (g). The trial court, therefore, should have vacated the forfeiture of bail and exonerated the bond. Had it done so, summary judgment would never have been entered.

DISPOSITION

The order is reversed. The matter is remanded to the trial court with directions to vacate its order denying Bankers motion to vacate forfeiture of bail and to exonerate the bond, to enter a new order granting the motion, and to vacate the summary judgment. Bankers is awarded its costs of appeal.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

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[1] Penal Code section 1305, subdivision (g), provides as follows: 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.

[2] The Mexican State of Sinaloa, where Culiacan is located, is one hour earlier than Pacific Daylight Savings Time. The call was probably placed sometime after 4:30 p.m., Pacific Daylight Savings Time.

[3] The 185th day fell on Saturday, July 30, 2005.

[4] Although there appeared to be issues about the appealability of the order and the mootness of this appeal, the former is resolved in favor of appealability by People v. Wilcox (1960) 53 Cal.2d 651, 654-655, County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, and Mendez v. Superior Court (2001) 87 Cal.App.4th 791, and the latter is resolved by respondents agreement at oral argument that we reach the merits of the summary judgment. Implicit in this agreement is an acknowledgement that a decision in favor of Bankers will necessitate an order vacating the order denying the motion to vacate the bail forfeiture as well as the subsequently entered summary judgment. We thus proceed to the merits of Bankers contentions.

[5] Code of Civil Procedure section 2015.5 provides in relevant part as follows: Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.