Filed 7/26/17 P. v. Seaview Ins. Co. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

SEAVIEW INSURANCE COMPANY,

Defendant and Appellant.

F073796

(Super. Ct. No. 1482520)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley, Judge.
Toni L. Martinson for Defendant and Appellant.
John P. Doering, County Counsel, Robert J. Taro, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Aladdin Bail Bonds, as agent for Seaview Insurance Company (Seaview) appeals from the trial court’s order denying its motion to vacate a bail forfeiture and exonerate its bail bond. Seaview issued a bail bond for Ignacio Mendez, who then apparently fled to Mexico. Seaview argues the trial court abused its discretion because the opposition filed by the Stanislaus County District Attorney’s Office (the County) did not provide sufficient evidence to support the trial court’s conclusion that it was not feasible to extradite Mendez from Mexico. The only evidence submitted by the County was the declaration of an investigator from the district attorney’s office. Seaview argues the trial court erred in relying on the opinions expressed in the declaration because the declarant was not qualified to express an opinion, and because there was an insufficient factual basis for the opinions rendered.
As we shall explain, we reject each of Seaview’s arguments. Accordingly, we affirm the order denying Seaview’s motion.
FACTUAL AND PROCEDURAL SUMMARY
Seaview’s motion was filed pursuant to Penal Code section 1305, subdivision (g), based on the following factual summary which is largely uncontested. Seaview issued bail bond number SV50-4247918 to secure the release of Mendez from Stanislaus County jail. The bond was declared forfeited on April 7, 2015. The trial court granted an extension of the forfeiture period through April 7, 2016.
Seaview, or its agents, located and temporarily detained an individual they identified as Mendez before local law enforcement officials in Mexico within the extended forfeiture period. Seaview mailed an “Identification Affidavit, photographs and fingerprints to the Stanislaus County District Attorney’s Office” and requested an extradition decision. The district attorney’s office indicated it was unable to make an extradition decision. Seaview then filed its motion asserting it complied with section 1305, subdivision (g).
The County opposed the motion arguing that under the facts of this case extradition was not feasible, apparently because the extradition practices of Mexico would not permit extradition under the facts of this case. In addition, the County questioned whether Seaview complied with the requirements of section 1305, subdivision (g) because it was unclear whether the agent who detained Mendez in Mexico met the requirements of the statute, and it was unclear if the individual detained was actually Mendez because the photographs were not authenticated, the photos did not establish the individual was detained in the presence of local law enforcement officials, the fingerprints obtained were of such poor quality a comparison could not be made with Mendez’s known fingerprints, and the County was unable to determine if the individual who signed the identification declaration was actually a local law enforcement officer. To support the opposition, the County attached a declaration from District Attorney Investigator Gary J. Martinez, which we will discuss in detail in the discussion part of this opinion.
Included in Seaview’s reply to the opposition were numerous objections to Martinez’s declaration.
After hearing oral argument, the trial court denied the motion concluding that extradition was not feasible. Thereafter, the trial court granted the County’s motion for summary judgment on the bond.
DISCUSSION
Section 1305, subdivision (g) provides the trial court must vacate a forfeiture and exonerate a bail bond when (1) the defendant is beyond the jurisdiction of the state, (2) the defendant is temporarily detained by a bail agent in the presence of a local law enforcement officer, (3) the individual is positively identified by that law enforcement officer as the defendant in an affidavit signed under penalty of perjury, and (4) the prosecuting agency elects not to seek extradition after being informed of the location of the defendant. The parties agree that if extradition is not feasible, section 1305, subdivision (g) is inapplicable. (County of Orange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795, 802 (County of Orange.)
County of Orange explained the phrase “elects not to seek extradition” implies the prosecuting agency has a choice of whether or not to seek extradition. When extradition is not feasible, i.e. where any attempt to extradite the defendant would be futile because the host country refuses to grant extradition requests in the category of cases involved, the prosecuting agency does not have the option of extraditing the defendant. Since the prosecuting agency does not have the option of extraditing the defendant, the appellate court concluded subdivision (g) is inapplicable. (County of Orange, supra, 61 Cal.App.4th at p. 802.) The appellate court also recognized that it is the government’s burden to establish that extradition is not feasible. (Id. at pp. 802-804.)
Seaview argues the County failed to prove with admissible evidence that extradition was not feasible. The only evidence on the issue was presented through the declaration of Investigator Martinez.
We begin, however, with the standard of review and the parameters of opinion testimony. We review for an abuse of discretion an order denying a motion to vacate a forfeiture. (County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542 (County of Los Angeles).)
“‘The abuse of discretion standard applies to the trial court’s resolution of a motion to set aside a bail forfeiture [citation], subject to constraints imposed by the bail statutory scheme. “[W]hen a statute requires a court to exercise its jurisdiction in a particular manner, to follow a particular procedure, or to act subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.” [Citation.] “‘The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus, Penal Code sections ... dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture.’ [¶] The standard of review, therefore, compels us to protect the surety, and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody, in order to obtain the corporate bond.” [Citations.] As the Supreme Court has noted, however, ‘The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ [Citation.] Accordingly, we review the interpretation of section 1305, subdivision (g) de novo [citation], and the trial court’s finding of lack of feasibility under the substantial evidence test.” (County of Los Angeles, supra, 173 Cal.App.4th at pp. 542-543.)
Turning to opinion testimony, a lay witness may testify in the form of an opinion only if the opinion is rationally based on the perceptions of the witness, and helpful to a clear understanding of the witness’s testimony. (Evid. Code, § 800, subds. (a) and (b).) A person may testify as an expert if he or she has “special knowledge, skill, experience, training, or education sufficient to qualify him [or her] as an expert on the subject to which his [or her] testimony relates.” (Evid. Code, § 720, subd. (a).) It is clear Martinez was testifying as an expert on the issue of the feasibility of extradition from Mexico. “A witness’ special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.” (Evid. Code, § 720, subd. (b).)
Seaview’s first argument is that Martinez is not qualified to provide expert testimony, i.e., he does not have special knowledge, skill, training, or education to qualify as an expert on the topic of extradition from Mexico. We begin our analysis with a review of Martinez’s declaration.
Martinez is a criminal investigator with the district attorney’s office and has been a sworn peace officer in excess of 39 years. Since 2012 he has investigated over 700 cases related to bail bond forfeitures, including cases involving defendants who have left the jurisdiction, defendants who have been arrested on bail forfeitures, defendants who have passed away, and defendants who were in Mexico. His job includes review of exoneration motions filed by bail agents as well as declarations prepared by said agents. He also reviews criminal cases to determine if extradition from other jurisdictions is feasible. As part of his job, he has familiarized himself with the extradition treaty between the United States and Mexico.
He has also “networked with attorneys currently assigned or previously assigned to the Criminal Division of the United States Office of International Affairs … on matters involving extradition practices and feasibility of extradition from Mexico to the United States.” He has also “networked with the Law Enforcement and Intelligence Division of the State Department in Washington D.C. regarding extradition practices involving Mexico and the United States, and the types of serious drug crimes which are considered feasible for extradition.”
Mendez was arrested for possession for sale of methamphetamine, and had just under one pound of methamphetamine in his possession when he was arrested. Based on his investigation, Martinez concluded Mendez is not a citizen of the United States.
Martinez determined after reviewing the Mexico-United States extradition treaty that the offense with which Mendez was charged was one that could result in extradition. Under the treaty, Mexico could extradite its citizens if it chose to do so, but was not obligated to do so.
Martinez concluded that although Mendez could be extradited, “because Defendant is most likely is [sic] a Citizen of Mexico, commonly referred to as a Mexican National, the parameters of Article 9 of the United States-Mexico Treaty will favor Mexico in not being bound to deliver up its own citizens. For this reason extradition from Mexico is not feasible, nor practical and the [district attorney] is unable to make an election to extradite.” Martinez concluded his declaration with the following statement:
“I have networked with both the Office[] of International Affairs (OIA), and the Department of State (DOS), in Washington D.C. regarding extradition matters. In previous drug investigations and conversations with both (OIA) and (DOS), I have learned that comparatively small amounts of drugs, and small sentences are not likely to be considered for extradition. I have learned that large amounts of drugs, commonly referred to as Cartel Level drugs possessed for distribution, and other more serious crimes involving murder, rape, robberies, aggravated sexual assaults, kidnapping, and assaults on police officers are the serious types of cases which would be considered for extradition. Due to the comparatively small amount of drugs seized, this case will most likely not be considered by the [(OIA)] or the (DOS) for extradition.
“In previous investigations with (OIA) I was made aware that in 2012 there were (107) persons extradited from Mexico to the United States, with the split between Federal vs State extraditions shared equally (50/50). This amounted to just over two (2) person[s] extradited per state. This small amount of extraditions clearly shows that only the most serious criminal cases are approved for extradition from Mexico to the United States. I have also learned from previous investigations with (ICE) that during the El Chapo Guzman drug cartel era, Mexico President Felipe Calderon stopped the release of extradition statistics in 2012. For this reason it has been very difficult if not impossible to obtain current statistics on extradition.
“ … Based on my training, knowledge, and experience as an investigator assigned to the [district attorney’s office], coupled with the investigation outlined in this declaration, it would be impractical, unfeasible, and nearly impossible to have the Defendant extradited from Mexico to the United States on these current charges. Therefore, the Stanislaus County District Attorney is unable to make an election to extradite the defendant at this time.”
According to Seaview, the County should have based its opposition on the declaration of an extradition specialist and compares Martinez’s qualifications to the experts in County of Los Angeles and County of Orange. According to Seaview, Martinez’s lack of training or education, failure to explain how any of his experience qualifies him as an expert, and his failure to explain what work he has done in the extradition field fails to provide the type of expertise necessary for his opinion to be given any weight by the trial court.
We agree with Seaview that Martinez’s declaration could have been much stronger had he provided detailed information about his background and experience. It would have been helpful in this case had Martinez given some indication how many cases he has investigated which involve defendants who absconded to Mexico and in which extradition was an issue.
Martinez goes on to state that part of his duties include reviewing cases to determine if it is feasible to extradite a defendant “from other states within the United States or other countries.” Once again, it would be helpful to know how often or how many cases Martinez has reviewed involving extradition from Mexico.
Martinez also discusses his contacts, which he repeatedly refers to as networking, indicating he has had contact with attorneys who were assigned to the criminal division of the United States Office of International Affairs. These contacts included discussions involving “extradition practices and feasibility of extradition from Mexico to the United States.” Martinez has also had discussions with the “Law Enforcement and Intelligence Division of the State Department … regarding extradition practices involving Mexico and the United States, and the types of serious drug crimes which are considered feasible for extradition.”
His references to “networking” with unknown individuals at various agencies are problematic. Martinez’s declaration would have been much stronger by simply referring to the position of the individuals with whom he has discussed extraditions, and included a general description of the information gleaned from these discussions.
We disagree with Seaview, however, that Martinez was not qualified to render an expert opinion on the issue of extraditions. Martinez’s experience, knowledge, and training as outlined in the preceding paragraphs qualifies him to render an expert opinion even if additional details would have strengthened Martinez’s declaration. The trial court did not abuse its discretion in so concluding.
We reject Seaview’s assertion that Martinez is less qualified than the experts in County of Los Angeles and County of Orange. The declaration in County of Los Angeles was submitted by an attorney “assigned to the Extradition Services Unit and was responsible for evaluating cases for suitability for extradition and for preparing the necessary documentation to submit to the Office of International Affairs (OIA), and office within the Criminal Division of the United States Department of Justice.” (County of Los Angeles, supra, 173 Cal.App.4th at p. 541.) The appellate opinion does not provide any additional information regarding her qualifications as an expert. This information does not establish that the expert is more qualified than Martinez. For all we know, the attorney may have been a recent law school graduate with only one week experience in the district attorney’s office. This is not meant as criticism of County of Los Angeles. The qualifications of the expert may not have been an issue in the trial court or on appeal. It is merely an observation that the lack of information in the opinion about the qualifications of the expert renders any comparison to Martinez meaningless.
The witness in County of Orange had expertise similar to the witness in County of Los Angeles. This witness was an attorney in the district attorney’s office, and stated he had been handling extradition matters since 1987, he had never successfully extradited a fugitive from Mexico, and he confirmed with various federal and state authorities (who were not identified) that only rarely will Mexico extradite someone to the United States. (County of Orange, supra, 61 Cal.App.4th at pp. 798-799.) This information is no more informative than Martinez’s declaration, and provides no support for Seaview’s argument.
We next turn to Seaview’s argument that the trial court erred in giving any weight to Martinez’s opinion. This argument is an attack on the basis of Martinez’s opinion.
“Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.] For ‘the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.]
“So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. [Citation.] And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter ... upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618-619, overruled in part by People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.)
We begin with the observation that Seaview did not provide any information to dispute Martinez’s declaration, other than a reference to an opinion from the Mexico Supreme Court which apparently held the Constitution of Mexico does not prohibit extradition of Mexican nationals. While we assume this statement is accurate, and it suggested a drastic change in Mexico’s law, the statement does not provide any indication of the feasibility of extraditing a Mexican national on a drug charge.
In contrast, Martinez’s declaration states that in conversations with the Office of International Affairs and the Department of State, Martinez learned that Mexican nationals facing charges of possession of drugs and possession of drugs for sale are not going to be extradited. Seaview does not provide any factual authority which suggests Martinez erred in relying on such sources of information, nor any factual authority to suggest Martinez’s assertion is incorrect. Based, at least in part, on such conversations, Martinez explained extradition for drug charges is feasible only if large quantities of drugs are involved, which Martinez unfortunately referred to as “Cartel Level drugs” without providing any explanation of the quantity which would qualify as “Cartel Level drugs.” Martinez’s declaration states that Mendez possessed “nearly one pound” of methamphetamine when he was arrested, which by implication would not be considered “Cartel Level drugs.”
Martinez also reviewed the work completed by another investigator in an attempt to verify the identity of the person located by Seaview. Once again, Seaview did not provide any factual authority which suggests Martinez erred in relying on this source of information. While Seaview’s agent confirmed the information provided by Seaview, the investigator was unable to verify the individual who signed the affidavit was a police officer, or whether Mendoza was admitted to the hospital. Moreover, Seaview’s agent did not know Mendoza, and was not provided with any identification other than the patient’s verbal affirmation of identification. Martinez noted the fingerprints provided by Seaview to the County were of such poor quality as to render comparison impossible. When Martinez compared the photo provided by Seaview he observed Mendoza with tattoos inconsistent with those noted in the police report, raising questions as to whether the man in the photo was the Mendoza wanted by the County. Martinez concluded that since a fugitive warrant will issue only if the location of the fugitive is known, it would not be possible to obtain a warrant for Mendoza on the information provided. Based on all of these factors, Martinez opined any attempt to deport Mendoza would be futile.
This information is more than substantial enough to support Martinez’s opinion. When the fact that Seaview failed to provide any facts to oppose those provided in the declaration (other than, of course, the information it provided to Martinez and introduced into court regarding the identification of Mendoza), the trial court acted well within its discretion when it concluded extradition of the man identified as Mendoza was not feasible.
DISPOSITION
The order denying Seaview’s motion to vacate the forfeiture is affirmed.