Filed 7/9/14 P. v. Internat. Fidelity Ins. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F067198
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11903487)
                   v.

INTERNATIONAL FIDELITY INSURANCE                                                         OPINION
COMPANY,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. F. Brian
Alvarez, Judge.
         E. Alan Nunez for Defendant and Appellant.
         Kevin B. Briggs, County Counsel, and Evan A. Merat, Deputy County Counsel,
for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Gomes, J. and Kane, J.
       We hold that a forfeited bail bond may not be exonerated under Penal Code1
section 1305, subdivision (f), where the California county prosecuting agency was never
informed of the arrestee’s out-of-state custody and where his release was due to the
actions of California State Parole. We therefore affirm the summary judgment denying
the motion of International Fidelity Insurance Company (International) to vacate its bond
forfeiture and exonerate its bail bond.
                               PROCEDURAL HISTORY
       Jonathan McDowell was arrested for felony hit and run and misdemeanor resisting
arrest in Fresno County. International, through bail bond agency Lucky Bail Bonds
(Lucky), posted a $140,000 bail to secure the release of McDowell.
       On August 16, 2012, McDowell failed to appear in court, and the court ordered the
bond forfeited and issued a bench warrant. Notice of forfeiture was mailed to
International and Lucky on the same day. On February 11, 2013, International timely
filed a motion to vacate forfeiture and exonerate bail pursuant to section 1305. The
People filed an opposition. On March 22, 2013, the court issued a ruling denying the
motion. Summary judgment was entered on the forfeiture on April 4, 2013. (§ 1306.)
International and Lucky filed a timely appeal on April 16, 2013.
                                          FACTS
       After receiving the bail forfeiture notice, Lucky began an investigation to discover
McDowell’s whereabouts. Barry Pearlstein, owner of Lucky, contacted Ernie Muro of
the California Department of Corrections and Rehabilitation (CDCR), who referred him
to Parole Agent Ron Ladd, defendant’s parole officer. Ladd showed little interest in the
case and stated he did not have time to look for McDowell. Subsequently it was
discovered that McDowell was in Pasco, Washington. Pearlstein contacted Agent Rick
Shaw of the United States Department of Justice, to whom he forwarded a copy of his
1      Unless otherwise noted, all further statutory references are to the Penal Code.



                                            2.
investigation file. Shaw then forwarded the information to the United States Marshals’
office.
          On or about November 25, 2012, McDowell was arrested by the United States
Marshal. On November 28, 2012, he was booked into the Benton County Jail in
Kennewick, Washington. A declaration signed by a clerk at the Benton County Jail
indicates that McDowell was arrested on the Fresno County warrant. Pearlstein
contacted Ladd and Muro after the arrest. Ladd and Muro indicated there was a process
for returning McDowell to Fresno, but they were unsure of the timeline and exactly how
the process would work. According to Pearlstein, Ladd did not seem to take a strong
interest in the case or securing McDowell’s return from Washington.
          On December 12, 2012, Pearlstein was notified that McDowell was released from
custody in Washington because the parole agent and the California State Parole Board
chose to discharge him rather than have him returned to California for adjudication.
There is no indication in the record that the Fresno County District Attorney’s Office or
any other Fresno County law enforcement agency was ever notified that McDowell was
in custody in Washington.
                                           DISCUSSION
I.        Standard of Review
          Appellate courts ordinarily review an order denying a motion to vacate the
forfeiture of a bail bond under an abuse of discretion standard. (People v. Bankers Ins.
Co. (2010) 181 Cal.App.4th 1, 5.) However, when the facts are undisputed and the court
is only deciding legal issues, appellate courts apply an independent standard of review.
(People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.)




                                              3.
       Here, the pertinent facts are not in dispute and the only issue is a matter of law.2
Therefore, we will conduct an independent review.
II.    Analysis
       Section 1305, subdivision (f) provides:

              “In all cases where a defendant is in custody beyond the jurisdiction
       of the court that ordered the bail forfeited, 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 surety has the burden of establishing that the case falls within the statutory
requirements to avoid forfeiture. (People v. Ramirez (1976) 64 Cal.App.3d 391, 398;
County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1027.)
       International argues that the parole officer’s authorization of release was sufficient
to satisfy the requirements of the statute, citing People v. Far West Ins. Co. (2001) 93
Cal.App.4th 791 (Far West). We find Far West’s facts easily distinguishable from the
instant case. Furthermore, a California parole officer cannot be considered the
“prosecuting agency” under section 1305, subdivision (f).
       In Far West, the surety’s agent contacted the Oakland Police Department, who had
issued an arrest warrant for a defendant. The Oakland Police Department verified the
warrant was still active and advised that the defendant was a dangerous criminal and
would be extradited. The agent then had the defendant arrested by Georgia authorities.
When the Georgia authorities inquired of the Oakland Police Department whether the
defendant was still wanted and whether they intended to extradite him, the police
department requested that he be released and he was released. The district attorney’s


2      The People argue that the declaration of the Washington Police Department is
inadmissible. However, the objection to the evidence was not raised at trial and is
therefore forfeited on appeal. (Evid. Code, § 353.)


                                             4.
office in Oakland was not informed of these facts before the defendant was released.
(Far West, supra, 93 Cal.App.4th at p. 793.)
       In applying section 1305, subdivision (f), the court in Far West found that the bail
must be exonerated because the defendant was released based on errors by “officials of
the demanding county government” (Oakland Police Department). (Far West, supra, 93
Cal.App.4th at p. 798.) The court declined to create a broad legal rule, but held that the
bond should be exonerated under the specific circumstances of the case. (Ibid.) The
court’s opinion concluded:

               “We need not attempt to formulate a broad legal rule illustrated by
       the facts of this case. It is enough to conclude that under the circumstances
       shown here—a California fugitive admitted to bail, apprehended and held
       in custody in another state, is released as a result of errors committed solely
       by officials of the demanding county government and the surety has done
       all that is required of it under the terms of the bond—bail is exonerated.
       (People v. Ranger Ins. Co. [(1996)] 51 Cal.App.4th [1379,] 1384; People v.
       North Beach Bonding Co. [(1974)] 36 Cal.App.3d [ 663,] 675 and cases
       cited.) In sum, we think that if the order before us were affirmed, it would
       discourage sureties from undertaking to underwrite bail bonds, contrary to
       the evident policy of the Legislature as expressed in the statutory scheme.”
       (Far West, supra, 93 Cal.App.4th at p. 798, fn. omitted.)
Far West’s narrow holding was expressly limited to its facts. Among the facts the court
found significant was that the arrestee’s release resulted from errors committed solely by
the county that sought his return. No such facts are alleged here. McDowell’s release
had nothing to do with the acts or omissions of Fresno County. His release resulted from
the actions of state parole agents.
       Far West emphasized that the surety “has done all that is required of it under the
terms of the bond .…” (Far West, supra, 93 Cal.App.4th at p. 798.) Such is not true of
Lucky and Fidelity. The record is devoid of any evidence that Lucky, Fidelity or anyone
else notified, or attempted to notify, any Fresno County law enforcement agency,
including the Fresno County District Attorney’s Office, that McDowell was in custody in
Washington. Lucky and Fidelity had the opportunity to inform Fresno County of

                                             5.
McDowell’s custody status in Washington but did not do so during the 17-day period
McDowell was incarcerated in Kennewick, Washington. Thus, it cannot be said that the
surety did all that was required of it.
       International asserts that Far West should be extended to include state parole
agents within the definition of “prosecuting agency.” We disagree. International
overlooks the important distinction that state parole is an agency of the state, and not a
local law enforcement agency. State parole operates through its own administration, the
Board of Parole Hearings, and does not take part in local prosecution. (See §§ 5077,
5077.1.) Additionally, parole officers become involved after a defendant is convicted.
Unlike the police department in Far West, a parole agent is not an “official[] of the
demanding county government” (Far West, supra, 93 Cal.App.4th at p. 798) and,
therefore, does not fall within section 1305, subdivision (f), as the “prosecuting agency.”
       Furthermore, a broad interpretation of section 1305 is contrary to the legislative
intent of section 1305. While we note that the law must be construed in favor of the
surety in order to avoid the harsh consequences of forfeiture, there is no ambiguity in the
statute. (People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 307.)
Additionally, section 1554.2, subdivision (a), provides that only the district attorney may
seek extradition for a person who has been charged with a crime but has not yet been
convicted. A parole officer can petition for extradition only when the individual has been
convicted of a crime. (Id., subd. (b).) This distinction further demonstrates that the
prosecuting agency is the district attorney because the parole agency is not involved prior
to conviction. We do not believe the Legislature intended to include all possible law
enforcement personnel as the “prosecuting agency.” (§ 1305, subd. (f).)
       Far West’s concern that affirming the order denying exoneration where the surety
did all that was required and the prisoner’s release was due solely to errors committed by
the demanding county is not applicable here, where the prisoner’s release resulted from
the actions of state parole and not the prosecuting agency of Fresno County.

                                             6.
       Lastly, International argues that the bond must be exonerated because the surety’s
performance was rendered impossible due to actions of the state. International relies on
People v. Meyers (1932) 215 Cal. 115 (Meyers). There, the defendant was arrested in
Alameda County and released on bail. (Id. at pp. 116-117.) The defendant was
subsequently arrested on a San Francisco County warrant and pled guilty. The defendant
was ultimately ordered by San Francisco County to remain outside of California and,
thus, failed to appear in connection with the Alameda County charges. (Id. at p. 117.)
Suit was brought on the bond and the trial court held that the defendant bondsmen “‘were
prevented by operation of law from having the custody of said prisoner and that by
reason thereof are exonerated from their obligation.’” (Ibid.) The Supreme Court
affirmed, reasoning that the surety could not be held liable because performance was
rendered impossible. (Id. at pp. 119-120.)
       International asserts that Meyers created a broad rule of law that applies here;
specifically, a broad definition of “prosecuting agency.” We are not convinced. The
Meyers opinion acknowledged the unusual circumstances of the case and is, therefore,
limited to its facts. Further, Meyers was decided several decades before section 1305,
subdivision (f) was enacted. Meyers does not address the issue presented here, namely,
whether state agencies should be viewed as prosecuting agencies within the meaning of
section 1305, subdivision (f).
       In any event, performance was not rendered impossible by actions of the state.
There was no court order preventing McDowell from lawfully returning to California, as
was true in Meyers. There are no circumstances that made McDowell’s return to
California illegal or impossible. Rather, evidence showed that McDowell was in custody
for about two weeks before he was released. During that time, International could have
notified the Fresno County District Attorney’s office that McDowell was in custody. Had
it done so before McDowell was released, International would have been entitled to have
its bond exonerated under section 1305, subdivision (f). Instead, the Fresno County

                                             7.
District Attorney’s Office was never notified that McDowell was in custody out-of-state
and, therefore, was not afforded the opportunity to decide whether to seek his extradition.
The statute clearly imposes as a precondition to exonerating a bond that the local
prosecuting agency be informed that the suspect is in custody before he is released. The
law further imposes on the surety the burden of proving that the statutory requirements
for exoneration are met. International has failed to carry its burden.
                                      DISPOSITION
       The judgment denying the motion to vacate bond forfeiture is affirmed. The
People are awarded costs on appeal.




                                             8.
