People v. The North River Insurance Company ( 2023 )

Filed 2/7/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B322752
Plaintiff and Respondent, Santa Clara County
Super. Ct. No. F1765160
v.
THE NORTH RIVER
INSURANCE COMPANY et al.,
Defendants and
Appellants.
APPEAL from a judgment of the Superior Court of Santa
Clara County, My-Le Jacqueline Duong, Judge. Affirmed.
Jefferson T. Stamp for Appellants.
James R. Williams, County Counsel, Christopher A.
Capozzi, Deputy County Counsel, for Plaintiff and Respondent.
____________________
In this bail forfeiture action, the North River Insurance
Company and its bail agent (collectively, North River) challenge a
trial court’s order denying a continuance. We decided a similar
case against a surety in People v. Tingcungco (2015) 237
Cal.App.4th 249 (Tingcungco). As we explained in Tingcungco,
North River’s position is contrary to the language and legislative
history of Penal Code section 1305, subdivisions (g) and (h).
North River posted a bail bond on a defendant who fled
California. North River chased him but found him too late to get
the prosecution’s decision on extradition, which is a necessary
part of the statutory process. To save itself now, North River
maintains legislative purpose should override, or guide, the
interpretation of the words of this statute.
When construing this statute, our job indeed is to effectuate
its purpose. (E.g., Apple Inc. v. Superior Court (2013) 56 Cal.4th
128, 135 (Apple).) “The dominant mode of statutory
interpretation over the past century has been one premised on
the view that legislation is a purposive act, and judges should
construe statutes to execute that legislative purpose. This
approach finds lineage in the sixteenth-century English decision
Heydon’s Case, which summons judges to interpret statutes in a
way ‘as shall suppress the mischief, and advance the remedy.’ ”
(Katzmann, Judging Statutes (2014) p. 31, italics added.)
Here the legislative history shows the Legislature
considered the purpose North River proposes but rejected this
approach in favor of the current statute’s wording, which is
2
inhospitable to this proposed interpretation. The decision in
Tingcungco explained all that. North River does not negate or
engage that analysis. Its claim to fidelity to legislative purpose
lacks a footing in text or history.
We therefore affirm. Section citations are to the Penal
Code.
I
The prosecution filed a complaint alleging Geovanni
Quijadas Silva committed a lewd or lascivious act on a child by
force, violence, duress, menace, and fear. North River posted a
$100,000 bond to release Silva.
The trial court declared the bond forfeited when Silva did
not appear for a hearing on February 22, 2018. The court mailed
notice of the forfeiture on February 26, 2018. The forfeiture
would become final in 180 days (plus five days for mailing), on
August 30, 2018, unless Silva came to court or was in custody by
then.
At North River’s request, the court granted two extensions
for a total of 180 days from the first extension. March 20, 2019,
was the final day of this new interval. On that final day, North
River moved to vacate the forfeiture and to exonerate the bond
under section 1305, subdivision (d) or (g). In the alternative, it
moved to toll time under section 1305, subdivision (e) or (h).
North River’s motion included a declaration by an
investigator who said he found Silva in Mexico on March 15,
2019. The investigator temporarily detained Silva in the
presence of a Mexican law enforcement officer, who positively
identified Silva. The motion had other exhibits, including Silva’s
Mexican identification card and fingerprints, photos of Silva and
the investigator, and statements from the officer and Silva.
3
The prosecution opposed the motion because it could not
make an extradition decision within the appearance period—
which is to say by March 20, 2019—nor did it decline to extradite
within that period. The prosecution noted that North River
served the motion on the last day of the appearance period and,
moreover, served it to an office where the prosecutor of record
and the prosecutor who handles contested bail motions did not
work. The prosecution also said the fingerprints were not usable.
In reply, North River said the prosecution violated due
process by not giving notice of its extradition decision and by not
saying whether it would agree to tolling. North River
alternatively argued the court should toll time under section
1305, subdivision (h) or should grant a continuance under section
1305, subdivision (j).
On June 28, 2019, the court denied North River’s motion.
It found the matter was untimely because the prosecution had
not made a decision about extradition by the end of the
appearance period, March 20, 2019, and no statutory provisions
required the prosecution to make a decision by then. The court
also denied the alternate requests to toll the forfeiture period or
to continue the matter.
On July 10, 2019, the court entered a judgment of $100,000
against North River. North River appealed. It is the sole
appellant: no one who may have helped post bond is involved in
this appeal.
4
II
We survey law about bail and forfeiture and then show this
law did not require the court to extend the appearance period.
A
We independently review the trial court’s interpretation of
statutes. (County of Los Angeles v. Financial Casualty & Surety,
Inc. (2018) 5 Cal.5th 309, 314.)
When a person for whom a bail bond has been posted fails
without sufficient excuse to appear as required, the trial court
must declare the bond forfeited. (§ 1305, subd. (a).)
The surety then has an appearance period either to produce
the defendant or to demonstrate that other circumstances require
the court to set aside the forfeiture. (§ 1305, subd. (c); People v.
United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 1000 [this
period is commonly called the “appearance period” or the
“exoneration period”].) This period lasts 180 days (plus five days
for mailing) from when the court mails the notice of forfeiture.
(§ 1305, subd. (b).) If the surety shows good cause, the court may
extend this period for up to 180 days from the date of the order
granting the extension. (§ 1305.4.)
If the defendant appears during the appearance period, the
court must vacate the forfeiture and exonerate the bond. (§ 1305,
subd. (c)(1).) If the court does not set aside the forfeiture by the
end of the appearance period, it must enter summary judgment
against the surety. (§ 1306, subd. (a).)
Section 1305, subdivision (j) allows the court to hear a
motion after the appearance period expires. It says, “A motion
filed in a timely manner within the 180-day period may be heard
within 30 days of the expiration of the 180-day period. The court
5
may extend the 30-day period upon a showing of good cause.”
(§ 1305, subd. (j).)
Defendants skipping bail may flee California. Those
defendants are bad news for their bail bond companies, but
section 1305, subdivision (g) gives these companies a potential
out. This section requires the court to vacate the forfeiture and
to exonerate the bond—but only if two prerequisites obtain.
First, the bail agent must temporarily detain the defendant in
the presence of a local law enforcement officer, who must
positively identify the defendant in an affidavit. (Ibid.) Second,
and pertinent to this appeal, the prosecution must decide not to
seek extradition. (Ibid.)
In cases arising under section 1305, subdivision (g), the
court may toll the appearance period under subdivision (h). To
do so, the bail agent and the prosecution must agree it will take
more time to return the defendant to the court’s jurisdiction, and
the prosecution must agree to tolling. (Ibid.)
To interpret these provisions, we look first to the words of
the statute and try to give effect to their ordinary meaning.
(Tingcungco, supra, 237 Cal.App.4th at p. 253.) Generally, we
strictly construe bail statutes to avoid forfeiture. (People v.
Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 308
(Lumbermens).) The policy disfavoring forfeiture cannot,
however, overcome a statute’s plain meaning. (Ibid.) Our
polestar is devotion to the statute’s purpose. (Apple, supra, 56
Cal.4th at p. 135.)
B
The law did not require the trial court to continue the
appearance period. We first address section 1305, subdivisions
(g) and (h), and then turn to subdivision (j).
6
Section 1305, subdivisions (g) and (h) did not require a
continuance. On similar facts, Tingcungco decided this issue. A
defendant failed to appear, and the court ordered the bail
forfeited. (Tingcungco, supra, 237 Cal.App.4th at p. 252.) Three
days before the extended appearance period expired, the surety
told the prosecution it found the defendant in Mexico and asked
the court to toll the appearance period. The court denied the
request. (Ibid.) Like North River, the surety in Tingcungco
argued it had complied fully with section 1305, subdivision (g)
and the prosecution’s indecision about extradition should not
frustrate exoneration of the bond. (Tingcungco, at p. 256.)
As the Court of Appeal in Tingcungco explained, section
1305, subdivisions (g) and (h) do not support North River’s
position. Subdivision (h) does not apply because the prosecution
did not agree to toll the appearance period. (Tingcungco, supra,
237 Cal.App.4th at pp. 258–259.) As for subdivision (g), the
surety must find the defendant “far enough in advance of the end
of the 180-day appearance period to allow the prosecutor to
decide whether or not to extradite.” (Tingcungco, at pp. 258–259;
cf. People v. Seneca Ins. Co. (2010) 189 Cal.App.4th 1075, 1082
[bail bond not exonerated under subd. (g) simply because
prosecutor has not completed, or even initiated, extradition
before end of appearance period].) North River gave less than a
day’s notice. This was insufficient. North River did not satisfy
subdivision (g) or (h).
The Court of Appeal in Tingcungco also examined
legislative history that contradicts North River’s interpretation.
(Tingcungco, supra, 237 Cal.App.4th at pp. 255–258.) The
Legislature considered an amendment in 2012 that would have
required tolling of the appearance period pending prosecutors’
7
extradition decisions and would have exonerated bonds if the
prosecution did not decide within a reasonable time. (Id. at p.
255.) The Legislature did not enact these proposals. It replaced
them with the substance of what is now section 1305, subdivision
(h). As Tingcungco explained, that subdivision allows such
tolling only after the prosecution has decided to extradite and it
agrees it needs more time to do so. The Legislature therefore
considered a scheme like the one North River advocates but
enacted a different one.
The Court of Appeal in Tingcungco acknowledged some
people may find its holding unfair, but “this was (and may again
become) an issue for the Legislature to resolve.” (Tingcungco,
supra, 237 Cal.App.4th at p. 259.)
Under Tingcungco, North River’s interpretation is
incorrect.
North River offers no reason to ignore Tingcungco. It
dismissively refers to it only once in its opening appellate brief
without attempting to distinguish it, or to fault it, or to engage its
thoughtful and thorough analysis of legislative history. The
number of cases giving negative treatment to the Tingcungco
decision is zero. The prosecution’s appellate brief explains the
case’s pertinence. North River filed no reply brief. Then it
waived oral argument.
We apply Tingcungco because its reasoning is sound and
because North River neither discredits nor distinguishes it.
North River’s reliance on section 1305, subdivision (j) is
unavailing because a continuance under that provision does not
extend the appearance period. This subdivision apparently did
not come up in Tingcungco. Unlike subdivision (h), subdivision
(j) does not reference subdivision (g) or extradition at all.
8
Subdivision (j) is merely about when a motion “may be heard.”
As the Court of Appeal in People v. Ranger Ins. Co. (2007) 150
Cal.App.4th 638 (Ranger) explained, a continuance under this
subdivision extends the date of the hearing but it does not extend
the appearance period. (Id. at pp. 649–650 [referring to former
subd. (i), now subd. (j)]; see Lumbermens, supra, 49 Cal.4th at pp.
312–313 [this subdivision provides a “30–day grace period for
hearings,” and under § 1306, subd. (a), court must enter
summary judgment after appearance period expires unless court
has set aside forfeiture].) The appearance period is the time to
establish the grounds for relief, so a party must establish the
facts of its section 1305 motion “before [the appearance] period
expires”, notwithstanding an extension of the hearing date.
(Ranger, at pp. 649–650, emphasis added.) The appearance
period ended March 20, 2019, before North River established the
fact of the prosecution deciding to seek extradition under
subdivision (g) or of the prosecution agreeing to tolling under
subdivision (h). North River’s interpretation of subdivision (j)
clashes with Ranger and the plain meaning of these
interconnected provisions.
Interpreting section 1305, subdivision (j) to apply only to
extend the hearing date in accordance with the language of that
subdivision does not make the extension moot. There are many
reasons to extend a hearing date. Parties may need more time to
write briefs. The court’s or parties’ scheduling constraints may
necessitate an extension. Someone may be sick. Subdivision (j)
has a purpose, but not the one North River proposes.
It would be unwise to adopt a new and expansive
interpretation of section 1305, subdivision (j) based on North
River’s diffident arguments. In the trial court, North River
9
raised this issue for the first time in its reply brief. On appeal,
North River spends a single paragraph analyzing the issue.
North River acknowledges Ranger but does not discredit or
distinguish it. Like most Hail Marys, this attempt fails.
Counterarguments are unavailing.
People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791 (Far
West) does not help North River. It predates the legislative
history Tingcungco analyzed. Furthermore, in Far West,
Oakland police told Georgia authorities to release a defendant.
(Far West, at pp. 793, 797.) Alameda County prosecutors claimed
this was an error and it did not bind the county. The Court of
Appeal explained the crux of the case was—given that the surety
had done everything required of it under the statute and bond—
“who, as between the surety and the county, must bear the
consequences of the error.” (Id. at pp. 797–798.)
The facts of the present case are a close fit to Tingcungco
but a far cry from Far West. The nub of the problem in Far West
was that the Oakland police told apprehending authorities in
Georgia to release the California fugitive. (Far West, supra, 93
Cal.App.4th at p. 793.) That is, after the bail agent had tracked
the runaway to Georgia and secured him there, California police
officials told their Georgia counterparts to let the flight risk flee.
But then California prosecutors told the court this police error
should not bind the County Counsel’s office. (Id. at p. 797.)
Telling a court that government errors should not bind the
government required some audacity. The trial court put up with
it but the Court of Appeal did not. We have nothing like that
here.
North River cites People v. Ranger Ins. Co. (2002) 99
Cal.App.4th 1229 for the proposition that it is entitled to a
10
continuance as a matter of law. That case was about extending a
hearing due to a judge’s schedule, not about extending an
appearance period for an extradition decision. (See id. at p.
1235.)
In a five-line paragraph, North River argues due process
required the court to grant a continuance. North River cites one
case: Ursino v. Superior Court (1974) 39 Cal.App.3d 611 . In
Ursino, restaurateurs appealed an agency’s issuance of a building
permit to an appeals board. (Id. at p. 615.) The board lacked a
quorum within the 40-day period in which a local ordinance
allowed it to decide the case. (Id. at p. 620.) The Court of Appeal
held that, notwithstanding the 40-day limitation, due process
required a hearing with at least four of five board members. (Id.
at pp. 620–622.) The facts of Ursino are unlike the present case,
and North River does not explain how or why the case should
apply here.
The bail business involves risk. When risk is a feature of a
business environment, economic actors build that feature into
their decisionmaking. They seek to profit from gauging risks
correctly. Sometimes that pays off and sometimes not. Rescuing
a business when the risk did not pay off is an unsound reason to
reject valid precedent. Rescuing anyone who may have pledged
assets as security for the bond is not an issue before us, for North
River is the lone appellant.
///
11
DISPOSITION
The judgment is affirmed. Costs are awarded to the
respondent.
WILEY, J.
I concur:
GRIMES, J.
12
STRATTON, P.J., Dissenting
Appellant made a timely motion under Penal Code1 section
1305, subdivision (g) for relief from forfeiture of the bail bond it
posted on behalf of the fugitive defendant. Subdivision (g)
provides: “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.”
(§1305, subd. (g).)
The motion would have been granted had appellant been
able to show that the People had decided not to extradite him to
the United States to face the pending charge. At the time of the
hearing, the People had not yet made that decision, so appellant
could not make its case for vacatur of the bond forfeiture. It
asked the court to continue the hearing on the motion so that the
People could make their decision, a decision totally out of
appellant’s power to effectuate one way or another.
1 Further undesignated statutory references are to the Penal
Code.
1
Our courts of appeal have not devised a uniform standard
by which to analyze these issues. Some courts insist upon a strict
literal reading of the statute (see, e.g., People v. Tingcungco
(2015) 237 Cal.App.4th at p. 159; People v. Seneca Ins. Co. (2010)
189 Cal.App.4th 1075, 1082–1083); some courts resort to
principles of equity upon which to base their analysis. (See, e.g.,
People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791, 795 (Far
West), and cases cited therein.) Our Supreme Court has
acknowledged “[i]t is true as a general rule that the bail statutes
are strictly construed to avoid forfeiture.” (People v. Indiana
Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 308 (Indiana
Lumbermens).) In my mind “strict construction” does not require
a strict literal meaning devoid of considerations of fairness.
Further guidance in this regard from the legislature and our
Supreme Court would sort out these issues.
I prefer the proposition that courts must, where feasible,
strictly construe statutory language in favor of the surety to
avoid the harsh results of a bail bond forfeiture. (People v. The
North River Ins. Co. (2019) 41 Cal.App.5th 443, 448.) And we are
not just talking about the surety’s interests. Strict construction
of bail forfeiture statutes compels courts 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. (People v. United
States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 999.) Courts
should not “blindly follow” the literal meaning of every word if to
do so would frustrate the legislative purpose of those words.
(People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1384.)
2
Under section 1305, subdivision (j), a “motion filed in a
timely manner within the 180-day period may be heard within
30 days of the expiration of the 180-day period. The court may
extend the 30-day period upon a showing of good cause.” (§ 1305,
subd. (j).) The Legislature provided a 30-day grace period for the
hearing instead of allowing such motions to be filed after the
expiration of the 180-day period. (Indiana Lumbermens, supra,49 Cal.4th at p. 312 [motions to vacate must be timely brought
within the statutory period to avoid a forfeiture within the
180 days].) Here, the trial court continued the hearing on the
timely filed motion for 68 days, a postponement to which no party
objected.
I find the majority’s use of section 1305, subdivision (j)
contrary to the way we should interpret this statute. If the court,
as expressly empowered, finds good cause and extends the
statutory 30-day grace period within which to hear a timely-filed
motion for relief from forfeiture, it follows that the forfeiture
period is necessarily extended as well; otherwise the relief
requested is rendered moot despite the continuance. Factual
events may continue to unfold within the extended grace period,
which the trial court should be able to consider.
Comparing subdivision (h)2 to subdivision (j) is not true to
the way section 1305 lays out procedures for different factual
2 Section 1305, subdivision (h) states, “In cases arising under
subdivision (g), if the bail agent and the prosecuting agency agree
that additional time is needed to return the defendant to the
jurisdiction of the court, and the prosecuting agency agrees to the
tolling of the 180-day period, the court may, on the basis of the
agreement, toll the 180-day period within which to vacate the
3
scenarios. (Far West, supra, 93 Cal.App.4th at p. 795 [“As we
read it, the statutory bail forfeiture scheme can be parsed as a
series of contemplated possibilities, defined in terms of the
defendant’s location vis-à-vis the jurisdiction of the superior court
that set bail.”].) Under section 1305, subdivision (h), the parties
are permitted to essentially stipulate to the tolling of the 180-day
period to file a motion to vacate and the court is empowered to
order the requested tolling. This subdivision is a way to get the
vacatur ball rolling without the need to file a vacatur motion
within the 180-day period where the parties and the court are in
agreement that the defendant will eventually be returned, given
enough time to arrange that return. Subdivision (h) does not
govern what should happen after such a motion has been timely
filed where, as here, the prosecuting agency has not agreed to
tolling.
Here the denial of the motion to vacate the forfeiture works
an injustice on the surety and whomever may have pledged their
assets as security for the bail bond. As there are no judicial
findings to the contrary, the surety did everything it was
supposed to do under the statute. It located the fugitive
defendant and notified the People of his whereabouts with the
appropriate affidavits. It asked the People whether they
intended to extradite the defendant for prosecution. At this point
the fate of the bond forfeiture was in the hands of the People.
What did the People do? Nothing. Instead of making a
timely decision about whether to extradite the defendant, they
simply told the court they had not decided. Were they pressed for
forfeiture. The court may order tolling for up to the length of
time agreed upon by the parties.” (§1305, subd. (g).)
4
time and therefore unable to decide? The majority says the
People had “less than a day’s notice” to decide and therefore the
timely motion was made “too late.” That is speculation, and, I
believe, misreads the record. We don’t know any of that because
the trial court did not insist on an explanation, even after it had
continued the hearing on the motion for 68 days. Once on notice,
I would hold 68 days is enough time to require the People to
make up their mind whether to extradite. If it was not enough
time, a further continuance should have been granted. I see
neither rhyme nor reason to base denial of the vacatur of the
bond forfeiture on the People’s indecision.
The bond is a contract between the surety and the People
governed by section 1305. (See Far West, supra, 93 Cal.App.4th
at pp. 797–798 [where surety’s conduct was not unreasonable and
was in line with its obligations under the bond contract,
forfeiture is reversed where People’s conduct prevented return of
fugitive defendant]; People v. Rolley (1963) 223 Cal.App.2d 639[where surety did everything it contracted to do, but return of
defendant was impeded by law enforcement, forfeiture is
vacated].) The surety complied with its obligation under the
contract with the People. The trial court effectively vitiated the
contract by not requiring the People to make the decision it
contracted to make when it accepted the surety’s bond.
I embrace the general concept that courts should not
interfere with prosecutorial decisions. (People v. Financial
Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 380–381
[Courts “have consistently read subdivision (g) of section 1305 as
leaving the timetable and criteria for deciding whether to
extradite squarely in the hands of the prosecuting agency.”].) But
I do not embrace the proposition that no matter the violence to
5
contractual obligations or the efforts of the surety, courts must
defer to prosecutorial indecision under section 1305. Nor should
courts be permitted to hamstring sureties by deferring to
prosecutorial indecision. A fair reading of the statute
contemplates a prosecutorial decision on extradition before bail is
forfeited. The trial court should have required the People to
make that decision in response to the motion to vacate the
forfeiture or it should have continued the hearing until the
People did so. Forfeiture under these circumstances is not right.
STRATTON, P. J.
6