People v. United States Fire Ins. Co. CA5 ( 2013 )

Filed 12/3/13 P. v. United States Fire 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F064778
Plaintiff and Respondent,
(Stanislaus Super. Ct. No. 1426608)
v.
UNITED STATES FIRE INSURANCE OPINION
COMPANY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Shawn D.
Bessey, Judge.
E. Alan Nunez for Defendant and Appellant.
John P. Doering, County Counsel, and Alice E. Mimms, Deputy County Counsel
for Plaintiff and Respondent.
-ooOoo-
FACTS
Appellant, surety United States Fire Insurance Company (appellant), through its
bail agent Garcia Family Bail Bonds, Inc. (the bail agent), posted bail bond number
U100-20304496 in the amount of $100,000 to release defendant Miguel Marquez
Rodriguez1 from custody (the bond). Defendant failed to appear in court on January 28,
2011, and a bench warrant was issued.
The clerk’s transcript contains a one-page “Notice of Forfeiture and Certificate of
Mailing” dated January 31, 2011 (the notice). The notice advises that defendant failed to
appear on January 28, 2011, and the superior court had ordered bail forfeited. The notice
was addressed to appellant and the bail agent. At the bottom of the notice, there is the
heading “CERTIFICATE OF MAILING” under which the following text appears:
“I, Jessica Misasi[,] Deputy Clerk of the Superior Court of the State of
California, County of Stanislaus, and not a party to the within action, served a true
and correct copy of this Notice of Forfeiture and Certificate of Mailing on the
above-referenced bail-agent and surety pursuant to Penal Code § 1305 by
depositing a true copy thereof in the United States mail in Modesto, California on
1/31/11. [¶] I declare under penalty of perjury that the foregoing is true and
correct.”
A signature appears immediately below this text.
Appellant’s First Motion to Vacate
On August 4, 2011, appellant filed a motion to vacate forfeiture and exonerate
bail. (See Pen. Code,2 § 1305.) In support of its motion, appellant filed the declaration
of Jose J. Gonzales, an employee of the bail agent (the Gonzales declaration). The
declaration stated that Fairmont Specialty Company sent him an “open forfeiture list.”3
He saw bond number U100-20304496 on the list, but “there was no notice of forfeiture in
[his] file.”
In its motion, appellant cited section 1305, subdivision (b)(3), which releases a
surety of all obligations under a bond when the court clerk “fails to mail a copy of the
notice of forfeiture to the bail agent at the address shown on the bond.” (§ 1305,
1 Elsewhere in the record, defendant is referred to as “Miguel Rodriguez Arceo.”
2 All undesignated statutory references are to the Penal Code.
3Presumably, this is a list generated by a surety listing all pending forfeitures
pertaining to a particular bail agent.
2.
subd. (b)(3).) Appellant contended the bail agent’s declaration was circumstantial
evidence that the notice was not mailed. Moreover, appellant argued that the clerk’s
certificate of mailing was not sufficient evidence of mailing. The motion posited that the
certificate violated Code of Civil Procedure section 1013a, subdivision (4) because it did
not state the notice had been mailed “with the postage thereon fully prepaid.” (Code Civ.
Proc., § 1013a, subd. (4).)
In the alternative, appellant’s August 4, 2011, motion requested an extension of
time on the bond under section 1305.4. Jose Gonzales’s declaration stated that on July
15, 2011, the defendant’s son4 said his sister knew defendant was in Mexico and “had
information about his location there.” Gonzales planned to meet with the sister on
August 5, 2011.
Apparently, this motion was subsequently taken off calendar pursuant to a
stipulation.5
Appellant’s Second Motion to Vacate
On October 4, 2011, appellant filed a second motion to vacate forfeiture and
exonerate the bond. In this motion, appellant contended defendant had been located in
Cojita de la Paz, Michoacan, Mexico, temporarily detained and positively identified by a
local law enforcement agent in an affidavit. Appellant argued the bond should be
exonerated under section 1305, subdivision (g).
The motion included a declaration from Crystal Rorabaugh, an office manager in
appellant’s counsel’s office. The declarant stated that she mailed a letter to the
4 Defendant’s son was also the bond’s indemnitor.
5 Both parties’ briefs indicate the motion was taken off calendar. However, the
portion of the record cited by the parties merely reflects that the forfeiture period on the
bond was extended to November 2, 2011. It does not indicate the motion was taken off
calendar. Regardless, we will deem this fact admitted by the parties. (See Franklin v.
Appel (1992) 8 Cal. App. 4th 875, 893, fn. 11, superseded by statute on another ground as
stated in Arnall v. Superior Court (2010) 190 Cal. App. 4th 360.)
3.
Extradition Unit of the Stanislaus County District Attorney’s office informing them that
defendant had been located and positively identified in Mexico. The letter sent to the
district attorney attached an affidavit purportedly executed by a Jorge Enrique Alvarez
Ortiz (the Ortiz declaration). A translated version of that affidavit indicated that Ortiz
was a sworn police officer for the city of Cotija de la Paz. It further indicated that
defendant was temporarily detained in Ortiz’s presence. Ortiz “verified the
identification” on August 17, 2011. The affidavit also stated that the identification “was
done by” Ortiz and a Daniel Gonzàles Silva. The affidavit contained a phone number for
the “Municipal Police.”
A photograph of defendant and his fingerprints were also mailed to the district
attorney, according to Rorabaugh’s declaration.
The hearing on the October 4, 2011, motion was initially set for October 18, 2011.
The parties stipulated to continue the hearing, and “toll time on the bond,” to and
including November 29, 2011.6 The parties later stipulated to continuing the hearing
from November 29, 2011, to December 13, 2011.
People’s Opposition
The People opposed the motion, arguing that they had not been “informed of the
location of the defendant” as required by section 1305, subdivision (g). Ortiz’s affidavit
merely indicated that defendant had been “temporarily detained” and thus did not
necessarily convey defendant’s location. The People also argued Ortiz’s affidavit was
unreliable, there was no evidence defendant had been detained by a bail agent, and that
the forfeiture period should not be tolled in order to complete extradition.
6 The stipulation indicates that “[o]n or about September 30, 2011” appellant filed
another motion to vacate forfeiture and exonerate bail. The record contains no motion
filed on September 30, 2011. Thus, the stipulation is presumably referring to appellant’s
second motion to vacate, filed on October 4, 2011. Both parties’ briefs assume this is the
case.
4.
The People’s opposition included the declaration of Steven P. Jacobson, an
investigator with the district attorney’s office. Jacobson determined the correct area code
for Cotija de la Paz was 394. Ortiz’s declaration had indicated the municipal police
telephone number had a 353 area code.
Jacobson and the county’s victim/witness liaison, a fluent Spanish-speaker, called
the Cotija de la Paz Municipal Police Department. They asked to speak with the head of
the department and were transferred to the watch commander. The watch commander
stated that neither Jorge Enrique Alvarez Ortiz nor Daniel Gonzalez Silva were sworn
law enforcement officers with the Cotija de la Paz Municipal Police. The watch
commander did not know either man. The county’s victim/witness liaison learned that
the number listed in Ortiz’s affidavit as belonging to the municipal police department was
actually a cellular telephone number.
Jacobson requested and received the latent fingerprints from the identification
affidavit from Rorabaugh’s office. The fingerprints matched defendant’s fingerprints.
Jacobson’s declaration concluded with the following:
“Based on the initial investigation into this Identification Affidavit, the
information contained therein is insufficient and unreliable to contact the
Office of International Affairs (OIA). Until the information contained in
the Identification Affidavit can be confirmed, and until a permanent
location for the Defendant has been provided, such information is
insufficient and unreliable to send to OIA to request assistance with
extradition.”
Appellant’s Supplemental Points and Authorities
Appellant filed supplemental points and authorities in support of the motion to
vacate. Appellant argued the trial court lost jurisdiction over the forfeiture because the
clerk had failed to mail notice to the bail agent. (See § 1305, subd. (b)(3).) Appellant
also requested the court extend time on the bond under section 1305.4 to allow for the
return of the defendant to custody.
5.
People’s Opposition to Appellant’s Supplemental Points and Authorities
The People filed an opposition to appellant’s supplemental points and authorities.
The People contended that appellant’s jurisdictional argument and request for an
extension of time on the bond had been untimely raised. The People also countered
appellant’s supplemental arguments on the merits.
The People’s opposition included a declaration executed on December 5, 2011 by
Jessica Misasi, a deputy clerk with the Stanislaus Superior Court (the Misasi declaration).
Misasi’s declaration described the standard court practices for collecting and mailing
notices of forfeitures. It explained that clerks place the envelope containing forfeiture
notices into a basket labeled “outgoing mail.” “Stanislaus County employees/agents”
then place postage fully prepaid on the envelopes. Misasi declared that she “followed
standard court practices when mailing the notices of forfeiture on January 31, 2011,”
sealed the envelope with the forfeiture notices “in this instance,” and that no notice of
forfeiture on the bond was returned to the court as undeliverable.
The People requested the opportunity to present the oral testimony of Mark Garcia
via cross-examination.
Appellant’s Reply Brief
Appellant filed a reply brief to the People’s opposition. In the brief, appellant
withdrew his request to exonerate bail “based on” the Ortiz affidavit.7
Appellant also filed a declaration from Leonard Padilla dated December 13, 2011.
Padilla stated that he contacted an associate in Mexico who “made contact” with
defendant. The declaration provided the address where Padilla’s associate had met
7 Specifically, the reply brief stated: “Since the District Attorney’s investigator
was unable to confirm the Law Enforcement status of the affiant on the 1305(g) affidavit,
the moving party hereby withdraws the request to exonerate bail based on that
documentation and requests an extension of time. Since the 1305(g) exoneration request
is being withdrawn, the People’s request to conduct further oral testimony regarding this
documentation should be denied.”
6.
defendant. Padilla spoke with defendant on the telephone. Defendant eventually agreed
to return to Modesto “after the holidays.” The substantive portion of the declaration
concludes:
“My associates then gathered some verifying information, i.e. the
defendant’s photograph, fingerprints, and verification by law enforcement
that the defendant lives at that address, etc. The defendant’s new wife has
two relatives that are law enforcement in that area, and therefore my
associates treaded very lightly so as not to infringe on the defendant’s legal
rights in Mexico. Exhibit ‘AA’ Photographs” (Original underline.)
Three photographs were attached to Padilla’s declaration, two of which ostensibly
depicted defendant while another depicted a road sign reading “Cojumatlan.”
December 13, 2011, Hearing
At a hearing on December 13, 2011,8 the court extended the forfeiture time period
to January 10, 2012, and set a hearing for that date.
Leonard Padilla’s December 30, 2011, Declaration
On January 4, 2012, appellant filed a declaration from Leonard Padilla dated
December 30, 2011.9 The declaration states, “with certainty I can declare that the
defendant is in [Cojumatlan] in the state of Michoacàn, Mexico and his residential
address and telephone number.” Defendant had told Padilla “his ability to return to the
United States has been curtailed because the arresting officers on this matter confiscated
the paperwork which confirmed his legal status in the United States.” The declaration
stated that Padilla was on the telephone with defendant as Padilla’s associates gathered
information required by section 1305, subdivision (g).
A document entitled “Declaracion Jurada de Identificacion” was attached to
Padilla’s declaration. Another document, apparently depicting two fingerprints, was also
8 The appellate record does not contain the reporter’s transcript from this hearing.
9 The declaration was dated December 30, 2011, but was filed January 4, 2012.
7.
attached to Padilla’s declaration. Underneath the two fingerprints is the handwritten text:
“Miguel Arceo R.”
On December 12, 2011, Padilla notified the district attorney’s office of
defendant’s location in Cojumatlan, Mexico. The declaration states: “As of December
29, 2011[,] when I checked, there had been no efforts by either the District Attorney, or
the County Counsel, or any authority in Stanislaus County for the extradition of the
defendant in this matter to the United States.”
Appellant’s Third Motion to Vacate
On January 5, 2012, appellant filed a third motion to vacate. Appellant argued the
bond should be exonerated under section 1305. The motion’s points and authorities do
not raise the contention that the court clerk failed to mail notice of the forfeiture to the
bail agent. However, the motion’s notice states the motion was “made on the grounds of
Penal Code § 1305 and that the court lost jurisdiction over the bond.”
Crystal Rorabaugh’s Declaration
Appellant also filed another declaration from Crystal Rorabaugh. She declared
that she sent a “completed 1305(g) packet” to the district attorney’s office including a
“1305(g) affidavit,” photographs and fingerprints. Finally, she stated that she had not
“received an election from the Office of the District Attorney.”
A translated version of the “1305(g) affidavit” was attached to Rorabaugh’s
declaration. The translated version indicated the original affidavit was signed by “Julio
Cesar Ayard Rodriguez.” (the Rodriguez Affidavit) The declaration states: “I verified
the identity of Miguel Arceo R.”10 It further states that “[t]he individual resides at
Nicolas Bravo, #180, Col. Centro.” Unlike the declaration attached to the prior motion,
this declaration does not state that defendant had been temporarily detained.
10 There is a place where the affiant can indicate the date they verified the identity
of the subject, which was left blank. The declaration itself was dated above the signature
line as December 10, 2011.
8.
Leonard Padilla’s January 5, 2012, Declaration
Appellant also filed another declaration from Padilla (filed Jan. 6, 2012), this one
dated January 5, 2012. Some of the information from Padilla’s December 12, 2011,
declaration was repeated. For example, Padilla declared he spoke with defendant via
telephone and that defendant “was willing to return after the holidays.”
The declaration also repeated some of the information from the December 30,
2011 declaration. For example, Padilla indicated that “when [he] checked, there had been
no efforts by either the District Attorney, or the County Counsel, or any authority in
Stanislaus County for the extradition of the defendant ….”
People’s Opposition
The People opposed the motion arguing the motion “lacks evidentiary support as
the elements” of section 1305, subdivision (g) “have not been met.” Specifically, the
People argued (1) the prosecuting agency had not made an election regarding extradition,
and (2) the law enforcement affidavit was incomplete, insufficient and unreliable.
January 10, 2012, Minute Order
In a January 10, 2012, minute order, the superior court granted appellant’s request
to “extend time” to January 31, 2012. The order set a hearing date for the “original”
motion regarding “mailing and notice” as well as the “new” section 1305, subdivision (g)
motion.
Padilla’s January 31, 2012, Declaration
On January 31, 2012 appellant filed another declaration from Padilla. The
declaration stated Padilla had been informed that “as of today, January 31, 2012, the
defendant was being detained as being in Mexico illegally, and transported to an
American Port of Entry where he would be turned over to American law enforcement due
to the outstanding warrant for his arrest on this matter.”
9.
Superior Court Denies Appellant’s Motion(s) to Vacate
On February 14, 2012, the court held a hearing on appellant’s motion(s) to vacate.
At the hearing, appellant’s counsel indicated that the effort to have defendant deported
from Mexico to the United States “didn’t work” because “without the cooperation of the
law enforcement, which has to start with the local DA, they just weren’t able to get him
in custody or deported.”
The court proceeded to rule on the merits. With respect to the alleged lack of
forfeiture notice to the bail agent, the court found “the mailing was sufficient in this
[in]stance.” The court found that the court clerk “complied with the mailing
requirements.”
Both counsel then argued the section 1305, subdivision (g) issue. The court then
denied the motion. The court noted the information in Ortiz’s affidavit differed from the
Rodriguez affidavit, including information regarding defendant’s location. The court
concluded the discrepancy indicated either that “the first information as to the address
was incorrect totally, or we have somebody that’s in motion within Mexico ….”
The court also stated that the district attorney was investigating the information
regarding defendant’s whereabouts, which “indicate[d] to the Court that … they are
going through the election process. It’s not that they’re not choosing to not extradite or
are they choosing to extradite at this point, but they certainly are looking into it.” The
court said it “[found] it hard to think that in this case I can find that the District
Attorney’s Office is purposely trying to preclude the surety from obtaining or fulfilling
their obligations under 1305(g).”
A summary judgment was entered in favor of the People and against appellant
United States Fire Insurance Company in the amount of $100,000.00.
DISCUSSION
Appellant contends the court lost jurisdiction over the bond under section 1305,
subdivision (b)(3), because notice of the forfeiture was not properly mailed to the bail
10.
agent. The trial court found otherwise, and that finding was supported by substantial
evidence. Therefore, we reject this claim in section I, post.
Appellant also argues that once the surety has complied with the detention and
affidavit requirements of section 1305, subdivision (g), and notifies the prosecuting
agency of the defendant’s location, the district attorney must make an election as to
whether or not it will seek extradition. Moreover, appellant asserts that if the prosecuting
agency fails to make such an election, it must be deemed an election not to extradite. We
find these contentions unsupported by the statutory language and reject it in section II,
post.
Though it is not raised as a separate issue, appellant also apparently contends the
trial court should have tolled time on the bond pursuant to section 1305, subdivision (e).
The record contains no request by appellant that the court toll time under subdivision (e).
Appellant has failed to show the court erroneously failed to grant the unrequested relief
under subdivision (e).
I.
SUBSTANTIAL EVIDENCE SUPPORTED THE TRIAL COURT’S
FINDING THE NOTICE HAD BEEN MAILED
A trial court’s finding that proper notice of forfeiture was given is reviewed for
abuse of discretion. (See, e.g., People v. Safety Nat. Cas. Corp. (2010) 186 Cal. App. 4th
959, 973.) If the finding is supported by substantial evidence, there is no abuse of
discretion. (See, e.g., ibid.)
Here, the court made a factual finding that the clerk had complied with the mailing
requirements. There was substantial evidence to support that finding. The certificate of
mailing, executed under penalty of perjury by the clerk, stated that she served the notice
of forfeiture on the bail agent pursuant to section 1305. This certificate, along with her
declaration, was substantial evidence that the notice was so mailed. Thus, the court’s
finding was supported by substantial evidence.
11.
Appellant contends otherwise, arguing the clerk’s certificate of mailing does not
comply with Code of Civil Procedure section 1013a.
First, we strongly question whether the certificate of mailing needed to comply
with Code of Civil Procedure section 1013a in order to avoid triggering section 1305,
subdivision (b)(3). By its plain language, subdivision (b)(3) only applies where the clerk
“fails to mail” the notice. Subdivision (b)(3) does not mention the Code of Civil
Procedure nor certificates of mailing. (§ 1305, subd. (b)(3).)11 It is the fact of mailing
rather than proof of mailing that is relevant to section 1305, subdivision (b)(3).
More importantly, we are reviewing the court’s finding that the mailing occurred,
not the certificate of mailing itself. Thus, deficiencies in the certificate of mailing are
only relevant to the extent, if any, they render the evidence insufficient to sustain the
court’s finding. Here, the certificate does not comply with Code of Civil Procedure
section 1013a insofar as it does not indicate the “envelope was sealed” with “postage
thereon fully prepaid.” (Code Civ. Proc., § 1013a, subd. (4).) This fact may slightly
weaken the certificate’s adequacy to support a finding the notice was properly mailed.
But we need not resolve whether those deficiencies rendered the certificate, by itself,
insufficient to support the court’s finding. Other evidence was presented on those issues.
As we will explain, that additional evidence supported an inference that the envelope was
in fact sealed and postage thereon fully prepaid.
In Misasi’s December 5, 2011, declaration, she specifically states, “I habitually
seal all envelopes I prepare for mailing, which would include the envelope with the
forfeiture notices in this instance.” (Italics added.) Regarding postage, Misasi declared
that she places the envelopes with the notices into a basket and other county employees
11 Outside of subdivision (b)(3), subdivision (b) does direct the clerk to execute a
certificate of mailing. (§ 1305, subd. (b).) But, the statute provides for no consequence if
the certificate of mailing is not executed. Subdivision (b)’s provisions providing for a
release of the surety’s obligations only apply where the clerk “fails to mail” the notice
within a certain time frame and to certain addressees. (§ 1305, subds. (b)(1)-(3).)
12.
“place postage fully prepaid on the envelopes” and “deposit the mail for mailing in the
U.S. Postal Service.” No notices were returned to the court as undeliverable. Misasi’s
declaration and the certificate of mailing are sufficient to support the court’s finding on
appeal.
It is true, as appellant argues, that there was other evidence regarding the mailing
issue. But, on substantial evidence review, “reversal … is not warranted simply because
the circumstances might also reasonably be reconciled with a contrary finding.” (People
v. Livingston (2012) 53 Cal. 4th 1145, 1170.) Thus, reversal is not appropriate here even
though Gonzales, the bail agent’s employee, declared that he could not find a notice of
forfeiture in his files. Even assuming this evidence could have supported an inference
that the notice was not mailed, the finder-of-fact chose not to make such an inference.
And, because the fact finder’s contrary inference was supported by other substantial
evidence (i.e., the certificate of mailing and Misasi’s declaration), we will not disturb it
on appeal.
A. EVEN THOUGH THE PRESUMPTION OF RECEIPT MAY NOT HAVE
APPLIED, THE TRIAL COURT REMAINED FREE TO INFER
RECEIPT FROM THE EVIDENCE
Evidence Code section 641 provides, “A letter correctly addressed and properly
mailed is presumed to have been received in the ordinary course of mail.” (Evid. Code,
§ 641.) Appellant discusses conclusive versus rebuttable presumptions, contending
Evidence Code section 641’s presumption is rebuttable. This is correct, but irrelevant.
Even assuming, arguendo,12 that Gonzales’s declaration negated the presumption
of receipt set forth in Evidence Code section 641, we would still affirm the trial court’s
12The determination of whether Evidence Code section 641’s presumption has
been negated is itself a question of fact for the trial court. (Glasser v. Glasser (1998) 64
Cal. App. 4th 1004, 1010-1011. Accord, Tremayne v. American SMW Corp. (1954) 125
Cal. App. 2d 852, 854; Slater v. Kehoe (1974) 38 Cal. App. 3d 819, 833 [“this
determination is to be made by the trial judge”].) Given the discussion that follows, we
need not decide whether the trial court impliedly found the presumption of receipt had
13.
finding. “The disappearance of the presumption does not mean there is insufficient
evidence to support the trial court’s finding.” (Craig v. Brown & Root, Inc. (2000) 84
Cal. App. 4th 416, 421, original italics (Craig).) “ ‘[I]f “the adverse party denies receipt,
the presumption is gone from the case. The trier of fact must then weigh the denial of
receipt against the inference of receipt arising from proof of mailing and decide whether
or not the letter was received.” ’ ” (Ibid.; accord, Bear Creek Master Ass’n v. Edwards
(2005) 130 Cal. App. 4th 1470, 1486.) In other words “the disappearance of the
presumption is moot” on appeal; “[i]ts only relevance was in the trial court, where the
trier of fact (in this context, the court) was required to determine the contested
fact…without regard to the presumption and solely on the basis of the conflicting
evidence .…” (Craig, supra, 84 Cal.App.4th at p. 421.) Thus, even if Gonzales’s
declaration successfully negated the presumption, the trial court was still free to find that
the notice was in fact mailed. (See Evid. Code, § 604; see also, Bear Creek Master
Ass’n, supra, 130 Cal.App.4th at p. 1486; Craig, supra, 84 Cal.App.4th at p. 421.)
Appellant argues: “If the presumption of receipt does not exist, the only evidence
before the court is the evidence which supports a finding that the notice was not
received.” This is incorrect, Gonzales’s declaration was not the only evidence before the
court. The certificate of mailing and Misasi’s declaration were also before the court.
While the certificate of mailing no longer gave rise to a presumption of receipt, it still
gave rise to an inference of receipt. “Although the presumption disappears where, as
here, it is met with contradictory evidence, inferences may nevertheless be drawn from
the same circumstances that gave rise to the presumption in the first place.” (Craig,
supra, 84 Cal.App.4th at p. 421; see also Evid. Code, § 604.) Thus, the court was free to
accept the inference of receipt arising from the certificate of mailing and Misasi’s
not been negated or whether such an implied finding would be supported by substantial
evidence.
14.
declaration. Its decision to do so “is binding on this appeal.” (Craig, supra, 84
Cal.App.4th at p. 421.)
B. BONZER v. CITY OF HUNTINGTON PARK
Appellant relies heavily on the Second District’s decision in Bonzer v. City of
Huntington Park (1993) 20 Cal. App. 4th 1474 (Bonzer). We respectfully disagree with
the Bonzer decision. In Bonzer, there was conflicting evidence regarding the mailing of a
notice of a motion. A proof of service declaration indicated that the declarant “was
familiar ‘with [her employer’s] practice of collection [sic] and processing correspondence
for mailing’ and ‘[u]nder that practice it would be deposited with U.S. Postal service …
in the ordinary course of business.’ ” (Bonzer, supra, 20 Cal.App.4th at p. 1478, italics
omitted.)
The appellants in Bonzer offered six declarations in support of their contention
that they did not receive the notice. (Bonzer, supra, 20 Cal.App.4th at p. 1479.) One of
the purported recipients of the notice was the chief of police. (Id. at p. 1477.) A
declaration from Barbara Peckler showed that she was the only person who received the
chief’s mail, and that she did not receive the notice. (Id. at p. 1479.) The chief of police
similarly submitted a declaration that he had no recollection of receiving a notice. (Id. at
p. 1479.)
The Bonzer court noted that appellant’s evidence rebutted Evidence Code section
641’s presumption. (Bonzer, supra, 20 Cal.App.4th at p. 1481.) We do not disagree with
that conclusion. However, the court then held that under Evidence Code section 604, the
“only remaining effect of the ‘Proof of Service’ declaration was to enable the trial court
to draw ‘any inference that may be appropriate.’ ([Evid. Code, § 604.])” (Bonzer,
supra, 20 Cal.App.4th at p. 1481.) The court concluded that “[a]ny inference, in the face
of appellants’ declarations, that the subject notices were actually received is, as a matter
of law, inappropriate.” (Ibid., original italics.)
15.
We disagree with Bonzer’s holding because it results from a misapplication of the
appropriate standard of review.13 Essentially, the trial court in Bonzer found the
appellants’ declarations “inadequate” (Bonzer, supra, 20 Cal.App.4th at p. 1477) while
the appellate court found them to be “credible” (id. at p. 1482). In this type of dispute,
the trial court’s determination prevails unless it is not supported by substantial evidence.
The aspects of substantial evidence review relevant here were succinctly and correctly
explained in another Second District case, Canister v. Emergency Ambulance Services
(2008) 160 Cal. App. 4th 388: “We look at the evidence in support of the successful party,
disregarding any contrary showing, and we resolve all conflicts in favor of the
respondent .… When two or more inferences can be reasonably deduced from the facts,
we do not substitute our deductions for those of the finder of fact. [Citation.] We must
affirm if substantial evidence supports the trier of fact’s determination, even if other
substantial evidence would have supported a different result. [Citation.]” (Id. at p. 394,
italics added.)14
Contrary to these principles of substantial evidence review, the Bonzer court
considered both respondent’s and appellants’ evidence. The Court of Appeal concluded
the lower court’s resolution of the conflicting evidence was incorrect “in the face of
appellants’” evidence. (Bonzer, supra, 20 Cal.App.4th at p. 1481, italics added.) But, as
13On appeal from an order denying a motion under Code of Civil Procedure
section 473, appellate courts review factual findings for substantial evidence. (E.g.,
Cowan v. Krazyman (2011) 196 Cal. App. 4th 907, 915; Lang v. Hochman (2000) 77
Cal. App. 4th 1225, 1252.)
14 This type of deferential review applies to factual findings predicated on
declarations. “Even though contrary findings could have been made, an appellate court
should defer to the factual determinations made by the trial court when the evidence is in
conflict. This is true whether the trial court’s ruling is based on oral testimony or
declarations.” (Shamblin v. Brattain (1988) 44 Cal. 3d 474, 479, fn. omitted.) “Where
affidavits in support of a motion are controverted by opposing declarations, the duty of
determining the credibility of affiants is within the exclusive realm of the trial court .…”
(In re Marriage of Carter (1971) 19 Cal. App. 3d 479, 493.)
16.
explained ante, the appellate court should not have made its substantial evidence
determination “in the face of appellants’ ” (ibid) evidence. It should have only looked to
respondent’s evidence (i.e., the proof of service) to determine whether it was substantial
evidence supporting the trial court’s finding.
Thus, we respectfully disagree with Bonzer and will not follow it here. The trial
court is the “sole arbiter of the facts” and this court has “no power on appeal to weigh the
evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or the
reasonable inferences that may be drawn from the evidence.” (Navarro v. Perron (2004)
122 Cal. App. 4th 797, 803.) Here, the inference that the clerk properly mailed the notice
to the bail agent was supported by substantial evidence. Our inquiry ends there, despite
the existence of contrary evidence.
II.
THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTION TO
VACATE UNDER SECTION 1305, SUBDIVISION (g)
A. RODRIGUEZ’S LAW ENFORCEMENT AFFIDAVIT DOES NOT
INDICATE DEFENDANT WAS “TEMPORARILY DETAINED” IN HIS
PRESENCE
Section 1305, subdivision (g) only applies to cases where the defendant is
“temporarily detained … in the presence of a local law enforcement officer….” (§ 1305,
subd. (g).) Here, the only law enforcement affidavit before the court was the Rodriguez
affidavit.15 That affidavit avers that Rodriguez was “an officer of the peace” in
“Cojumallan” [sic], and that he verified the identity of “Miguel Arceo R.” But, it does
not indicate that defendant was “temporarily detained” in his presence. Thus, this was
not a “case” to which section 1305, subdivision (g) applied.
15
The prior section 1305, subd. (g) motion with the Ortiz declaration had been
withdrawn.
17.
B. THE PROSECUTOR HAD NOT ELECTED NOT TO SEEK
EXTRADITION AND THEREFORE, SUBDIVISION (g) DID NOT
APPLY
Section 1305, subdivision (g) only applies in “cases … where … the prosecuting
agency elects not to seek extradition.…” (§ 1305, subd. (g).) Here, the prosecution had
not made an election with respect to extradition. Therefore, this is not a “case[] … where
… the prosecuting agency elects not to seek extradition….” (§ 1305, subd. (g).)16 Thus,
subdivision (g) does not apply and the trial court correctly denied the motion.
Appellant argues that once the prosecuting agency is informed of defendant’s
location, it “must make an election” and a failure to do so must be deemed an election not
to extradite. Subdivision (g) contains no such requirement. Electing not to extradite and
making no election regarding extradition are simply not the same. One is an act, the
other is an omission or failure to act. Thus, language specifically describing one (i.e.,
electing not to extradite) does not encompass the other (i.e., not electing not to extradite).
When subdivision (g) states that it applies to “cases … where … the prosecuting agency
elects not to seek extradition …” it means precisely that. By its plain terms, the provision
does not encompass cases where the prosecuting agency does not so elect.
Appellant makes interesting arguments regarding why prosecuting agencies should
be required to make an election regarding extradition within a certain timeframe.17 But
16 The trial court found that the District Attorney’s office was “going through the
election process. It’s not that they’re not choosing to not extradite….” (Italics added.)
17 Appellant claims that often prosecuting agency’s “prefer[] … the money from
forfeiture of bail,” which “motivates a decision not to extradite.” Appellant cites no
evidence in support of this claim. Even assuming it were true, it might, at most, counsel
in favor of amending subdivision (g) to require a prosecutorial election within a certain
time frame or to expand its scope to cases where the prosecuting agency fails to make any
election regarding extradition within a certain number of days. But the role of this court
in this case begins and ends with the determination that subdivision (g), as currently
worded, only applies to “cases … where … the prosecuting agency elects not to seek
extradition.…” (§ 1305, subd. (g), italics added.) We express no view regarding the
merits of appellant’s policy arguments. Moreover, regardless of the alleged potential for
gamesmanship by prosecuting agencies, that concern is arguably absent from this case.
18.
we are not concerned with what the Legislature should have done, only what it has done.
(Cf. County of San Diego v. State (2008) 164 Cal. App. 4th 580, 597.) In subdivision (g),
the Legislature only provided for exoneration in “cases … where … the prosecuting
agency elects not to seek extradition.…” (§ 1305, subd. (g).) This is not such a case.
DISPOSITION
The judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
_____________________
Gomes, Acting P.J.
_____________________
Detjen, J.
On the facts before it, the trial court found it “hard to think” that the district attorney’s
office was “purposely trying to preclude the surety from obtaining or fulfilling their
obligations under 1305 (g).”
19.