v. International Fidelity Ins.
Filed
1/16/13 P. v. International 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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,
Plaintiff and Respondent,
v.
INTERNATIONAL
FIDELITY INSURANCE COMPANY,
Defendant and Appellant.
F062999
(Super. Ct. No. F10901037)
APPEAL
from a judgment of the Superior Court of
County. D. Tyler Tharp, Judge.
E.
Alan Nunez for Defendant and Appellant.
Robert
Tomlin White for Aladdin Bail Bonds as Amicus Curiae on behalf of Defendant and
Appellant.
Kevin
B. Briggs, County Counsel and Michael R. Linden, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
In
this bail forfeiture action, appellant, International Fidelity Insurance
Company (International Fidelity), moved to vacate the forfeiture and exonerate
bail on the ground that the prosecutor elected to not extradite the criminal
defendant who had fled to Mexico. Under
Penal Code
title="">[1] section 1305, subdivision
(g), the court must vacate the forfeiture and exonerate bail when the bail
agent locates and positively identifies the defendant in a foreign jurisdiction
and the prosecuting agency elects not to seek extradition.
The trial court
denied International Fidelity’s motion on the ground that extradition was not
feasible. International Fidelity argues
that substantial evidence does not support the trial court’s ruling. We disagree.
Further, International Fidelity failed to present either relevant or
admissible evidence to the contrary. The
trial court ruled that the evidence that International Fidelity did present was
inadmissible and International Fidelity has not challenged the trial court’s
evidentiary rulings on appeal.
Accordingly, we will affirm the judgment.
BACKGROUND
In March 2010,
International Fidelity posted a $400,000 bond for the release of defendant Gus
Ramos from custody. Ramos was charged
with transporting approximately 10 pounds of methamphetamine. However, Ramos failed to appear for his
arraignment on March 15, 2010, and the bail was declared forfeited by the trial
court.
International
Fidelity moved the court for an extension of the bond exoneration period to
enable it to locate Ramos. The court
granted the motion and ordered the period for exoneration extended to December
31, 2010.
On December 30, 2010, International Fidelity
filed a second motion to extend the exoneration period. International Fidelity supported this motion
with a declaration from the bail agent, Dorry Plotkin. According to Plotkin, Ramos had been located
in Guadelajara, Mexico. Plotkin also
declared that he had received an e-mail from FBI Special Agent Alba Lorena
Sierra. In this e-mail, attached to the
declaration as an exhibit, Sierra stated that she had been in contact with a
duty agent who had communicated with Chief Deputy District Attorney Douglas E.
Hass and that Hass told the duty agent that “he had previously reviewed the
case several months ago, and that he decided extradition is not worth the time
and expenses based on the crime committed by Ramos.†The duty agent further told Sierra that Hass
also stated that “in Fresno they let people out of jail right away so [Ramos]
would be released almost as soon as he gets locked up.†According to Sierra, she was unable to open a
formal FBI case due to this information from the duty agent.
On December 31,
2010, Ramos was located by International Fidelity’s agent in Mexico and was
temporarily detained and positively identified by a local law enforcement
officer. International Fidelity
thereafter filed a supplemental memorandum of points and authorities in support
of its motion to extend the exoneration period.
International Fidelity argued that the bail forfeiture should be vacated
under section 1305, subdivision (g).
According to International Fidelity, it had complied with all the
procedural requirements and, as stated in the e-mail from FBI Agent Sierra, the
district attorney had elected not to extradite Ramos.
The trial court
denied International Fidelity’s motion to vacate the forfeiture and exonerate
bail. The court found that International
Fidelity failed to establish that the district attorney elected not to seek
Ramos’s extradition after it was
informed by International Fidelity that Ramos had been located and positively
identified. Nevertheless, the court
extended the exoneration period to March 16, 2011.
On March 15,
2011, International Fidelity filed a second motion to vacate the forfeiture and
exonerate bail. Respondent, the People
of the State of California, opposed the motion on the ground that it was not
feasible to extradite Ramos from Mexico.
In support of
its position, the People submitted a declaration from Hass. Hass declared that he had reviewed the Ramos
case and was familiar with the applicable treaty between Mexico and the United
States. Hass explained that he had
participated in a webinar/seminar that presented an overview of the extradition
process with Mexico. Hass stated that,
at this seminar, he learned that while Mexico will now extradite its own
nationals and United States citizens with Mexican ties, Mexico limits the
process to serious and violent offenders
and “narcotics ‘kingpins’ or offenders functioning at the cartel
level.†Hass also learned through the
California District Attorney’s Association Extradition and Foreign Prosecution
Committee that all of the existing requests for extradition in 2010 involved
either homicide, crimes of extreme violence, or sexual assault and that
extradition had not been requested on narcotics cases unless the defendant was
classified as a major narcotics kingpin.
Hass further heard from the Associate Director of the Office of
International Affairs in the United States Department of Justice that, as of
January 2011, there were 115 pending provisional arrest warrants that needed to
be approved by a Mexican judge and that it was becoming more difficult to
obtain extradition in voluntary manslaughter and aider and abettor homicide
cases. Further, it is very difficult to initiate extraditions on fugitives that
live in rural areas versus those that can be located in the greater Mexico City
area. Finally, Hass spoke to the United
States Department of Justice liaison to California prosecutors who relayed that
she had one narcotics case pending out of Arizona where the fugitive was part
of a multiple member conspiracy to traffic marijuana. Based on this knowledge and his experience,
Hass opined that “there is no indication from Mexico’s current pattern of
extradition that Mexico would extradite [Ramos] in this case.†After examining the facts, Hass concluded
that Ramos’s case did not come within the categories or types of cases subject
to extradition from Mexico and therefore it was not feasible for the district
attorney’s office to elect to extradite Ramos.
In response,
International Fidelity’s counsel submitted his own declaration. Counsel included declarations and supporting
documents from prosecutors in Los Angeles County regarding various cases where
the office had elected not to pursue extradition. Counsel also included a declaration regarding
one case where extradition was not sought in Fresno County. Additionally, counsel described his
conversations with a deputy district attorney in Riverside County, a United
States Marshal, and a Mexican attorney who all told counsel that there is no
current policy or practice of denying extraditions of Mexican nationals on drug
charges. Finally, counsel included press
releases and articles regarding defendants on drug charges being extradited
from Mexico.
The People
objected to International Fidelity’s counsel’s declaration on hearsay
grounds. The People also objected to the
admissibility of the e-mail sent by FBI Agent Sierra on the ground that it was
not in the form of a declaration submitted under penalty of perjury. The court sustained these objections and appellant
has not raised these evidentiary rulings on appeal.
Following a
hearing, the court denied International Fidelity’s motion to vacate the
forfeiture and exonerate bail.
DISCUSSION
On
appeal of an order denying a motion to set aside a bail forfeiture, we review
the trial court’s decision under the abuse of discretion standard. (People
v. Lexington National Ins. Corp. (2010) 181 Cal.App.4th 1485, 1489.) However, “[t]he 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.†(Haraguchi
v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)
This case
revolves around the feasibility of extraditing a defendant charged with
narcotics violations from
particular case is a question of fact. (
Group (2009) 173 Cal.App.4th 538, 544.)
Accordingly, we review the trial court’s finding that extradition of
Ramos was not feasible under the substantial evidence test. (Id.
at p. 543.) Therefore, we must determine
whether, based on the entire record, there is any substantial evidence,
contradicted or uncontradicted, that supports the trial court’s infeasibility
finding. We must accept as true all
evidence that tends to establish the correctness of this finding and resolve
every conflict in favor of the trial court’s decision. (Sabbah
v. Sabbah (2007) 151 Cal.App.4th 818, 822-823.)
finding is supported by substantial evidence.
When a criminal
defendant for whom a bail bond has been posted fails to appear, the trial court
must declare the bond forfeited in open court.
(§ 1305, subd. (a).) Thereafter,
the surety that posted the bond has a statutory “appearance†period in which to
either produce the accused in court and have the forfeiture set aside or
demonstrate other circumstances requiring the court to vacate the
forfeiture. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653,
657.)
In
here, i.e., the criminal defendant has fled to a foreign country but is not in
custody, section 1305, subdivision (g) applies.
That section 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 .…†(§ 1305, subd. (g),
italics added.)
The surety seeking to set aside the
forfeiture has the burden to establish by competent evidence that its case
falls within the four corners of these statutory requirements. (People
v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 725.)
“Under
section 1305, subdivision (g), the prosecuting agency is merely required to
elect whether to seek extradition.†(
61 Cal.App.4th 795, 801 (County of Orange).) However, the term “elect†implies a choice of
options. (Id. at p. 802.) “When
extradition is not feasible, there can be no meaningful election whether to
seek extradition, and the conditions for forfeiture relief have not been
satisfied.†(Ibid.) Accordingly, if the
record shows extradition is not feasible, the prosecutor has no real choice in
deciding whether to seek extradition.
Thus, the terms of section 1305, subdivision (g), have not been
met. Under these circumstances, it is
proper for the trial court to deny the surety’s motion to vacate the forfeiture
order. (County of Orange, supra, at pp. 804-805.)
When
the host country, as a matter of policy or practice, refuses to grant
extradition requests in the category of cases involved in the controversy at
issue, extradition will be deemed infeasible.
(County of Orange, supra, 61
Cal.App.4th at p. 803.) Here, based on
the Hass declaration, the trial court found extradition of Ramos was
infeasible.
title="">[2]
As noted above,
Hass stated that he had learned that Mexico would not extradite defendants
charged with narcotics violations unless they were “narcotics ‘kingpins’†or
were functioning at the cartel level.
Rather, Mexico was limiting extradition to serious and violent
offenses. The charge against Ramos,
while not insignificant, was not a serious crime of violence or a
involving a Mexican cartel or a multi-defendant conspiracy. When applied to the facts of this case, the
evidence of Mexico’s extradition policy with respect to narcotics offenders as
set forth in the Hass declaration supports the trial court’s infeasibility
finding.
Based on Hass’s
statements allegedly made to the FBI duty agent and then relayed by the duty
agent to FBI Agent Sierra, International Fidelity argues that Haas made an
election not to pursue extradition.
International Fidelity further contends that, based on the fact that the
FBI agents were willing and able to assist with Ramos’s extradition and that
they did not do so only because Haas believed the extradition was not worth the
time and expense, it cannot be said that extradition was not feasible.
However, as
found by the trial court, Haas made these alleged statements
section 1305, subdivision (g) requirements.
International Fidelity had not yet temporarily detained Ramos in the
presence of local law enforcement and thus had not yet informed Haas of Ramos’s
location following the detention.
Therefore, in speaking to the FBI duty agent, Haas did not make an
election not to pursue extradition under section 1305, subdivision (g). Moreover, this evidence is incompetent in
that it is based on hearsay. (
Contractors Indemnity Co. (2007) 152 Cal.App.4th 661, 667.) Accordingly, International Fidelity did not
meet its burden to establish by competent evidence that its case fell within
the four corners of the statutory requirements.
Further,
International Fidelity failed to present either relevant or admissible evidence
to contradict the People’s claim that extradition was not feasible. The court ruled that International Fidelity’s
evidence, presented through counsel’s declaration, was inadmissible because the
documents were not properly authenticated and counsel’s conversations with
various people were hearsay.
International Fidelity has not challenged this ruling on appeal. Moreover, the declarations and supporting
documents from various prosecutors regarding cases where their respective
offices elected not to pursue extradition are irrelevant to the issue of
whether extradition was feasible in this case.
In sum, the
People presented substantial evidence in support of their position that
extradition of Ramos was not feasible and International Fidelity did not
present any credible evidence to the contrary.
brief in support of International Fidelity.
Aladdin
Bail Bonds (Aladdin) filed an amicus curiae brief in support of International
Fidelity. Aladdin argues that the trial
court made a legal error when it mistakenly shifted the burden to International
Fidelity to prove that extradition was feasible. According to Aladdin, the burden should have
been placed on the People to prove that extradition was not feasible.
In support of
its position, Aladdin relies on the following exchange between the court and
International Fidelity’s counsel at the hearing on the motion to vacate the
forfeiture:
“MR.
RORABAUGH: Thank you, your Honor. And if I may ask for just one more
clarification, if I may.
“Did
the Court -- there was a dispute over the evidentiary standard on who had the
burden of proof. Did the Court make a
ruling on who had the burden of proving Mexico’s extradition policies?
“THE
COURT: I did not.
“MR.
RORABAUGH: Could I ask the Court to make
that finding?
“THE
COURT: I don’t think that’s necessary.…â€
In
County of Orange, the court placed
the burden on the prosecution to establish that the defendant’s extradition was
not feasible. (County of Orange, supra, 61 Cal.App.4th at pp. 802-803.) Nevertheless, whether or not the trial court
erroneously shifted the burden of proving feasibility of extradition to
International Fidelity, we will not consider this issue on appeal because it
was not raised by International Fidelity.
An amicus curiae
accepts a case as it finds it. (
Brown (1994) 30 Cal.App.4th 1264, 1274.)
Accordingly, an amicus curiae must accept the issues made and
propositions urged by the appealing parties.
Any additional questions presented in a brief filed by an amicus curiae
will not be considered. (
Indemnity Co. (2001) 90 Cal.App.4th 1151, 1161, fn. 6.) At this point, interjecting new issues is
inappropriate. (California Assn. for Safety Education v. Brown, supra, 30
Cal.App.4th at p. 1275.)
Aladdin also
echoes International Fidelity’s argument that the evidence does not support the
trial court’s finding that extradition was not feasible. In making this argument, Aladdin requests
this court to take judicial notice of People
v. Elizandro Vizcarra (Sup. Ct. Fresno County, 2012, No. F09905689), a
Fresno County Superior Court case where a different trial judge found that
extradition of the defendant from Mexico in a narcotics violation case was
feasible. Aladdin states that the People
asserted the same evidence as it did in this case. Aladdin also notes that the court in
record, including a declaration from a Mexican legal expert.â€
However, an
appeal reviews the correctness of a judgment as of the time of its rendition,
upon a record of matters that were before the trial court for its
consideration. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Thus, we are reviewing the record that was
presented to the court and upon which it based its ruling in the matter
underlying this appeal. Therefore, our
only concern is whether this trial court was presented with substantial
evidence that supports its infeasibility finding. Accordingly, the Vizcarra case is irrelevant to this appeal. Therefore, Aladdin’s request for judicial
notice is denied. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089, fn.
4.)
DISPOSITION
The judgment is
affirmed. The People are awarded costs
on appeal.
_____________________
LEVY,
J.
WE CONCUR:
_____________________
WISEMAN, Acting P.J.
_____________________
GOMES, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code.
name="_ftn2" title="">[2] International Fidelity objected to this declaration on the
grounds that Haas did not state his qualifications or basis of knowledge and
relied on hearsay. However, the trial
court overruled International Fidelity’s evidentiary objections and
International Fidelity has not challenged that ruling on appeal.
