People v. Tingcungco

Filed 5/29/15
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B253003

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA401644)
v.

ERICSON TINGCUNGCO,

Defendant;

ALLEGHENY CASUALTY COMPANY,

Real Party in Interest and
Appellant.

APPEAL from an order of the Superior Court of Los Angeles County.
Maral Injejikian, Judge. Affirmed.

John M. Rorabaugh for Real Party in Interest and Appellant.

Ruben Baeza, Jr., Assistant County Counsel and Joanne Nielsen, Deputy County
Counsel for Plaintiff and Respondent.

__________________
 Allegheny Casualty Company appeals from the order denying its motion to vacate
its forfeiture of a bail bond, contending that the applicable statute required additional
tolling of the forfeiture period while prosecutors decided whether to extradite a fugitive
who had been located in a foreign country. We disagree and affirm the order.

FACTS AND PROCEDURAL HISTORY

On August 30, 2012, Allegheny Casualty Company, through its agent, posted
$50,000 bail for Ericson Tingcungco, who had been charged with burglary. When
Tingcungco did not appear as ordered on September 5, 2012, the trial court forfeited bail.
The appearance period – the period during which the bond might be exonerated if
Tingcungco appeared – was later extended to October 4, 2013.
On October 1, 2013, Allegheny notified the Los Angeles County District
Attorney’s office that Tingcungco had been located in Mexico, and asked it to decide
whether to begin extradition proceedings. If the district attorney elected not to do so
within the appearance period, then the bail bond would be exonerated. (Pen. Code,
§ 1305, subd. (g).)1 On October 2, 2013, Allegheny filed a motion asking the trial court
to further toll the appearance period while the district attorney decided whether to pursue
extradition and then either continue the tolling period during extradition proceedings or
vacate the forfeiture and exonerate bail, depending on which course the district attorney
pursued.
The district attorney opposed the motion, contending that section 1305,
subdivision (g) imposed a hard deadline that prevented vacating a bond forfeiture if
prosecutors had not elected whether to extradite within the appearance period, even if the
fugitive had not been located until right before that period ended. The opposition was
supported by the declaration of prosecutor Ann Huntsman, who set forth in detail the
lengthy and complicated steps that must be taken before deciding whether to extradite a
fugitive located in a foreign country. According to Huntsman, it usually took two weeks

1 All further undesignated section references are to the Penal Code.

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to make that decision. The trial court denied Allegheny’s motion. Allegheny contends
the trial court erred.2

STANDARD OF REVIEW

Because we interpret a statute based on undisputed facts, we are not bound by the
trial court’s interpretation of the statute, and instead decide the correct interpretation as a
matter of law. (Pasadena Metro Blue Line Construction Authority v. Pacific Bell
Telephone Co. (2006) 140 Cal.App.4th 658, 663-664.) The fundamental rule of statutory
construction is to ascertain the intent of the Legislature in order to effectuate the purpose
of the law. In doing so, we first look to the words of the statute and try to give effect to
the usual, ordinary import of the language, at the same time not rendering any language
mere surplusage. (Id. at p. 664.) The words must be construed in context and in light of
the nature and obvious purpose of the statute where they appear. The statute must be
given a reasonable and commonsense interpretation consistent with the apparent purpose
and intention of the Legislature, practical rather than technical in nature, and which, when
applied, will result in wise policy rather than mischief or absurdity. (Ibid.) If the
language of a statute is clear, we should not add to or alter it to accomplish a purpose
which does not appear on the face of the statute or from its legislative history. Statutes
must be harmonized both internally and with each other. (Ibid.)

DISCUSSION

1. The Statutory Framework and the Seneca Decision

If a criminal defendant out on bail fails to appear when lawfully required to do so,
the trial court must declare bail forfeited. (§ 1305, subd. (a).) The clerk must mail notice
of forfeiture to the surety for bonds greater than $400. Adding in five days for mailing,
the surety then has 185 days to bring the defendant in to court. (§ 1305, subds. (b)-(c).)

2 The record is silent as to whether the district attorney decided to extradite
Tingcungco.
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If the defendant appears within that period the court must vacate the forfeiture and
exonerate the bond. (§ 1305, subd. (c)(1).) Upon a showing of good cause the surety
may seek an extension of up to another 180 days. (§ 1305.4.) If that motion is granted,
the defendant’s appearance during the extension period also requires vacating the
forfeiture and exonerating the bond. (People v. Seneca Ins. Co. (2010) 189 Cal.App.4th
1075, 1079 (Seneca).)
At issue here is section 1305, subdivision (g), which applies to bailed defendants
who flee to a foreign country but are not in custody there. It reads: “In all cases of
forfeiture where a defendant is not in custody and is beyond the jurisdiction of the state,
is temporarily detained by a 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).)3
The Seneca court considered the effect of that provision where the surety notified
the prosecutor that its fugitive on bail had been located in a foreign country eight months
before the bond exoneration period was set to end. Although the prosecutor said she
would seek extradition, she had not initiated the process by the time the exoneration
period ended. The surety moved to either: (1) vacate the forfeiture and exonerate bail
because the prosecutor’s failure to initiate extradition proceedings was effectively a
decision not to extradite; or (2) toll the statutory appearance deadline so the prosecutor
could pursue extradition. The trial court denied that motion.
The Seneca court affirmed. Applying the rules of statutory construction, it
concluded: “A bail bond is not exonerated simply because the People have not

3 Respondent does not contend on appeal that Allegheny failed to satisfy any of the
requirements of section 1305, subdivision (g) other than obtaining a timely decision
whether or not to extradite Tingcungco.
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completed (or even initiated) extradition of the defendant before the end of the bond
exoneration period.” (Seneca, supra, 189 Cal.App.4th at p. 1082, italics added.) Instead,
judgment must be entered in the amount of the bond unless the fugitive defendant is
brought into court or the prosecutor foregoes extradition within the bond appearance
period. “The statutory scheme does not authorize additional extensions or tolling of the
bond exoneration period in the circumstances presented.” (Ibid.)
The Seneca court acknowledged that the bail statutes must be strictly construed to
prevent forfeiture, and also recognized the potential for unfairness if prosecutors either
falsely elected to extradite and then abandoned their efforts, or did nothing. (Seneca,
supra, 189 Cal.App.4th at pp. 1082-1083.) Even so, the language of the statutory scheme
did not support the surety’s position because exoneration of the bond was contingent on
the return of the defendant, not the initiation of extradition proceedings. “We are loathe
to impose nonstatutory deadlines on prosecutors to initiate the process of extradition or to
otherwise require prosecutors to pursue extradition on a particular timetable.” (Id. at
p. 1083.)

2. The Legislative Response to Seneca

In February 2012, a bill was introduced in the California Senate to amend
section 1305, subdivision (g) to accommodate instances where the prosecutor does not
make an extradition decision within a reasonable time after the surety notifies it that a
fugitive on bail has been located in a foreign country. (Sen. Bill No. 989 (2011-2012
Reg. Sess.) as introduced Feb. 1, 2012.) The proposed amendment would have added the
following language to subdivision (g): “If the prosecuting agency . . . fails to make an
extradition decision within a reasonable period of time after receipt of the [notification]
affidavit the bond shall be exonerated. The court shall order the tolling of the 180-day
period provided in this section pending the prosecuting agency’s . . . extradition decision.
If the prosecuting agency . . . proceeds with the extradition, and upon motion by the
surety or bail agent, the court shall order the tolling of the 180-day period provided in this
section from the date on which the surety or bail agent delivered the affidavit to the

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prosecuting agency . . . until such time as the bond is exonerated or the extradition
process is completed.” (Ibid.)
A bill analysis discussed Seneca in detail and cited the author as stating that the
bill was needed “where the prosecutor declines to make a decision about extradition in a
timely fashion.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 989 (2011-2012
Reg. Sess.) April 24, 2012, p. G.) It therefore appears that the bill as introduced was in
reaction to Seneca.
However, the bill was amended one week later to eliminate the provision
concerning a prosecutor’s delay in deciding whether to extradite and replaced it with a
new subdivision (g)(2), which read: “In cases arising under this subdivision [(g)], if the
bail agent and the prosecuting attorney agree that additional time is needed to return the
defendant to the jurisdiction of the court, the court may, on the basis of the agreement,
toll the 180-day period within which to vacate the forfeiture for the length of time agreed
upon by the parties.” (Sen. Bill No. 989 (2011-2012 Reg. Sess.) as amended May 1,
2012, p. 5.)
An analysis of the amended version of the bill quotes the author as stating that the
new version “would allow a court to toll the 180-day period within which to vacate bail
forfeiture, if it is agreed by both the bail agent and prosecuting attorney that additional
time to return a fugitive defendant to the jurisdiction of the court is necessary. The bill
simply allows both parties to come to an agreement if more time is needed to return a
fugitive to custody.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 989
(2011-2012 Reg. Sess.) as amended May 17, 2012, prepared for June 12, 2012 hearing,
p. 4.) A representative of the bail bond industry was quoted characterizing the new
version of Senate Bill No. 989 as a “modest bill [which] would allow the court to
postpone the forfeiture of bail bonds in cases where additional time is necessary to
extradite defendants from foreign jurisdictions. Importantly, the forfeiture could be
postponed only when the local prosecutor agrees to a postponement. The bill gives
district attorneys complete control over whether any postponement will be granted.” (Id.
at p. 6.)

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 The version of the bill that was eventually enacted made minor changes to the
amended version and relocated it as a separate subdivision (h): “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 forfeiture. The court may order tolling
for up to the length of time agreed upon by the parties.” (Stats. 2012, ch. 129, § 1.)

3. The Legislative History Precludes the Tolling Period Extension Advocated by
Allegheny

Allegheny contends that bail should have been exonerated because it fully
complied with its obligations under section 1305, subdivision (g), and its right to
exoneration should not be frustrated by matters solely within the prosecutor’s control –
the decision whether to extradite. Allegheny also contends that a fair reading of
subdivision (h) should allow for further tolling while the prosecutor makes its decision.
Our reading of the legislative history leads us to reject these contentions.
The evolution of a proposed statute after its original introduction is helpful when
determining legislative intent. (People v. Hunt (1999) 74 Cal.App.4th 939, 947.) The
Legislature’s rejection of a specific provision which appeared in the original version of
an act supports the conclusion that the act should not be construed to include the omitted
provision. (Ibid.) While unadopted proposals may sometimes have little value when
determining legislative intent (California Court Reporters Assn. v. Judicial Council of
California (1995) 39 Cal.App.4th 15, 32), the amendments made to Senate Bill No. 989
take on extra significance when viewed in conjunction with another rule of statutory
construction: The Legislature is deemed to be aware of judicial decisions already in
existence and to have enacted or amended a statute in light of those decisions. Therefore
we may assume that the Legislature intended to maintain a consistent body of rules and to
adopt the meaning of statutory terms already construed. (People v. Scott (2014)
58 Cal.4th 1415, 1424; People v. Garcia (2006) 39 Cal.4th 1070, 1087-1088

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[Legislature’s failure to amend statute in light of appellate decision showed it did not
intend to invalidate that decision].)
As introduced, Senate Bill No. 989 would have directly addressed and remedied
the problem at issue here: the need to further toll the exoneration period while the
prosecutor decides whether to extradite a fugitive on bail located in a foreign country.
While that version of the bill was still in play, a bill analysis discussed Seneca in detail in
a manner that suggested the bill was addressing that decision. The bill was then amended
to strip out that provision in its entirety and replace it with a far different tolling
mechanism. Under the bill as amended and eventually enacted, the trial court could only
extend the exoneration period based on an agreement by the prosecutor to do so if more
time were needed to extradite the defendant. This language therefore presumes that a
decision to extradite was made.
We recognize that the facts at issue in Seneca were different from those here. In
Seneca, the district attorney had decided to extradite but did not move the process along,
whereas here no decision to extradite had been made. Even so, Seneca employed broad
language concerning the limited availability of tolling under section 1305, subdivision
(g). According to Seneca a bond is not exonerated just because the prosecutor had not
completed “or even initiated” extradition before the bond exoneration period ended.
(Seneca, supra, 189 Cal.App.4th at p. 1082.) The Seneca court also noted that bond
exoneration was contingent upon return of the defendant within the exoneration period,
not the initiation of extradition proceedings. (Ibid.)
The Senate bill analysis that discussed Seneca picked up on this language,
characterizing the holding to mean that “where the prosecution has not made a decision
whether or not to seek extradition and the 180-day period before forfeiture runs, the bond
must be forfeited.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 989 (2011-
2012 Reg. Sess.) April 24, 2012, p. I.) Thus, it appears the Legislature was initially
motivated to address that aspect of Seneca but deliberately chose not to extend tolling to
those situations in which the prosecutor had not made the extradition decision before the
180-day period expired.

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 To recap, Allegheny contends that: (1) section 1305 subdivision (g) should be
read to extend the bond exoneration period while the prosecutor decides whether to
extradite; and (2) subdivision (h) should be expanded to allow for tolling in that situation
as well. As noted, the Legislature considered an amendment to subdivision (g) that
would have allowed for such tolling, but instead adopted subdivision (h), which, as we
read it, allows tolling only after the prosecutor has decided to extradite but needs more
time to do so. Based on the legislative history, Allegheny’s proposed construction of
subdivisions (g) and (h) is untenable.
Allegheny also contends that its inability to produce Tingcungco before the
exoneration deadline should be excused under the contract doctrine of impossibility (Civ.
Code, § 1511) because the district attorney failed to make a timely extradition decision.
Allegheny cites two cases for this proposition: People v. Meyers (1932) 215 Cal. 115
(Meyers); and People v. American Surety Insurance Co. (2000) 77 Cal.App.4th 1063
(American Surety). Neither is applicable.
The Meyers court held that a bond should be exonerated because the bondsman
would have to violate a court order in another county and thus be liable for contempt in
order to do so. (Meyers, supra, 215 Cal. at p. 119.) The fugitive defendant in American
Surety, supra, 77 Cal.App.4th 1063 was deported to Mexico and barred from reentering
the United States for a drug offense conviction. The American Surety court held that bail
was exonerated under section 1305, subdivision (d), which requires vacation of forfeiture
and exoneration of a bond when the defendant is permanently unable to appear in court
due to, among other reasons, detention by civil authorities.
Myers long pre-dates section 1305 and neither case concerns subdivisions (g) and
(h). Given the Legislature’s decision to forego the opportunity to abrogate Seneca and
instead adopt a tolling provision that requires the agreement of the prosecutor after a
decision to extradite has been made, we decline to adopt the interpretation advanced by
Allegheny. Instead, we conclude that compliance with subdivision (g) requires the surety
to locate the fugitive far enough in advance of the end of the 180-day appearance period
to allow the prosecutor to decide whether or not to extradite. If the prosecutor chooses to

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extradite before the appearance period ends, tolling may be granted under subdivision (h),
but only if the prosecutor, having decided to extradite, agrees to do so.
Finally, Allegheny contends that People v. Lexington National Insurance Corp.
(2010) 181 Cal.App.4th 1485 (Lexington), supports its contention that the exoneration
period should have been tolled while the district attorney made an extradition decision.
Lexington is inapplicable. The fugitive defendant in Lexington was in custody in
Virginia. The surety moved to vacate the forfeiture and exonerate the bond. When the
trial court denied that motion, the surety asked the trial court to toll the exoneration
period. The trial court refused. On appeal the Lexington court held the trial court erred
because the fugitive was under a temporary disability pursuant to section 1305,
subdivision (e), which required tolling during that period. Tolling during the period of
disability would have allowed the prosecutor time to decide whether to extradite the
defendant under section 1305, subdivision (f), which applies when a fugitive on bail is in
custody in another jurisdiction. (Lexington, at p. 1492.)
Allegheny’s reliance on Lexington’s statement concerning the prosecutor’s ability
to make an extradition decision during the tolling period reads more into the tolling
discussion than is there. The Lexington court did not approve of tolling under
subdivision (f) – or by extension subdivision (g) – in order to provide time for an
extradition decision. Instead, the tolling was required by subdivision (e) because of
defendant’s disability by incarceration, making the prosecutor’s time to decide a by-
product of the tolling period.
We acknowledge that our holding may strike some as unfair and could discourage
some sureties from pressing their search for a fugitive as the exoneration period deadline
approaches.4 However, as respondent pointed out during oral argument, section 1305,
subdivision (g) imposes other requirements that may be beyond a surety’s control after a
fugitive is located and temporarily detained in another jurisdiction: bringing the fugitive

4
We also note that Seneca at least raised the prospect that prosecutorial bad faith in
delaying extradition might justify additional tolling. (Seneca, supra, 189 Cal.App.4th at
p. 1082.)
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to a local law enforcement officer in that jurisdiction and getting the officer to identify
the defendant in an affidavit. It may not be possible to accomplish those tasks when a
fugitive is located and detained as close to the end of the exoneration period as occurred
here. At bottom, this was (and may again become) an issue for the Legislature to resolve.
Based on the current statutory scheme and its legislative history, we cannot adopt
Allegheny’s interpretation of the applicable statutes.

DISPOSITION

The order denying vacation of forfeiture and exoneration of the bond is affirmed.
Respondent shall recover its appellate costs.

RUBIN, J.
WE CONCUR:

BIGELOW, P. J.

FLIER, J.

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