People v. Financial Casualty & Surety

Filed 12/8/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S229446
v. )
) Ct.App. 2/5 B251230
FINANCIAL CASUALTY )
& SURETY, INC., )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. SJ003872
____________________________________)

Penal Code section 1305.41 allows the period in which a bail bond may be
exonerated by the accused‘s appearance, normally running 185 days from mailing
of a notice the bond has been forfeited (§ 1305, subds. (b), (c)(1)), to be extended
on a showing of good cause by up to 180 additional days from the court‘s order.
The trial court in this case granted an extension for fewer than 180 days but, at the
end of the extension period, denied the bond surety‘s second extension motion.
The Court of Appeal affirmed that ruling on two grounds: (1) because the surety
had not established a reasonable likelihood the requested extension would lead to
the accused‘s return to custody, the trial court could reasonably find the surety had
failed to show good cause for a further extension; and (2) under the case law
interpreting section 1305.4, serious doubt exists as to whether the trial court even

1 Unspecified statutory references are to the Penal Code.

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had the authority to grant a further extension, as at the time of the motion more
than 365 days had passed since the bond was forfeited.
We conclude the Court of Appeal was correct on the first point but
incorrect on the second. Because at the time the surety‘s second extension motion
was heard fewer than 180 days had passed since the first extension was ordered,
the trial court had discretion under section 1305.4 to grant a further extension. But
the court did not abuse that discretion in considering, as grounds for denying an
extension of the period for exonerating a bail bond, that the surety had not shown
the requested extension was likely to produce the accused‘s appearance in court.
As the Court of Appeal correctly found no abuse of discretion, we will affirm its
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 5, 2012, Financial Casualty & Surety, Inc. (Financial Casualty)
posted a bail bond in the amount of $1,240,000 on behalf of Oscar Grijalva, who
was charged with attempted murder and other felonies. Grijalva failed to appear at
a pretrial proceeding on August 23, 2012, resulting in forfeiture of his bail and
issuance of a bench warrant. A notice of forfeiture was mailed to Financial
Casualty and its bail agent on August 24, 2012. Under section 1305, the forfeiture
would be vacated and the bond exonerated if Grijalva appeared in court by the
185th day after the notice was mailed, February 25, 2013. (See § 1305, subds. (b),
(c)(1).)
On February 20, 2013, five days before the appearance period ended,
Financial Casualty filed a motion to extend the period under section 1305.4,
supported by a declaration from Cesar McGuire, the lead investigator assigned by
Financial Casualty to apprehend Grijalva. McGuire detailed the efforts he and his
team of recovery agents had undertaken to find Grijalva, beginning on August 22,
2012, when Grijalva detached his ankle bracelet at an airport, and continuing

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through February 4, 2013, when a website and Facebook advertisements offering a
$100,000 award were published in the United States. In that period, McGuire
pursued numerous leads in Southern California and Mexico provided by Grijalva‘s
family members and acquaintances and by confidential informants. Although his
investigation to that point had failed to locate the fugitive, McGuire stated he had
―a tremendous amount of new leads‖ from people who had seen Grijalva in
Guadalajara, Mexico, and in Orange and Los Angeles Counties, and that ―with all
the legwork that I have done on the case, I am confident that Oscar Grijalva will
be apprehended and brought to justice.‖
The motion was heard and decided on March 20, 2013. On that date, the
trial court ordered the appearance period extended to August 1, 2013.
On August 1, 2013, Financial Casualty filed a second motion to extend the
appearance period, again supported by a declaration from McGuire. Since the
period covered by his previous declaration, McGuire had offered Grijalva‘s sister
a $100,000 reward for turning him in; received a call from a Mexican man who
claimed to be Grijalva‘s cousin; received information about other Grijalva family
members travelling to Mexico; tried unsuccessfully to contact Grijalva‘s mother;
conducted surveillance on four residences in California without finding Grijalva at
any of them; followed family members on a drive to Rosarito, in Baja California,
but lost them there without seeing Grijalva; established or maintained law
enforcement contacts in Baja California and thereby confirmed that a gang with
which Grijalva was associated had a presence in Tijuana; and spoken with a
reliable confidential informant who said Grijalva was staying in Tijuana and with
a ―US law enforcement officer‖ who said Mexican law enforcement had told him
they had an informant who knew Grijalva. In this declaration, unlike his first,
McGuire made no predictions or claims as to the likelihood of apprehending
Grijalva.

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 The second extension motion was heard and denied on August 26, 2013.
The trial court first stated that the 365 days of total appearance time the court
believed allowed under section 1305.4 had ―run out.‖ After counsel for Financial
Casualty argued the 180 days of allowable extension from the date of the prior
extension order (March 20, 2013) did not expire until September 16 (allowing for
the requested extension of 21 days from the hearing date), the court stated that any
further extension was ―discretionary‖ and would be denied for lack of good cause.
To counsel‘s claim that Grijalva ―is very close to being able to be returned to the
court,‖ the court responded: ―There is no declaration that supports that. They
think he‘s somewhere in Tijuana.‖ On September 4, 2013, the trial court entered
summary judgment on the bond.
The Court of Appeal affirmed. Following two earlier decisions, People v.
Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349 (Accredited)
and County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th
1018 (Fairmont), the appellate court held that to establish good cause for an
extension under section 1305.4, the surety must show not only that it had
diligently sought to apprehend the defendant but also that it was reasonably likely
to do so during the requested extension period. Here, Financial Casualty failed to
show a reasonable likelihood of success if granted the extension: its agent,
McGuire, ―had been consistently unable to gather verifiable information about
Grijalva or his whereabouts. Much of the information he obtained was false or
proved fruitless. Despite his conversations with some members of Grijalva‘s
family, it appears none were cooperating or had the slightest idea where Grijalva
was, where he was likely to be or with whom. Not only had Grijalva‘s trail grown
cold, it was nonexistent.‖
The Court of Appeal also expressed ―serious doubt‖ section 1305.4 permitted
a further extension, even if good cause had been shown. Relying on the analysis

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in People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193 (Taylor
Billingslea), the court below expressed agreement with the view that ―the 180-day
extension authorized by section 1305.4 is to be measured from the date the
exoneration period would have expired in the absence of an extension, rather than
from the date the court granted the extension; or in other words, 365 days from the
mailing of the notice of forfeiture.‖
We granted Financial Casualty‘s petition for review, limiting the issues for
briefing and argument to (1) whether an extension of the period to exonerate bail
under section 1305.4 commences on the date on which the initial 180-day period
expires or on the date on which the trial court grants the extension; and
(2) whether the good cause standard under section 1305.4 includes consideration
of a reasonable likelihood of success in returning the fugitive to court and, if so,
which party bears the burden of proof on that question.
DISCUSSION
A bail bond ― ‗is a contract between the surety and the government whereby
the surety acts as a guarantor of the defendant‘s appearance in court under the risk
of forfeiture of the bond.‘ ‖ (People v. American Contractors Indemnity Co.
(2004) 33 Cal.4th 653, 657 (American Contractors).) When the surety breaches
the contract by failing to secure the defendant‘s appearance, the bond generally
must be enforced. (Id. at pp. 657–658.) The purpose of bail and of its forfeiture,
however, is to ensure the accused‘s attendance and obedience to the criminal
court, not to raise revenue or to punish the surety. (Id. at p. 657.)
―When a person for whom a bail bond has been posted fails without
sufficient excuse to appear as required, the trial court must declare a forfeiture of
the bond. (§ 1305, subd. (a).) The 185 days after the date the clerk of the court
mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate
parties is known as the appearance period. (§ 1305, subd. (b).) During this time,

5
the surety on the bond is entitled to move to have the forfeiture vacated and the
bond exonerated on certain grounds, such as an appearance in court by the
accused. (§ 1305, subd. (c)(1).)‖ (American Contractors, supra, 33 Cal.4th at
p. 658, fn. omitted.)
In 1996, the Legislature added section 1305.4, allowing for an extension of
the appearance period. (Stats. 1996, ch. 354, § 1, p. 2452.) Under section 1305.4
as it currently reads, the surety may move for an order extending the initial
appearance period as follows: ―The motion shall include a declaration or affidavit
that states the reasons showing good cause to extend that period. The court, upon
a hearing and a showing of good cause, may order the period extended to a time
not exceeding 180 days from its order. A motion may be filed and calendared as
provided in subdivision (j) of Section 1305.‖ The referenced subdivision
provides, in relevant part: ―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).)
In addressing the trial court‘s denial of Financial Casualty‘s second extension
motion, we first consider whether the trial court had the authority, under the above
statutes, to grant a further extension to September 16, 2013. Concluding that it did
have that authority, we next consider whether the court abused its discretion in
declining to grant the further extension, and conclude the court acted within its
discretion.

I. The Trial Court Had the Authority to Grant a Further Extension
The initial appearance period provided under section 1305 is 185 days from
mailing of the notice of forfeiture. Section 1305.4 allows up to 180 days of
extension. Under the reading of the statutes urged by the People and accepted by

6
the Court of Appeal, the sum of these two periods‘ lengths, 365 days, represents
the maximum total appearance period a court may allow. But under section 1305,
subdivision (j), and section 1305.4, an extension motion may be filed up to the end
of the initial appearance period and heard up to 30 days afterward (or more, if the
30-day period is itself extended). If one measures the allowable 180 days of
extension from the date of the extension order, as section 1305.4 on its face
provides, the result can be a total appearance period longer than 365 days. Under
this reading of the statutes, embraced by Financial Casualty, the maximum total
appearance period is 185 days plus 180 days running from the court‘s extension
order, which may be made up to 30 days after the end of the initial appearance
period (or even later if the hearing period is itself extended).
In the present case, the initial 185-day appearance period ended on
February 25, 2013. The surety‘s first extension motion was timely filed on
February 20, 2013, but not heard and decided until March 20, 2013. On that date,
Financial Casualty contends, the court could have ordered an extension of 180
days to September 16, 2013. The People, in contrast, argue the allowable 180
days of extension ran from the end of the initial appearance period, February 25,
2013, making the end point of the total allowable 365-day period August 24, 2013.
By the time the court heard the surety‘s second extension motion on August 26,
2013, the People contend, it had no authority to order any further extension.
We agree with the surety on this point. Section 1305.4 provides that the trial
court, on a motion to extend the initial appearance period, ―may order the period
extended to a time not exceeding 180 days from its order.‖ (Italics added.) This
language plainly measures the allowable period of extension from the date of the
trial court‘s extension order, not from the end date of the initial appearance period.
Section 1305.4‘s reference to the court‘s ―order‖ cannot reasonably be read as
referring to the initial period‘s end date, which is in no sense an order.

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 The People‘s position rests primarily on Taylor Billingslea, supra, 74
Cal.App.4th 1193, in which the appellate court upheld the denial of an extension.
In that case, the notice of forfeiture was sent on March 26, 1997, and the initial
appearance period ended on September 27, 1997. (Id. at p. 1195.) The trial court
granted the surety‘s bail agent several extensions, but on March 25, 1998—364
days after the notice of forfeiture was sent—the court denied its request for an
additional one-week extension. (Id. at p. 1197.)
The appellate court rejected the bail agent‘s contention that section 1305.4
―permit[s] the trial court to grant an unlimited series of extensions as long as good
cause is shown and no single extension is longer than 180 days.‖ (Taylor
Billingslea, supra, 74 Cal.App.4th at p. 1198.) The court instead read ―its order‖
in section 1305.4 as referring to the initial extension order ―so that the total of all
extensions permitted under section 1305.4 cannot exceed 180 days.‖ (Taylor
Billingslea, supra, at p. 1198.) Rather than allow the 180-day limit to renew with
each extension, and ―drag the forfeiture period on indefinitely,‖ the Taylor
Billingslea court construed the statute as allowing ―an extension of no more than
180 days past the 180-day period set forth in section 1305.‖ (Id. at p. 1199.) The
trial court therefore correctly determined it had no authority to grant an additional
week‘s extension on the 364th day after notice of the bond‘s forfeiture was mailed.
(Ibid.)
Taylor Billingslea‘s statement of the limits on extensions as ―no more than
180 days past the 180-day period set forth in section 1305‖ (Taylor Billingslea,
supra, 74 Cal.App.4th at p. 1199, italics added) was a reasonable interpretation of
section 1305.4 as it read in 1999, when the case was decided. At that time,
sections 1305 and 1305.4 did not include the provisions, quoted above, allowing
30 days for hearing of an extension motion. (See Taylor Billingslea, supra, at
p. 1198 [quoting the version of the statute applied].) As there was no provision for

8
an extension order to be made after the end of the initial appearance period, the
Taylor Billingslea court reasonably equated the latest date for an extension order
with the end date of the initial appearance period. Given that equation, the
maximum allowable extension, which by the statute‘s terms runs 180 days from
the court‘s extension order, could also correctly be described as 180 days from the
end of the initial appearance period.
However, the equation implicit in Taylor Billingslea‘s statement of the rule
no longer holds. By a 1999 amendment, effective January 1, 2000, the Legislature
added subdivision (i) (now subdivision (j)) to section 1305, providing that a
motion made during the appearance period may be heard up to 30 days after the
period‘s end; the amendment also added a cross-reference to that new subdivision
in section 1305.4, bringing extension motions within its procedural rule. (Stats.
1999, ch. 570, §§ 2, 3, p. 3956.) The legislative history reflects a desire to
―clarif[y] an ambiguity in existing law‖ by expressly allowing extension motions
to be heard after the end of the initial appearance period (Assem. Com. on Public
Safety, analysis of Assem. Bill No. 476 (1999–2000 Reg. Sess.) as introduced
Feb. 18, 1999, p. 4), motivated by the recognition that ―bail agents often are not
aware that a defendant has absconded until very close to the end of the 180-day
period,‖ making it difficult to file an extension motion and have it heard before the
period ends (Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No.
476 (1999–2000 Reg. Sess.) as amended Aug. 17, 1999, p. 4).
Two recent appellate decisions clarify the status of Taylor Billingslea’s
description of the maximum appearance period after the 1999 amendment. In
County of Los Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th
944, the court declined to rely on that description: ―Taylor Billingslea was
decided before the California Legislature enacted the 1999 amendment. We fail to
see how a case decided before a statutory amendment became effective can

9
provide any guidance on its interpretation.‖ (Id. at p. 951, fn. 7.) The court in
People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 1007, expanded
on this reasoning: ―In light of the fact that Taylor Billingslea was decided prior to
the 1999 amendment to section 1305.4, it is not surprising that the Court of Appeal
in that case took it for granted that the extension period would have to be
measured from the end of the exoneration period, or from a date no later than that
because, at the time Taylor Billingslea was decided, extension motions were
generally heard and decided before the end of the exoneration period in order to
preserve the trial court‘s jurisdiction. [Citations.] The 1999 amendment changed
all that by providing a 30-day grace period for hearing an extension motion,
thereby allowing the motions to be heard within 30 days after the expiration of the
exoneration period. As argued by Surety herein: ‗Since hearings on extension
motions may now be heard after the initial 180-days [sic] expires, and since the
plain language of Section 1305.4 provides that extensions are measured from the
date of the extension order, the Taylor Billingslea interpretation limiting time to
―no more than 180 days past the 180 day period‖ is no longer applicable. The rule
is simply inconsistent with the court‘s ability to hear extension motions after the
180-day period expires under subdivision (j) [of section 1305].‘ ‖
We agree with these recent decisions. Because the 1999 amendment
materially changed the timing of orders on extension motions under section
1305.4, Taylor Billingslea‘s description of the maximum extension as 180 days
past the initial appearance period is no longer accurate. Rather than apply the
description of the maximum period in Taylor Billingslea, courts are bound by the
plain language of section 1305.4, which allows a trial court to order an extension
of up to 180 days ―from its order.‖ (See American Contractors, supra, 33 Cal.4th

10
at p. 658 [describing the maximum extension as ―180 days from the date the trial
court orders the extension‖].)2
Besides Taylor Billingslea, the People rely on People v. Bankers Ins. Co.
(2010) 182 Cal.App.4th 1377 and People v. Accredited Surety & Casualty Co.,
Inc. (2013) 220 Cal.App.4th 1137. The first of these decisions echoes Taylor
Billingslea‘s description of the maximum extension period as 180 days beyond the
initial appearance period, but does not consider the effect of the 1999 amendment
to section 1305.4 and does not explicitly address whether the statutory 180-day
extension limit is measured from the date of the court‘s extension order or from
the end of the initial appearance period. (People v. Bankers Ins. Co., supra, at
p. 1382.) The second decision (People v. Accredited Surety & Casualty Co., Inc.,
supra, at pp. 1147–1149) addresses the issue more extensively but nevertheless
neglects to note that Taylor Billingslea predated the 1999 amendment or to explain
how that court‘s formulation can be deemed to have survived the amendment. We
find neither decision persuasive and disapprove both People v. Accredited Surety
& Casualty Co., Inc., supra, 220 Cal.App.4th 1137 and People v. Bankers Ins.
Co., supra, 182 Cal.App.4th 1377 to the extent they hold the 180-day extension
period allowable under section 1305.4 runs from the end date of the initial
appearance period rather than from the date of the court‘s extension order.

2 The Taylor Billingslea court was correct, however, in holding that the
―order‖ referred to in section 1305.4‘s limit of extensions to 180 days ―from its
order‖ is the first order extending the period, rather than any subsequent order, and
that the total allowable extension is thus limited to 180 days from the date of the
first extension order, regardless of how many individual extensions the court
orders. Allowing an unlimited series of extensions, each lasting up to 180 days,
would be contrary to the text and purpose of section 1305.4, which clearly was
intended to provide for a limited extension period of 180 days, not an indefinite
one. (People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 768;
Taylor Billingslea, supra, 74 Cal.App.4th at pp. 1198–1199.)

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 In the present case, the surety‘s first extension was granted on March 20,
2013. The maximum extension that could have been ordered was for 180 days
from that date, ending on September 16, 2013. When the court heard the surety‘s
second extension motion on August 26, 2013, therefore, it had the authority to
order a further extension through September 16.

II. The Trial Court Did Not Abuse Its Discretion in Denying a Further
Extension.
Section 1305.4 permits an extension of the appearance period only on the
surety‘s showing of good cause. Because the underlying policy of sections 1305
and 1305.4 is to avoid forfeitures and bring defendants before the court rather than
to generate revenue for the county, the good cause showing has been described as
a ― ‗low threshold‘ ‖ for the surety. (Fairmont, supra, 164 Cal.App.4th at p. 1027,
quoting Accredited, supra, 137 Cal.App.4th at p. 1358.) A trial court‘s
determination whether the surety has shown good cause to extend the appearance
period is reviewed on a deferential abuse of discretion standard; we reverse only if
the trial court‘s decision is unreasonable. (Fairmont, supra, at p. 1028; People v.
Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679–680 (Ranger).)
The parties here agree that one legitimate factor in determining good cause
for an extension is the surety‘s diligence up to the time the extension is sought. If
the surety or its bail agent cannot show it has so far been using reasonable efforts
to locate the defendant and bring him or her to justice, the court has no obligation
to grant the surety more time. (Fairmont, supra, 164 Cal.App.4th at p. 1027;
Ranger, supra, 81 Cal.App.4th at pp. 681–682.)
The disputed issue is whether, in addition to past diligence, a trial court may
look to whether the surety or its bail agent is reasonably likely, if granted the
extension, to succeed in apprehending the fugitive defendant. Financial Casualty
argues that past diligence should be enough to justify an extension, because

12
allowing the surety to continue its efforts maximizes the chance of returning the
defendant to court, which is the goal of the bail bond system. The People, on the
other hand, argue that granting an extension without a likelihood of success would
be an idle act, whereas requiring such a showing gives the surety a greater
incentive to develop and pursue productive investigative leads in the initial
appearance period; without that incentive, the surety may initially do just enough
to appear diligent.
The People, like the Court of Appeal below, cite the reasoning of the court in
Accredited, supra, 137 Cal.App.4th at page 1357, which explained that the surety
cannot be entitled to an extension ―simply by demonstrating it exerted some effort.
The inquiry must be prospective as well as retrospective; otherwise, an extension
does not serve the statute‘s policy of returning fleeing defendants to custody. That
policy is best served by the surety showing that another 180 days might be
productive.‖ For that reason, the Accredited court held that in addition to
diligence, the court should consider ―whether there is a reasonable likelihood of
securing the attendance of the absent person.‖ (Id. at p. 1358; accord, Fairmont,
supra, 164 Cal.App.4th at p. 1029.)
We conclude that a court deciding a surety‘s motion to extend the appearance
period may consider, as a factor tending to show lack of good cause, that the
motion is unsupported by facts establishing a reasonable likelihood the extension
will result in the defendant‘s apprehension. For a court to conclude that the
likelihood the surety will actually be able to apprehend the defendant if granted
more time is too remote to justify the extension is not unreasonable. As the People
argue, the law does not require idle acts (Civ. Code, § 3532); requiring a court to
grant an extension the court believes has no reasonable likelihood of leading to the
defendant‘s presence would be, indeed, to require an essentially idle act.

13
Consequently, the court does not abuse its discretion in considering this factor and
denying a request on this basis. (Fairmont, supra, 164 Cal.App.4th at p. 1029.)
Against this conclusion, Financial Casualty emphasizes that bail bond
sureties and their agents are the principal means by which absconding defendants
are brought to court and that they do eventually apprehend most defendants—at no
cost to the public. The surety argues that ―there is no countervailing interest of
conserving judicial resources‖ when granting an extension; regardless of whether a
likelihood of success can be shown, past diligence should therefore suffice to
justify an extension.
We are unpersuaded that an extension has no cost. Extending the appearance
period adds to the administrative burden on the court, at a minimum, by leaving
the bond forfeiture matter pending longer, requiring additional record keeping and
potentially additional hearings before judgment may be entered on the bond. The
law does not require a trial court to extend the period and keep the file open on the
bond forfeiture matter in the absence of any reasonable prospect doing so will
result in the defendant‘s return to court. Moreover, a legal assurance that a
showing of diligence alone will satisfy the good cause requirement would provide
less of an incentive for sureties to promptly use their best efforts than a rule
permitting consideration of likelihood of success. We agree with the Accredited
court that the policy of promoting prompt return of defendants to court may be
better served, under some circumstances, by looking to the likelihood of
apprehension as well as to past diligence. (Accredited, supra, 137 Cal.App.4th at
p. 1357.)
The surety cites two appellate decisions predating Accredited, in which good
cause was addressed without any express requirement of a likelihood of success:
Ranger, supra, 81 Cal.App.4th 676 and People v. Alistar Ins. Co. (2003) 115
Cal.App.4th 122 (Alistar). Neither supports the contention that to deny a motion

14
because no showing has been made the extension will likely lead to the
defendant‘s apprehension is an abuse of discretion.
In Ranger, the appellate court held the trial court did not abuse its discretion
in denying an extension motion supported by only a ―bare-bones declaration‖ that
failed to establish good cause for an extension because the declaration did not show
―what efforts Ranger made to locate [the defendant] during the initial 180 days, and
why such efforts were unsuccessful.‖ (Ranger, supra, 81 Cal.App.4th at pp. 682,
681.) While the court‘s formulation of a good cause standard did not include a
likelihood of success, the court also explained the declaration, which merely stated
the defendant was believed to be at an address in Mexico, gave ―no assurance such
defendant might be placed in custody and extradited to the United States.‖ (Id. at
p. 681.) The holding of Ranger is merely that the trial court did not abuse its
discretion in finding the surety‘s cursory declaration, which established neither
diligence nor likelihood of apprehension, inadequate. The decision lends no
support to the claim that the trial court here did abuse its discretion in denying an
extension on the ground, in part, that no likelihood of apprehension was shown.
Alistar is procedurally more on point; the trial court denied an extension
motion and the Court of Appeal held the denial to be an abuse of its discretion.
(Alistar, supra, 115 Cal.App.4th at pp. 124, 129.) The appellate court‘s
discussion, moreover, emphasizes the surety‘s diligence; its investigator ―had
made a concerted effort to locate defendant.‖ (Id. at p. 128.) On the other hand,
the court also noted that the investigator ended his declaration with the conclusion
that ―if granted an additional extension, he would be able to return defendant to
custody,‖ an assurance made plausible by evidence the defendant was in the
Moreno Valley area and in communication with his sister, who agreed to pass a
message to him from the investigator. (Ibid.) In light of those facts and the lack
of any explicit statement in the decision to the effect that the likelihood of success

15
is irrelevant to good cause, we do not read Alistar as holding denial of an
extension request on the ground the surety has not shown a likelihood of
apprehension if the extension is granted is necessarily an abuse of discretion.
Financial Casualty further argues that the likelihood of apprehension is
impossible to assess objectively and requires, in effect, that the surety ―bring a
fortune teller into court.‖ As we understand good cause, however, a trial court
considering the likelihood of apprehension as a factor in the determination does
not attempt to foresee the future but rather assesses, on the basis of the affidavits
or declarations detailing the investigation to that point, how close the surety‘s
efforts have brought it to finding the defendant and bringing him or her into
custody and what further steps the investigators intend to take during the requested
extension. In light of the policy of avoiding forfeitures and favoring bringing
defendants to justice, all that the court can demand is a showing of a reasonable
likelihood of success, not a certainty or high probability, and the surety‘s
declarations should be read liberally for inferences that would support good cause.
Allowing courts to consider the likelihood of apprehension does not convert the
good cause standard from a ― ‗low threshold‘ ‖ (Fairmont, supra, 164 Cal.App.4th
at p. 1027; Accredited, supra, 137 Cal.App.4th at p. 1358) into an impossible
demand for clairvoyance.
In the alternative, Financial Casualty argues that if the likelihood of
apprehension is considered a factor in the good cause determination, the burden
should fall on the People, once the surety has shown its past diligence, to show an
extension is unlikely to result in the defendant‘s apprehension. Section 1305.4,
however, clearly places the burden on the surety to support its extension motion
with ―a declaration or affidavit that states the reasons showing good cause to
extend that period.‖ (See also Evid. Code, § 500 [party has burden of proof on
fact essential to his or her claim for relief].) No reason in fairness or policy is

16
apparent for shifting the burden on an aspect of good cause to the People, who are
neither responsible for any difficulty the surety might have showing a likelihood
of apprehension nor in exclusive possession of facts relevant to that issue. (Cf.
Williams v. Russ (2008) 167 Cal.App.4th 1215, 1226 [burden shifting appropriate
when a party‘s wrongdoing ―makes it practically impossible for the [other party]
to prove its case.‖].)
Our conclusion that a trial court may weigh the likelihood of apprehension in
deciding whether the surety has shown good cause for an extension does not imply
the likelihood of apprehension must be considered in every case. The question is
one within the trial court‘s discretion. There may be circumstances in which a
court could reasonably find good cause, particularly for a short extension, despite
a weak showing as to the likelihood of apprehension. The statutory policy is
generally to avoid forfeiture, and a trial court would not necessarily abuse its
discretion by allowing the surety a few more days or weeks even if there is little or
no evidence establishing a likelihood of success.
Having already extended the appearance period 134 days from March 20,
2013, to August 1, 2013, the trial court could reasonably find good cause lacking
for a further 46-day extension to September 16. The court found the surety‘s
evidence failed to demonstrate Grijalva was likely to be apprehended during the
requested extension, as the investigator‘s declaration merely showed ―[t]hey think
he‘s somewhere in Tijuana.‖ To rely on the absence of proof an extension would
be productive was not an abuse of the trial court‘s discretion.

17
 DISPOSITION
The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.

WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.

18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Financial Casualty & Surety, Inc.
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 239 Cal.App.4th 440
Rehearing Granted

__________________________________________________________________________________

Opinion No. S229446
Date Filed: December 8, 2016
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Harvey Giss

__________________________________________________________________________________

Counsel:

Law Office of John Rorabaugh, John M. Rorabaugh, Robert Tomlin White and E. Alan Nunez for
Defendant and Appellant.

Peter A. Botz, Toni Martinson and Justin C. Pinney for Two Jinn, Inc., as Amicus Curiae on behalf of
Defendant and Appellant.

Mary C. Wickham, County Counsel, Brian T. Chu, Principal Deputy County Counsel, and Lindsay
Yoshiyama, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer B. Henning and Janis L. Herbstman for California State Association of Counties as Amicus Curiae
on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

John M. Rorabaugh
Law Office of John Rorabaugh
801 Parkcenter Drive, Suite 205
Santa Ana, CA 92705
(714) 617-9600

Robert Tomlin White
Law Office of John Rorabaugh
801 Parkcenter Drive, Suite 205
Santa Ana, CA 92705
(714) 617-9600

Brian T. Chu
Principal Deputy County Counsel
648 Kenneth Hahn Hall of Administration
500 West Temple Street
Los Angeles, CA 90012-2713
(213) 974-1956