People v. National Automobile & Casualty Insurance

Opinion

STEPHENS, Acting P. J.

This is an appeal by National Automobile and Casualty Insurance Company (National) from denial of its

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motion to vacate forfeiture of bail and exonerate the bond posted by it on behalf of Roy A. Burkhart. National claims that its performance of surety has been rendered impossible by the refusal of the district attorney’s office to seek extradition of Burkhart from Hawaii after National learned his whereabouts through its own investigative process. We affirm the judgment of forfeiture on the basis that National has failed to take all the legal steps available to it to fulfill its obligation to produce Burkhart in accordance with the terms of their undertaking to do so.

The Facts

National posted a bail bond in the amount of $5,000 for Burkhart, who was charged with a violation of Penal Code section 211, robbery. On August 8, 1977, Burkhart failed to appear for trial in superior court and National’s bond was ordered forfeited. A notice of order forfeiting bail was mailed to National on August 17. Thereafter, National filed a motion to vacate forfeiture and exonerate bond on February 10, 1978, and the motion was argued on March 7. At that time it was brought to the court’s attention that National had located Burkhart in Hawaii and had requested the Los Angeles Sheriff’s Fugitive Detail to teletype a fugitive warrant to Hawaii. However, since the district attorney’s office was not going to seek extradition, the sheriff’s department would not follow through with National’s request.

During argument on the motion, the deputy district attorney in essence acknowledged the position of his office in refusing to seek extradition, but stated that he knew of “no authority for the proposition that once the government refuses to extradite someone that the bonding company is then off the hook, so to speak, and are entitled to setting aside the forfeiture and exoneration of the bond.” The judge agreed and denied the motion.

We agree with the trial court that there is no legal authority for the proposition that the mere refusal by the government to extradite a defendant from a foreign jurisdiction operates to excuse the surety of performance and exonerate the bond. Clearly, if the government took some affirmative action which rendered the surety’s obligation to have the defendant in court as ordered an impossibility, such as the arrest or detention of the accused in another county before the surrender date (see