Filed 11/19/20 P. v. Continental Heritage Ins. Co. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B298148
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SJ4597
v.
CONTINENTAL HERITAGE
INSURANCE COMPANY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Victoria B. Wilson, Judge. Affirmed.
Law Offices of Brendan Pegg and Brendan Pegg for
Defendant and Appellant.
Mary C. Wickham, County Counsel, Adrian G. Gragas,
Assistant County Counsel, and Jonathan McCaverty, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
In this bail forfeiture case, Continental Heritage Insurance
Company appeals the denial of its motion to vacate forfeiture and
exonerate the bail bond. Appellant contends the motion should
have been granted because the felony fugitive warrant issued
after criminal defendant Blake Kennedy Box II failed to appear
in court was entered into the National Crime Information Center
(NCIC) as “non-extraditable,” a denotation inconsistent with the
statutory requirements and intent of Penal Code1 section 980,
subdivision (b). Regardless of the extraditability of the defendant
based on the warrant, we conclude appellant has failed to carry
its factual burden. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 7, 2018, criminal defendant Blake K. Box II
was released from custody after appellant Continental Heritage
Insurance Company posted a bail bond of $75,000 securing his
future appearances in court on his felony case. Defendant Box
also had a pending misdemeanor case where he had been
released on a separate bond.
On February 14, 2018, Box failed to appear and the court
ordered the bond forfeited. Then began the hunt for defendant
Box. According to the declaration of James Butler attached to
the motion to vacate, defendant was out on bond posted in two
separate California cases, case No. 8AR31641 and case
No. BA465139. Butler, a licensed private investigator in Florida,
was “given the assignment to identify the location and assist in
the apprehension of a Defendant who was a fugitive out of
California.” Butler located him in Miami, Florida. Butler
1 All further undesignated statutory references are to the
Penal Code.
2
contacted the Miami-Dade Police Department’s Warrants
Division and was told there was no warrant in their system for
defendant. The police department told Butler that any attempt
to arrest the defendant in Florida could result in charges being
brought against him or his agents. Butler informed appellant of
these facts and suggested appellant contact the Los Angeles
District Attorney for assistance. The District Attorney was
contacted and advised appellant by letter dated May 1, 2018, that
as to warrant for case No. 8AR31641,2 “We have evaluated the
case for possible extradition from Florida and have determined
that we will not seek the defendant’s extradition at this time.”
The letter said nothing about defendant’s felony warrant in case
No. BA465139.
On January 25, 2019 appellant moved to vacate the
forfeiture and exonerate the bail bond in the felony case. Based
upon Butler’s declaration, appellant argued that the felony
warrant had not been entered into NCIC in violation of the
requirements of section 980, subdivision (b). The parties have
not provided us with Respondent’s opposition to the motion so we
do not know what evidence, if any, respondent may have
presented to the trial court.
Appellant’s reply proceeded on the assumption that the
felony warrant, like the misdemeanor warrant, had in fact been
entered in NCIC, but it was entered as “non-extraditable.” The
Reply states: “Nor is there any dispute that the warrant in this
matter was entered as non-extraditable and that because of that
designation, the defendant’s warrant could not be served in
2 We note case No. 8AR31641 in Los Angeles County denotes
a misdemeanor prosecution.
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Florida.” Appellant pivoted from its original argument and
argued that designating the felony warrant as “non-extraditable”
was equivalent to not entering the warrant into NCIC at all
because the surety could not act upon it to return defendant to
California.
On April 5, 2019, the trial court heard argument on
appellant’s motion to vacate forfeiture and exonerate bond. The
trial court initially stated:
“Okay. There’s a problem with this one. The argument
is basically that the bench warrant was not entered
into N.C.I.C. But other than Investigator Butler’s
declaration stating that there appears to be no warrant
for the defendant, there is no evidence supporting that
the bench warrant was not entered into N.C.I.C. [¶]
So the court is inclined to find that the surety has
failed its burden to provide competent evidence.”
In support of its new position, appellant argued that section
980 was enacted to prevent defendants from being released when
they are detained outside of California. Entering the bench
warrant into NCIC would prevent such a release. However,
entering it as “non-extraditable” is the “same as not putting it in
at all.”
Respondent also proceeded to argue as if the felony warrant
had indeed been entered into NCIC with the denotation “non-
extraditable.” Respondent argued section 980, subdivision (b)
does not address how an entered warrant should be denoted; it
just requires that the warrant must be entered: “[T]he plain
language of the statute requires that the warrant be entered into
N.C.I.C., which it was done in this case. And what the surety
wants is for the court to read into the statute that it’s required
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that it be for full extradition. Now, if that were the case, then
every bench warrant that went into the system for full
extradition would mean that we are required to bring every
defendant back that is picked up all across the United States,
and we simply do not have the resources. [¶] If we were to put in
every single one as full extradition, that would then put us on the
hook. Which is why we have it as in-state only. And then it is
then the burden of the surety, when they find them in another
state, to present a [section] 1305(g) package and then we
determine if it is a case in which we believe that the defendant
should come back and should be extradited. We then take the
steps to upgrade the warrant to allow local law enforcement to
pick him up, keep him in custody so that we can go out and
extradite the defendant from another state. [¶] In this case, the
companion [misdemeanor] case for the defendant, that was [what
was] done. The surety presented us with a [section] 1305(g)
package where the defendant was in Florida, and that is where
the surety is referencing and where our office confirmed his
identity and location in Florida and we declined to extradite.
And we submitted on the motion to exonerate in his companion
case. [¶] They made an oversight, and they did not present us
the felony case. So we were not able to review the D.A.[’s] file on
the felony case within the time period and to make that same—to
make that same choice. So now the period has passed and
because of their oversight and not presenting the [section]
1305(g) on his case, on this case, they now want to argue that it
was, you know, a section 980 ineffective warrant into N.C.I.C.”
Respondent concluded appellant had failed to carry its burden of
showing that the felony warrant had not been entered into NCIC.
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Without further comment, the trial court denied the
motion. On April 12, 2019 the court granted summary judgment
in the amount of $75,435 against appellant based on the order of
forfeiture. The judgment included the amount of the bond and
costs of the motion for summary judgment.
This appeal followed. Appellant has framed the question it
wants us to answer: whether a felony warrant entered into NCIC
as “non-extraditable” is consistent with the statutory
requirement intent of section 980, subdivision (b).
DISCUSSION
1. Standard of Review
The trial court’s denial of a motion to set aside an order of
forfeiture is reviewed for abuse of discretion. When the facts are
undisputed and only legal issues are involved, we conduct an
independent review. (People v. International Fidelity Ins. Co.
(2012) 204 Cal.App.4th 588, 592.) As a general rule, statutes
governing bail are strictly construed to avoid forfeiture. (People
v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th
548, 556.) “The law disfavors forfeitures in general and bail
forfeitures in particular. . . . This policy of strict construction to
avoid forfeitures protects the surety ‘and more importantly the
individual citizens who pledge to the surety their property on
behalf of persons seeking release from custody.’ ” (Id. at
p. 555-556.)
2. Statutory Framework
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)
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33 Cal.4th 653, 657.) “The object of bail and its forfeiture is to
insure the attendance of the accused and his obedience to the
orders and judgment of the court. In matters of this kind there
should be no element of revenue to the state nor punishment of
the surety.” (People v. Wilcox (1960) 53 Cal.2d 651, 656–657.)
Failure of a defendant to appear without sufficient excuse
requires entry of such fact upon the minutes of the court, and an
immediate forfeiture of the bail with prompt notice to the surety
and its agent. (§ 1305, subd. (a).) After the bail bond is declared
forfeited by the trial court, the bail agent is provided 180 days
(plus five additional days when the notice is served by mail) to
produce the defendant and reinstate or exonerate the forfeited
bond. (Id., subd. (b).) This is the “appearance period.” The court
may extend the appearance period for up to an additional
180 days from its initial forfeiture order. (§ 1305.4; People v.
Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 43.) If the
defendant is brought to court during the appearance period, the
forfeiture must be vacated and the bond exonerated. (§ 1305,
subd. (c)(1); People v. Tingcungco (2015) 237 Cal.App.4th
249, 253.)
If the appearance period closes without defendant’s
appearance or a set aside of the forfeiture, section 1306,
subdivision (a) compels the trial court to enter summary
judgment against the bail agent. Entry of summary judgment in
a bail forfeiture is a consent judgment entered without a hearing
and the proceedings are not adversarial. (People v. American
Contractors Indemnity Co. (2015) 238 Cal.App.4th 1041, 1047.)
Because the surety consents to judgment pursuant to the
governing statutes, the “only issue in a challenge to the summary
judgment is whether it was entered pursuant to the terms of the
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consent, which requires compliance with Penal Code sections
1305 and 1306.” (Ibid.) Section 1306, subdivision (a), states that
such a judgment shall be the amount of the bond plus costs.
The grounds for vacating a bond forfeiture are scattered
throughout several sections of the Penal Code. First is section
980, subdivision (b) upon which appellant relies. When a
defendant fails to appear without cause, the trial court, in
addition to forfeiting the bond, generally also issues a warrant for
the defendant’s arrest. (§ 978.5, subd. (a) [“A bench warrant of
arrest may be issued whenever a defendant fails to appear in
court as required by law including, but not limited to, the
following situations: [¶] . . . [¶] (2) If the defendant is released
from custody on bail and is ordered . . . to personally appear in
court at a specific time and place.”].) Section 980 directs the clerk
of court to “require the appropriate agency to enter each bench
warrant issued on a private surety-bonded felony case into the
national warrant system (National Crime Information Center
(NCIC)). If the appropriate agency fails to enter the bench
warrant into the national warrant system (NCIC), and the court
finds that this failure prevented the surety or bond agent from
surrendering the fugitive into custody, prevented the fugitive
from being arrested or taken into custody, or resulted in the
fugitive’s subsequent release from custody, the court having
jurisdiction over the bail shall, upon petition, set aside the
forfeiture of the bond and declare all liability on the bail bond to
be exonerated.” (§ 980, subd. (b).)
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Section 1305 also addresses forfeiture in three different
subdivisions. Section 1305, subdivision (f) provides: “In all cases
where a defendant is in custody beyond the jurisdiction of the
court that ordered the bail forfeited, 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.”
Section 1305, subdivision (g) 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 on terms that are just and
do not exceed the terms imposed in similar situations with
respect to other forms of pretrial release.”
Finally, section 1305, subdivision (h) provides: “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.”
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The surety shoulders the burden of proving facts that
entitle it to relief from forfeiture. (County of Los Angeles v. Nobel
Ins. Co. (2000) 84 Cal.App.4th 939, 944–945; People v. Western
Ins. Co. (2013) 213 Cal.App.4th 316, 321.)
3. Analysis
The record on appeal lacks any evidence that the agency
failed to enter the felony warrant into NCIC or that it was
entered into NCIC as “non-extraditable. In the record before us,
Butler’s declaration and attached letter from the District
Attorney are the only sources of facts presented in support of the
motion. His declaration addresses the misdemeanor warrant
only. The record is silent about the status and denotation of the
felony warrant, other than the Miami-Dade Police Department
Warrant Division could not find a warrant for defendant. Based
on what Butler learned about the misdemeanor warrant,
appellant speculated in its motion that the felony warrant was
not entered into NCIC. We agree with the trial court that there
is no evidence to support that speculation. At the hearing
appellant argued that “the People also submitted the N.C.I.C.
report showing that the entry was non-extraditable for California
purposes only.” However, appellant has not supplied this court
with any other evidence that may have been relied upon in the
trial court and we cannot discern from counsel’s remark which
warrant appellant is referencing—the misdemeanor warrant or
the felony warrant.
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Without any factual underpinning for its argument, we
must reject appellant’s position. “ ‘Evidence’ means testimony,
writings, material objects, or other things presented to the senses
that are offered to prove the existence or nonexistence of a fact.”
(Evid. Code, § 140.) Statements and argument by counsel are not
evidence. (People v. Richardson (2008) 43 Cal.4th 959, 1004;
Maudlin v. Pacific Decision Sciences Corp. (2006) 137
Cal.App.4th 1001, 1015 [counsel’s arguments are not evidence].)
As much as the parties may want us to decide this question, we
cannot do so on this record. Were the misdemeanor warrant the
subject of this appeal, we could address the question presented.
However, we are not addressing the misdemeanor warrant, and
without factual support for its argument, we must reject
appellant’s position as to the felony warrant.
We note even if the felony warrant were deemed not to
have been properly entered into NCIC as required, we
nonetheless have no information on the second showing that
must be made to obtain relief under section 980, subdivision (b):
whether the agency’s failure to enter the felony warrant was the
reason why defendant could not have been surrendered to local
law enforcement, if he was not surrendered. And, to the extent
the parties rely on section 1305, subdivisions (f), (g), and (h), we
cannot determine which subdivision may be applicable as the
record does not tell us if defendant was ever in custody.
Appellant has failed to carry its burden of proof.
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DISPOSITION
The order is affirmed. Respondent is awarded costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
WILEY, J.
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