Filed 4/29/22 P. v. Lexington National 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B303868
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA099064)
v.
LEXINGTON NATIONAL
INSURANCE COMPANY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Francis B. Bennett and Victoria B. Wilson,
Judges. Affirmed.
Law Offices of Brendan Pegg and Brendan Pegg for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
**********
Defendant and appellant Lexington National Insurance
Company appeals from the denial of its motion to vacate
forfeiture and exonerate its bond.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant is a surety that posted a $50,000 bond (bond
No. 2018DD009419) for Suzen Browne who had been charged
with numerous felonies, including burglary. Browne is not a
party to this appeal. On October 24, 2018, Browne failed to
appear in court. The superior court declared the bond forfeited
and issued a bench warrant for Browne. Defendant obtained an
extension of time within which to return Browne to custody
through November 20, 2019.
Shortly before the extended appearance date expired,
defendant filed a motion to vacate the forfeiture and exonerate its
bond. The motion was based on the declaration of defendant’s
agent that Browne had been taken into custody in Pennsylvania
for an offense committed there but had been released,
purportedly because there were no active warrants for Browne in
the National Crime Information Center (NCIC). At the hearing
on defendant’s motion, the district attorney’s office presented a
document and represented that it was a printout from NCIC
showing that the warrant for Browne had been entered on
October 24, 2018. The court denied defendant’s motion.
Defendant filed a motion for reconsideration. The motion
contained the same exhibits as the original motion but added a
copy of the NCIC printout and a declaration from defendant’s
counsel containing hearsay conversations with authorities in the
Pennsylvania jail system who said they did not, as a matter of
policy, place holds for out-of-state warrants that are listed as
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“No Extradition.” Defendant argued the NCIC printout showed
that Browne’s warrant entry included the designation “No
Extradition – Instate Pick-Up Only.”
At the hearing on the reconsideration motion, the district
attorney’s office reaffirmed for the court that the warrant for
Browne had been entered into NCIC on October 24, 2018.
Defense counsel submitted without further argument. The court
denied the motion for reconsideration.
This appeal followed.
DISCUSSION
1. Scope of Appeal
It is undisputed the notice of appeal from the November 22,
2019 order denying the motion to vacate forfeiture was timely
filed. Plaintiff contends the order denying reconsideration is not
within the scope of this appeal because it was not mentioned in
the notice of appeal. Plaintiff is incorrect.
The motion for reconsideration is reviewable in connection
with defendant’s appeal of the denial of the original motion (Code
Civ. Proc., § 1008, subd. (g) [“An order denying a motion for
reconsideration made pursuant to subdivision (a) is not
separately appealable. However, if the order that was the subject
of a motion for reconsideration is appealable, the denial of the
motion for reconsideration is reviewable as part of an appeal from
that order.”].)
Plaintiff was not misled or prejudiced as the notices
designating the clerk’s and reporter’s transcripts identified the
materials related to both the original motion to vacate and the
motion for reconsideration. As plaintiff acknowledges, notices of
appeal are liberally construed. (Walker v. Los Angeles County
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Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20;
see also Cal. Rules of Court, rule 8.100(a)(2).)
2. The Motion to Vacate Forfeiture and Exonerate
Bond
We ordinarily review a trial court’s resolution of a motion
to vacate forfeiture and exonerate a bail bond under the
deferential abuse of discretion standard. (County of Orange v.
Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1491.)
However, “[t]o the extent the trial court’s ruling rests on
statutory interpretation, our review is de novo and we must,
where feasible, strictly construe the statutory language ‘ “ ‘in
favor of the surety to avoid the harsh results of a forfeiture.’ ” ’ ”
(People v. Financial Casualty & Surety, Inc. (2017)
10 Cal.App.5th 369, 379 (Financial Casualty).) And, to the extent
the court’s ruling rests on questions of fact, we apply the
substantial evidence test. (Ibid.) It is defendant’s burden as the
surety to affirmatively demonstrate the statutory prerequisites to
an order vacating a bond forfeiture were satisfied. (Ibid.)
Defendant says the facts are undisputed and the appeal
presents the purely legal question of interpreting the statutory
language of Penal Code section 980, subdivision (b). Defendant
concedes the warrant for Browne was entered in NCIC but that it
was entered with a “No Extradition – Instate Pick-Up Only”
designation that rendered it useless outside California.
Defendant argues the Legislature could not have intended for
section 980 to be read in a manner that would allow prosecuting
agencies to enter warrants in such a way that defeats the
purpose of ensuring fugitives are held and returned to the
jurisdictions where they are being prosecuted.
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Penal Code section 980, subdivision (b) provides that “[t]he
clerk shall 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.”
Here, it is undisputed the warrant was entered into NCIC
on October 24, 2018. Given the plain, unambiguous language of
the Penal Code section 980, subdivision (b), the trial court
therefore correctly denied defendant’s motion because there was
no failure by the prosecuting agency to enter the Browne warrant
into the system. (Financial Casualty, supra, 10 Cal.App.5th at p.
379 [“plain language is controlling”].)
The NCIC printout provided by the district attorney’s office
shows the entry for the Browne warrant contained additional
information, including “No Extradition – Instate Pick-Up Only,”
and “Confirm Warrant and Extradition with ORI” and identified
the originating agency as the Redondo Beach Police Department
with a contact phone number.
Defendant argues the inclusion of this additional language
should be treated as the equivalent of no entry in the NCIC
system at all because it rendered the warrant “absolutely
ineffective outside California.” According to defendant, Penal
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Code section 980 would be “rendered meaningless by a simple
manipulation of the warrant designation” that suggests the
fugitive is “actually NOT WANTED.”
We do not agree. Penal Code section 980, subdivision (b)
provides for exoneration of bonds where there has been a failure
to enter a warrant in the system and an affirmative showing by
the surety that the failure prevented the surety from securing the
surrender or arrest of the fugitive. (People v. Bankers Ins. Co.
(2011) 199 Cal.App.4th 407, 414 [“It is clear from the statute that
in order to obtain relief from forfeiture the surety must prove
that the failure to enter the warrant into the database prevented
the defendant’s surrender or arrest.”].)
Here, the warrant was entered in the system. The hearsay
evidence from Pennsylvania does not prove there was no warrant
in the system, and there was no finding, and no basis for a
finding, that the absence of a warrant prevented the surety from
fulfilling its obligations. If anything, the policy of the
Pennsylvania county jail prevented the surety from securing the
surrender of the fugitive, and that provides no basis to vacate the
forfeiture.
There is no statutory requirement that the warrant permit
extradition. Penal Code section 1305 provides a remedy to seek
relief from forfeiture when the defendant is beyond the
jurisdiction of the California courts. There would be no need for
the remedy afforded by section 1305 if, as defendant contends,
the Legislature intended section 980 to preclude “No Extradition”
warrants.
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DISPOSITION
The order denying Lexington National Insurance
Company’s motion to vacate forfeiture and exonerate bond is
affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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