Filed 12/26/13 P. v. Lexington Nat. Ins. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135495
v.
LEXINGTON NATIONAL INSURANCE                                         (San Francisco City & County
CORPORATION,                                                         Super. Ct. No. 10018652 )
         Defendant and Appellant.

THE PEOPLE,
                                                                     A135930
         Plaintiff and Respondent,
v.                                                                   (San Francisco City & County
                                                                     Super. Ct. No. CPF-12-512224)
LEXINGTON NATIONAL INSURANCE
CORPORATION,
         Defendant and Appellant.


         Defendant and appellant Lexington National Insurance Corporation (Lexington)
filed an appeal of the trial court’s order denying its motion pursuant to Penal Code1
section 1305 to vacate forfeiture and exonerate its bail bond (case No. A135495) and an
appeal of the trial court’s subsequent entry of summary judgment (case No. A135930).
Having consolidated the appeals for purposes of briefing and decision, we now affirm the
trial court’s order and entry of judgment.



         1
             Further statutory references are to the Penal Code unless otherwise specified.
                       I. FACTUAL AND PROCEDURAL BACKGROUND
       The defendant in the underlying criminal case is Grachelle Languban. The record
demonstrates that on June 21, 2010, Languban appeared in court for arraignment on
numerous charges of fraud and forgery. Bail was set at $100,000 and the case was
continued. On January 13, 2011, Languban appeared with counsel at a hearing on a
defense motion to reduce bail. The court granted the motion, set bail at $40,000,
continued the case for argument regarding bifurcation of the preliminary hearing, and
ordered defendant to appear. According to the clerk’s minutes entered on February 3,
2011, Languban appeared with counsel at the hearing on that date. At the hearing, the
clerk entered dismissal of counts 10 and 12 through 19, and added counts 25 through 33
to reflect the consolidated second amended felony complaint filed on October 28, 2010.
Defense counsel waived any irregularities with the amendment and waived formal filing
of an amended complaint. The defendant entered not guilty pleas as to each count and
denied any and all allegations. The court continued the case to February 7, 2011, for
ruling on the request for a bifurcated preliminary hearing, and ordered defendant to
appear at that time.
       Defendant Languban failed to appear as ordered at the hearing held on February 7,
2011. The court ordered bail forfeited and issued a bench warrant. The clerk’s minutes
state: “The above named defendant having neglected to appear for RULING ON BIF
PRELIM and no sufficient excuse for such non-appearance being presented to the
Court[,] [¶] [t]he Court directs the surety bond/cash money in the amount of $40000
heretofore deposited as bail in this action is hereby declared forfeited pursuant to Penal
Code Section 1305. [¶] . . . [¶] This is the 1st bench warrant issued in this case.”
       The clerk of the superior court mailed notice of the court’s order forfeiting the bail
bond to Lexington on February 22, 2011. The notice advised Lexington its surety bond
No. 2011EE002365, posted on behalf of defendant Languban, had been ordered forfeited
for Languban’s failure to appear and its contractual obligation to pay the bond would
become absolute on August 26, 2011, “the 181st day following the date of mailing of this
NOTICE unless the court shall sooner order the forfeiture(s) set aside.” At some point


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thereafter, the court granted a 180-day extension of time until February 22, 2012, for
Lexington to move to vacate the forfeiture.
       On February 21, 2012, Lexington filed a motion to vacate forfeiture and exonerate
bail and gave notice the motion would be heard on March 21, 2012. The motion included
a declaration by Terry Fowler a licensed bail agent. In his declaration, Fowler states he
sent a letter to San Francisco Assistant District Attorney (DA) Sandip Patel on January 5,
2012, informing Patel of defendant Languban’s location in the Philippines and asking
whether or not Patel’s office intended to extradite Languban on this matter. Fowler
further states he spoke with Deputy DA Patel on February 8, 2012; Patel told Fowler the
DA’s office was currently evaluating the case for extradition and “he would get back to
[Fowler] with a decision.”
       Lexington’s motion also included a declaration by investigator Jerry Anderson.
According to his declaration, Anderson was in the Philippines between January 9 and
February 9, 2012, to locate several defendants and one of the defendants located was
Grachelle Languban Cano, the defendant in this case. His investigation revealed
defendant Languban had entered the Philippines on February 6, 2011, on Philippines
Airlines flight No. 103 from Los Angeles. Philippines National Police assisted Anderson
in his investigation into Languban’s whereabouts in the Philippines. The investigation
subsequently led to information Languban was residing in the City of Valenzuela, at
“227 Lords Candle St. De Castro Subdivision Paseo de Blas.” Anderson and his
colleagues arrived at this location in the early evening on January 31, 2012, and
interviewed several people, showing them the booking photo of defendant Languban. A
male named Oscar Ramos who was at the local “sari sari market” next to No. 227
recognized Languban; Ramos stated Languban stayed at No. 227 for six months and had
relocated to the island of Cebu to live with her aunt. Anderson traveled to Cebu and met
with Philippine National Bureau of Investigation (NBI) agents, who confirmed defendant
Languban was in Cebu and had returned to Valenzuela City.
       Included as exhibit C to the motion is an “Identification Affidavit” signed by
Anderson stating that on February 6, 2012, a person he identified as Languban was


                                              3
temporarily detained in his presence by Philippine Police Officer Emmanuel Roble. The
affidavit was also signed by Roble.
       Also included as exhibit D in Lexington’s motion is a document regarding
defendant Languban prepared and initialed by special investigator Emmanuel Robles on
NBI letterhead, stating: “This is to inform the [San Francisco DA] [t]he person Grachelle
Languban Cano has been located here in the Metro Manila area, City of Valenzuela,
Philippines[.] [¶] [Languban] was identified by our Bureau of Immigration entering our
country on February 6, 2011 . . . . [¶] Agents of the [NBI] have located and identified the
subject . . . . Our Judicial Legal System here does not conduct forcible interview unless
there is a criminal action pending against this person here in the Philippines. And a
request for assistance is done by the US Embassy here in the Philippines through proper
procedures. [¶] In order to proceed to obtain a physical photo and fingerprint of this
person, a criminal complaint would have to be filed through the State Department in
order to obtain an arrest warrant for [Languban]. [¶] Further action against this person has
been suspended until criminal complaint has been filed.”
       At the scheduled hearing on Lexington’s motion held on March 21, 2012, Deputy
DA Patel appeared to inform the court regarding extradition, stating: “The case that
involves this matter . . . is very complex, and I’m in trial on it. We’ve decided at this
time not to elect to extradite her, which I just want to make clear, doesn’t mean that we
will not extradite her in the future, but at this point we’re not going to extradite her.”
Thereafter the court entertained argument of counsel. During argument, the court
expressed misgivings regarding apparent inconsistencies in the documents provided by
Lexington “with respect to what happened in terms of the detention,” and noted Robles’s
signatures on exhibits C and D did not “appear to be the same.” Seeking to clarify the
record on these points, counsel for Lexington requested an extension of time and an
evidentiary hearing in order to present testimony from investigator Anderson. The court
granted the request, called for further briefing on the issue of whether it could receive
additional evidence after the statutory time limit for exoneration had expired, and
continued the matter to April 27, 2012.


                                               4
       At the April 27 hearing, the DA argued that because the decision not to seek
extradition had been made “after the period in which relief from forfeiture of the bail
could be sought had expired, . . . . [¶] . . . the Court lost jurisdiction to grant the relief
requested.” After hearing further argument from counsel, the court declined to admit
additional evidence or testimony and announced it would issue a written order. The court
filed its “Order re Motion to Vacate the Forfeiture and Exonerate Bail” on May 3, 2012.
In its order, the trial court ruled Lexington “fails to establish that it satisfied all of the
requirements of Penal Code § 1305[, subdivision] (g) within the time period provided by
statute. Specifically, the [DA] did not make an election not to extradite defendant
Languban until March 21, 2012. The jurisdictional performance period ended on
February 22, 2012. The [DA’s] failure to make the election within the time period does
not toll the period nor does it render performance under the bond impossible.
[Citations.]” On May 30, 2012, and based upon its earlier order, the trial court entered
summary judgment in favor of the People in the total sum of $40,401. These
consolidated appeals followed.
                                        II. DISCUSSION
       “ ‘The statutory scheme governing bail forfeitures is found in Penal Code
section 1305 et seq. These provisions must be carefully followed by the trial court, or its
acts will be considered without or in excess of its jurisdiction. [Citation.]’ [Citation.] [¶]
In interpreting these statutes, we must bear in mind that ‘ “[t]he law traditionally
disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus,
Penal Code sections 1305 and 1306 dealing with forfeiture of bail bonds must be strictly
construed in favor of the surety to avoid the harsh results of a forfeiture.” ’ ” (People v.
The North River Ins. Co. (2011) 200 Cal.App.4th 712, 717; accord, People v. Lexington
National Ins. Corp. (2010) 181 Cal.App.4th 1485, 1489–1490; People v. Indiana
Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 313; People v. Accredited Surety &
Casualty Co. (2012) 209 Cal.App.4th 617, 621.) The object of bail and its forfeiture is to
ensure the defendant’s attendance and his or her obedience to the orders and judgment of
the court, not to either provide revenue to the state or punish the surety. “Nevertheless, a


                                                 5
bail bond is a contract between the government and the surety”; “when this contract is
breached, the bond should be enforced.” (209 Cal.App.4th at p. 621.)
       “On appeal, we review the trial court’s resolution of a motion to set aside a bail
forfeiture under the abuse of discretion standard [citation], subject to the protections
afforded by the statutory scheme addressing bail forfeiture [citation].” (People v.
Lexington National Ins. Corp., supra, 181 Cal.App.4th at p. 1489.) On the other hand,
review of the trial court’s interpretation of a statute on uncontested facts is “a pure
question of law . . . subject to de novo review.” (People v. Fairmont Specialty Group
(2009) 173 Cal.App.4th 146, 151.)
       Importantly, the provisions of section 1305 “ ‘must be strictly followed or the
court acts without or in excess of its jurisdiction. [Citation.]’ [Citation.] ‘The burden is
upon the bonding company seeking to set aside the forfeiture to establish by competent
evidence that its case falls within the four corners of these statutory requirements.’ ”
(People v. Fairmont Specialty Group, supra, 173 Cal.App.4th at p. 152.)
       Section 1305 describes a number of circumstances under which forfeiture of a
bond may be set aside or vacated and the bond exonerated. (People v. Accredited Surety
& Casualty Co. (2004) 132 Cal.App.4th 1134, 1138–1139.) Specifically, section 1305,
subdivision (g), provides forfeiture of a bond may be set aside or vacated and the bond
exonerated where “the criminal defendant has fled to a foreign country but is not in
custody.” (People v. Western Ins. Co. (2012) 204 Cal.App.4th 1025, 1030.) The statute
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 . . . .” (§ 1305, subd. (g), italics added.)
       Here, Lexington contends that “when the deputy district attorney prosecuting the
case came to court and informed that his office elected not to extradite the defendant, the


                                               6
trial court was under statutory compulsion to exonerate bail” because at that point all the
requirements of section 1305, subdivision (g) were satisfied. The People disagree,
contending the trial court properly denied Lexington relief from forfeiture under section
1305, subdivision (g) because the DA’s election not to extradite occurred after the
jurisdictional appearance period expired. We concur with the People on this point.
       Dispositive to the issue before us is the rule that a court “lack[s] jurisdiction to
vacate the forfeiture and exonerate the bond based on events that occurred after the . . .
exoneration period ha[s] expired.” (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th
75, 83 (Seneca I).) In Seneca I, notice of forfeiture was mailed to the surety on August
23, 2002, informing the surety that its obligation under the bond would become absolute
on February 24, 2003. On February 19, 2003, the surety moved for an order extending
time to return the defendant to custody; in support of the motion the bail agent filed a
declaration stating that the defendant was staying locally with her boyfriend’s father. The
motion was set for hearing on March 18. One day before the hearing date, surety’s
counsel filed a supplemental declaration stating that the defendant had been arrested and
the bail agent had informed police of her whereabouts. Nevertheless, the trial court
denied the motion for an extension of time. (Id. at p. 79.)
       The appellate court affirmed the trial court’s ruling. The appellate court noted
“Seneca waited until the 185-day period had almost expired before filing its motion,” and
did not seriously begin looking for the defendant until January 2003. (Seneca I, supra,
116 Cal.App.4th at p. 81.) More importantly, and pertinent to the issue here, the court
held “the time allowed to return the defendant to custody was not automatically extended
by the mere filing of the motion. Indeed, the court lacked jurisdiction to grant the motion
based on facts occurring after the initial 185-day period had expired.” (Id. at p. 82,
italics added.) The court emphasized that whereas a court “retains jurisdiction to hear a
tolling motion within 30 days after the 185-day period has expired” under section 1305,
subdivision (j), “[h]ad the Legislature also intended to automatically expand the surety’s
time to return the defendant to custody, it would expressly have done so.” (Seneca I, at
pp. 82–83.) Accordingly, the court concluded the fact the defendant “was returned to


                                               7
custody while the court still had jurisdiction to hear the motion does not entitle Seneca to
relief from the order of forfeiture.” (Id. at p. 83.)
       Like the surety in Seneca I, Lexington was dilatory in protecting its rights. After
receiving a 180-day extension of time, over and above the initial 180-day period,
Lexington waited until February 21, 2012, a full year after notice of forfeiture issued, to
file its motion to vacate the forfeiture. At that point, whereas the court retained
jurisdiction to hear the motion, the court lacked jurisdiction “to vacate the forfeiture and
exonerate the bond based on events that occurred after the . . . exoneration period ha[s]
expired.” (Seneca I, supra, 116 Cal.App.4th at p. 83.) Accordingly, because the DA
announced the decision not to seek extradition of defendant Languban at a hearing held
after the exoneration period expired on February 22, 2012, the court was without
jurisdiction to vacate forfeiture and exonerate bail.2 (Seneca I, at p. 83; see also People v.
Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 649–650 [concluding the trial court did not
err by dismissing surety’s motion to vacate forfeiture of the bond on the grounds the DA
“expressed disinterest in extraditing” the defendant because the information about the
DA’s stance on extradition “was obtained only after the exoneration period, during which
events establishing good cause must occur, had expired”]; People v. Granite State
Insurance Co. (2003) 114 Cal.App.4th 758, 768 [where hearing on motion to vacate
forfeiture is held after the exoneration period has expired, “the facts upon which the
motion is based . . . must be in existence within the exoneration period”]; People v.
Ramirez (1976) 64 Cal.App.3d 391, 401–402 [concluding that any defense asserted
pursuant to § 1305 “must not only be actually asserted but also in existence within the
180-day period or the court loses jurisdiction” and that “the legislative intent and purpose
of the extension of the hearing beyond the 180 days was not [to] extend the actual
existence of the grounds beyond the 180-day period”].)



       2
        Lexington’s assertion to the contrary is based on dicta in People v. Lexington
National Ins. Corp., supra, 181 Cal.App.4th at page 1492, which is not persuasive against
the weight of authority we rely upon.


                                               8
       Our conclusion on this point is bolstered by People v. Seneca Ins. Co. (2010)
189 Cal.App.4th 1075 (Seneca II). In that case, the facts pertinent to section 1305,
subdivision (g) were the defendant fled to Korea; the bail agent located the defendant and
complied with the statutory identification procedures eight months before the end of the
exoneration period; and the prosecutor indicated she would seek extradition but did not
initiate extradition proceedings within the bond exoneration period. (Seneca II, at
p. 1081.) On these facts, the appellate court in Seneca II rejected the surety’s contention
that the People, “by not pursuing extradition in a timely fashion after being notified of
defendant’s location in Korea, effectively ‘elect[ed] not to seek extradition’ under
section 1305, subdivision (g).” (Ibid.) After reviewing the statutory scheme, the court
concluded it did not authorize “additional extensions or tolling of the bond exoneration
period in the circumstances presented. Seneca already received its one-time extension of
180 days authorized by section 1305.4 and Seneca did not qualify for statutory tolling
under section 1305, subdivision (e).” (Id. at p. 1082.) The court acknowledged “a
prosecutor could abuse what might be characterized as a ‘loophole’ in section 1305,
subdivision (g) (e.g., pretend to ‘elect’ extradition, then abandon such ‘election’ after the
bond exoneration period; prosecutors could even have their cake and eat it too by
intentionally delaying the initiation of extradition of defendants beyond the exoneration
period),” but noted the record revealed “no evidence of actual bad faith” on the part of
prosecutor. (Id. at pp. 1082–1083.)
       Similarly, in this case, Lexington received its one-time extension of 180 days
authorized by section 1305.4, and avers that after informing the DA’s office of defendant
Languban’s location in January 2012, was advised on February 8, 2012 the DA was still
evaluating the case for extradition. Despite the looming deadline of February 22, 2012,
Lexington took no further action to ascertain the DA’s intent regarding extradition;
subsequently, the DA announced at the hearing on held on March 21, 2012, that the
underlying criminal case was “very complex” and his office was not going to seek
defendant Languban’s extradition at that time. Just as the Seneca II court declined to
infer the DA elected not to seek extradition because the DA failed to initiate extradition


                                              9
proceedings within the exoneration period, we similarly decline to infer the DA elected
not to seek extradition because the DA was still in the process of evaluating extradition
when the exoneration period expired. (Cf. Seneca II, supra, 189 Cal.App.4th at p. 1082.)
Further, as in Seneca II, there is no evidence in the record the DA acted in bad faith in
reaching the decision not to extradite after expiry of the exoneration period; nor, tellingly,
is there any evidence Lexington took any steps to push for a decision prior to expiry of
the exoneration period. (Cf. People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 682
[stating that the provisions under § 1305.4 for seeking an extension of time do not give “a
surety carte blanche to sit on its hands for six months and then come running into court at
the last minute”].)
       Lexington also contends, however, that the trial court failed to timely declare a
forfeiture after defendant Languban failed to appear on February 3, 2011. We
acknowledge Lexington may raise a contention for the first time on appeal where it
essentially involves a question of law on undisputed facts. (See People v. Lexington
National Ins. Corp., supra, 181 Cal.App.4th at pp. 1491–1492.) Even so, the contention
is baseless because, as recited above, the record clearly demonstrates defendant
Languban was present in court on February 3, 2011, at which time her counsel waived
formal filing of an amended complaint and she entered not guilty pleas as to each count
and denied any and all allegations. In light of the record evidence of defendant
Languban’s appearance on February 3, 2011, as reflected in the clerk’s minutes,
Lexington’s reliance on DA Patel’s garbled recitation of the facts in the People’s motion
for a holding order is entirely unavailing.
                                     III. DISPOSITION
       The judgment is affirmed. The People are awarded costs on appeal.




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                                                 _________________________
                                                 Dondero, J.


We concur:


_________________________
Margulies, Acting P.J.


_________________________
Sepulveda, J.*




       *
        Retired Associate Justice of the Court of Appeal, First Appellate District
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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