Filed 8/24/20 P. v. Fuentes CA1/5

           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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      IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                        DIVISION FIVE

 THE PEOPLE,
          Plaintiff and Respondent,
                                                                 A158115
 v.
 ANDREW FUENTES,                                                 (San Mateo County
                                                                 Super. Ct. No.
          Defendant;
                                                                 19CIV02860/SM399227A)
 BANKERS INSURANCE
 COMPANY, et al.,
           Real Parties in Interest
           and Appellants.


        Bankers Insurance Company, through its agent Le Bail Bonds
(collectively Bankers Insurance) appeals from the trial court’s denial of
a motion to vacate forfeiture and exonerate bail, and the subsequent
entry of summary judgment. We affirm.
                                          BACKGROUND
        After Bankers Insurance posted a bond for the release of
defendant Andrew Fuentes, the bail was forfeited because Fuentes
failed to appear in San Mateo County Superior Court. The trial court
granted Bankers Insurance an extension of time until April 1, 2019, in
which to attempt to locate Fuentes and move for relief from the
forfeiture.
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      According to Bankers Insurance, its bail agent subsequently
located Fuentes in Ohio. The agent brought Fuentes to the local police
department, which arrested him on a warrant and released him from
custody after the warrant was cleared. A few days later, counsel for
Bankers Insurance notified the San Mateo County district attorney’s
office that Fuentes had been located and asked whether they wished to
pursue his extradition to California. The district attorney’s office
responded that they would not extradite him.
      On the last day of the extended appearance period, Bankers
Insurance filed a timely motion to vacate the forfeiture and exonerate
bail, citing Penal Code section 1305, subdivision (g).1 The motion was
supported by an unsworn statement from a bail agent, but the agent
failed to certify the contents of the statement under penalty of perjury.
In addition, the motion included a document purporting to be a form
affidavit by a peace officer certifying that the defendant’s identify had
been verified. However, the document was signed by the bail agent,
rather than a law enforcement officer, and failed to list the defendant’s
name. The motion also contained the notice to the district attorney and
evidence that the district attorney had elected not to extradite Fuentes.
      The People opposed the motion. Bankers Insurance then filed a
reply brief that asserted for the first time the applicability of section
1305, subdivision (f). Bankers Insurance subsequently filed
supplemental evidence in support of its motion, which included a police
incident report indicating that Fuentes had been brought into the Ohio
police station by a bondsman. The report also indicated that Fuentes
was arrested on a warrant and released after the warrant cleared.


      1   Undesignated statutory references are to the Penal Code.
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      After hearing oral argument, the trial court summarily denied
the motion and entered summary judgment against Bankers Insurance.
                               DISCUSSION
                                    A.
      As our Supreme Court has explained, “[a] surety undertakes to
guarantee the [criminal] defendant’s timely appearance in court. If the
defendant fails to appear, the surety is contractually obligated to the
government in the amount of its bond.” (People v. Indiana
Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 313 (Indiana
Lumbermens).) Pursuant to section 1305, the surety has 180 days “to
obtain relief [from forfeiture] by locating the defendant and bringing
him or her to custody, or by showing the court that the defendant’s
absence is due to disability or out-of-state custody.” (Indiana
Lumbermens, supra, at p. 313.)
      Two provisions of section 1305 dealing with defendants located
out-of-state are relevant here. Section 1305, subdivision (f) provides in
pertinent part that “[i]n 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.” (§ 1305,
subd. (f), italics added.) Section 1305, subdivision (g) provides in
pertinent part that “[i]n 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


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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.” (§ 1305, subd. (g),
italics added.)
       We review the trial court’s “denial of a motion to vacate a bond
forfeiture and to exonerate the bond for an abuse of discretion.” (People
v. Financial Casualty & Surety Inc. (2017) 10 Cal.App.5th 369, 378-
379.) “To 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.’ ” ’ ” (Id., at p. 379)
                                      B.
       On appeal, Bankers Insurance has abandoned its argument that
section 1305, subdivision (g) governs this case, and it does not dispute
that it failed to support its motion with an affidavit from a law
enforcement officer positively identifying Fuentes under penalty of
perjury, as is required to obtain relief pursuant to section 1305,
subdivision (g). Instead, although it failed to request relief based on
section 1305, subdivision (f) in its motion, Bankers Insurance asserts
that the trial court erred in refusing to grant relief pursuant to that
subdivision because the gravamen of its motion was that the defendant
was in custody in another state and the prosecutor declined to extradite
him.
       However, as counsel for Bankers Insurance candidly
acknowledged in the trial court hearing, its “motion was initially
brought under [section] 1305(g).” Nowhere in its motion did Bankers


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Insurance cite section 1305, subdivision (f), or otherwise argue that it
was entitled to relief because the defendant was in custody in another
state. (Compare People v. Lexington National Ins. Corp. (2010) 181
Cal.App.4th 1485, 1490-1491 (Lexington Nat’l) [where motion to vacate
forfeiture timely asserted the relevant ground for relief and facts, the
motion adequately raised the issue despite failure to cite the correct
subdivision of section 1305].) Understandably then, the People’s
opposition argued that Bankers Insurance had failed to satisfy the
requirements of section 1305, subdivision (g), but did not address
subdivision (f).
      Accordingly, we are constrained by our standard of review.
Although Bankers Insurance raised its argument for relief based on
section 1305, subdivision (f) in its reply brief, the trial court was not
required to consider the belated argument. Trial courts have discretion
to decline to “consider arguments first raised in a reply brief because of
the potential unfairness to the opposing party, who is deprived of the
opportunity to respond to the new argument.” (Contractors’ State
License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 131; see also
St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783 [trial court
will not consider “ ‘ points raised in a reply brief for the first time . . .
unless good cause is shown for the failure to present them before ’ ”];
Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 at fn. 8 [trial
courts should permit additional matter to be submitted with reply brief
only in “the exceptional case”].) The People objected to the late theory,
urging the court to “disregard that argument,” and Bankers Insurance
provided no explanation for waiting until its reply to assert it. Under
these circumstances, we cannot say that the trial court’s denial of the


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motion was an abuse of discretion. (See, e.g., Kuchins v. Hawes, 226
Cal.App.3d 535, 541 [under abuse of discretion review, “[a]n appellate
court may reverse the trial court’s decision only if . . . no reasonable
judge could have reached the same result”]; Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶
8:18 [“Because of the presumption of correctness, judgments and orders
are sometimes affirmed on the assumption the trial judge . . . decided
an issue in a particular way, even though this may not actually have
occurred.”].)
      Bankers Insurance mistakenly relies on People v. Far West Ins.
Co. (2001) 93 Cal.App.4th 791 (Far West) for the proposition that it
substantially complied with section 1305. Far West held that where “a
California fugitive admitted to bail, apprehended and held in custody in
another state, is released as a result of errors committed solely by
officials of the demanding county government and the surety has done
all that is required of it under the terms of the bond,” the surety was
entitled to vacatur of the forfeiture despite technical noncompliance
with section 1305, subdivision (g) or (f). (Far West, supra, at p. 798.)
While the surety in Far West did “all that [wa]s required of it” (id.), the
same cannot be said of Bankers Insurance. Bankers Insurance
provided an unsworn statement from a bail agent; submitted an
incomplete document purporting to be an affidavit from a peace officer
but in fact signed by the bail agent; waited until its reply brief to raise
its section 1305, subdivision (f) argument; and provided no competent
evidence that Fuentes was in “custody” in another state, even
considering the evidence submitted after filing its reply brief, when the
appearance period had expired. Far West is thus inapposite.


                                     6
      Bankers Insurance argues that the trial court is required to grant
relief once the requirements of section 1305, subdivision (f) are met.
(See, e.g., Lexington Nat’l, supra, 181 Cal.App.4th at p. 1490 [under
section 1305, “[a]ll directions to the court as to its duties are
mandatory, and an act beyond those constraints is in excess of
jurisdiction”].) However, the mandatory nature of relief does not
excuse a party from complying with procedural requisites. (See, e.g.,
Indiana Lumbermens, supra, 49 Cal.4th at p. 313 [“[I]t is incumbent on
the surety to bring a motion for relief from forfeiture. The deadlines
and procedures for seeking relief have been tailored to accommodate
the interests of the surety, which appropriately bears the burden of
compliance with the statutory requirements.”]) Neither do equitable
principles excuse the surety’s unexplained failure to timely assert the
relevant claim for relief.
      For similar reasons, we decline to exercise our own discretion to
consider Bankers Insurance’s section 1305, subdivision (f) argument for
the first time. (See Lexington Nat’l, supra, 181 Cal.App.4th at pp.
1491-1492 [appellate court may consider a theory presented for the first
time on appeal where the issue presents a legal question and the facts
are undisputed].) Even were we to reach the merits of the argument,
we would have no reason to accept as true Bankers Insurance’s
assertion that Fuentes was “in custody beyond the jurisdiction of the
court.” (§ 1305, subd. (f).) Even if we accepted its belated evidence as
competent, we doubt Bankers Insurance would be entitled to relief
given that Fuentes was released the same day he was allegedly
arrested by the Ohio authorities and therefore was no longer in
“custody” at the time the prosecutor declined to extradite him. (See


                                      7
People v. Accredited Surety & Casualty Co. (2004) 132 Cal.App.4th
1134, 1146 [where defendant “was released from custody before the
prosecuting agency was informed of his whereabouts,” section 1305,
subdivision (f) was “inapplicable” because it “requires a defendant to be
in custody when the prosecuting agency elects not to prosecute”];
compare § 1305, subd. (f) [applying in “cases where a defendant is in
custody . . . , and the prosecuting agency elects not to seek extradition”]
with § 1305, subd. (c)(2) [applying to situations in which the defendant
“is arrested . . ., and is subsequently released from custody”].)
However, we need not resolve this question in light of our conclusion
that the trial court’s presumed decision to disregard Bankers
Insurance’s belated theory was not an abuse of discretion.
                              DISPOSITION
      The judgment and order denying the motion to vacate bond
forfeiture and exonerate bail are affirmed. The People are awarded
costs on appeal.




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                                   _______________________
                                   BURNS, J.



We concur:




____________________________
JONES, P.J.




____________________________
SIMONS, J.




A158115




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