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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, 

Plaintiff and Respondent,

v.

CONTINENTAL HERITAGE 

INSURANCE COMPANY, 

Defendant and Appellant.

B298148

(Los Angeles County

Super. Ct. No. SJ4597

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.

_________________________
2

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.
3

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.
4

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 “nonextraditable.” 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 
5

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. 
6

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) 
7

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 
8

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).)
9

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.” 
10

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.
11

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.
12

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.