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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW FUENTES,

Defendant;

BANKERS INSURANCE 

COMPANY, et al.,

Real Parties in Interest 

and Appellants.

 A158115

 (San Mateo County 

 Super. Ct. No. 

19CIV02860/SM399227A)

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.
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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 
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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