People v. Fuentes CA1/5

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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. 1

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.