The opinion
Filed 12/20/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B271421
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. OSJ1813)
v.
THE NORTH RIVER INSURANCE
COMPANY et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Kerry Bensinger, Judge. Affirmed.
Jefferson T. Stamp for Defendants and Appellants.
Mary C. Wickham, County Counsel, Ruben Baeza, Jr.,
Assistant County Counsel, and Jessica C. Rivas, Deputy County
Counsel, for Plaintiff and Respondent.
******
After a criminal defendant failed to appear at his
arraignment, the trial court forfeited the bail bond and thereafter
denied the bail surety’s motion to vacate that forfeiture. The
surety has appealed. Its appeal presents three questions. First,
may a trial court grant a second extension of the statutory
“appearance period” (the period in which a surety may return the
defendant or seek vacatur of the forfeiture) more than 180 days
after it has granted a first extension? Second, may a trial court
grant a motion to vacate the forfeiture of a bail bond on a ground
not asserted and on evidence not presented to the court until
after the appearance period has expired? Lastly, is a surety
entitled to vacatur of the forfeiture of a bail bond on the basis of
permanent or temporary “disability” under Penal Code section
1305, subdivisions (d) and (e),1 respectively, when the defendant
charged with trafficking narcotics has voluntarily fled the
country and is consequently barred from reentry under federal
immigration law due to the pending charges? We hold that the
answer to all three questions is “no,” and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In mid-June 2014, police pulled over a car driven by Tae Ho
Kim (defendant). Defendant consented to a search of the car, and
police found (1) a shoebox containing 4,000 ecstasy pills and
$10,100 in cash, (2) two one-liter bottles of codeine, and (3) two
bags containing 97.8 grams and 26.2 grams of marijuana,
respectively. During the search, police sat defendant sat on a
curb; after police discovered the drugs, he stood up, and bolted
into traffic. He was quickly re-apprehended, and arrested.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
The next day, defendant signed a contract with appellants
The North River Insurance Company and its bail agent, Bad
Boys Bail Bonds (collectively, the surety). Six days after that, the
surety posted a $100,000 bond for defendant’s release, which
included a promise to assure defendant’s appearance for
arraignment on August 20, 2014.
On July 14, 2014, unbeknownst to the surety, defendant
fled the United States by traveling to Tijuana, Mexico, and then
catching a flight to Tokyo, Japan.
On August 19, 2014, the People filed a felony complaint
against defendant. Specifically, the People charged defendant
with the felonies of (1) possessing a controlled substance (ecstasy)
for sale (Health & Saf. Code, § 11378); (2) selling, offering to sell,
or transporting a controlled substance (ecstasy) (id., § 11379,
subd. (a)); (3) possessing a controlled substance (codeine)
(id., § 11350, subd, (a)); (4) selling, offering to sell, or transporting
a controlled substance (marijuana) (id., § 11360, subd. (a)); and
with the misdemeanor of (5) resisting, obstructing, or delaying a
police officer (§ 148, subd. (a)(1)).
When defendant did not appear for his scheduled
arraignment on August 20, 2014, the trial court forfeited the bail
bond. The court mailed notice of the forfeiture to the surety on
August 26, 2014. Pursuant to section 1305, subdivision (b), the
appearance period was accordingly scheduled to expire 185 days
later, on February 27, 2015. (§ 1305, subd. (b)(1).)
One week before the appearance period was to expire, on
February 20, 2015, the surety moved to extend the period for an
additional 180 days pursuant to section 1305.4.
On March 17, 2015, the trial court granted the motion.
Although the trial court indicated on the record and in its written
3
order that the extension was 180 days, the minute order set the
extended deadline as September 11, 2015 (which was a 178 day
extension), and the parties thereafter treated the extension as
being 178 days.
On September 11, 2015, the last day of the extended 178-
day period, the surety filed a motion for an additional two-day
extension of the appearance period. Twenty-eight days later, on
October 9, 2015, the trial court granted the surety’s request and
ordered that the appearance period would end two days later, on
October 11, 2015. Because October 11, 2015 was the Sunday
before a Monday holiday, the last day of the appearance period
was October 13, 2015. (Code Civ. Proc., §§ 12, 12b.)
II. Procedural Background
On the last day of the appearance period, the surety filed a
notice of motion to vacate the forfeiture of its bond. The notice of
motion alleged that law enforcement had provided information
about defendant’s arrest to federal immigration authorities, who
then issued a “federal ICE detainer/warrant for deportation
and/or removal,” which had “encouraged [defendant] to flee the
United States for Japan,” thereby “materially increas[ing] the
risk to the [s]urety.” On this basis, the notice sought: (1) vacatur
of the forfeiture (a) under section 1305, subdivision (d), and (b) as
a breach of the implied covenant; (2) temporary tolling of the
appearance period under section 1305, subdivisions (e) and (h);
and (3) a continuance to conduct discovery under section 1305,
subdivision (j). Ten days later, the surety filed (1) the motion
itself, which asserted the same grounds, and (2) an affidavit from
the surety’s attorney and its investigator.2 Neither the notice of
2 The surety also filed an action for declaratory relief against
defendant’s immigration attorney, but later withdrew that action.
4
motion nor the motion itself sought vacatur on the ground that
defendant was barred from reentering the United States due to
the pending drug charges.
After the trial court granted two requests by the People for
additional time to respond, the surety filed: (1) a supplemental
motion asserting, for the first time, that the forfeiture should be
vacated because the pending charges barred defendant’s
readmission to the United States under federal immigration law
and thus rendered him permanently or temporarily disabled
under section 1305, subdivisions (d) and (e); (2) a declaration
from the surety’s investigator stating that he did not learn that
defendant had fled the United States until October 9, 2015; and
(3) two declarations—one from defendant’s counsel and one from
defendant’s immigration attorney—authenticating an August 6,
2014 letter to defendant from the United States Citizenship and
Immigration Services denying defendant’s 2010 application for
permanent resident status because defendant did not appear for
his appointment to be fingerprinted on July 18, 2014.
Following the People’s filing of its opposition, and the
surety’s filing of a reply, the trial court issued a 13-page order
denying the surety’s motion to vacate forfeiture of the bond. The
court expressed some doubt as to whether the appearance period
was properly extended to October 13, 2015, but “[r]ightly or
wrongly,” treated the motion to vacate as being properly before
the court. The court then denied the surety relief for three
reasons. First, the surety’s motion was untimely because (1) its
“subdivision (d) argument[s] as noticed [in its initial] October 13,
2015 [notice of motion were] quite different than what was
asserted in the [subsequently filed supplemental] points and
authorities”; and (2) the Citizenship and Immigration Services
5
letter that supported the surety’s claim for permanent disability
was not submitted as evidence until after the appearance period
ended. Second, the surety did not prove that defendant fell
within the confines of section 1305, subdivisions (d) and (e)
because the surety’s proof that “defendant actually fled the
country” was both incompetent and inadequate, and because the
surety never proved that defendant would be denied a visa for
reentry if he applied for one or that he could not be extradited
from wherever he was currently located, which was unknown.
Lastly, even if defendant were outside of the country and was
inadmissible, defendant still did not fall within the confines of
section 1305, subdivisions (d) and (e) because his act of
voluntarily departing the United States took him outside of these
provisions.
The trial court subsequently entered summary judgment
for the People, and entered judgment for $100,370—the amount
of the bond plus court costs.
The surety filed this timely appeal.
DISCUSSION
To resolve this appeal, we must address three questions:
two procedural and one substantive. Procedurally, we must
decide (1) whether the surety’s motion was timely filed (that is,
within the “appearance period”), and, if so, (2) whether the trial
court could refuse to consider the merits of the surety’s motion to
the extent the surety relied upon a theory not raised and
evidence not presented until after the appearance period ended.3
3 The theory for vacatur asserted by the surety during the
appearance period—namely, that local law enforcement’s act of
forwarding arrestees’ fingerprints to federal immigration
authorities, as required by law, constituted state inference with
6
Substantively, we must decide whether a defendant is “det[ained]
by . . . civil authorities” within the meaning of section 1305,
subdivisions (d) and (e) if he voluntarily flees the United States
and is barred from reentry under federal immigration law by
virtue of drug charges pending against him.
We review the denial of a surety’s motion to vacate
forfeiture of a bond for an abuse of discretion. (People v. Wilcox
(1960) 53 Cal.2d 651, 656 (Wilcox); People v. Financial Casualty
& Surety, Inc. (2017) 14 Cal.App.5th 127, 134 (Financial
Casualty).) To the extent the trial court’s ruling rests on
statutory construction or the application of the law to undisputed
facts, our review is de novo. (People v. Financial Casualty
& Surety, Inc. (2017) 10 Cal.App.5th 369, 379; Martinez
v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.) To
the extent the court’s ruling rests upon the application of the law
to disputed facts, our review is for substantial evidence. (People
v. Financial Casualty & Surety, Inc., supra, at p. 379.)
I. Procedural Issues
A. Was the surety’s motion to vacate timely filed?
Except in capital cases, a criminal defendant has the right
to be “released on bail by sufficient sureties . . . .” (Cal. Const.,
art. I, § 28, subd. (f)(3).) One method for such release is a bail
bond. A bail bond is a promise by a surety to guarantee the
defendant’s appearance in court on pain of forfeiture of the bond’s
full amount; a defendant obtains such a bond by paying the
the surety-defendant relationship warranting relief under People
v. Western Ins. Co. (2013) 213 Cal.App.4th 316, 322 because it
prompted those authorities to issue an immigration warrant,
which then prompted defendant to flee—was rejected both
procedurally and on the merits by the trial court. The surety
does not challenge the court’s disposition of this theory on appeal.
7
surety a percentage of the bond’s full amount up front and by
providing collateral to secure the remainder should the bond be
forfeited due to his non-appearance. (People v. Financial
Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 42.)
In most cases, a surety has a period of time—known as the
“appearance period”—in which it can ask the court to vacate the
forfeiture, either by returning the defendant to court or by
otherwise demonstrating entitlement to vacatur. (§ 1305, subds.
(c)-(g).) A trial court lacks jurisdiction to entertain a motion to
vacate forfeiture if filed after the appearance period has ended.
(Financial Casualty, supra, 14 Cal.App.5th at p. 138; People
v. Ramirez (1976) 64 Cal.App.3d 391, 398 (Ramirez).) The initial
appearance period is 185 days where, as here, the notice of
forfeiture is mailed to the surety. (§ 1305, subd. (b)(1).) The
surety has the statutory right to seek additional time—up to an
additional 180 days—upon a showing of “good cause.” (§ 1305.4.)
A surety’s motion for an extension must be filed within the initial
appearance period, although the court may rule on the motion up
to 30 days after the period ends. (§ 1305, subd. (j).) If the court
finds “good cause,” it may “order the [appearance] period
extended to a time not exceeding 180 days from [the date of] the
order.” (§ 1305.4.)
A court may extend the appearance period for fewer than
180 days, but if it does so, and if the surety seeks any additional
extensions, “the total allowable extension is [still] limited to 180
days from the date of the first extension order, regardless of how
many individual extensions the court orders.” (People
v. Financial Casualty & Surety, Inc., supra, 2 Cal.5th at p. 46,
fn. 2, italics added.) In other words, the 30-day “grace period”
that empowers a court to rule on the first extension motion for a
8
limited time after the initial appearance period has expired does
not apply to subsequent extension motions. (County of Los
Angeles v. Allegheny Casualty Co. (2017) 13 Cal.App.5th 580,
586-587 (Allegheny Casualty).) This interpretation balances
competing concerns: It accords sureties ample time to investigate
and seek relief from a forfeiture, but does not create the incentive
for sureties to seek multiple, piecemeal extensions, each with its
own 30-day grace period.
Applying this law, the surety’s motion to vacate the
forfeiture was untimely because it was filed after the extended
appearance period ended. The trial court’s order granting a 178-
day extension was issued on March 17, 2015. Thus, the “total
allowable extension” was limited to 180 days after that March 17,
2015 order—that is, September 13, 2015. The surety’s motion to
vacate was not filed until a month later (on October 13, 2015),
and is accordingly untimely. To be sure, the surety filed its
second motion to extend the appearance period before the first
extended period expired on September 11, 2015; the trial court
ruled on that motion within 30 days of September 11, 2015; and
the court granted the surety an additional two days. But, as the
Court of Appeal held on nearly identical facts in Allegheny
Casualty, the court’s second extension order was ineffective
because it was entered more than 180 days after the order
granting the first extension and because there is no 30-day “grace
period” for subsequent motions to extend. (Allegheny Casualty,
supra, 13 Cal.App.5th at pp. 582, 585-587.)
The surety argues that Allegheny Casualty does not control
because the trial court sent conflicting signals as to whether the
extension was 178 or 180 days; because this mistake by the court
qualifies as “surprise” to the surety under Code of Civil Procedure
9
section 473, subdivision (b); and because the trial court’s order
granting the two-day extension on October 9, 2015, was really an
order “intuitively grant[ing] relief under [Code of Civil Procedure]
section 473(b) to reassess the 180-day period based on equity.”
We reject this argument because any surprise stems from the
trial court’s (and the parties’) failure to anticipate the proper
construction of the bail statutes (by Allegheny County and us),
not from any mix-up regarding the final day of the extended
appearance period. We need not consider the potentially more
troubling argument—namely, that if the surety had known the
period was 180 days, it would have filed a motion to vacate rather
than a motion for additional time on that last day—because the
surety does not make that argument and because the surety’s
motion to vacate still fails for the reasons described more fully
below.
B. Was the surety’s argument that defendant was
“detained” by virtue of the bar to his reentry timely
presented?
When a surety has filed a timely motion to vacate the
forfeiture of a bail bond, a trial court’s power to grant that relief
is not unfettered. A court may not grant relief “based on facts
occurring after the [appearance] period had expired.” (People
v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 82; Ramirez, supra,
64 Cal.App.3d at p. 401.) A court may also not grant relief based
on theories not “actually asserted” during the appearance period.
(Ramirez, at p. 401; People v. Resolute Ins. Co. (1975)
46 Cal.App.3d 249, 255 (Resolute) [surety entitled to relief only on
“grounds . . . properly set forth” in motion]; cf. Resolute,
at pp. 252-255 [motion properly setting forth grounds for relief
not invalid simply because moving party additionally seeks
inapplicable relief]; People v. Lexington National Ins. Corp. (2010)
10
181 Cal.App.4th 1485, 1490-1491 (Lexington National) [motion
properly setting forth grounds for relief not invalid because it
cites inapplicable statutory provisions].)
It is unclear whether a trial court may grant relief on a
theory actually asserted (and based on facts occurring) during the
appearance period when the evidence necessary to support that
theory is not presented to the court until after the appearance
period has expired. Several cases indicate that a court may not.
(People v. United Bonding Ins. Co. (1969) 272 Cal.App.2d 441,
446 [requiring proof to be “presented within the 180-day
[appearance] period”]; cf. Resolute, supra, 46 Cal.App.3d
at pp. 252-257 [proof presented within appearance period; court
considers it].) However, our Supreme Court in Wilcox, supra,
53 Cal.2d at pages 653-655 relied upon evidence presented both
before and after the expiration of the appearance period,
although the Court did so without any discussion of its propriety
(e.g., Loeffler v. Target (2014) 58 Cal.4th 1081, 1134 “‘“cases are
not authority for propositions not considered”’”]). We need not
resolve this tension here because, at a minimum, this authority
establishes that a trial court may not vacate the forfeiture of a
bond on a theory the surety did not assert and did not support
with evidence during the appearance period.
This rule makes sense. A contrary rule would effectively
extend the appearance period by empowering a surety to make a
placeholder filing during the appearance period that in no way
limits its freedom to make post-appearance-period filings that
rely on completely new theories for relief and theretofore
unproduced evidence to support those theories. This is a result at
odds with our Supreme Court’s pronouncement that the period is
already “generous” to sureties (People v. Indiana Lumbermens
11
Mutual Ins. Co. (2010) 49 Cal.4th 301, 313) and with its
recognition that “[e]xtending the appearance period adds to the
administrative burden on the court . . . .” (People v. Financial
Casualty & Surety, Inc., supra, 2 Cal.5th at p. 48).
In this case, the surety’s initial notice of motion and motion
did not assert the sole theory before this court on appeal.
Although the surety cited section 1305, subdivisions (d) and (e)
(along with subdivisions (h), and (j)), at no point did it argue that
it was entitled to relief because defendant was barred from
reentering the United States under federal immigration law.
That theory was not asserted—and no evidence to support it was
presented—until the surety’s supplemental motion, which was
filed after the appearance period ended (even if we treat the
period as ending on October 13, 2015). As a result, the trial court
acted appropriately when it ruled that the surety had not timely
presented this theory.
The surety resists this conclusion with three arguments.
First, the surety argues that the courts in Lexington
National, supra, 181 Cal.App.4th 1485, People v. Accredited
Surety & Casualty Co., Inc. (2012) 203 Cal.App.4th 1490
(Accredited Surety), and County of Los Angeles v. Financial
Casualty & Surety Inc. (2015) 236 Cal.App.4th 37 (County of Los
Angeles) allowed a surety to obtain relief on theories not
advanced in the motion to vacate filed within the appearance
period.
We do not read these cases the same way. Lexington
National held that a surety could seek relief under subdivisions
(d) and (e) of section 1305, even though its motion cited only
subdivision (c); however, the underlying theory—namely, that the
defendant was in custody in another state—had been timely
12
asserted. (Lexington National, supra, 181 Cal.App.4th
at pp. 1490-1491.) Here, the surety cited pertinent statutory
provisions in its initial motion, but then advanced a completely
different theory under those provisions. Getting the statutory
citation wrong is different from entirely omitting a theory; the
former still gives the trial court the opportunity to consider the
gravamen of the theory, the latter does not. Indeed, were we to
hold that a surety’s citation to a statutory provision were enough
by itself to preserve any and all theories for relief that might be
asserted under that provision, sureties would be free to fashion
new theories long after the appearance period has expired, as
long as they cite every subsection of section 1305 in their initial
motion. Accredited Surety is irrelevant because it addressed
whether a surety was required to file a motion to obtain relief
under subdivision (e) of section 1305 at all; the case held that a
timely motion was required. (Accredited Surety, supra, 203
Cal.App.4th at pp. 1502-1503.) And County of Los Angeles
directed that the trial court was to consider new evidence on
remand from an appeal, but only as to a theory that was properly
raised in the initial motion to vacate and only because the Court
of Appeal had announced a new rule that altered the burden of
proof by which that theory was to be evaluated. (County of Los
Angeles, supra, 236 Cal.App.4th at p. 41, 45-47.) Neither of those
circumstances is present here.
Second, the surety asserts that it is entitled to present
evidence acquired after the appearance period has ended because
bail proceedings are “special proceedings” (County of Orange v.
Classified Ins. Corp. (1990) 218 Cal.App.3d 553, 557 [“a bail
forfeiture proceeding is a special proceeding”]), such that the
Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.) applies
13
(City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272,
286 [“the discovery act applies to statutorily enacted special
proceedings that are silent with respect to discovery”]). If the
surety may conduct discovery during bail proceedings, the surety
reasons, surely it must be able to present the results of that
discovery as evidence in those proceedings. This argument does
not dictate a different result in this case. To begin, it deals at
most with a surety’s untimely presentation of evidence; it does
nothing to excuse a surety’s untimely assertion of an argument in
favor of relief. As noted above, this case involves both. Further,
even if we accept the surety’s argument that the Civil Discovery
Act applies and can provide default rules regarding discovery
during bail proceedings, the bail provisions discussed above have
been construed to place time restrictions on when a surety must
raise arguments and present evidence, and those more specific
provisions would likely control over the Civil Discovery Act’s
more general, default provisions. (In re Shull (1944) 23 Cal.2d
745, 750 [“It is the general rule that a special statute controls
over a general statute.”].)
Lastly, the surety contends that all of its evidence was
submitted prior to the end of the appearance period (which, for
these purposes, we are assuming was October 13, 2015) because
defendant’s drug trafficking charges were filed in August 2014,
and because the surety’s investigator learned about defendant’s
flight from the United States on October 9, 2015. This contention
establishes, at best, that the facts necessary for relief occurred
before the appearance period expired; it does not establish that
the surety presented them to the court as a basis for relief during
that period.
14
Thus, even if we treated the surety’s motion as timely filed,
the surety did not timely assert the sole argument for relief it
presses on appeal, and the trial court properly denied relief on
that basis.
II. The Merits
A surety is entitled to have the trial court vacate the
forfeiture of its bail bond if “it is made apparent to the
satisfaction of the court” that (1) “[t]he defendant is deceased or
otherwise permanently unable to appear in the court due to
illness, insanity, or detention by military or civil authorities,” and
(2) [t]he absence of the defendant is without the connivance of the
bail.” (§ 1305, subd. (d), italics added.) Along similar lines, a
surety is entitled to tolling of the appearance period if “it appears
to the satisfaction of the [trial] court” that (1) “[t]he defendant is
temporarily disabled by reason of illness, insanity, or detention by
military or civil authorities,” (2) “the defendant is unable to
appear in court during the remainder of the 180-day period” due
to “the temporary disability,” and (3) “[t]he absence of the
defendant is without the connivance of the bail.” (§ 1305, subd.
(e), italics added.)
Under either provision, a person is detained by military or
civil authorities if he is subject to a “‘“restraint [that] prevents his
appearance on the date set for that appearance. [Citations.]”’”
(County of Los Angeles, supra, 236 Cal.App.4th at p. 45; People
v. American Surety Ins. Co. (2000) 77 Cal.App.4th 1063, 1065
(American Surety) [same]; People v. United Bonding Ins. Co.
(1970) 12 Cal.App.3d 349, 352-353 (United Bonding) [same].) A
defendant may be restrained from appearing even if he is not
physically restrained. (County of Los Angeles, at p. 45.) The
animating concern for granting a surety relief when a defendant
15
is restrained is that the restraint makes it impossible for the
surety to fulfill its duty to secure the defendant’s appearance in
court. (American Surety, at p. 1064; see generally Civ. Code,
§ 3531 [“The law never requires impossibilities.”].)
Courts interpreting subdivisions (d) and (e) of section 1305
have nevertheless drawn distinctions between restraints that
qualify for relief (either vacatur or tolling) and those that do not.
A surety is entitled to relief when the defendant is deported
to a foreign country, at least where the defendant—following
deportation—is also barred from reentering the United States.
(County of Los Angeles, supra, 236 Cal.App.4th at p. 45
[defendant deported and barred from reentry for 20 years; surety
entitled to vacatur of forfeiture]; American Surety, supra,
77 Cal.App.4th at pp. 1064-1068 [same].) However, a surety is
not entitled to relief when the defendant voluntarily departs the
United States, seemingly without regard to whether he is barred
from reentering the United States. (Financial Casualty, supra,
14 Cal.App.5th at pp. 131-132, 138; County of Los Angeles
v. Ranger Ins. Co. (1996) 48 Cal.App.4th 992, 996; County of Los
Angeles v. Maga (1929) 97 Cal.App. 688, 690-692.)
How can these two lines of authority peacefully coexist?
They differ in one critical respect—namely, the person or entity
responsible for setting in motion the chain of events that led to
the defendant’s inability to reenter the country. (See People
v. Bland (2002) 28 Cal.4th 313, 335 [in the context of causing
great bodily injury, noting that “proximate cause . . . is an act or
omission that sets in motion a chain of events that produces” the
injury]; Garvey v. State Farm Fire & Casualty Co. (1989)
48 Cal.3d 395, 402 [in the insurance context, noting that the
“‘“efficient”’” “proximate cause” among multiple causes is the one
16
“‘“that sets others in motion”’”].) In the case of deportation, the
“civil [immigration] authorities” set in motion the events leading
to the reentry bar; in the case of voluntarily flight, the defendant
is solely responsible. It is not a surety’s job to guard against a
defendant’s involuntary deportation. But “‘the [voluntary] escape
of [the] defendant is the business risk of [the] bail
surety. . . . [and] is precisely the situation which [the] surety
guarantees against.’” (County of Orange v. Ranger Ins. Co. (1998)
61 Cal.App.4th 795, 805, fn. 6; see also People v. American
Bankers Ins. Co. (1991) 233 Cal.App.3d 561, 568 [“The bail
contract encompasses a risk that the defendant will not
appear.”].)
To be sure, there is substantial evidence that defendant,
now that he is outside the United States, would be barred from
reentering for at least two reasons: (1) federal immigration
authorities, by virtue of the charges against him, have “reason to
believe” that he “is or has been an illicit trafficker in any
controlled substance” (8 U.S.C. § 1182(a)(2)(C)(i)); and
(2) defendant “is not in possession of a valid unexpired
immigration visa” (8 U.S.C. § 1182(a)(7)(i)(I)). The first reentry
bar does not require a conviction (Garces v. U.S. Atty. Gen. (11th
Cir. 2010) 611 F.3d 1337, 1345), and may be satisfied by proof, as
is present here, that a person was in sole control of a car
containing a substantial quantity of narcotics (e.g., id. at p. 1350;
Cuevas v. Holder (5th Cir. 2013) 737 F.3d 972, 975-976; Chavez-
Reyes v. Holder (9th Cir. 2014) 741 F.3d 1, 3-4). Critically,
however, it is defendant who set in motion the chain of events
leading to this bar when he voluntarily fled the country. The
surety is consequently not entitled to relief under subdivisions
(d) or (e) of section 1305.
17
Two further reasons, beyond the precedent cited above,
support our conclusion.
First, the situation presented in this case—that is, a
defendant who voluntarily flees and is consequently barred from
reentry—is functionally indistinguishable from the situation in
which a defendant voluntarily flees the country to a foreign
nation that has no extradition treaty with the United States.
That is because, in both situations, the defendant has voluntarily
fled the state and the surety is powerless to compel the defendant
to appear before the court. In the latter situation, the surety is
not entitled to relief. (People v. Financial Casualty & Surety,
Inc., supra, 10 Cal.App.5th at p. 383 [“Impossibility of extradition
is not a defense in any event”; denying relief to surety under
subdivision (g) of section 1305]; County of Los Angeles
v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 544
[same]; see also People v. Ranger Ins. Co. (1998) 61 Cal.App.4th
812, 817-818 (Ranger) [extradition request denied; denying relief
to surety under subdivision (c) of section 1305].) Were we to
conclude that the surety’s helplessness was always sufficient to
warrant relief under subdivisions (d) or (e) of section 1305, we
would be effectively nullifying the subdivisions providing that
relief is not warranted in a functionally identical situation. Such
an implied repeal is disfavored, and we see nothing in the text or
legislative history of section 1305, subdivisions (d) or (e) to
overcome the heavy presumption against such a repeal.
(California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th
924, 945.)
Second, were we to conclude that a bar to reentry
constituted “detention” under subdivisions (d) and (e) of section
1305, we would be effectively immunizing sureties from liability
18
in a broad swath of cases—namely, any case in which a
noncitizen defendant is charged with a narcotics crime. What is
more, that immunity would automatically flow from the charge
itself: Federal immigration law creates a bar to reentry upon a
mere “reason to believe” a defendant “is or has been an illicit
[drug] trafficker” (8 U.S.C. § 1182(a)(2)(C)(i)), and being charged
with such a crime—because it typically rests upon probable cause
to believe the crime has been committed—would almost always
satisfy the requisite “reason to believe” standard. (Cf. Saavedra
Bruno v. Albright (D.C. Cir. 1999) 197 F.3d 1153, 1157 [all that is
needed is “‘more than a mere suspicion’”].) We are disinclined to
countenance such a result in the absence of any legislative intent
to carve out such a potentially significant immunity for sureties,
particularly when that immunity would likely exist at the very
moment the surety signs the contract with the defendant, putting
the surety in the position of signing a contract that has no legal
effect because it imposes no liability upon the surety. (See John
v. Superior Court (2016) 63 Cal.4th 91, 96 [“We construe [a]
statute’s words . . . to avoid absurd results.”].)
The surety raises four arguments in response.
First, the surety urges us to follow the cases holding that
the bar to reentry suffices when it is preceded by the defendant’s
deportation. We decline to do so for the reasons outlined above.
Indeed, even those cases have recognized that the defendant’s
voluntary flight changes the calculus, and have distinguished the
cases involving such flight. (E.g., County of Los Angeles, supra,
236 Cal.App.4th at p. 47, fn. 5.)
Second, the surety argues that United Bonding, supra,
12 Cal.App.3d 349 and People v. Pugh (1970) 9 Cal.App.3d 241
support its position. In both cases, the trial court granted the
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surety relief from forfeiture when the defendant voluntarily fled
California and was physically detained by officials in either a
foreign country (in United Bonding) or another state (in Pugh).
(United Bonding, at pp. 352-354; Pugh, at pp. 251-253.) Both
United Bonding and Pugh were decided in 1970, before
subdivision (g) of section 1305 was enacted to more specifically
dictate what happens when a surety is able to track down and
detain a defendant outside California. (See Stats. 1969, ch. 1194,
§2; Stats. 1969, ch. 1259, § 6; Stats. 1970, ch. 936, § 2.) Their
interpretation of a more general provision that has been
subsequently displaced by a more specific provision is entitled to
little or no weight. (Accord, Ranger, supra, 61 Cal.App.4th
at p. 819 [concluding that United Bonding and Pugh are
“inapplicable here because they were based on an earlier version
of section 1305 which did not specifically address the effect of the
defendant’s arrest in a foreign nation”].)
Third, the surety asserts that the trial court was wrong to
find that there was insufficient proof that defendant fled the
country because “[t]here ‘is a low threshold of proof’ for
establishing grounds to . . . vacate [a] forfeiture” (County of Los
Angeles, supra, 236 Cal.App.4th at p. 44; cf. People v. Financial
Casualty & Surety, Inc., supra, 2 Cal.5th at p. 47 [applying this
standard for “good cause” to obtain an extension of the
appearance period]), one that requires a surety only to produce
“‘sufficient evidence to give a rational appearance’” of entitlement
to relief (Resolute, supra, 46 Cal.App.3d at p. 257). We note that
other cases seemingly impose a heavier burden, one that requires
a surety to “establish” its entitlement to relief “by competent
evidence.” (Financial Casualty, supra, 14 Cal.App.5th at p. 133;
Ramirez, supra, 64 Cal.App.3d at p. 398.) We need not resolve
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this tension because the surety in this case is not entitled to relief
even once we accept, as an evidentiary matter, that he voluntary
fled the United States.
Lastly, the surety points to the default presumptions that
guide judicial interpretation of bail statutes—chief among them,
that “the law traditionally disfavors forfeitures of bail.”
(Financial Casualty, supra, 14 Cal.App.5th at p. 133, citing
People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906.)
Of course, this presumption does not exist in a vacuum, and is to
be balanced against the counter-presumption that “when there is
a breach of contract, the bond should be enforced.” (People
v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653,
657-658.) Here, the surety allowed the defendant to voluntarily
flee and, as a consequence, breached its contract with the court.
In light of this breach and the other considerations outlined
above, the default rule against forfeiture of bail is not controlling.
Accordingly, we conclude that a defendant is not “detained
by . . . civil authorities” under subdivisions (d) or (e) of section
1305 when he voluntarily flees the United States and is barred
from reentry by virtue of the pending drug charges against him.4
4 In light of this holding, we have no occasion to reach the
surety’s further argument that the trial court was wrong to
impose upon the surety the additional requirement that it prove
the defendant’s inability to obtain relief from the reentry bar or
his immunity from extradition.
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DISPOSITION
The judgment is affirmed. The People are entitled to costs
on appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
CHAVEZ
_________________________, J.*
GOODMAN
* Retired judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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