People v. N. River Ins. Co.

41 Cal.App.5th 443

254 Cal.Rptr.3d 301

The PEOPLE, Plaintiff and Respondent,

v.The NORTH RIVER INSURANCE COMPANY et al., Defendants and Appellants.

H044568

Court of Appeal, Sixth District, California.

Filed October 1, 2019

Attorney for Respondent, THE PEOPLE: Office of the County Counsel, Marcelo Quinones, James R. Williams, Sara Jennifer Ponzio, Hayley A. Reynolds.

Attorneys for Appellants, THE NORTH RIVER INSURANCE COMPANY et al.: Jefferson Thomas Stamp.

Greenwood, P. J.

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. On appeal, the surety argues it is entitled to vacatur of the forfeiture and tolling of the appearance period because defendant suffered from a "temporary disability" under Penal Code section 1305, subdivision (e), a statute the surety asserts is applicable where a defendant voluntarily flees the country and is unable to return to the United States. We disagree and affirm the trial court's summary judgment against the surety.

I. FACTUAL AND PROCEDURAL BACKGROUND

In January 2014, Respondent People of the State of California (the People) filed a misdemeanor complaint against Carlos Eder Hernandez (defendant), charging him with driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a) (count one) and driving in violation of a license restriction related to a driving under the influence offence in violation of Vehicle Code section 14601.2, subdivision (b) (count two). Defendant thereafter entered a contract with appellants The North River Insurance Company and its bail agent, Bad Boys Bail Bonds (collectively, the surety), under which the surety posted a $35,000 bond for defendant's release from custody. The surety promised to assure defendant's appearance for arraignment in May 2015. The contract between the surety and defendant included an agreement that, if defendant left the court's jurisdiction for any reason, he would "voluntarily return to the state of original jurisdiction" and "waive extradition proceeding [sic ]."

Prior to the arraignment hearing, defendant's indemnitor notified the surety of her concern defendant would not appear at the hearing. On the day of the arraignment hearing, the indemnitor informed the surety defendant told her he was in Mexico. In November 2015, the surety located defendant in Jaltocan, Mexico.

When defendant did not appear for his scheduled arraignment, the trial court forfeited the bail bond, mailing notice of the forfeiture to the surety on May 15, 2015. Under Penal Code ¹ section 1305, subdivision (c), the court was required to vacate the forfeiture if defendant appeared in court, either voluntarily or in custody, within 180 days of the date of forfeiture. Pursuant to section 1305, subdivision (b), which extends time by five days where notice of forfeiture is mailed, that appearance period was scheduled to expire on November 16, 2015. ( § 1305, subd. (b)(1).) On November 12, 2015, the surety filed a motion to extend the appearance period further pursuant to section 1305.4,² which the trial court granted, extending the period to June 11, 2016.

On June 10, 2016, the surety filed a motion to vacate forfeiture and exonerate the bond under section 1305, subdivision (f)³ ; alternatively, the surety sought to toll time under section 1305, subdivision (e),⁴ or extend time under section 1305.4. The motion alleged defendant was located in Mexico and "subject to the ‘constructive custody’ of the Bail Agent," having both obtained a Mexican passport and applied for a United States visa with the assistance of the surety. The surety further contended the People were placing improper conditions on its request for extradition of defendant from Mexico, including a requirement that the surety pay the costs of extradition, anticipated to be in excess of $50,000. Regarding its alternative request for tolling of the appearance time under section 1305, subdivision (e), the surety argued defendant was in effect detained by United States civil authorities as a result of immigration laws that precluded his reentry into the country without a valid visa. The surety asked the court to toll the time while the defendant and the surety were taking steps to obtain the necessary visa.

The People opposed the surety's motion, first contending they could not extradite defendant from Mexico on a misdemeanor charge, and then asserting he was not detained by civil authorities because he was not deported from the United States but left the country voluntarily.

The trial court denied the motion to exonerate the bond and denied the alternative request for tolling. It found insufficient evidence in the record to determine that the People had "elected to extradite or not extradite" defendant. The court did not explicitly rule on the request to extend time under section 1305.4. The court directed the clerk to enter summary judgment against the surety, which it did on September 1, 2016. The surety then filed a motion to set aside the judgment under Code of Civil Procedure section 473, subdivision (d). While that motion was pending, the surety filed notice of this appeal. As a result of the appeal, the trial court determined it did not have jurisdiction to hear the motion to set aside the summary judgment, and denied the motion.

The surety timely filed notice of the appeal of the summary judgment, appealable under Code of Civil Procedure section 904.1, subdivision (a)(1). ( Cal. Rules of Court, rule 8.108(c)(2).)

II. DISCUSSION

The surety raises only one issue on appeal: "Does a fugitive defendant's undocumented immigration status and pending United States visa application establish a ‘temporary disability’ under [ section 1305, subdivision (e) ]?"⁵ We conclude a defendant's immigration status under these circumstances does not establish a temporary disability under the statute, and affirm the summary judgment.

A. Standard of Review and General Legal Principles

"We review the denial of a surety's motion to vacate forfeiture of a bond for an abuse of discretion. [Citations.] 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. [Citations.] To the extent the court's ruling rests upon the application of the law to disputed facts, our review is for substantial evidence. [Citation.]" ( People v. The North River Ins. Co. (2017) 18 Cal.App.5th 863, 870-871, 227 Cal.Rptr.3d 243 ( North River ).) In interpreting the statute, "we must, where feasible, strictly construe the statutory language ‘ " ‘in favor of the surety to avoid the harsh results of a forfeiture.’ " ’ [Citation.]" ( People v. Financial Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 379, 216 Cal.Rptr.3d 173 ( Financial Casualty I ).) However, this presumption is to be considered against the 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, 16 Cal.Rptr.3d 76, 93 P.3d 1020.)

The parties here do not dispute the relevant facts. We therefore review this matter de novo, to determine whether defendant's circumstances constitute a "temporary disability" under section 1305, subdivision (e). That statute requires tolling of the appearance period if the defendant is "temporarily disabled by reason of ... detention by military or civil authorities ," which precludes the defendant from appearing during the 180-day period, and where the absence is "without the connivance of the bail." ( § 1305, subd. (e), italics added.) "[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. [Citation.]’ " ’ [Citations.] A defendant may be restrained from appearing even if he is not physically restrained. [Citation.] The animating concern for granting a surety relief when a defendant is restrained is that the restraint makes it impossible for the surety to fulfill its duty to secure the defendant's appearance in court. [Citations.]" ( North River , supra , 18 Cal.App.5th at p. 876, 227 Cal.Rptr.3d 243.)

However, where a defendant fails to appear because he or she departs the United States, appellate courts have "drawn distinctions between restraints that qualify for relief (either vacatur or tolling)^{[6 ]} 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. [Citations.] 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. [Citations.]" ( North River , supra , 18 Cal.App.5th at p. 876, 227 Cal.Rptr.3d 243.) In North River , the Court of Appeal, Second District, Division Two, considered why courts of review have drawn this distinction: "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." ( Id. at p. 877, 227 Cal.Rptr.3d 243.) In cases involving defendants who are deported, courts have determined it is a "civil authority," namely the United States immigration authority, who sets in motion the events leading to the reentry bar; in cases involving voluntary flight, it is the defendant who is responsible. ( Ibid. ) While protecting against a defendant's involuntary deportation is not the surety's job, the risk of the defendant's voluntary escape is part of the surety's burden under the bail contract. ( Ibid. )

The surety asks us to revisit the holding of North River , and to conclude there should be no distinction made in determining whether ...