Filed 10/1/19; Certified for Publication 10/28/19 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                     H044568
                                                               (Santa Clara County
         Plaintiff and Respondent,                              Super. Ct. No. C1472577)

         v.

THE NORTH RIVER INSURANCE
COMPANY et al.,

         Defendants and Appellants.


         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


         1
             All undesignated statutory references are to the Penal Code unless otherwise
noted.
         2
         “[U]pon a hearing and a showing of good cause,” the trial court can extend the
appearance period for up to an additional 180 days. (§ 1305.4.)
       3
         “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

                                                2
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


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.” (§ 1305, subd. (f).)
       4
         “In the case of a temporary disability, the court shall order the tolling of the
180-day period provided in this section during the period of temporary disability,
provided that it appears to the satisfaction of the court that the following conditions are
met: [¶] (A) The defendant is temporarily disabled by reason of illness, insanity, or
detention by military or civil authorities. [¶] (B) Based upon the temporary disability, the
defendant is unable to appear in court during the remainder of the 180-day period.
[¶] (C) The absence of the defendant is without the connivance of the bail.” (§ 1305,
subd. (e)(1).)


                                              3
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 (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

       5
         In Appellant’s Opening Brief, the surety does not address the propriety of the
trial court’s ruling denying exoneration of the bond under section 1305, subdivision (f),
or the court’s implied denial of his request for an extension of time under section 1305.4.
He thus has waived any challenge to those rulings on appeal. (Telish v. State Personnel
Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4.)


                                              4
Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 379 (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.)
       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.)
       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


       6
         The North River court evaluated both subdivisions (d) and (e) of section 1305.
While subdivision (e) of section 1305 allows the court to toll the appearance time during
the pendency of a “temporary disability,” subdivision (d) requires vacation of the order of
forfeiture and exoneration of bail where: “(1) [t]he defendant is deceased or otherwise
permanently unable to appear in the court due to . . . detention by military or civil
authorities. [¶] [and] (2) The absence of the defendant is without the connivance of the
bail.” (§ 1305, subd. (d).) Given the similar language of subdivisions (d)(1) and (e)(1),
opinions discussing detention under section 1305, subdivision (d) are relevant in
interpreting subdivision (e).


                                               5
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.) 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.) 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 a defendant is “disabled” under
section 1305, subdivision (e) based on whether the defendant voluntarily or involuntarily
left the United States. In the alternative, the surety contends that North River is
distinguishable from defendant’s case. We decline to revisit the holding of North River
for reasons we explain below.

       B. A Party Who Voluntarily Departs the United States is not “Detained” Under
          Section 1305, Subdivision (e)
       The surety first contends that when the Court of Appeal interpreted section 1305,
subdivision (e) to include a “ ‘voluntary departure’ bar to . . . relief” it inserted a
provision that does not exist in the plain language of the statute. It argues the section on
its face “provides for tolling relief regardless of whether the defendant voluntarily departs


                                               6
to another jurisdiction,” citing People v. American Surety Insurance Company (2000)
77 Cal.App.4th 1063 (American Surety). We agree with the surety that the Legislature
did not explicitly indicate in section 1305, subdivision (e) whether tolling relief should be
granted based on the voluntary or involuntary departure of a defendant from the court’s
jurisdiction. However, limitations on the relief offered by the section are implied both by
the language of the section itself, as well as a contextual reading of section 1305,
subdivision (e) with other provisions in section 1305 that provide relief to the surety.
       We note that by conditioning the tolling of the 180-day period on “the case of a
temporary disability . . . ,” the section’s language, particularly the use of the word
“disability,” conveys the Legislature’s intent that the tolling only occur if the defendant’s
actions are not the cause of his or her non-appearance. (§ 1305, subd. (e).) Section 1305,
subdivision (e)(1) provides that “[I]n the case of a temporary disability, the court shall
order the tolling of the 180-day period . . . provided that it appears to the satisfaction of
the court that the following conditions are met: [¶] (A) The defendant is temporarily
disabled by reason of illness, insanity, or detention by military or civil authorities.”
(Ibid.) A defendant who is ill or insane qualifies as “disabled” because of circumstances
beyond the defendant’s agency. A defendant who is “detained by military or civil
authorities” because of deportation enforced by the civil immigration authorities similarly
has no control over any resulting exclusion from the country. As a matter of fairness to
the surety, the language of the statute tolls the otherwise mandatory time limits based on
the imposition of forces or events beyond the defendant’s control. However, a defendant
who leaves the country voluntarily invites or risks such exclusion and thus has triggered
the circumstances leading to the bar to reentry. It would be anomalous to provide relief
under this section when the defendant’s own actions caused the “disability” that results in
exclusion from the United States.
       We are similarly persuaded by the reasoning of the court in North River that the
tolling relief provided by section 1305, subdivision (e) must be limited to those

                                               7
defendants who do not themselves set in motion the events resulting in exclusion from
the country, because a contrary result would nullify section 1305, subdivision (g), 7 which
addresses the circumstance of a defendant fleeing to a country without an extradition
treaty. “[T]he 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. [Citations.]” (North River, supra, 18 Cal.App.5th at pp. 877-878.) The
“helplessness” of the surety to retrieve the defendant cannot provide a basis for relief
because “we would be effectively nullifying the subdivisions providing that relief is not
warranted in a functionally identical situation. Such an implied repeal is disfavored
. . . .” (Id. at p. 878.) The surety argues that the court in North River erred as the
situations are not functionally identical because under subdivision (e), the defendant who
is denied reentry is detained by “military or civil authorities”; under subdivision (g), the
defendant is detained “by the bail agent” in a country without an extradition agreement
with the United States. But we fail to see why who detains the defendant demonstrates
any meaningful distinction between the two sections here, and the surety provides no
explanation of the significance of the purported difference.


       7
         “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.” (§ 1305,
subd. (g).)

                                               8
       The surety argues that the North River court did not properly interpret the
authorities it cites in support of its analysis. Thus, the surety relies on American Surety
for the proposition that section 1305, subdivision (e) provides tolling relief whether a
defendant departs the country voluntarily or involuntarily. In American Surety, the
defendant was deported to Mexico by federal immigration authorities; the nature of his
criminal charges (a drug-related offense) permanently precluded him from returning to
the United States. (American Surety, supra, 77 Cal.App.4th at p. 1065.) The Court of
Appeal concluded the defendant’s “forced deportation and the federal statutes barring his
reentry ‘detain[ed]’ him, by operation of United States law, from appearing in California
court.” (Id. at p. 1066.) But as the case addressed the circumstance of a forcible
deportation of a defendant, the Court of Appeal did not address whether a defendant
would be considered “detained” if he left the country voluntarily. However, it noted with
approval two earlier cases, County of Los Angeles v. Ranger Insurance Company (1996)
48 Cal.App.4th 992 (Ranger), and County of Los Angeles v. Maga (1929) 97 Cal.App.
688 (Maga), wherein the appellate courts held the defendants’ voluntary departure from
the country precluded vacatur of the bond forfeiture.
       The surety correctly points out neither Ranger nor Maga concerned application of
a “detention” disability under section 1305, subdivisions (d) or (e), and thus seemingly
asks us to disregard any application either case might have to the instant matter. But we
find both cases pertinent to our discussion. In Ranger, the defendant voluntarily fled the
United States for Cuba after being released on bail. (Ranger, supra, 48 Cal.App.4th at
pp. 994, 996-997.) The insurance company that posted the bail argued the trial court
improperly forfeited the bail when the defendant failed to appear for arraignment, as the
law in effect at the time restricted travel to Cuba, such that the bail agents could not travel
to Cuba to apprehend the defendant and return him to the trial court. (Id. at p. 996.)
Citing certain case authority, the insurance company contended that the county or state
acted to prevent it from fulfilling its contractual duty, thus excusing performance.

                                              9
However, the Court of Appeal, Second District, Division Seven found the argument to be
“specious.” (Ibid.) “[T]he hostile relationship between Cuba and the United States has
existed for 30 years, long antedating surety’s bond. Cuba was just one of many places
which defendant could flee to and be immune from surety’s agents. Such risks were
present when surety posted bond. Respondent [county] did not act to increase those
risks.” (Ibid., italics in orig.) While the Ranger court did not rely on section 1305,
subdivisions (d) or (e) in making this ruling, it clearly considered, consistent with the
holding in North River, what person or entity was responsible for setting in motion the
chain of events leading to the defendant’s non-appearance, noting that he could have fled
to “many places” to insure immunity from return by the bail agents. As it was not the
respondent government entity who acted to increase the risk of defendant going
somewhere from which he could not be returned, the appellate court upheld forfeiture of
the bond.
       Similarly, in Maga, the Court of Appeal, First District, Division One, considered
whether the defendants’ voluntary flight to Italy rendered performance of the bail
contract impossible, although without reference to any “disability” under section 1305,
subdivision (d) or (e). 8 (Maga, supra, 97 Cal.App. at pp. 690-692.) Although both
defendants were subject to deportation on the charge they had entered the United States
in violation of the immigration law, they each left the country of their own accord. (Id. at
pp. 689-690.) 9 The reviewing court confirmed that sureties could be exonerated, as
       8
          At the time of the opinion in Maga in 1929, section 1305 did not include
provisions providing for relief based on legal disability. Rather, it authorized the court to
discharge forfeiture if “the defendant and his bail appear[ed] and satisfactorily excuse[d]
his neglect, and show[ed] to the satisfaction of the court that the absence of the defendant
was not with the connivance of the bail . . . .” (Stats. 1927, ch. 735, § 1, p. 1386; see also
Stats. 1905, ch. 539, § 1, p. 701 [the version in effect at the time the Maga defendants
forfeited bail required that the defendant or bail appear and satisfactorily excuse his
neglect].)
        9
          The surety argues the appellate court would have ruled differently in Maga were
it decided today, as current immigration law treats voluntary departure while deportation

                                              10
“performance by them of the condition of the undertaking [requiring the appearance of
the defendant in court] may be rendered impossible or excused by an act of God or of the
obligee or of the law.” (Id. at p. 691.) However, because the defendants voluntarily left
the jurisdiction, the appellate court found exoneration to be inappropriate, noting “[h]ad
this course not been taken their sureties, so far as shown, would not have been prevented
from surrendering them.” (Ibid.) In short, although neither Maga or Ranger explicitly
considered the meaning of a “disability” under section 1305, subdivision (d) or (e), the
reasoning of each case is useful to inform our consideration of whether a defendant has
been “detained” under those provisions. In each case, it was the defendant who chose to
leave the country, rather than the act of a civil authority that set the events in motion; in
each case, the Court of Appeal declined to provide relief to the surety.
       In further support of its argument that this court should not limit a finding of
“disability” under section 1305, subdivision (e) solely to those circumstances where a
defendant involuntarily departs the country, the surety cites to People v. United Bonding
(1970) 12 Cal.App.3d 349 (United Bonding), for the proposition that the absence of “the
legal qualification to enter the United States” constitutes a “disability.” In United
Bonding, the defendant returned to his home country of Mexico after being released on
bail prior to his criminal trial in Santa Clara County. (Id. at pp. 351-352, 354.) While in
Mexico, he was charged with a felony and subjected to an order restricting him to an area
within 50 miles of the town of Magdalena, in the State of Sonora, Mexico; at the border,


proceedings are pending as an actual deportation. (8 U.S.C. § 1101(g).) This does not
affect our analysis of Maga, as there is no evidence in the record on appeal indicating
defendant in this action was subject to deportation proceedings when he left to Mexico.
Nor do we believe the voluntary departure of an individual who could theoretically be
deported equates to detention as argued by the surety. The legal authorities the surety
cites (8 C.F.R. § 240.35(b); El Badrawi v. United States (D.Conn. 2011) 787 F.Supp.2d
204) govern persons who voluntarily depart the United States in lieu of being subject to
deportation proceedings, or prior to completion of such proceedings. (8 U.S.C.
§ 1299c(a)(1).)

                                              11
the local magistrate refused to allow the defendant entry into the United States because of
the order. (Id. at p. 352.) The trial court forfeited the bond, finding that the defendant
was not in the actual physical custody of a military or civil authority, or confined in any
jail or prison. (Ibid.) The Court of Appeal, First District, Division Three reversed. On
appeal, the People argued the trial court properly forfeited the bond because the
defendant, if detained at all, was detained by a foreign nation and not the State of
California or another state in the United States. (Id. at p. 354.) The appellate court found
that detention by a neighbor nation constitutes detention by a military or civil authority
under section 1305. (Ibid.)
       Presumably because it appears the defendant in United Bonding voluntarily
returned to Mexico, the surety in the instant matter asks us to find that the United
Bonding defendant’s detention by Mexican authorities is akin to the defendant in this
case’s inability to return to the United States. However, the surety’s reliance on the case
is misplaced. First, unlike the defendant before us, the defendant in United Bonding was
in fact detained by a foreign government’s authorities. Additionally, nowhere in United
Bonding does the appellate court discuss whether the defendant would have been
permitted to return to the United States if he not been detained by Mexican authorities.
There is nothing to suggest he lacked the proper visa or other required documentation.
Rather, the facts as set forth in the opinion suggest the Mexican authorities set in motion
the events which precluded the United Bonding defendant from reentering the United
States to appear before the trial court. 10 In contrast, here defendant voluntarily left the
United States, at best without knowing or without ascertaining that he had the requisite
       10
          Similarly, in People v. Pugh (1970) 9 Cal.App.3d 241, a case the surety argues
the North River court “rejected” along with United Bonding, the defendant was
incarcerated in another state. The Court of Appeal determined this detention by civil
authorities mandated relief as a matter of law, such that the appellate court reversed the
trial court’s finding to the contrary. (Id. at p. 244.) This too conforms with the North
River holding, as it was the act of the other state, not the defendant, that precluded his
appearance in the trial court.

                                              12
visa to return. The United States government did not force him to leave through
deportation proceedings. Nor did the People take any action to require him to leave. He
was not detained in any fashion by the Mexican government, or by any other civil or
military authority.
       In short, the surety has not persuaded us that the Court of Appeal’s decision in
North River should have been differently decided, or that we should revisit its reasoning.
“We acknowledge we are not bound by an opinion of another District Court of Appeal,
however persuasive it might be. [Citation.] We respect stare decisis, however, which
serves the important goals of stability in the law and predictability of decision. Thus, we
ordinarily follow the decisions of other districts without good reason to disagree.
[Citations.]” (Greyhound Lines, Inc., v. County of Santa Clara (1986) 187 Cal.App.3d
480, 485.) Finding no such reason here, we conclude that the surety is not entitled to
relief under section 1305, subdivision (e) when the defendant voluntarily departs the
United States.

       C. The North River Holding is Not Limited to Defendants Permanently Barred
          from Reentry
       The surety argues that North River, a case in which the defendant was permanently
barred from reentry into the United States due to drug trafficking charges, should be
limited to its facts. In North River, the defendant was charged with possessing and
selling, offering to sell, or transporting several controlled substances. (North River,
supra, 18 Cal.App.5th at pp. 867-868.) After contracting with the surety to post bond,
the defendant left the United States, going first to Mexico, then to Japan. (Id. at p. 868.)
The trial court forfeited his bond when the defendant failed to appear for arraignment.
(Ibid.) The surety filed a motion to vacate the forfeiture or toll the appearance period,
citing, among other provisions, section 1305, subdivisions (d) and (e), arguing that the
defendant was permanently or temporarily disabled because the pending drug-related
charges barred his readmission to the United States under federal immigration law; the


                                             13
trial court denied the motion because there was insufficient proof that the defendant could
not return to the country, and, even if he could not, the defendant did not fall under
section 1305, subdivisions (d) or (e) because he voluntarily left the country. (Id. at
pp. 869-870.)
       On appeal, as discussed Section II(A), ante, the Court of Appeal distinguished
between defendants who voluntarily leave the country, and those who are deported,
noting that the two lines of authority “peacefully coexist” because “[t]hey 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.” (North River, supra,
18 Cal.App.5th at p. 877.) 11 The appellate court thus concluded, as the surety indicates in
Appellant’s Opening Brief, that “a defendant is not ‘det[ained] by . . . civil authorities’
under subdivision (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.” (Id. at
p. 880, fn. omitted.)
       Logic does not require us to limit the holding in North River solely to those
situations where a person is barred from reentering the United States due to drug charges.
First, the case itself did not turn on the drug trafficking charges alone as the Court of
Appeal cited two reasons the defendant could not reenter the United States: the pending


       11
          In Appellant’s Opening Brief, the surety argues there is more than one factual
distinction between the cases considered by the North River court—Ranger, Maga, and
People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 127 (Financial
Casualty II). We have already addressed the application of the Ranger and Maga
holdings to this matter. (See Section II(B) ante.) The appellate court in Financial
Casualty II restated the general rule that a defendant is “detained” under section 1305,
subdivision (d) if he has been deported and cannot legally return to the United States.
(Financial Casualty II, at p. 136.) However, where there was not legally admissible
evidence of the defendant’s deportation, the Court of Appeal upheld forfeiture of the
bond. (Id. at pp. 137-138.) This holding is consistent with the statement in North River
that the critical difference is who set the chain of events in motion. (North River, supra,
18 Cal.App.5th at pp. 877-878.)

                                              14
drug charges and, similar to the defendant in the instant matter, the fact that he was “ ‘not
in possession of a valid unexpired immigrant visa’ (8 U.S.C. § 1182(a)(7)(A)(i)(I)).”
(North River, supra, 18 Cal.App.5th at p. 877, italics added.) And, as previously
discussed, the court also found the critical element in its decision to be the defendant’s
contribution to the circumstances precluding reentry into the United States, i.e., that he
“set in motion the chain of events leading to [the] bar when he voluntarily fled the
country,” not that he could not reenter due to pending charges for drug trafficking. (Id. at
p. 877.) Although the appellate court recognized that “ ‘the law traditionally disfavors
forfeitures of bail . . .’ [citations] . . . this presumption does not exist in a vacuum, and is
to be balanced against the counterpresumption that ‘when there is a breach of this
contract, the bond should be enforced.’ [Citation.] Here, the surety allowed defendant to
voluntarily flee and, as a consequence, breached its contract with the court.” (Id. at
pp. 879-880.)
       In the instant matter, the defendant’s own actions led to his bar from reentry to the
United States because he voluntarily fled the country, presumably knowing or taking the
risk that he could not reenter. This is akin to a situation where a defendant, even one who
could legally reenter the United States, voluntarily flees to a location from which he is
immune from a surety’s agents (i.e., Cuba). That risk is “present when [a] surety [posts]
bond.” (Ranger, supra, 48 Cal.App.4th at p. 996.) Similarly, when a defendant escapes,
whether to a foreign country or another county, the risk of such escape is one of the risks
of the bail surety business, and one of the situations the bail surety guarantees against.
(North River, supra, 18 Cal.App.5th at p. 877; see People v. Meyers (1932) 215 Cal. 115,
119 (Meyers) [“Ordinarily the escape is a deliberate unlawful act on the part of the
prisoner, and the sureties take the risk of such acts on the part of the person bailed.”].)
       The surety asserts that Meyers supports its argument that a voluntary departure
should not result in forfeiture of a bond. (Meyers, supra, 215 Cal. 115 at p. 119.)
However, as the Supreme Court noted, the facts of Meyers were unique. As the

                                               15
defendant left the courtroom after being released on bond from charges in Alameda
county, she was arrested on charges under a warrant in San Francisco county, for which
she was ultimately sentenced to 12 months in jail. (Id. at pp. 116-117.) The judge in San
Francisco thereafter issued an order suspending sentence and sent the defendant to
Oregon, with instructions to “remain away from this state . . .”; the defendant did not
heed those instructions and returned to San Francisco. (Id. at p. 117.) When the
defendant did not appear for arraignment in Alameda county, the court forfeited the bail,
but thereafter granted judgment for the surety “on the ground that ‘[the surety was]
prevented by operation of law from having the custody of said prisoner . . . .’ ” (Ibid.)
The Supreme Court affirmed the judgment, as it was the San Francisco county court that
released her, without notice to the authorities in Alameda county, thus making it
impossible for the surety to fulfill its obligation to take the defendant into custody. (Id. at
pp. 118-119.) “[I]t must be obvious that this is not the kind of escape which comes
within the general rule that the sureties are not discharged. Ordinarily the escape is a
deliberate unlawful act on the part of the prisoner, and the sureties take the risk of such
acts on the part of the person bailed. But do the sureties also take the risk of connivance
in the unlawful act by state authorities? We think not; such a conclusion is beyond all
reason, for it amounts to the proposition that the sureties take the risk that the other party
to contract [the state authority] may hinder or prevent performance of their obligations.
The defense of prevention of performance by act of the creditor cannot be waived, even
expressly, in the contract. [Citation.]” (Id. at p. 119.) Again, in Meyers it was state
authorities that prevented the surety’s performance of its obligation. In the case before
us, it was defendant whose actions subverted the surety’s efforts to compel his
appearance, a risk that the surety takes on by engaging in the bond business. In short, we
are not persuaded that North River should be limited to its facts. It is appropriate
therefore to affirm the trial court’s summary judgment and forfeiture of the bond.



                                              16
       D. Neither the Unruh Civil Rights Act nor Potential Extradition Treaties With
          Mexico Affect Our Ruling
       The surety expresses concern that allowing forfeiture based on a defendant’s
inability to legally return to the United States creates conflict with the Unruh Civil Rights
Act (Civ. Code, § 51) as it applies to sureties as insurance providers. The surety argues it
is not allowed to consider a person’s immigration status when assessing the risk of
posting bond; the Unruh Civil Rights Act provides, “All persons within the jurisdiction of
this state are free and equal, and no matter what their sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic information, marital status, sexual
orientation, citizenship, primary language, or immigration status are entitled to the full
and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).) Insurance Code
section 1861.03, subdivision (a) makes the Unruh Civil Rights Act applicable to the
“business of insurance.”
       As the surety cannot consider a person’s immigration status, it contends it has not
voluntarily undertaken the risk associated with defendant’s immigration status. The only
caselaw the surety cites on this point is Meyers, contending the involuntary risk
associated with a defendant’s immigration status is akin to the risk posed to the surety in
Meyers of having to act in defiance of a court order to regain custody of that defendant.
(Meyers, supra, 215 Cal. at p. 119.) The surety’s reliance on Meyers fails because the
surety is subject to similar risks inherent in the voluntary departure of a defendant to a
country from which he or she cannot return—any defendant can flee to a country from
which he or she cannot be recovered, whether due to immigration status, laws restricting
travel to a country, or lack of an extradition treaty. (See North River, supra, 18
Cal.App.5th at pp. 877-878; American Surety, supra, 77 Cal.App.4th at pp. 1065-1066;
Ranger, supra, 48 Cal.App.4th at p. 996.) This is a risk inherent in the bond business,
and our ruling does nothing to expose the surety to an additional, unexpected risk.



                                              17
       The surety contends we should not equate this case to one wherein a defendant
flees to a country lacking an extradition treaty, as Mexico does have such a treaty with
the United States, and the defendant here was voluntarily cooperating in an attempt to
return to the United States. Caselaw suggests the potential for extradition does not serve
as a basis to toll the appearance period under section 1305, subdivision (e). In both
People v. Western Insurance Company (2012) 204 Cal.App.4th 1025 (Western), and
People v. Seneca Insurance Company (2010) 189 Cal.App.4th 1075 (Seneca), the
defendants fled to countries with extradition treaties. (Western, at p. 1029; Seneca, at
pp. 1078-1079.) While awaiting potential extradition, the sureties who posted bond
sought equitable tolling of the appearance time. (Western, at p. 1032; Seneca, at
pp. 1078-1079.) The appellate courts upheld the trial courts’ entry of summary judgment
forfeiting bond, finding that the only basis for tolling was a “temporary disability” under
section 1305, subdivision (e). (Western, at pp. 1031-1032; Seneca, at pp. 1082-1083.)
Implicit in these rulings is a finding that potential extradition, in and of itself, does not
qualify as a “temporary disability.”
       In both Western and Seneca, the surety sought exoneration of the bond under
section 1305, subdivision (g) (see fn. 7, ante). (Western, supra, 204 Cal.App.4th at
p. 1029; Seneca, supra, 189 Cal.App.4th at pp. 1078-1079.) The prosecutors in both
Western and Seneca seemingly indicated a desire to extradite the defendants, but did not
initiate the extradition process prior to the end of the appearance period. (Western, at
p. 1029; Seneca, at pp. 1078-1079, 1081.) The appellate courts agreed that a delay in
extradition did not constitute a basis to exonerate the forfeiture, and/or did not require
tolling the appearance period. (Western, at pp. 1031-1032; Seneca, at p. 1082.) In the
instant matter, the surety did not seek relief under section 1305, subdivision (g), but,
rather, section 1305, subdivision (f) (see fn. 3, ante). The trial court determined the
People had not, as of the hearing in July 2016, made an election to extradite or not
extradite the defendant.

                                               18
       As for defendant’s cooperation in attempting to obtain a visa to return to the
United States, 12 the surety does not cite any caselaw supporting its argument that this is a
factor for the court to consider under section 1305, subdivision (e). While his
cooperation is admirable, the fact remains that defendant’s voluntary decision to leave the
United States without ascertaining whether he had or could obtain the necessary visa or
other papers to return here, resulted in the bar to his reentry to this country. We agree
with the holding of North River: as the defendant was not detained by a civil authority,
the trial court properly denied the surety’s request under section 1305, subdivision (e) and
entered summary judgment.
                                      III.   DISPOSITION
       The summary judgment entered September 1, 2016, is affirmed.




       12
          The People object to this court considering evidence submitted to the trial court
after the appearance period ended on June 11, 2016, including evidence about defendant
obtaining a Mexican passport and applying for a visa. The People allege the surety did
not submit evidence regarding the passport and visa application until after the appearance
period ended. However, in declarations filed on June 10, 2016, the surety’s attorney and
the investigator working with defendant confirmed his cooperation in trying to apply for
the visa. The surety’s attorney also confirmed in his June 10, 2016 declaration that
defendant was issued his Mexican passport on June 3, 2016. As this information was
submitted prior to the end of the appearance period, the People are not prejudiced by our
consideration of the declaration submitted June 16, 2016, confirming that defendant did
in fact apply for a visa.


                                             19
                                  _______________________________
                                  Greenwood, P.J.




WE CONCUR:




_____________________________________
 Premo, J.




______________________________________
 Elia, J.




The People v. The North River Ins. Co. et al.
No. H044568
Filed 10/28/19
                             CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT

THE PEOPLE,                                          H044568
                                                    (Santa Clara County
         Plaintiff and Respondent,                   Super. Ct. No. C1472577)

         v.

THE NORTH RIVER INSURANCE
COMPANY et al.,

         Defendants and Appellants.


         BY THE COURT:

         The opinion which was filed on October 1, 2019, is certified for publication.


                                             _____________________________
                                                        Greenwood, P. J.


                                             _____________________________
                                                        Premo, J.


                                             _____________________________
                                                        Elia, J.

       The written opinion which was filed on October 1, 2019, has now been certified for
publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is therefore
ordered that the opinion be published in the official reports.


Dated:                                               _____________________________
                                                           Greenwood, P. J.
Trial Court:                                 Santa Clara County Superior Court
                                             Superior Court No.: C1472577

Trial Judge:                                 The Honorable Gregory H. Saldivar



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


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




The People v. The North River Ins. Co.
H044568




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