Filed 4/9/20
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO


THE PEOPLE,                           B292411

       Plaintiff and Respondent,      (Los Angeles County
                                      Super. Ct. Nos. BA342316-
       v.                             03, SJ4309)

THE NORTH RIVER
INSURANCE CO. et al.,

     Defendants and
Appellants.


     APPEAL from an order of the Superior Court of Los
Angeles County, Christopher K. Lui, Judge. Affirmed.

       Jefferson T. Stamp for Defendants and Appellants.

      Mary C. Wickham, County Counsel, Adrian G. Gragas,
Assistant County Counsel, and Jessica C. Rivas, Deputy County
Counsel, for Plaintiff and Respondent.

                             ******
      A trial court held a bail review hearing for a criminal
defendant that, in compliance with the law in effect at the time,
set bail at the amount prescribed by the county bail schedule.
After the defendant obtained a bail bond but did not appear as
ordered, the court forfeited the bond and, ultimately, entered
summary judgment on the bond against the bond’s surety.
Nearly two years after that judgment was entered, the surety
moved to set aside the summary judgment under Code of Civil
Procedure section 473, subdivision (d)1 on the ground that the
trial court’s failure to inquire into the defendant’s ability to pay
when setting bail—as mandated by the later-decided case of In re
Humphrey (2018) 19 Cal.App.5th 1006 (Humphrey), review
granted May 23, 2018, S247278—rendered the bond (and hence
the summary judgment) “void.” The trial court denied the motion
to set aside. We affirm this ruling. The trial court acted within
its discretion in denying relief. More to the point, the trial court
would have abused its discretion had it awarded the relief the
surety sought, and we publish to explain the many reasons why
the surety’s argument must be rejected as a matter of law.
         FACTS AND PROCEDURAL BACKGROUND
I.     Facts
       A.     Issuance, forfeiture and judgment on bond
       In June 2008, the People charged Sergio Musio Chavez
Gonzalez2 (defendant) in a felony complaint with the sale and
transportation of more than a kilogram of drugs (Health & Saf.
Code, § 11352, subd. (a)). The court issued an arrest warrant.
       On June 26, 2015, defendant was arrested on that warrant.



1    All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.

2    Defendant was also referred to under the alias Fraklyn
Rivera Torres during the proceedings.




                                 2
       On July 1, 2015, the trial court arraigned defendant and
conducted a bail review hearing. Defendant requested the court
“consider lowering bail” or release him on his own recognizance,
but the trial court denied those requests and set bail at $100,000
“per [the county bail] schedule.”3 Later that day, Bad Boys Bail
Bonds, an agent of The North River Insurance Company
(collectively, the surety), issued a $100,000 bail bond, which
included defendant’s promise to appear for the next hearing on
July 27, 2015.
       Defendant did not appear on July 27, 2015.
       The trial court ordered the bond forfeited in open court, and
thereafter mailed a notice of forfeiture to the surety. After the
surety was unable to return defendant to court within the
statutory period as extended by the court, the trial court entered
summary judgment on the bond and against the surety in the
amount of $100,000 plus $370 in costs. Judgment was entered on
August 10, 2016.
       B.     Humphrey
       On January 25, 2018, the First District of the Court of
Appeal decided Humphrey, supra, 19 Cal.App.5th 1006. In that
case, the court followed the county bail schedule and set bail at
$600,000 (and, after a further hearing, at a reduced amount of
$350,000) for a 63-year-old defendant who stole $5 in cash and a
bottle of cologne from a neighbor in his apartment complex; the
driving factor for the high bail amount was the defendant’s

3     This is the bail amount set forth in the 2015 Los Angeles
County Felony Bail Schedule for a violation of Health and Safety
Code section 11352, subdivision (a) involving more than a
kilogram of drugs. We may take judicial notice of the schedule.
(People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 3, fn. 2 [so
holding]; Evid. Code, §§ 459, 452, subd. (c).)




                                 3
decades-old criminal history. (Id. at pp. 1016-1017, 1021.) It was
undisputed that the defendant could not afford to post a bond in
either amount and would, as a consequence, be detained.
Drawing upon the thread of equal protection jurisprudence that
precludes imprisonment of an indigent probationer for the failure
to pay fines he has no ability to pay or, even with bona fide
efforts, no ability to earn (id. at pp. 1026-1028, citing Bearden v.
Georgia (1983) 461 U.S. 660) and the thread of substantive due
process jurisprudence that requires a “compelling” government
interest to justify pretrial detention (id. at pp. 1033-1035, citing
United States v. Salerno (1987) 481 U.S. 739), Humphrey held
that a court setting the amount of bail must “consider [a]
defendant’s ability to pay and refrain from setting an amount so
beyond the defendant’s means as to result in detention.” (Id., at
p. 1037, italics added.) Thus, Humphrey concluded, “a court may
not order pretrial detention unless it finds . . . [(1)] that the
defendant has the financial ability but failed to pay the amount
of bail the court finds reasonably necessary to ensure his or her
appearance at future court proceedings; or [(2)] that the
defendant is unable to pay that amount and no less restrictive
conditions of release would be sufficient to reasonably assure
such appearance; or [(3)] that no less restrictive nonfinancial
conditions of release would be sufficient to protect the victim and
the community.” (Id., at p. 1026.)
       Our Supreme Court granted review of Humphrey on May
23, 2018. (In re Humphrey, No. S247278, 2018 Cal.LEXIS 4053.)
II.    Procedural Background
       In June 2018, the surety filed a motion to set aside the
August 2016 summary judgment. Invoking section 473,
subdivision (d), the surety argued that the summary judgment




                                 4
was “void” because the trial court’s “original [July 2015] order
setting bail in the amount of $100,000 was unconstitutional”
under Humphrey because the trial court had not inquired into
defendant’s ability to pay.
        After considering the People’s opposition and the surety’s
reply, the trial court issued an eight-page order denying the
motion to set aside. The court listed five reasons for denying the
motion, four of which are pertinent on appeal:4 (1) the Supreme
Court’s grant of review renders Humphrey persuasive (rather
than precedential) authority, (2) Humphrey should not apply
retroactively to bail settings that occurred before it was decided,
(3) the surety lacked standing to assert any violation of
defendant’s rights under Humphrey, and (4) any error in setting
bail would not invalidate the bond or otherwise call for its
exoneration.
        The surety filed this timely appeal.
                            DISCUSSION
        The surety argues that the trial court erred in denying its
motion to set aside a void judgment under section 473,
subdivision (d). Specifically, the surety argues that the summary
judgment is void because the trial court’s failure to inquire into
defendant’s ability to pay, as required by Humphrey, deprived the
court of the power to detain defendant and thus deprived the
surety of the power to constructively detain him on bail, such
that the surety lacked any power to re-arrest defendant and must
therefore be excused from any obligation under the bond.
        Under section 473, subdivision (d), a trial court “may
. . . set aside any void judgment or order.” (§ 473, subd. (d).) By

4    The fifth reason was that one trial court cannot not sit in
judgment of another trial court.




                                5
its plain terms, this provision grants a trial court the discretion
to set aside a judgment or order, but only if that judgment or
order is “void.” (Nixon Peabody LLP v. Superior Court (2014) 230
Cal.App.4th 818, 822.) Voidness is a legal question we review de
novo; the discretionary decision whether to set aside a void
judgment or order is, as one would anticipate, reviewed solely for
an abuse of that discretion. (Ibid.)
       The trial court did not err in denying the surety’s motion to
set aside the summary judgment. To paraphrase (and thereby
sully) the poet Elizabeth Barrett Browning, “How do [we reject
thine argument]? Let [us] count the ways.”
I.     Untimeliness
       First, the surety’s motion is untimely. “Once six months
have elapsed since the entry of a judgment [or order], ‘a trial
court may grant a motion to set aside [a] judgment [or order] as
void only if the judgment [or order] is void on its face.’
[Citation.]” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th
488, 496.) “‘A judgment or order is said to be void on its face
when the invalidity is apparent upon an inspection of the
judgment-roll’” “or [the] court record without consideration of
extrinsic evidence.” (Dill v. Berquist Construction Co. (1994) 24
Cal.App.4th 1426, 1441, quoting Morgan v. Clapp (1929) 207 Cal.
221, 224; Pittman v. Beck Park Apartments, Ltd. (2018) 20
Cal.App.5th 1009, 1021.)
       The surety filed its motion to set aside the summary
judgment as void more than 22 months after that judgment was
entered. Further, that judgment is not “void on its face” because
the alleged defect—that is, the trial court’s failure to comply with
the as-yet-undecided Humphrey decision by not considering the
defendant’s ability to pay when setting bail—is not apparent from




                                 6
the judgment roll or the court record without considering
extrinsic evidence such as the Humphrey decision and the
transcript from the bail setting hearing.
II.    Voidness
       Second, and even if we overlook the untimeliness of the
surety’s motion, the summary judgment is not void.
       A judgment is “void” only when the court entering that
judgment “lack[ed] jurisdiction in [a] fundamental sense” due to
the “‘entire absence of power to hear or determine the case’”
resulting from the “‘absence of authority over the subject matter
or the parties.’” (People v. American Contractors Indemnity Co.
(2004) 33 Cal.4th 653, 660 (American Contractors), quoting
Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287,
288 (Abelleira).) To be sure, a court that “‘“acts contrary to [its]
authority”’” “‘to give certain kinds of relief, or to act without the
occurrence of certain procedural prerequisites’” is often said to
lack “jurisdiction.” (American Contractors, at pp. 660-661,
quoting Abelleira, at pp. 288, 290.) But such acts do not render
the court’s ensuing judgment or order void. That is because
“jurisdictional errors can be of two types[:] A court can lack
fundamental authority over the subject matter, question
presented, or party, making its judgment void, or it can merely
act in excess of its jurisdiction or defined power, rendering the
judgment voidable.” (In re Marriage of Goddard (2004) 33
Cal.4th 49, 56 (Goddard).) Only void judgments and orders may
be set aside under section 473, subdivision (d); voidable
judgments and orders may not. (E.g., Vitatech Internat., Inc. v.
Sporn (2017) 16 Cal.App.5th 796, 807; Dhawan v. Biring (2015)
241 Cal.App.4th 963, 973.)




                                  7
       Applying these definitions, the trial court’s summary
judgment on the bond was not void. That is because the trial
court at all times had fundamental jurisdiction over the subject
matter and the parties. The court had the jurisdiction over the
subject matter when it followed the statutory procedures then in
effect when setting the bail amount for the defendant (Pen. Code,
§§ 1268, 1275), releasing defendant on bail once the surety posted
a bond in the bail amount (id., §§ 1269, 1269a), declaring the
bond forfeited in open court when defendant did not appear as
ordered and had no sufficient excuse for his nonappearance (id.,
§ 1305, subd. (a)), and entering summary judgment once
defendant was not returned to custody by the expiration of the
appearance period (id., § 1306, subd. (a)). (Cf. People v. Amwest
Surety Ins. Co. (2004) 125 Cal.App.4th 547, 553 (Amwest Surety)
[trial court loses subject matter jurisdiction over a bond and thus
may not enter summary judgment if it “fail[s] to declare bail
forfeited in open court”].) The court also had jurisdiction over the
surety once the surety posted its bond. (Cf. American
Contractors, supra, 33 Cal.4th at p. 663 [court does not lose
personal jurisdiction over surety due to entry of summary
judgment prior to expiration of appearance period].)
       The trial court’s failure to anticipate and adhere to
Humphrey in setting the bail amount did not render void the
summary judgment on the bond.
       Any non-compliance with Humphrey would, at best, be an
act “in excess of [the trial court’s] jurisdiction.” (Goddard, supra,
33 Cal.4th at p. 56.) Humphrey imposes a requirement that a
trial court “consider [a] defendant’s ability to pay” when setting
bail. (Humphrey, supra, 19 Cal.App.5th at p. 1037.) Because a
court that “‘act[s] without the occurrence of certain procedural




                                  8
prerequisites’” acts only in excess of its jurisdiction (but within its
fundamental jurisdiction) (American Contractors, supra, 33
Cal.4th at p. 661), a trial court’s failure to consider a defendant’s
ability to pay under Humphrey results in, at best, a bail order
that is voidable, not void. That Humphrey rests on constitutional
rather than statutory grounds does not affect the jurisdictional
analysis and does not elevate an otherwise voidable order into a
void order. (See In re Reno (2012) 55 Cal.4th 428, 478-481
[treating “lack[]” of “fundamental jurisdiction” as distinct from
the commission of “constitutional error” when excusing
procedural defaults in habeas corpus litigation].)
       What is more, any non-compliance with Humphrey would,
at best, render the bail order voidable as to the defendant, not as
to the surety. Bail is a function of “two different contracts
between three different parties”—namely, (1) a contract between
a criminal defendant and a surety under which the surety posts a
bail bond in exchange for the defendant’s payment of a premium
and his promise to pay the full amount of the bond in the event of
his nonappearance, and (2) a contract between the surety and the
People under which the surety “‘“‘act[s] as a guarantor of the
defendant’s appearance in court under risk of forfeiture of the
bond.’”’ [Citations.]” (People v. Financial Casualty & Surety, Inc.
(2017) 10 Cal.App.5th 369, 377; People v. Financial Casualty &
Surety, Inc. (2016) 2 Cal.5th 35, 42; American Contractors, supra,
33 Cal.4th at p. 657.) If these two contracts form the two legs of
this triangle of parties, the underlying criminal prosecution of the
defendant by the People is the proverbial hypotenuse. Much as
the three sides of a triangle are connected but still distinct, our
Supreme Court has observed that “[w]hile bail bond proceedings
occur in connection with criminal prosecutions, they are




                                  9
independent from and collateral to [those] prosecutions . . . .”
(American Contractors, at p. 657, citing People v. Wilcox (1960) 53
Cal.2d 651, 654.)
       The independence of bail proceedings from the underlying
criminal prosecution is why any non-compliance with Humphrey
during the prosecution does not affect—let alone eviscerate—the
trial court’s jurisdiction over the collateral bail proceedings.
Time and again, courts have ruled that errors in a trial court’s
setting of bail during the criminal prosecution do not let the
surety off the hook in the collateral bail proceedings. In People v.
Accredited Surety & Casualty Co., Inc. (2004) 125 Cal.App.4th 1,
4, 6-8, the court held that the trial court’s “failure to consider the
statutory factors” in Penal Code section 1275 bearing on what
amount of bail to fix did “not operate to exonerate [the] surety’s
liability” on the ensuing bond. In People v. Financial Casualty &
Surety (2019) 39 Cal.App.5th 1213, 1216-1217, 1226-1227
(Financial Casualty 2019), the court held that a trial court’s
imposition of an unconstitutional bail condition (namely, that the
defendant waive all of his Fourth Amendment rights while on
bail) did not “void the bail agreement.” And in People v.
Accredited Surety & Casualty Co., Inc. (2019) 34 Cal.App.5th 891,
897-899 (Accredited 2019), the court held that a trial court’s
failure to conduct the inquiry into ability to pay mandated by
Humphrey had “‘no legal effect on the forfeiture of bail upon
defendant’s failure to appear’ [citation]” and thus “did not render
the subsequently issued bond void.” Under this precedent, the
surety’s Humphrey-based argument in this case most certainly
fails. Indeed, the limited effect of any non-compliance with
Humphrey is confirmed by Humphrey itself, which specifies that
the remedy for non-compliance is “a new bail hearing at which




                                 10
. . . the court considers [the defendant’s] financial resources”
(Humphrey, supra, 19 Cal.App.5th at p. 1048)—not the
defendant’s immediate release or the invalidation of any and all
subsequently issued bonds.
        The surety responds that the above cited wall of precedent
is inapplicable because its challenge is focused on how a
Humphrey violation affects a surety’s power to constructively
detain a criminal defendant through re-arrest. But this focus,
while novel, is substantively indistinguishable from the challenge
rejected in Accredited 2019 because the defect in a surety’s power
to constructively detain a criminal defendant that the surety
focuses on in this case stems from the very same failure by the
trial court to comply with Humphrey that was at issue in
Accredited 2019. Because the failure is the same, its effect (or,
more to the point, its non-effect) on the trial court’s jurisdiction in
the collateral bail proceedings is also the same, no matter which
aspect of that effect a surety chooses to focus our attention.
        The surety cites several cases in support of its position by
stringing together out-of-context quotations from each case to
support that position. Considering their holdings rather than
their soundbites, however, most of these cases have no relevance
whatsoever to the issue before us. (See People v. McReynolds
(1894) 102 Cal. 308, 311-312 [surety released from liability on
bond when defendant taken into custody by law enforcement];
Hensley v. Municipal Court San Jose-Milpitas Judicial Dist.
(1973) 411 U.S. 345, 349 [person released on bail is in
constructive custody]; People v. Cossey (1950) 97 Cal.App.2d 101,
114-115 [same]; Rodman v. Superior Court of Nevada County
(1939) 13 Cal.2d 262, 267-271 [trial court exceeds its jurisdiction
when refusing to exonerate a bond when surety surrenders




                                  11
defendant]; People v. Doe (1959) 172 Cal.App.2d Supp. 812, 814-
817 [same, when defendant is released on probation]; Taylor v.
Taintor (1872) 83 U.S. 366, 371-372 [trial court not required to
exonerate bond when another state exerts jurisdiction over
defendant before surety surrenders him]; Kiperman v. Klenshetyn
(2005) 133 Cal.App.4th 934, 939-940 [addressing when trial court
may order a surety to return the bond premium to defendant]; In
re Palmer (2019) 33 Cal.App.5th 1199, 1202, 1222-1223
[defendant sentenced to an unconstitutionally excessive sentence
is entitled to release].) The remaining cases are only marginally
relevant and thus distinguishable. The surety cites People v.
International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588
(International Fidelity), which held that a surety was entitled to
set aside a summary judgment on a bond as “void” where part of
the consideration for the bond—in that case, the existence of a
$35,000 bond issued by another surety that affected the surety’s
assessment of risk—was invalid. (Id. at pp. 595-596.)
International Fidelity deals with a defect in the contract between
the People and the surety. (See Financial Casualty 2019, supra,
39 Cal.App.5th at pp. 1226-1227 [similarly holding that any
defect in bail setting as to criminal defendant “does not constitute
a failure of any . . . consideration that the government gave to
[s]urety for the bail agreement”].) The same is true for Amwest
Surety, supra, 125 Cal.App.4th at p. 550, which deals with defects
with the trial court’s forfeiture of the bond. Because this case
deals with alleged defects in the criminal proceedings involving
the criminal defendant and the court, neither International
Fidelity, Amwest Surety nor the maxim about construing such
defects in favor of the surety (International Fidelity, at p. 595)




                                12
apply; they deal with defects in the trial court-surety leg of the
triangle, not a defect in the hypotenuse proffered here.
III. No Humphrey Violation
       Third, and even if we overlook the untimeliness of the
surety’s motion and that any Humphrey error did not render the
summary judgment void, there was no Humphrey error. As
explained above, what Humphrey prohibits is the detention of a
criminal defendant absent a consideration of his ability to pay.
(Humphrey, supra, 19 Cal.App.5th at pp. 1026, 1037.) But
Humphrey was not violated in this case because defendant was
never detained. Instead, he posted bail and fled. On such facts,
as our Supreme Court has noted, “the issues regarding the
propriety of requiring bail as a condition of release raised in
. . . Humphrey . . . are not presented.” (In re Webb (2019) 7
Cal.5th 270, 274.) Humphrey was also not violated because
defendant did not lack the ability to pay. Although the trial court
did not specifically inquire into or make findings regarding
defendant’s ability to post bail, defendant was undeniably able to
do so, and we may reasonably infer his ability to post bail from
the fact that he did. (E.g., Brown v. Superior Court (1937) 72
P.2d 230, 231 [noting that a “court could . . . infer that the
defendant, having agreed to pay, had the ability to pay”].)
IV. Denial as a Matter of Law
       Fourth and finally, the trial court would have been
compelled as a matter of law to deny the surety’s motion to set
aside the summary judgment. The surety does not dispute that
the trial court’s bail setting was correct under the pre-Humphrey
law in effect in July 2015; indeed, had the trial court at that time
departed from the bail schedule based on the defendant’s ability
to pay (as contemplated by Humphrey), its order would have been




                                13
subject to reversal. And we have concluded, above, that the trial
court’s order did not run afoul of Humphrey because defendant
was never detained and because we may infer from his posting of
bail that he had the ability to do so. Consequently, the surety is
asking us to vacate summary judgment on a bond—and to order
the People to refund the amount of that bond—that arose from a
bail setting that complied with the law at the time and that
complies with Humphrey.
       What is more, the logic of the surety’s argument cannot be
confined to this case: It would apply with equal force to every
bond ever forfeited in the State of California prior to Humphrey.
Tellingly, the surety says nothing about whether the legions of
sureties who would benefit from this colossal disgorgement would
have to refund the premiums they collected on those bonds to the
defendants from whom they collected them. Thus, accepting the
surety’s argument would convert Humphrey—a decision that
decried the “[m]oney bail” system as discriminatory and
unconstitutional as applied to people who are detained due to the
inability to afford bail (Humphrey, supra, 19 Cal.App.5th at p.
1029)—into a lottery ticket of staggering proportions to the bail
bond industry (1) by requiring the People to disgorge every bond
amount forfeited in cases involving defendants who, by definition,
were not detained because they could afford bail, and (b) by
allowing those sureties to retain the premiums they collected
from those defendants. Because granting such relief would be a
perversion of Humphrey and would allow the sureties to have
their cake and eat it too, it would be “irrational,” “absurd” and a
“repudiation of” the entire money bail system as well as
Humphrey and hence an abuse of discretion. (People v. Carmony
(2004) 33 Cal.4th 367, 377-378; People v. Penoli (1996) 46




                                14
Cal.App.4th 298, 304, 306 & fn. 6.) We therefore conclude that a
trial court would abuse its discretion if it grants the motion to set
aside under these circumstances.
                          DISPOSITION
       The order is affirmed.
       CERTIFIED FOR PUBLICATION.



                                      ______________________, J.
                                      HOFFSTADT

We concur:


_________________________, Acting P. J.
CHAVEZ


_________________________, J.
BIGELOW





 Presiding Justice of the Court of Appeal, Second Appellate
District, Division Eight, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.




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