People v. N. River Ins. Co.

Decision Date20 December 2017
Docket NumberB271421
Citation18 Cal.App.5th 863,227 Cal.Rptr.3d 243
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. The NORTH RIVER INSURANCE COMPANY et al., Defendants and Appellants.

Jefferson T. Stamp, San Jose 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.

HOFFSTADT, 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. 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.

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 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 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 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 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, 2 Cal.Rptr. 754, 349 P.2d 522 ( Wilcox ); People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 127, 134, 222 Cal.Rptr.3d 180 ( 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, 216 Cal.Rptr.3d 173 ; Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018, 157 Cal.Rptr.3d 558, 301 P.3d 1167.) 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. , su...

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