Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. CD200103, Francisco P. Marty, Jr., Commissioner.
IRION, J.
Lincoln General Insurance Company (Lincoln) appeals a superior court order directing entry of summary judgment in favor of San Diego County (the County) on a $65,000 bail bond posted for Jesus Estrada. Lincoln contends that the order was procedurally deficient because it vacated an earlier order by a different judge exonerating the bond. Lincoln also contends that the challenged order was erroneous on its merits because exoneration was mandated on two grounds: (i) the San Diego County District Attorney failed to seek extradition despite a positive identification of Estrada in Mexico (see Pen. Code, § 1305, subd. (g)); and (ii) federal law regulating entry across the border rendered Estrada temporarily or permanently "disab[led]" and thus unable to return to court. (See id., subds. (d), (e).)
As discussed below, we conclude that the initial order exonerating the bond was void because it was improperly entered while the matter was pending hearing in a separate department of the superior court. Given this unusual circumstance, the second judge in the department where the original dispute had been pending was authorized to vacate the earlier, improper order. With respect to the merits, we conclude that Lincoln fails to demonstrate an abuse of discretion in the second judge's ruling. There was an adequate showing in the trial court that: (i) Estrada's extradition was not feasible, defeating exoneration of the bond under Penal Code section 1305, subdivision (g); and (ii) his voluntary flight to Mexico did not render him temporarily or permanently disabled under section 1305, subdivisions (d) or (e). Consequently, we affirm.
PROCEDURAL HISTORY
On July 18, 2006, Estrada failed to appear in superior court to face charges of possession and sale of two pounds of methamphetamine. Judge David M. Szumowski ordered Estrada's bail forfeited and issued a warrant for Estrada's arrest. Notice of the forfeiture was mailed two days later to Estrada's bonding agency, Aladdin Bail Bonds, and its surety, Lincoln.
Shortly before the expiration of the 180-day appearance period provided by statute (Pen. Code, § 1305, subd. (b)), Lincoln filed a motion seeking to vacate the forfeiture. Lincoln's motion was based on a sworn declaration attesting that its investigator had located and temporarily detained Estrada in Mexico. According to Lincoln, its request for the district attorney's office to extradite Estrada from Mexico was refused. (See id., subd. (g) [permitting forfeiture to be vacated under certain circumstances if "the prosecuting agency elects not to seek extradition"], id., subd. (d) [requiring forfeiture to be vacated "[i]n the case of a permanent disability"].)
The County did not respond to Lincoln's motion, but stipulated to an order extending Estrada's appearance period for another 180 days, giving Lincoln until July 20, 2007, to avoid forfeiture of the bond. (Pen. Code, § 1305.4 [permitting 180-day extension].) On July 2, Lincoln refiled its motion to vacate the forfeiture. The motion was calendared in department 22 of the superior court for a hearing on August 22. The County filed an opposition in the same department, contending that extradition was impractical as Mexico would not extradite its citizens for "relatively minor" drug charges. The County also noted that extradition was unnecessary; if Estrada presented himself at the border, the district attorney's office would arrange for him to be taken into custody.
The County represents the state in civil bail proceedings. (See People v. Hadley (1967) 257 Cal.App.2d Supp. 871, 879.)
Estrada was taken into custody at the border on August 17. On August 20, Estrada was arraigned in department 12 of the superior court by Judge Szumowski and entered a plea of not guilty in his criminal case. A public defender represented Estrada; a deputy district attorney represented the People. After Estrada entered a not guilty plea, the following colloquy occurred:
Lincoln asserts, without citation, that Judge Szumowski exonerated the bond "with respondent was [sic] present and participating in the hearing." There is no indication in the record that the County was represented at Estrada's arraignment. Rather both the transcript and the minute order reflect solely the appearances of the public defender and the deputy district attorney.
"The Court [Judge Szumowski]:
He has an I.N.S. hold. Submit on Bail?
"Mr. Rodriguez [public defender]:
Yes.
"The Court: Plea and denial will be entered; appoint counsel; 25,000. Do you waive your bail review?
"Defendant: Yes.
"The Court: All Right.
"Ms. Funari [deputy district attorney]:
Your Honor, the People would request no bail in this case.
"The Court: Why?
"Ms. Funari: Basically because of his failure to appear back on July 11, 2006, and it looks like he's the subject of a bond forfeiture hearing in two days.
"The Court: Set aside that forfeiture, exonerate that bond."
The court then set bail at $150,000. At the conclusion of the hearing, the deputy district attorney asked, "Your Honor, the bond was exonerated?" The court stated, "Yes."
The minute order of the arraignment reflects that in addition to the exoneration of the bond, the court also vacated the hearing set for August 22 in department 22. There is no record of any notice to Lincoln or the County, both of whom continued to file pleadings in department 22 on the original motion. The County apparently learned of Judge Szumowski's order on September 11 (the parties had previously continued the August 22 hearing, despite its having been vacated) and notified Lincoln.
On October 19, the County filed a motion in department 22 seeking to vacate Judge Szumowski's minute order exonerating the bond. The motion was heard by Commissioner Francisco Marty, Jr., on November 21. At the hearing, Lincoln objected to the motion being decided by Judge Marty, arguing that "this motion needs to be brought in front of Judge Szumowski."
Judge Marty overruled the objection, concluding that Judge Szumowski acted "without jurisdiction on August 20th, 2007 when [he] ordered the bond exonerated. And that the only action the court should have taken, because it was beyond the 180-day period, was summary judgment in favor of the People." Judge Marty then vacated Judge Szumowski's order and entered summary judgment on the bond in favor of the County. In a written order that followed the hearing, Judge Marty added that "the filing of the Surety's motion on July 2, 2007," allowed the merits to "be heard after the appearance pursuant to Penal Code section 1305, subdivision (i)." The order then states: "The Court further finds that the Surety's prior motions did not provide good cause to exonerate the bail bond pursuant to Penal Code section 1305, subdivision (g) [refusal to extradite] or to toll the appearance period pursuant to Penal Code section 1305, subdivision (e) [temporary disability]." Lincoln appeals.
DISCUSSION
Lincoln contends that we must reverse Judge Marty's order and reinstate the minute order entered by Judge Szumowski vacating the forfeiture of the bond. Lincoln argues that Judge Marty did not have the authority to review the validity of Judge Szumowski's order and, in any event, Judge Marty abused his discretion on the merits in concluding that Lincoln had not demonstrated statutory grounds for vacating the forfeiture.
I.
Summary of Bail Bond Proceedings
"While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature." (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657 (American Contractors).) Our Supreme Court has summarized the pertinent procedures as follows:
"When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. ([Pen. Code,] § 1305, subd. (a).) . . . The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1).) The trial court may also toll the appearance period under certain circumstances, or extend the period by no more than 180 days from the date the trial court orders the extension, provided that the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension. (§§ 1305, subds. (e), (i), 1305.4.)
"After the appearance period expires, the trial court has 90 days to enter summary judgment on the bond. . . . (§ 1306, subds. (a), (c).) . . . If summary judgment is not entered within the statutory 90-day period, the bond is exonerated. (§ 1306, subd. (c).)" (American Contractors, supra, 33 Cal.4th at p. 658, fns. omitted; see also People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 708, fn. 2 [quoting same for purposes of "summariz[ing] the relevant procedures" in bail context].)
The reason for the bail statutes and requirement of forfeiture in certain circumstances " 'is to insure the attendance of the accused and his obedience to the orders and judgment of the court.' " (American Contractors, supra, 33 Cal.4th at p. 657.) The statutes are not concerned with any " 'element of revenue to the state nor punishment of the surety.' " (Ibid.) "Nevertheless, the 'bail bond is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond.' " (Ibid.) "[W]hen there is a breach of this contract, the bond should be enforced." (Id. at pp. 657-658.)
II.
Judge Marty Possessed the Authority to Vacate Judge Szumowski's Order
Lincoln's first contention is that regardless of the underlying merits of Judge Marty's ruling, it must be reversed because one superior court judge cannot vacate the order of another. Lincoln adds that the County's motion to vacate Judge Szumowski's order was also improper because it did not comply with Code of Civil Procedure section 1008, the sole procedural mechanism to obtain reconsideration of a prior civil order.
A. Judge Szumowski's Order Was Erroneous
We first note that there can be little dispute that Judge Szumowski's August 20th order exonerating the bond was erroneous. It appears that Judge Szumowski was simply mistaken as to the pertinent appearance period and exonerated the bond on the ground that Estrada was returned to custody within the time provided by statute. (See Pen. Code, § 1305, subd. (c)(1) ["If the defendant appears either voluntarily or in custody after surrender or arrest in court within" the appearance period, "the court shall, on its own motion at the time the defendant first appears in court on the case in which the forfeiture was entered, direct the order of forfeiture to be vacated and the bond exonerated"].) In fact, Estrada appeared almost a month after the expiration of the statutory appearance period.
Lincoln's half-hearted suggestion that Judge Szumowski could have, in fact, been ruling on the merits of Lincoln's motion (then pending in department 22) for exoneration despite the running of the appearance period, is belied by the record. Neither the public defender, the deputy district attorney nor Judge Szumowski referenced the merits of the exoneration motion prior to the judge's issuance of the cursory order exonerating the bond ("[s]et aside that forfeiture, exonerate that bond . . ."). A fair reading of the colloquy set forth above indicates that Judge Szumowski was not even aware of the motion prior to the deputy district attorney's statement that it "look[ed] like" such a motion was pending. This statement occurred immediately prior to the court's ruling. Finally, the record also reflects that neither Lincoln nor its opponent on the motion, the County, was before the court, and neither received notice of the disposition of the motion until almost a month later.
Given these circumstances, it would be absurd to conclude that Judge Szumowski in the split second after the deputy district attorney brought the existence of the motion to his attention, considered and granted the motion on the grounds set for hearing in department 22. (The opening pleading on the motion consisted of 90 pages.) Instead, the only plausible reading of the record is that Judge Szumowski was attempting to perform the nondiscretionary function he (mistakenly) believed was required "on [the court's] own motion" under Penal Code section 1305, subdivision (c)(1).
B. Judge Szumowski's Order Was Void
Lincoln contends that even if Judge Szumowski's order was erroneous, Judge Marty had no authority to vacate it.
For obvious reasons, the law discourages trial judges from reviewing and reversing each other's orders. Thus, "the power of one judge to vacate an order made by another judge is limited." (In re Alberto (2002) 102 Cal.App.4th 421, 427.) The law, however, is also hostile to "void orders" and such orders can be set aside at any time, by any judge. (See Code Civ. Proc., § 473, subd. (d) [authorizing a court "on motion of either party after notice to the other party" to "set aside any void judgment or order"]; see People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462, 467 [explaining that a void judgment may be set aside "by a judge other than the one who made it"]; Ross v. Murphy (1952) 113 Cal.App.2d 453, 455 [holding that the court has statutory authority under Code Civ. Proc., § 473 as well as inherent authority to set aside a void judgment or order of another judge]; cf. American Contractors, supra, 33 Cal.4th at p. 660 [explaining that void orders can be vacated at any time].)
The dispute in the instant case, then, comes down to the proper characterization of Judge Szumowski's order. If the order is "void," there can be no valid objection to Judge Marty's vacating that order. If, however, as Lincoln argues, Judge Szumowski's order was, at most, voidable, the County should have challenged the order through a motion for reconsideration (Code Civ. Proc., § 1008) or, once final, by appeal.
Lincoln states that if the County had "brought its motion before Judge Szumowski, he would have had the necessary authority to change his mind." Lincoln also notes that the County could have appealed the order. Even if Lincoln is correct, the fact that the order could be appealed does not mean that it could not be vacated in the superior court as void. (See American Contractors, supra, 33 Cal.4th at p. 660 [explaining that a void judgment is " 'vulnerable to direct or collateral attack at any time' "].)
Our Supreme Court has explained the, at times elusive, distinction between void and voidable orders. "Void" orders are those entered by a court that lacks " 'jurisdiction in its most fundamental or strict sense' " and acts despite " 'an entire absence of power to hear or determine the case' " or " 'an absence of authority over the subject matter or the parties.' " (American Contractors, supra, 33 Cal.4th at p. 660.) Voidable orders, on the other hand, are those where " 'the court has jurisdiction over the subject matter and the parties in the fundamental sense,' " but cannot act " 'except in a particular manner,' " or " 'without the occurrence of certain procedural prerequisites' " or can only " 'give certain kinds of relief.' " (Id. at p. 661.) The distinction between a voidable and void order is a legal question that we review de novo.
Applying the definitions described above, we believe Judge Szumowski's order falls into the category of orders that are void, not merely voidable. While Judge Szumowski did possess the authority to perform a nondiscretionary exoneration of bond (had Estrada appeared within the appearance period), Judge Szumowski did not possess any authority to determine the merits of the exoneration motion then pending in department 22. As our Supreme Court has explained, "where a proceeding has been duly assigned for hearing and determination to one department of the superior court by the presiding judge of said court in conformity with the rules thereof, and the proceeding so assigned has not been finally disposed of therein or legally removed therefrom, it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned." (Williams v. Superior Court (1939) 14 Cal.2d 656, 662 (Williams), italics added; see also Shane v. Superior Court (1984) 160 Cal.App.3d 1237, 1249 ["a court or department lacks jurisdiction to adjudicate and dispose of the merits of an action that has not been assigned to it for hearing"]; Martin v. Superior Court (1962) 199 Cal.App.2d 730, 735 ["when a matter has been assigned to and is being heard by the judge of one department of the superior court the judge of another department ordinarily has no jurisdiction to interfere with the matter so being heard"].)
Indeed, Judge Szumowski did not simply dispose of a matter that had been assigned to another department, briefed in that department and set for argument there. He disposed of the matter without any apparent notice to the parties and on erroneous procedural grounds without any examination of the merits. In such circumstances, we believe it is clear that Judge Szumowski acted (we think inadvertently) "beyond [his] jurisdictional authority" (Williams, supra, 14 Cal.2d at p. 662) and "purport[ed] to grant relief that [he] ha[d] no authority to grant." (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 538 (Thompson) ["Even where there is jurisdiction over the parties and the general subject matter, fundamental jurisdiction may be absent when a trial court purports to grant relief that it has no authority to grant"].) His order was, therefore, void. (See Thompson, supra, 155 Cal.App.4th at p. 538; People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 549-550 [trial court's attempt to forfeit bond despite failure to comply with statutory provision for forfeiture rendered court's action void not merely voidable and subject to collateral attack at any time]; Sindler v. Brennan (2003) 105 Cal.App.4th 1350, 1353 [explaining that trial court's dismissal of a case despite a pending bankruptcy stay was void because the court " 'exceeded its jurisdiction in granting relief which the court had no power to grant' " and thus should have been vacated].)
We emphasize that our ruling hinges on the unique circumstances of this case. If Estrada had appeared within the appearance period, Judge Szumowski would have had no choice but to vacate the forfeiture, despite the pending hearing. This nondiscretionary function is mandated by statute, which, in effect, expands the court's fundamental jurisdiction, even as to matters pending decision in another department. (Pen. Code, § 1305, subd. (c)(1).)
Lincoln also asserts that Code of Civil Procedure section 1008 barred Judge Marty from reaching the merits of Judge Szumowski's order. Section 1008 provides the sole means to obtain reconsideration of an order "[w]hen an application for an order has been made to a judge, or to a court, and refused . . . or granted . . . ." (Id., subd. (a).) "No application to reconsider any order . . . may be considered by any judge or court unless made according to this section." (Id., subd. (e).)
We do not believe Code of Civil Procedure section 1008 applies in the instant circumstances. While Judge Szumowski purported to resolve the bond forfeiture motion, he did not do so pursuant to an "application for an order," but acted on his own motion during arraignment and, as discussed above, did so despite having no authority to decide the matter. (Id., subd. (a).) Given these circumstances, we do not believe the County's subsequent motion is properly characterized as an "application to reconsider" Judge Szumowski's order. (Id., subd. (e).) Instead, it was a request to have the motion decided in the proper forum for the first time. Consequently, while section 1008's reach is broad (see Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499), it is not so broad as to reach the unusual circumstances present here.
The cases Lincoln cites in support of its contrary contention, People v. American Contractors Indemnity (1999) 74 Cal.App.4th 1037, 1045, and People v. Silva (1981) 114 Cal.App.3d 538, 555, are inapposite.
In sum, under the unusual circumstances of this case, Judge Marty possessed sufficient authority to vacate Judge Szumowski's order. Consequently, we cannot reverse absent some flaw in the merits of Judge Marty's ruling.
III.
Judge Marty Did Not Abuse His Discretion
Lincoln contends that even if Judge Marty possessed authority to vacate Judge Szumowski's order and reach the merits of the bond forfeiture issue, he abused his discretion in resolving the merits in favor of the County.
A. Judge Marty's Ruling
The oral and written rulings issued by Judge Marty include two separate grounds for his ruling. Initially, Judge Marty appeared to suggest at the hearing that he was required to rule in favor of the County because Judge Szumowski had no choice but to do so at the time of Estrada's arraignment. This suggestion was incorrect. While the appearance period had run by the time of Estrada's arraignment (precluding relief on the ground that Estrada had appeared), Lincoln's filing of a motion prior to the expiration of the appearance period provided at least an additional 30 days within which the court could hear a motion for relief despite the failure to appear. (See Pen. Code, § 1305, subd. (i) ["A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period. The court may extend the 30-day period upon a showing of good cause"].) Thus, at the time that Judge Szumowski vacated the forfeiture and took Lincoln's timely filed motion off calendar, the superior court (department 22) still possessed authority to vacate the forfeiture if one of the statutory grounds for doing so applied. (See, e.g., Pen. Code, §1305, subds. (d) or (g).)
Judge Marty's subsequent written order reflects a, perhaps belated, understanding of this point. The order states that "the filing of the Surety's motion on July 2, 2007," allowed the merits to "be heard after the appearance pursuant to Penal Code section 1305, subdivision (i)." The written order then briefly addresses the merits, stating: "The Court further finds that the Surety's prior motions did not provide good cause to exonerate the bail bond pursuant to Penal Code section 1305, subdivision (g) or to toll the appearance period pursuant to Penal Code section 1305, subdivision (e)."
B. Lincoln's Showing in the Trial Court Did Not Require Relief from the Forfeiture
As the parties recognize, the resolution of a bond forfeiture motion under Penal Code section 1305 is committed to the discretion of the trial court and can be reversed on appeal only upon a showing of abuse of discretion. (People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1383 ["The determination of a motion to set aside a bail forfeiture is in the discretion of the trial court and should not be disturbed on appeal unless an abuse of discretion appears in the record"]; People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195 [same]; People v. United Bonding Ins. Co. (1970) 12 Cal.App.3d 349, 353 [same].)
Lincoln has failed to demonstrate an abuse of discretion with respect to the denial of forfeiture relief on any of the grounds raised in its motion. (Pen. Code, § 1305, subds. (d), (e), (g).)
Under Penal Code section 1305, subdivision(g), "the court shall vacate the forfeiture and exonerate the bond" if the defendant is: (i) "beyond the jurisdiction of the state"; (ii) "temporarily detained, by the bail agent, in the presence of a local law enforcement officer of the jurisdiction in which the defendant is located"; (iii) "positively identified by that law enforcement officer as the wanted defendant in an affidavit signed under penalty of perjury"; and (iv) "the prosecuting agency elects not to seek extradition after being informed of the location of the defendant." (Ibid.)
In the instant case, the only disputed prerequisite to relief under Penal Code section 1305 subdivision (g) is the final one — whether the district attorney "elect[ed] not to seek extradition." (Ibid.) The County contends that because extradition was not feasible, its decision to forego extradition did not constitute an election under the statute.
An identical argument was made, and accepted, in County of Orange v. Ranger Ins. Co. (1998) 61 Cal.App.4th 795, 804 (Ranger). We agree with the analysis in Ranger and believe it controls in the instant case.
In Ranger, supra, 61 Cal.App.4th 795, our colleagues in Division Three explained that the use of the term "elects" in Penal Code section 1305, subdivision (g) requires that the district attorney, in deciding on extradition, be faced with "a choice of options." (Ranger, at p. 802.) There is no such choice of options, however, if the record shows that extradition is infeasible. (Id., at p. 804 [the district attorney is not required to " 'butt his [or her] head against a wall just to see how much it hurts' "].) "When extradition is not feasible, there can be no meaningful election whether to seek extradition, and the conditions for forfeiture relief have not been satisfied." (Ibid.; see also People v. American Contractors Indemnity, supra, 74 Cal.App.4th at p. 1048 [reciting standard set forth in Ranger].)
In the instant case, the County filed a declaration from the district attorney's "Extraditions Deputy," Deputy District Attorney Jane Via, which appears in all pertinent respects to be identical to the supporting declaration filed in Ranger. (See Ranger, supra, 61 Cal.App.4th at pp. 803-804 [summarizing declaration of "extradition specialist" Deputy District Attorney Estes].) The declaration summarized the relevant facts of Estrada's case, and explained why, given those facts, there was no reason to believe that Mexico would extradite. The explanation boiled down, as it did in Ranger, to the fairly simple notion that Mexico does not extradite its nationals to face "relatively minor" charges in the United States.
Lincoln makes much rhetorical hay out of the fact that Via, "under penalty of perjury," characterized the charges against Estrada as "relatively minor." We see nothing noteworthy about this characterization. In context, it is clear that Via was comparing Estrada's offense to the offenses of "drug dealers who operate at the cartel level." That Estrada's offense was "relatively minor" when compared with those of the leaders of Mexico's drug cartels is, we think, a fairly uncontroversial proposition.
Lincoln attempts to distinguish Ranger on the ground that Mexico's extradition policy has "drastically changed" in the 10 years since that case was decided. Via's declaration, however, recognizes this fact, while explaining that the changes are immaterial to a defendant such as Estrada. The declaration states:
"Mexico began changing its longstanding pattern regarding extradition of its citizens to the United States in approximately 2005. Until 2005, Mexico was not extraditing its nationals to the United States. Currently, Mexico is extraditing Mexican citizens in cases of very serious crimes of violence such as homicide, rape, and child molestation, as well as in cases of drug dealers who operate at the cartel level."
While Lincoln assails Via's declaration as not credible, Via's explanation of Mexico's extradition policies is substantially identical to the description provided by Lincoln in its own filings in the trial court. Lincoln submitted a letter from its counsel to the district attorney's office that, based upon a review of news articles, emphasizes the "significant increase in the number of fugitives being extradited from Mexico." The letter, however, does not contain any indication that the change in policy resulted in the extradition of any fugitive analogous to Estrada. Rather the letter, like Via's declaration, states that "some high profile fugitives accused of heinous crimes and exposed to lengthy incarceration in the U.S. are being extradited from Mexico." Thus, while Lincoln may be correct that Mexico's extradition policy has changed since Ranger was decided, those changes were not shown, at least on this record, to make extradition of Estrada feasible.
Lincoln also contends that relief from the forfeiture was required under Penal Code section 1305 subdivisions (d) and (e), which apply in the case of a defendant's "permanent" or "temporary disability." (Pen. Code, § 1305, subds. (d), (e).) "Disability" under the statute requires a showing that the "defendant is deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities" (Pen. Code, § 1305, subd. (d)(1)), or that the "defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities." (Id., subd. (e)(1).) Lincoln argues that Estrada was disabled under these provisions by virtue of being "det[ained] by military or civil authorities." (Ibid.)
In the context of this case, it is immaterial whether Estrada is purported to have suffered a "permanent disability" (Pen. Code, § 1305, subd. (d)) or merely a "temporary disability" (id., subd. (e)). Lincoln's initial motion filed prior to Estrada's arrest relied on subdivision (d); Lincoln added subdivision (e) to its contentions when it filed its reply brief, as Estrada had, by that time, been taken into custody. Lincoln reconciles these facts by arguing, on appeal, that Estrada was permanently disabled so long as the district attorney's office refused to cooperate, and became only temporarily disabled when "the [district attorney's office] altered their iron clad position" and "agree[d] to accept [Estrada] into custody if he presented himself at the border."
In light of the showing made below, we do not believe Judge Marty abused his discretion in denying relief on the ground of disability.
It was undisputed that, after absconding, Estrada was free in Mexico and not suffering "detention by military or civil authorities." (Pen. Code, § 1305, subd. (d)(1).) Lincoln argues, however, that because the federal government restricts access to the United States from Mexico, law enforcement "authorities" (i.e., border enforcement) prevented him from returning to court. Specifically, Lincoln points to 8 United States Code section 1182(a)(2)(C)(i), which states that among those aliens who are "ineligible to be admitted" into this country is any alien who the "consular officer or the Attorney General knows or has reason to believe" has "been an illicit trafficker in any controlled substance." We disagree.
First, we do not believe the mere assertion that Estrada might not be able to cross the border is sufficient to require relief under Penal Code section 1305. While Lincoln may be right that Estrada would have difficulty legally entering the country (or, more to the point, turning himself in at the border), the factual basis for this contention is wholly speculative. In fact, the pleadings on the motion demonstrate that when Estrada did, in fact, attempt to turn himself in at the border he was successful.
In support of its argument, Lincoln provides generic citations to the Code of Federal Regulations, specifically 8 Code of Federal Regulations parts 212.1, 212.6 and 214.1. These citations to generic regulations regarding entry requirements does little to support Lincoln's contention that Estrada was disabled for purposes of Penal Code section 1305.
Second, any obstacle to reentering the county was completely of Estrada's making. The case law interpreting Penal Code section 1305 distinguishes between circumstances where a fugitive has, by his own actions, created obstacles to his return to court and one who, by the actions of the authorities, becomes unable to return. Thus, as explained in the case Lincoln relies on, People v. American Surety Ins. Co. (2000) 77 Cal.App.4th 1063, a defendant does not become "disab[led]" under Penal Code section 1305, subdivision (d) merely because he voluntarily leaves the country. (See People v. American Surety Ins. Co., supra, at p. 1066 [drawing distinction between defendants who voluntarily leave the country and those who are deported]; County of Los Angeles v. Ranger Ins. Co. (1996) 48 Cal.App.4th 992, 996 [defendant's flight to Cuba combined with "hostile relationship between Cuba and the United States" may have complicated fugitive's return, but did not provide ground for vacating bond forfeiture].) Rather, a disability may arise when the authorities take action (such as deportation) that, in combination with existing law, renders a particular defendant unable to lawfully reenter the country. (People v. American Surety Ins. Co., supra, at p. 1068 [explaining that § 1305, subd. (d) applies to a defendant who, by virtue of deportation and prohibition against reentry, "has been detained by operation of federal law"].) As Estrada was not deported but instead "voluntarily left the country" (People v. American Surety Ins. Co., supra, at p. 1067), the case law supports Judge Marty's ruling, and we fail to see any abuse of discretion in the failure to grant relief on the ground of disability.
We also note that there is no limiting principle to Estrada's argument regarding "disability," as there is nothing distinctive about the instant circumstances. If a disability were present here, one would be present in virtually every case in which a foreign national fled the country. We do not believe the Legislature intended to provide such a gaping loophole in the bond forfeiture laws.
DISPOSITION
Affirmed.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.
In fact, our Supreme Court has suggested that even a voidable final judgment may be vulnerable to collateral attack in " 'unusual circumstances.' " (American Contractors, supra, 33 Cal.4th at p. 661.) We need not resolve whether such unusual circumstances are present here, given our conclusion that the original order was void.