County of Los Angeles v. Financial Casualty & Surety, Inc.

Filed 5/31/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

COUNTY OF LOS ANGELES, B240358

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SJ3716) v.

FINANCIAL CASUALTY & SURETY, INC.,

Defendant and Appellant.

APPEAL from an order and judgment of the Superior Court of Los Angeles County. Mark A. Young, Judge. Reversed. E. Alan Nunez for Defendant and Appellant. Ruben Baeza, Jr., Assistant County Counsel, Joanne Nielsen, Principal Deputy County Counsel for Plaintiff and Respondent.

____________________________________________

Penal Code section 1305, subdivision (d) provides for the exoneration of a forfeited bail bond if the defendant is permanently unable to appear in court and “[t]he absence of the defendant is without the connivance of the bail.” Here, it is undisputed that Luciano Villa, the defendant in the underlying criminal case, was permanently unable to appear in court because he had been deported. The issue is whether the bail surety “connived” in the defendant’s inability to appear because the surety should have known that Villa would likely be deported while released on bail. We hold that even assuming the bail surety should have known there was a likelihood Villa would be deported while out on bail, the surety did not “connive” in his deportation and therefore was entitled to exoneration of its bond. FACTS AND PROCEEDINGS BELOW On June 11, 2011, appellant Financial Casualty & Surety, Inc. (Financial) posted a $100,000 bond for the release of Luciano Villa who was charged with driving under the influence of a drug or alcohol (Veh. Code, § 23152, subds. (a) and (b)) and driving without a license (Veh. Code, § 12500, subd. (a)). Villa failed to appear in court on June 24, 2011 and bail was forfeited. Financial made a timely motion to vacate the forfeiture and exonerate the bond on the ground that Villa was deported on June 13, 2011 and therefore, under Penal Code section 1305, subdivision (d), he was “permanently unable to appear in the court.”1 The court found that Financial met the first prong of section 1305, subdivision (d) because it showed that Villa was permanently unable to return to the United States but it failed to meet the second prong because it failed to show that Financial was “without connivance” in Villa’s inability to appear in court. The court interpreted without “connivance” to mean without “unclean hands” and found that Financial had unclean hands in its posting bond for Villa. Addressing Financial’s counsel, the court observed: “[L]ooking at the facts, you had full knowledge of his status, you had full knowledge of