Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SJ001054 Richard S. Kemalyan, Judge.
Nunez & Bernstein, E. Alan Nunez for Defendant and Appellant.
Office of the County Counsel, Paul H.S. Kim, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Safety National Casualty Corporation (Safety National) appeals from a judgment forfeiting the bail it posted to secure the release from custody of a criminal defendant. Safety National contends its bond was exonerated because the defendant was deported and federal law prevented the defendant from returning to this country. We affirm.
BACKGROUND
On April 19, 2007, Safety National posted a bond for $80,000 for the release from custody of Juan Munoz who had been charged with felony drug offenses. Munoz was ordered to appear on May 23, 2007, for a preliminary hearing. He failed to appear and the court declared bail forfeited, issued a bench warrant, and set bail at $150,000. On May 24, 2007, the court mailed notice of the forfeiture to Safety National and its bail agent.
On November 27, 2007, Safety National filed a motion to extend the statutory period within which to produce Munoz by 180 days. On December 6, 2007, the court granted the motion and extended time to June 4, 2008.
Penal Code section 1305.4 provides: “Notwithstanding Section 1305, the surety insurer, the bail agent, the surety, or the depositor may file a motion, based upon good cause, for an order extending the 180-day period provided in that section. The motion shall include a declaration or affidavit that states the reasons showing good cause to extend that period. The court, upon a hearing and a showing of good cause, may order the period extended to a time not exceeding 180 days from its order. A motion may be filed and calendared as provided in subdivision (i) of Section 1305.” Further unmarked statutory references are to the Penal Code.
The clerk’s transcript shows that on May 29, 2008, Safety National filed a motion to vacate the forfeiture and to exonerate bond on the ground that Munoz had been deported on May 24, 2007, and federal law barred his reentry into the country. Its motion included as an exhibit documents purportedly from the Department of Homeland Security, United States Immigration and Customs Enforcement (ICE), stating that in 2005 Munoz had been convicted of selling cocaine and on May 26, 2005, had been “deported * lifetime.” The motion was not signed by counsel for Safety National, and did not include a declaration from anyone attesting to the factual assertion in the motion.
On June 4, 2008, the court found good cause to extend the hearing date to June 30, 2008. The document submitted by Safety National pursuant to its motion to augment the record, which we granted, contains another motion to vacate the forfeiture and exonerate the bail dated June 17, 2008. Although that copy does not contain a file stamp, the trial court’s minute order shows that a motion to vacate the forfeiture and exonerate the bond was filed on that date. The copy of the new motion supplied by Safety National consists of an unsigned notice of motion and an unsigned and unsworn declaration from the bail agent. This motion did not attach the ICE documents as an exhibit.
On June 23, 2008, the court returned Safety National’s “notice of motion and motion to vacate forfeiture and exonerate bond documents” for failure to pay the $300 filing fee. Given the poor records provided by Safety National we cannot be sure what exactly was before the trial court when it made its ruling but we will assume that the court had before it both motions and their supporting documentation.
On June 30, 2008, the court heard and denied Safety National’s motion to vacate the forfeiture and exonerate the bond, found its motion untimely, and entered summary judgment against Safety National in the amount of $80,000 plus costs. This appeal followed.
Section 1306 specifies when a court may enter summary judgment against a surety on its bond. Subdivision (a) of this section provides: “When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture, regardless of the amount of the bail, shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound. The judgment shall be the amount of the bond plus costs, and notwithstanding any other law, no penalty assessments shall be levied or added to the judgment.”
Safety National has not included a transcript of the hearing in the record on appeal.
DISCUSSION
Principles Governing Bail Statutes
Section 1305, subdivision (a) provides that “[a] court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear” when ordered to appear or when otherwise required to appear.
“The purpose of posting bail is to insure the defendant will make his appearances in court and obey the court’s orders and judgment. Forfeiture of a bail bond is not to be viewed as a means of revenue for the government or a punishment of the surety. (People v. North Beach Bonding Co. (1974) 36 Cal.App.3d663, 675.)...” (County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 16.)
Performance Prevented by Operation of Federal Law
Safety National contends Munoz was deported to Mexico on May 24, 2007, and because he is permanently ineligible to reenter this country as a result of his prior drug convictions it cannot return Munoz without violating federal law. Safety National thus contends section 1305, subdivision (d) required exoneration of its bond because federal law made its performance impossible.
Section 1305, subdivision (d) provides: “In the case of a permanent disability, the court shall direct the order of forfeiture to be vacated and the bail or money or property deposited as bail exonerated if, within 180 days of the date of forfeiture..., it is made apparent to the satisfaction of the court that both of the following conditions are met: [¶] (1) The defendant is deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities. [¶] (2) The absence of the defendant is without the connivance of the bail.”
The surety has the burden of proving that this statutory provision applies. (People v. Accredited Surety & Cas. Co. (2004) 132 Cal.App.4th 1134, 1139 [“It is the bonding company’s obligation ‘to establish by competent evidence that its case falls within the four corners’ of section 1305....”].)
Safety National contends the decision in People v. American Surety Ins. Co. (2000) 77 Cal.App.4th 1063 (American Surety) controls the outcome of this case and demonstrates that section 1305, subdivision (d) required the court to exonerate the bail. We disagree.
In American Surety, the trial court ordered bail forfeited when the defendant failed to appear because immigration authorities had deported him after he was convicted of narcotics trafficking in another case. (Id. at p. 1065.) The surety appealed and the appellate court reversed. Because the drug trafficking conviction permanently barred the defendant from returning to the United States (except in few narrowly circumscribed circumstances), the court concluded that the defendant had, as a practical matter, been “permanently detained” for purposes of section 1305, subdivision (d). (American Surety, supra, 77 Cal.App.4th at pp. 1067-1068.) The court reasoned that, “Quintero’s forced deportation and the federal statutes barring his reentry ‘detain’ him, by operation of United States law, from appearing in a California court. He was not only ordered to leave the country, he was physically escorted across the border by federal agents. Federal statutes prevent both his voluntary return, and his forced return by Surety. (8 U.S.C.A. §§ 1182 (a)(2)(A)(i)(II), 1327.)” (Id. at p. 1066; see also People v. Meyers (1932) 215 Cal. 115, 117-119 [order of a San Francisco court banishing a defendant from California made it impossible for the surety to perform its obligation to return the defendant to the Alameda County court].)
Contrary to Safety National’s argument, the decision in American Surety does not compel the same result in this case. We accept for purposes of argument that evidence of deportation and a federal order barring a defendant from reentering this country constitutes a “detention” within the meaning of section 1305 subdivision (d). Safety National, however, unlike the surety in American Surety, presented no evidence to show that Munoz had been deported by federal immigration authorities and, indeed, no evidence to show that Munoz was outside the country.
Although Safety National acknowledges that evidence to support a motion to vacate forfeiture and exonerate a bond “must be by declaration or request for judicial notice” (Cal. Rules of Court, rule 3.1306(a); § 1305, subd. (i)), the record before us contains no declaration or other competent evidence to substantiate Safety National’s factual assertion that Munoz had been deported. (Cf. People v. Resolute Ins. Co. (1975) 46 Cal.App.3d249, 255-256 [despite defects in the caption of the motion, the motion stated proper grounds for relief which were substantiated by multiple declarations].) Nor does the record contain any evidence to show that Munoz was even outside the country. Neither motion contains a declaration supporting the motion. Although the second motion includes a document entitled “Declaration,” it contains no jurat or signature.
Safety National argues for the first time in its reply brief that the documents from ICE constituted evidence that Munoz was deported and could not return to the United States and that the documents were admissible under Evidence Code section 1420 [authentication by evidence of reply].) Even if we were to overlook the various evidentiary shortcoming of this document, it does not establish that Munoz was deported or that he actually is absent from the United States. The ICE documents do not state that Munoz had been deported on May 24, 2007. “May 24, 2007” appears without any accompanying comments to explain the date’s significance. This is in contrast to the dated entries concerning Munoz’s 2005 drug trafficking convictions and detailed entries regarding his 2005 deportation because of those convictions, including his photograph and fingerprint exemplars on deportation. No such information accompanies or explains the bare entry of “May 24, 2007” in the ICE documents. Without evidence which explained the significance, if any, of this date in the ICE documents, the documents were insufficient to establish that Munoz had been deported. (See County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 944 [because the surety’s assertion that the defendant had been deported lacked factual support it was not entitled to exoneration of its bond under section 1305, subdivision (d)].)
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: MALLANO, P. J., CHANEY, J.