Opinion

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.”

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: “[Ljooking at the facts, you had full knowledge of his status, you had full knowledge of his prior deportation, you had full knowledge that he wouldn’t be able to appear here on his case, yet you went ahead and filed a bond. ... I think you partially should be held responsible for that under unclean hands.”

Based on its finding of unclean hands, the court denied Financial’s motion to vacate the forfeiture and exonerate the bond and the clerk of court entered judgment on the forfeited bond. Financial filed a timely appeal from the order denying its motion and the subsequent judgment.

DISCUSSION

The trial court applied the wrong legal standard when it used the clean hands doctrine to deny Financial’s motion to vacate the order of forfeiture.

Section 1305, subdivision (d) contains two requirements for relief from the forfeiture of bail; neither involves “clean hands.” Under the statute, the bail surety is entitled to exoneration of its bond if “(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” and “(2) [t]he absence of the defendant is without the connivance of the bail.” (§ 1305, subd. (d), italics added.) If those two requirements are met, “the court shall direct the order of forfeiture to be vacated . . . .” (Ibid.., italics added.) Exoneration of bail under section 1305, subdivision (d) is neither discretionary nor dependent on the “clean hands” of the surety. Exoneration is mandatory so long as the “absence of the defendant is without the connivance of the bail.” (§ 1305, subd. (d).)

When interpreting a statute we begin with the plain meaning of its language. If that language is unambiguous the plain meaning controls. (People v. Dunbar (2012) 209 Cal.App.4th 114, 117 [ 146 Cal.Rptr.3d 673 ].)

The word “connivance” has a well-established meaning. In a 1929 dissenting opinion, Justice Shenk of our Supreme Court noted in dictum that the word “connivance” “presupposes some unlawful or wrongful act or omission on the part of another (here the defaulting defendant), that is, some feigned ignorance or acquiescence or encouragement of the surety in the wrongdoing.” (Seaboard Surety Corp. v. Municipal Court (1929) 208 Cal. 596, 599-600 [ 283 P. 289 ] (dis. opn. of Shenk, J.).) He further explained, “One may not connive with himself any more than he may conspire with himself. It requires at least two persons to connive.” (Id. at p. 600 (dis. opn. of Shenk, J.).) Justice Shenk’s understanding of the word “connivance” was adopted in People v. Pugh (1970) 9 Cal.App.3d 241, 253 [ 88 Cal.Rptr. 110 ], holding that the bail surety did not connive in the defendant’s absence merely because it gave him permission to travel to Oklahoma where he was arrested and incarcerated by Oklahoma authorities.

More recent definitions of “connivance” are to the same effect. Webster’s Third New International Dictionary defines the word as meaning: “(1) intentional failure to notice or discover wrongdoing: passive consent or cooperation; (2) corrupt or guilty assent to wrongdoing that involves knowledge of and failure to prevent or oppose it but no actual participation in it.” (Webster’s 3d New Internat. Dict. (1981) p. 481, cols. 1-2.) Black’s Law Dictionary defines “connivance” as: “The act of indulging or ignoring another’s wrongdoing, especially] when action should be taken to prevent it.” (Black’s Law Dict., supra, at p. 322, col. 1.)

There is no evidence that Villa, with Financial’s knowledge and assent, arranged for his own deportation so that he would not have to appear in court nor that Financial knew that Villa intended not to appear and either aided or failed to prevent or oppose his plan.

DISPOSITION

The judgment and the order denying Financial’s motion to vacate the forfeiture and exonerate the bond are reversed. Appellant to recover its costs on appeal.

Chaney, L, and Johnson, J., concurred.

On June 27, 2013, the opinion was modified to read as printed above.

Statutory references are to the Penal Code unless otherwise noted. The “clean-hands doctrine” holds that “a party cannot seek equitable relief... if that party has violated an equitable principle, such as good faith.” (Black’s Law Dict. (8th ed. 1999) p. 268, col. 2.) Section 1305 formerly provided that if the defendant’s absence “was not with the connivance of the bail” the court “may direct” exoneration of the bail “upon such terms as may be just” (Stats. 1927, ch. 735, § 1, p. 1386). In 1963 “may direct” was changed to “shall direct” (Stats. 1963, ch. 2014, § 1, p. 4113). And in 1993 the Legislature deleted the phrase “upon such terms as may be just” (Stats. 1993, ch. 524, § 2, p. 2702).