In People v. Lincoln General Insurance Co., 2009 WL 1065971 (Cal.App. April 21, 2009) the defendant fled to Mexico. The surety timely moved to exonerate the bond pursuant to Penal Code §1305 on the grounds either that the defendant was disabled from returning by the U.S. border authorities or that the district attorney refused to extradite him after the surety located him in Mexico. The appearance period was extended once, and after it expired a hearing was set on the surety's motion. Shortly before the hearing, the defendant presented himself at the border, was taken into custody and brought before the judge in the criminal proceedings. The judge apparently thought that the extended appearance period had not expired and purported to set aside the forfeiture and exonerate the bond. Neither the County nor the surety was present at the hearing in the criminal case, but when the County learned of the order it successfully moved in the bail forfeiture matter to have the order vacated. Summary judgment was entered against the surety and the surety appealed arguing that the judge in the bail forfeiture matter did not have authority to modify the exoneration order of the judge in the criminal matter, and in any case its timely motion should have been granted.

The Court of Appeal rejected both arguments and affirmed the judgment. The Court held that the exoneration order was void, not just voidable, because the appearance period had expired before the defendant returned to custody. It found on the record that the criminal court judge did not purport to grant the surety's motion then pending before another judge. One judge can vacate a void order entered by another judge, and the exoneration order was void. On the merits of the surety's timely motion, the Court held that voluntarily leaving the country does not cause a disability and the district attorney did not refuse to extradite the defendant. The County submitted an affidavit showing that the district attorney recognized that an extradition request would be futile because the charges were not ones for which Mexico would extradite its own citizens. The Court held that for the district attorney to refuse to extradite there must be an actual choice not just recognition that extradition was impossible.