Wednesday, August 09, 2017

People v. Financial Casualty & Surety (Cal. Ct. App. - Aug. 8, 2017)

Two questions about this opinion:

(1) What's the relevant standard of proof?  The opinion doesn't seem to mention it, but I think it's at least relevant, if not critical.  Bail doesn't get forfeited if the defendant's been deported.  Here, the surety introduces evidence that certainly seems to at least suggest that the guy might well have been deported.

The surety convincingly establishes that, after posting bail, the defendant was arrested in Utah on drug offenses.  And, as a condition of being released on probation for these offenses, his booking sheet says "Defendant to be released to Immigration and Customs Enforcement (ICE). [¶] Defendant may be released early for deportation into the custody of Immigration and Customs Enforcement (ICE); or leave the country voluntarily within 10 days of release. [¶] Do not re-enter the country illegally."

Since the guy was released to ICE directly from jail, that strongly suggests that the guy was kicked out of the country, since that's what typically happens.  The surety also introduces some cooberating evidence:  a letter from the Department of Homeland Security that reads:  “This is in response to your letter dated August 5, 2015, in which you seek information about the deportation status of Lesman Orlando Benegas-Cruz. [¶] The subject departed from the U.S. to Honduras on June 18, 2015.”

Well, geeze.  That definitely suggests that, yep, the guy was deported to Honduras, no?

Now, the Court of Appeal correctly notes that this evidence doesn't prove that the guy was actually deported.  The letter says that he "departed" for Honduras (even though it also talks about his "deportation" status), and the probation conditions also leave open the possibility that defendant might be permitted to leave the country voluntarily.

So I agree that I wouldn't bet my life -- or even my house -- on the fact that the defendant was in fact deported.  The evidence doesn't establish that fact with 100% certainty.

But that's where the standard of proof comes in.  At least to me.  My guess is that the relevant standard is proponderence of the evidence.  Or maybe even something less.

(I make this latter point because the opinion cites a case in a different section of the opinion that held that “the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance,” rather “the statute requires the court only have 'reason to believe that sufficient excuse may exist for the failure to appear.'")

The evidence the surety introduced may not prove conclusively that the guy was deported.  But it certainly gives a strong reason to believe that might well have transpired, no?  If the standard of proof is 50.001%, geeze, that evidence might well be enough.  If I had to bet one way or another whether the guy was, in fact, deported, I might well take the "Yes" side of that bet.  The evidence might show at least that it's more likely than not that the guy was kicked out.  Even though, sure, there's at least a chance that the guy voluntarily left.

What about you.  You've got $1000 in free money to bet.  Would you take the "Yes, Deported" side of the bet, or "No, Not Deported" side?

So it seems to me that the standard of proof is pretty darn important.  And that the surety's evidence might also well satisfy whatever the underlying standard is.  Even if, admittedly, it leaves open an alternative hypothesis to deportation.

(2)  A related, but quicker, thought.  Why does this matter anyway?

The opinion cogently cites precedent from the Court of Appeal that says that if you're deported, the surety doesn't lose his bail money, but if you voluntarily skip the country, yep, the money's gone.  I get that rule, and in most circumstances, it makes sense.  You can't just flee to Mexico and get your bail money back.

But, here, we're merely disputing whether someone was "actually" deported to Honduras or whether ICE gave him the option of "voluntarily departing" and never coming back.  The guy was going to be deported if he didn't "voluntarily" leave.  Undisputedly.  And since he's not a citizen, he's not allowed to come back.  Under such circumstances, it's not an actual choice.  The authorities are the ones who are making you leave.  You're not skipping out on bail.  You're being deported.  Either de jure or de facto.

Why does it make a monetary difference which one it is?  (A) It's not your choice. (B) You're not doing it to skip out on bail. (C) Either way you're forced, under official orders, to leave the country and never come back.  (See, e.g., the probation condition:  "Do not re-enter the country illegally.")

"Voluntary" departure in the deportation context doesn't seem to me actually voluntary, nor the type of "skipping the country" that precedent talks about when it mentions skipping bail.  So I'd like to have read a bit more analysis of this issue as well.

'Cause I'm not sure that, even if the evidence was consistent with a "voluntary" departure, that should be treated any different than an actual deportation in this context.

(The fact that, on appeal, the surety introduced additional evidence that may well show that, yeah, the guy was actually deported only strengthens my thought that the result here might well be a forfeiture in unjust circumstances.  I agree with the Court of Appeal that it can't consider this evidence since it wasn't presented below  But if in fact that evidence does indeed show that, yeah, he was indeed given the official boot, rather than voluntarily departed, that's just proof positive in my view that the "Yes he was deported" side of the bet is in fact a pretty good one to have taken, even on the evidence that was introduced below.)