Conditions In Order to Vacate Forfeiture

Section 1305, subdivision (d) provides that an order of forfeiture shall be vacated and bail exonerated if 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." Because he has been convicted of a drug offense, Surety meritoriously contends that Quintero is "detained" in Mexico by operation of federal law that permanently bars his return to the United States. (8 U.S.C.A. 1182(a)(2)(A)(i)(II).) Title 8 United States Code section 1182 lists classes of aliens who are, "ineligible to receive visas and ineligible to be admitted to the United States." (8 U.S.C.A. 1182(a).) One such class of aliens is, "any alien convicted of . . . (II) a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ." (8 U.S.C.A. 1182(a)(2)(A)(i)(II).) As the court noted in People v. Pugh (1970) 9 Cal. App. 3d 241, 248 [88 Cal. Rptr. 110], this statute creates an exception to the common law rule which required forfeiture if, "after the instrument is executed, the principal is imprisoned in another state for the violation of a criminal law of that state . . . ." ( Taylor v. Taintor (1872) 83 U.S. (16 Wall.) 366, 371 [21 L. Ed. 287, 290].) A person may be "detained" within the meaning of section 1305, subdivision (d), without being in the actual physical custody of civil authorities. "It is sufficient under this section . . . if it is proven that the defendant was restrained by civil authorities and that the restraint prevents his appearance on the date set for that appearance." ( People v. United Bonding Ins. Co. (1970) 12 Cal. App. 3d 349, 352-353 [90 Cal. Rptr. 714].)