P. v. Grachian

Filed 2/28/07 P. v. Grachian CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Monica Bachner, Judge. Affirmed.

Law Offices of Jilbert Tahmazian and Jilbert Tahmazian for Defendant and Appellant.

Raymond G. Fortner, County Counsel, Ralph L. Rosato, Assistant County Counsel and Joseph A. Langston, Deputy County Counsel, for Plaintiff and Respondent.

______________________________________________

In this appeal, Hikanoush Grachian (appellant) challenges the trial courts order that denied her motion to extend the statutory time in which to have the forfeiture of a bail bond vacated. Whether to grant such a motion is a matter within the trial courts discretion, and on the basis of the appellate record, we do not find the trial court abused its discretion when it denied appellants motion.[1][2] Therefore, the summary judgment on the forfeiture will be affirmed.[3]

BACKGROUND OF THE CASE[4]

Criminal case number BA277905 was filed against Karapet Grachyan (defendant) by the People of the State of California on January 31, 2005. Defendant was charged with multiple weapons and drug charges, and with making and/or passing a fictitious check and forging an official seal. Several prior convictions on drug charges were also alleged. He was released on bail on a $50,000 bond from Bankers Insurance Company.

Bail was forfeited on March 17, 2005, when defendant failed to appear for his preliminary setting. A bench warrant was issued and held to March 21, when the hold was lifted.

Notice of forfeiture of the bail was mailed to the surety and bail agent on March 18. The case summary states that the 185th day was September 19, 2005.[5]

On August 24, 2005, defendant filed a section 1305 motion to vacate the bail forfeiture. The motion was set for September 19, the last day of the 180-day period, and on that day, the trial court, on its own motion, continued the hearing to January 19, 2006, and tolled, to January 20, 2006, the running of the 180-day period. It appears from the case summary that the hearing on the motion was continued because county counsel was not served with defendants motion. Appellant had neither the minute order nor the reporters transcript from the September 19 hearing included in the appellate record.

While defendants motion to vacate the bail bond forfeiture was pending, appellant filed a section 1305.4 motion (filed on January 6, 2006), requesting that the 180‑day period in section 1305 be extended an additional 90 days.[6] Hearing on that motion was set for January 19, the same day to which the trial court had continued the hearing on defendants motion to vacate the forfeiture.

At the January 19, 2006 hearing on defendants continued section 1305 motion to vacate the forfeiture, and on appellants section 1305.4 motion to extend the section 1305 180-day period, defendant/appellants attorney represented to the court that defendant had been in custody in Armenia after he was arrested for being in a fight, had been released from custody, and was waiting for the case in Armenia to be over so that he could come back to the United States and appear before the trial court. The court indicated it would not grant defendants motion to vacate the bail forfeiture, but would consider granting appellants motion to extend the 180-day period in which a forfeiture may be vacated. The court indicated it would take appellants request for an extension under submission to further review the case. Later that day the motion for an extension was denied.

On January 27, 2006, a summary judgment on the bail forfeiture was requested by the People and granted. On February 17, appellant filed a notice of appeal from the January 19 denial of her section 1305.4 motion to extend the time for vacating the bail forfeiture, and then on February 23 appellant filed a motion with this court requesting a stay of execution on the summary judgment, which we denied. The summary judgment on the bond was paid in full on March 6, 2006.

CONTENTION ON APPEAL

Appellant contends the trial court abused its discretion when it denied her motion to extend the 180-day period.

DISCUSSION

1. The Propriety of the Trial Courts Tolling the 180-Day Period

Before we discuss the merits of appellants contention that the trial court abused its discretion by denying her section 1305.4 motion, we will address the propriety of the trial courts tolling, for four months, the running of the 180-day period.

Subdivision (e) of section 1305 permits a trial court to toll the running of the 180-day period in which a bail bond forfeiture may be set aside. The tolling is permitted when there is a case of temporary disability, and is effective during the period of temporary disability. Additional tolling time is permitted, at the discretion of the trial court and for a reasonable period of time after the temporary disability ceases, to allow for the return of the defendant to the courts jurisdiction. The effect of the tolling is to permit the defendant to become available so that the defendant can then appear voluntarily in court, or in custody after surrender or arrest, and the bail forfeiture can then be vacated prior to the running of the 180-day period.

Subdivision (e) of section 1305 sets out what constitutes a temporary disability. It provides that the tolling shall be ordered provided that it appears to the satisfaction of the court that the following conditions are met: [] (1) The defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities. [] (2) Based upon the temporary disability, the defendant is unable to appear in court during the remainder of the 180-day period. [] (3) The absence of the defendant is without the connivance of the bail.

In the instant case, three documents were submitted with the motion to vacate the forfeiture. One is written in Armenian. The second is a certification of a person stating that such person is a translator, that the translator is competent to translate from the Armenian language, that the translator translated the Armenian document into English, that to the best of the translators knowledge and belief the translation is accurate, and that the document is entitled Police Force of the Republic of Armenia. The third document is represented to be the translation from Armenian to English and it states that it is from the Yerevan City Police Department. It further states that it is dated July 8, 2005, and that it is written to advise that defendant became incarcerated in the preliminary detention facility of that police department on April 15, 2005.

There is no declaration from anyone to authenticate any of those three documents, or to support a series of events that are related in the defendants moving papers. Nor is there anything in declaration form to show that the temporary disability conditions were met. That is, there is nothing to indicate that the defendants incarceration in Armenia would be temporary; there is nothing to indicate that if the incarceration were temporary, the defendant would nevertheless not be able to appear in the trial court before the 180-day period ran out; and there is no statement indicating that the absence of the defendant was without the connivance of the bail.

Nevertheless, despite the fact that no case was made for a tolling, on September 19, 2005, the trial court ordered that the running of the 180-day period would be tolled for four months to January 20, 2006, and it continued the defendants motion to vacate the bail forfeiture to January 19, 2006. In some other circumstances we would find that the trial court acted in excess of its jurisdiction by tolling the 180-day period on such a paltry set of facts. However because the defendant asked for relief under section 1305 by means of his motion to vacate the forfeiture but was found to not have served county counsel, and was granted relief in the form of an additional four months, which provided (a) time to effect service on county counsel, (b) additional time to produce defendant to the court and have the forfeiture vacated, and (c) time for appellant to bring her section 1305.4 motion to extend the 180-day period, appellant has benefited by having the 180-day period tolled, and would properly be estopped from asserting an excess of jurisdiction were she to make an excess of jurisdiction claim. (People v. Frontier Pacific Ins. Co. (2000) 83 Cal.App.4th 1289, 1293-1294; People v. National Automobile & Casualty Ins. Co. (2000) 82 Cal.App.4th 120, 124-126.)

The significance of whether the 180-day period ran on September 19, 2005, or whether it can be adjudged to have been tolled that day, lies in section 1306s provisions for obtaining a summary judgment on bail forfeitures. Subdivision (a) of section 1306 provides that when the 180-day period expires and the forfeiture has not been vacated, the trial court must enter a summary judgment on the forfeiture. Subdivision (c) states that if the trial court does not enter the summary judgment within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated.

Thus, were we to find that the four month tolling period cannot stand, we would necessarily have to conclude that the summary judgment that was entered on January 27, 2006 was not timely and the bail was exonerated by operation of law.

For defense counsels edification for future bail bond issues, we also observe that there was no valid basis stated for defendants motion to set aside the forfeiture. The grounds upon which defendant actually moved to have the bail forfeiture vacated were not demonstrated to be applicable to this case.

Defendant cited subdivisions (f) and (g) of section 1305 to support its motion to vacate. Subdivision (f) states: In all cases where a defendant is in custody beyond the jurisdiction of the court that ordered the bail forfeited, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release. Defendant presented no declaration to authenticate the documents included with the motion to vacate, and thus no sufficient proof to show that defendant was incarcerated. Further there was nothing from the district attorneys office to show that it did not intend to seek extradition. There was only a statement in defendants points and authorities that defendants attorney is not aware if the District Attorney has elected or will elect to seek extradition, and the defense provided competent showing of defendants detention in the foreign country by police authorities. There is no declaration to support these assertions or to flesh out to whom in the District Attorneys office the competent showing was made.

Nor is subdivision (g) of section 1305 applicable to this case to support defendants motion to set aside the forfeiture. It only applies when, among other things, the defendant is not in custody but is being detained by the bail agent. The moving papers state the defendant was in custody in Armenia; they do not state he was being detained by a bail agent.

2. Burdens in the Trial Court

Because the law disfavors forfeitures, the bail statutes are strictly construed in favor of the surety to avoid harsh results. (People v. American Surety Ins. Co., supra, 75 Cal.App.4th at p. 725.) However, the burden is upon the person seeking relief from forfeiture to establish by competent evidence that its case falls within the four corners of [the] statutory requirements. (Ibid.) The trial court must also abide by the four corners of the bail statutes. The court has a duty to carefully follow the provisions in the statutory scheme governing bail forfeitures lest its acts be deemed to be without out, or in excess of, its jurisdiction. (People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1074.)

3. Standard of Review of a Section 1305.4 Ruling

Trial courts are called upon to exercise their discretion when they rule on section 1305.4 motions to extend the time to vacate a bail forfeiture. Absent an abuse of that discretion, a reviewing court has no cause to reverse the courts decision on the motion. (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.) In the instant case, besides an evidentiary foundation problem with appellants section 1305.4 motion, the motion does not demonstrate an enthusiastic attempt to locate defendant and have him explain to the court why he did not appear on March 17, 2005, and how soon he will be back in Los Angeles to present himself to the court. We cannot find that the trial court abused its discretion when it denied the motion.

Our review of the record shows there was no declaration from the appellant stating she is the sister of the defendant, and she has the asserted monetary interest in the bail that would give her standing to bring the section 1305.4 motion to extend the 180‑day period. Further, there is no foundation for the letter reported to be from the Yerevan police. Nothing in the declaration submitted by defendant/appellants attorney in support of appellants section 1305.4 motion states the letter came straight to the attorney. It is not addressed to anyone. The mailing envelope is not presented. Moreover, it does not escape our notice that defendant himself is charged with making and/or passing a fictitious check and forging an official seal.

The attorney represents that he spoke with defendant who indicated a willingness to return to the United States and a desire to not have appellant be liable for the bail bond. This is hearsay. There is no declaration from defendant himself as to these facts. There is no declaration from defendant as to why he was present in court on February 9, 2005 but failed to appear five weeks later on March 17 when bail was forfeited. There is no explanation from defendant why he would go to Armenia when he had a criminal case pending. There is no declaration from defendant setting out the facts surrounding his asserted incarceration in Armenia. This does not support defendants asserted concern for appellants asserted financial stake in this bail. Given that defendants whereabouts were represented to the court to be known and at least semi-permanent since he was incarcerated, a declaration from him was to be expected, absent a convincing showing that such a declaration could not be obtained.

Further, there are large time gaps in the timeline presented in the attorneys declaration. Defendant failed to appear in court on March 17. The attorney states he made computer searches and interviewed defendants friends and relatives to locate defendant and [a]t some point in time the attorney discovered defendant was in Armenia and in custody of police. He does not explain what he meant by computer searches, and he does not definitively state when he learned defendant was incarcerated in Armenia. The letter asserted to be from police in Armenia is dated nearly four months after defendant failed to appear in court. The attorney does not explain why he did not make contact with defendant himself until mid-December 2005 even though he was told defendant was incarcerated at least five months earlier. Nor does he explain what he means by his statement that he was currently negotiating for the defendants return, and he does not indicate whether it was likely that defendant would appear in court in Los Angeles within the 90-day extension requested by appellant.

Appellants presentation is not definitive, either with what occurred prior to the execution of the attorneys declaration, nor with respect to what will happen if an extension of the 180-day period were to be granted. The trial courts inquiry on a section 1305.4 motion is prospective as well as retrospective. (People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1357.) We cannot say the trial court abused its discretion when it denied an extension of the 180-day period.

DISPOSITION

The summary judgment on the bail bond forfeiture is affirmed. Costs on appeal to the People.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J. ALDRICH, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] Bail bond forfeitures are governed by Penal Code sections 1305-1308. All references herein to statutes are to the Penal Code.

[2] Appellants attorney has represented to this court and to the trial court that appellant is the sister of the criminal court defendant on whose behalf the subject bail bond was posted. Appellants attorney also represents the defendant in the criminal case. The attorney has stated that appellant is financially responsible for the subject bail bond.

[3] Although appellant appealed from the order denying her motion to extend the time for vacating the bail forfeiture, that is not an appealable order. However, because the case summary in the appellate record states there is a summary judgment on the bond forfeiture, we will treat the appeal as having been taken from the summary judgment. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 722.)

[4] Our recitation of the background of this case is taken from the trial courts case summary in the clerks transcript, the reporters transcript from a hearing in the trial court on January 19, 2006, appellants augmentation of the record, and a declaration submitted to this court in support of a motion for a stay of execution, pending appeal, on the bail bond forfeiture summary judgment.

[5] The significance of the 185-day designation is found in section 1305, which makes provisions for, among other things, (1) when a court should declare a bail forfeited, (2) to whom, and by what procedure, notice of the forfeiture is to be given, and (3) the conditions which require a court to vacate the bail forfeiture, if those conditions occur within 180 days of the day the bail is forfeited.. Regarding the second matter in that list, section 1305 provides that when the amount of the bond, money or property deposited for bail exceeds $400 and bail is forfeited, the clerk of the court must mail notice of the forfeiture to the surety, or the person posting money in lieu of bail, and to the bail agent whose name appears on the bond. When such notice is required to be mailed, the 180-day time period for moving to vacate a bail forfeiture is extended by five days, thus resulting in a 185-day period in which to bring a motion to vacate a bail forfeiture. Hereafter, we will refer to both the 180-day period and the 185-day period as the 180-day period.

[6] Section 1305.4 states: 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 provide in subdivision (i) of section 1305.

Subdivision (i) of section1305 states: A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period. The court may extend the 30-day period upon a showing of good cause. The motion may be made by the surety insurer, the bail agent, the surety, or the depositor of money or property, any of whom may appear in person or through an attorney. The court, in its discretion, may require that the moving party provide 10 days prior notice to the applicable prosecuting agency, as a condition precedent to granting the motion.