Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. SJ001087. Patrick J. Hegarty and Richard J. Kemalyan, Judges.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, Ralph L. Rosato, Assistant County Counsel, and Melissa A. McCaverty, Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, P. J.
Indiana Lumbermens Mutual Insurance Company (Lumbermens) appeals from the trial court’s order denying a motion to vacate forfeiture on the bail bond Lumbermens issued and from the summary judgment entered on that forfeiture in favor of the County of Los Angeles. Lumbermens contends that the motion established statutory grounds requiring the trial court to vacate the forfeiture and exonerate the bail bond. We affirm.
BACKGROUND
On January 31, 2007, Vardan Vardanyan was charged in Los Angeles Superior Court case No. GA068561 with four counts of burglary, three counts of grand theft, two counts of perjury, and a single count of fraudulently reporting a crime. Vardanyan’s bail was $120,000. On May 8, 2007, Lumbermens, through its agent 1 Call Bail Bonds (1 Call), posted a bail bond for Vardanyan’s release in case No. GA068561. Vardanyan appeared in court for his arraignment on June 4, 2007, but failed to appear at a hearing on July 12, 2007. The minute order indicates he was in custody on a different case, Los Angeles Superior Court case No. BA323217. The court did not declare the bail forfeited but issued and held a bench warrant. When Vardanyan did not appear on August 9, 2007, the court ordered the bail forfeited, and the clerk mailed the notice of forfeiture to 1 Call.
The court mailed its demand on the bond to 1 Call and Lumbermens on February 13, 2008. On February 28, 2008, the court granted 1 Call’s motion to extend the exoneration period to July 31, 2008. The motion represented that Vardanyan was in Armenia caring for his sick mother and needed additional time with her before returning to the United States.
On July 31, 2008, 1 Call filed a motion to vacate forfeiture and exonerate the bail bond pursuant to Penal Code section 1305, subdivision (f). (All further statutory references pertain to the Penal Code.) The motion included a July 31, 2008 declaration by private investigator Hagop Hovakimian stating that he had spoken to Vardanyan’s family and “they” advised him that Vardanyan had been arrested in the nation of Georgia and would provide proof of this if given additional time. The declaration further stated, “6. At this time, I have submitted a fax to the district attorney regarding the custody of the defendant and asked for them to provide me with their decision regarding extradition of this defendant. [¶] 7. I contacted our primary liaison to the District Attorney’s office on Extradition. I explained to Mr. Jerry Anderson that the defendant is in Custody in the country of Georgia and asked that he make contact with the District Attorney regarding their position on the extradition of this defendant. [¶] 8. At this writing, I have not received a reply from the District Attorney’s office.” Also attached to the motion was a two-page exhibit including a fax cover sheet bearing the date of May 27, 2008, and referring to a fax of two pages, including the cover sheet, by Sarkis Madjarian to the district attorney’s office. The cover sheet referred to “Vardanyan, Vardan Case # BA323217” and included the comment, “We would like the DA’s position to extradite defendant back to the U.S.” The next page in the exhibit was similar in format to a letter. It was dated May 27, 2008, and referred to case Nos. BA323217 and GA068561. The body of the text stated, “We have been informed that the defendant named above has been located and is in custody in the country of Georgia. We are just now attempting to verify this and would like your help with extraditing him back to the U.S. when hi [sic] is released by the Georgian authorities. [¶] Your assistance in this matter is greatly appreciated.” The document was unsigned but includes the name Sarkis Madjarian.
Another exhibit attached to the motion to vacate forfeiture and exonerate the bail bond included a brief, one-page document written in Russian and Georgian, followed by a document purportedly setting forth a “Translation from Georgian and Russian” into English. The Russian and Georgian document is dated June 12, 2008, and appears to have been faxed from Georgia on June 14, 2008. The translation document states, “In response to your inquiry we would like to inform you that Vartan Vartanian, son of Derenik, born on January 6, 1974, was detained by Georgian Ministry of Internal Affairs in April 2008, in accordance with Section 3 of Article 177 of Criminal Code of Georgia. [¶] Presently, Vartan Vartanian’s court case is under investigation. [¶] Weight: 95 kilograms [¶] Height: 176.8 centimeters [¶] Eyes: Brown [¶] Hair: Brown [¶] Chief of Police A.G. Gavashelli [¶] (Signed and stamp affixed).” The Russian and Georgian document bears a stamp or seal, but it is not signed and appears to contain only the first paragraph of the purported translation. In particular, we note that the physical descriptors included in the translation are not in the Russian and Georgian document. The exhibit also includes a translator’s certificate stating that the translation is “a true and correct rendition into English of the attached photocopy in Georgian and Armenian [sic].”
The booking information for Vardanyan in case No. GA068561 indicated he was born on June 1, 1974, is 5 feet 7 inches tall, weighed 170 pounds, and had black hair and brown eyes.
The trial court first heard the motion to vacate forfeiture and exonerate the bail bond on August 28, 2008. The court was skeptical about whether the document from Georgia referred to Vardanyan, and pointed to discrepancies in the spelling of the names, and the weight, height, and birth date. The court concluded that 1 Call had established neither that Vardanyan was in custody in Georgia nor that the district attorney’s office had elected not to extradite, but granted 1 Call’s request for a one-month continuance.
At the continued hearing on September 30, 2008, the trial court held that 1 Call had not shown that it informed the district attorney’s office of Vardanyan’s location, as required by section 1305, subdivision (f). The court noted that 1 Call’s moving papers and exhibits showed only that it had told the district attorney’s office that it had received information that Vardanyan was in custody in Georgia and was attempting to verify that information. The court noted that 1 Call had not shown that it provided the district attorney’s office with the Russian and Georgian document or the translation. The court held that the information 1 Call provided to the district attorney’s office was insufficient for the district attorney to decide whether or not to attempt to extradite him and the district attorney had no duty to conduct an investigation to discover more specific information regarding Vardanyan’s location. The court denied the motion. Summary judgment was entered against Lumbermens on the bond on October 6, 2008.
DISCUSSION
When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (§ 1305, subd. (a).) The surety or bail agent that posted the bond then has 180 days from the notice of forfeiture in which either to produce the accused in court or to establish other circumstances requiring the court to vacate the forfeiture. (§ 1305, subds. (b)–(g).) Failure to do so will result in the entry of summary judgment on the forfeited bond. (§ 1306, subd. (a).)
Section 1305, subdivision (f), provides as follows: “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.”
Lumbermens contends that it established both that Vardanyan was in custody in Georgia and that the district attorney elected not to seek extradition, which required the trial court to vacate forfeiture and exonerate the bond under section 1305, subdivision (f).
Although section 1305 is strictly construed in favor of the surety to avoid the harsh results of a forfeiture, the surety has the burden of establishing by competent evidence the applicability of a ground for relief from forfeiture set forth in section 1305. (People v. Accredited Surety & Casualty Co. (2004) 132 Cal.App.4th 1134, 1139 (Accredited).)
The trial court’s ruling on a motion to vacate forfeiture will not to be disturbed on appeal unless the record reveals a patent abuse of discretion. (Accredited, supra, 132 Cal.App.4th at pp. 1139–1140.) The party challenging the trial court’s ruling bears the burden of establishing a clear case of abuse of discretion. (Id. at p. 1140.)
The transcripts of the two hearings on the motion to vacate forfeiture reveal that the trial court concluded that 1 Call had established neither that Vardanyan was in custody beyond the jurisdiction of the court nor that the prosecuting agency had elected not to seek extradition after being informed of Vardanyan’s location. The record supports the court’s conclusions. The defendant’s name was Vardan Vardanyan, but the translation of the Russian and Georgian document referred to Vartan Vartanian. Even allowing for transliteration differences with respect to the last syllable of the surname, the consonant differences in the second syllable of the given and surnames remain unexplained. Although the apparent discrepancy in birth dates may have been an error in interpreting the date format (“06.01.1974” in the Russian and Georgian document may have meant June 1, 1974, rather than January 6, 1974, as used in the translation), there were significant differences in the physical description of Vartanian and Vardanyan, as noted by the trial court. The booking information for Vardanyan indicated he is 5 feet 7 inches tall, but the translation of the Russian and Georgian document stated that Vartanian is 176.8 centimeters tall (approximately 5 feet 9½ inches). The booking information for Vardanyan indicated he weighed 170 pounds, but the translation of the Russian and Georgian document indicates that Vartanian weighed 95 kilograms (209.44 pounds). And the booking information for Vardanyan indicated he had black hair, whereas and the translation of the Russian and Georgian document indicates that Vartanian had brown hair. While it is possible that Vartanian and Vardanyan were the same person, the Russian and Georgian document and its translation fell far short of establishing identity. Finally, the translation of the Russian and Georgian document did not state that Vartanian was in custody in Georgia at the time the document was written in June of 2008, much less months later when the motion to vacate forfeiture was heard and determined. The translation merely states that Vartanian was “detained” by Georgian officials in April 2008, but does not state that he remained in custody in Georgia or anywhere else following his detention.
In addition, as the trial court noted, 1 Call did not show that it provided the Russian and Georgian document or the translation to the district attorney’s office. Hovakimian’s declaration referred to sending a fax to the district attorney’s office and telling a member of the district attorney’s office that Vardanyan was in custody in Georgia, but it did not state that it provided the Russian and Georgian document or the translation to the district attorney’s office. Indeed, Hovakimian’s declaration did not attempt to authenticate any of the exhibits to the motion to vacate forfeiture, and the motion included no other declarations. At the very most, ignoring the lack of authentication, 1 Call may have shown that it faxed Madjarian’s May 27, 2008 cover sheet and letter to the district attorney’s office. That letter indicated that 1 Call was attempting to verify the information it had received that Vardanyan was in custody in Georgia. As far as the record before the trial court and on appeal reveals, no verification of Vardanyan’s status—not even the Russian and Georgian document —was provided to the district attorney’s office. Hovakimian’s declaration did not state that he provided any verification or additional information to the district attorney’s office.
Further, 1 Call never specified the particular location within Georgia in which Vardanyan was allegedly in custody or the particular governmental agency allegedly incarcerating him. We note that Georgia has nine regions and two autonomous republics (Abkhazia and Ajaria) that have separate administrative centers. (<https://www.cia.gov/ library/publications/the-world-factbook/geos/gg.html> [as of Mar. 24, 2010].) In addition, Georgia claims sovereignty over South Ossetia, which has its own independent government and has been recognized as an independent nation by several other countries. (<http://news.bbc.co.uk/2/hi/africa/country_profiles/3797729.stm> [as of Mar. 24, 2010]; <http://www.republicofsouthossetia.org/pages/who-we-are/history.shtml> [as of Mar. 24, 2010]; <http://www.republicofsouthossetia.org/pages/our-government/government-overview.shtml> [as of Mar. 24, 2010].) Thus, more specific location or agency information would appear to be necessary for the district attorney to attempt extradition.
Finally, 1 Call presented the court with no evidence that the district attorney’s office had actually made an election not to seek extradition. The failure of the district attorney’s office to respond to 1 Call’s unverified assertion that Vardanyan might be in custody somewhere in Georgia cannot be deemed to be an election.
For all of these reasons, the trial court did not abuse its discretion by concluding that Lumbermens and its agent 1 Call failed to sustain their burden of proof on the motion to vacate forfeiture under section 1305, subdivision (f), as they failed to prove that Vardanyan was in custody in Georgia or anywhere, that they had informed the district attorney’s office of Vardanyan’s location, and that the district attorney’s office had elected not to seek extradition of Vardanyan.
Lumbermens further argues that it was entitled to equitable tolling of the exoneration period if the district attorney required additional time to make an election. It did not request such tolling in the trial court and cannot contend that the court erred by failing to grant such relief. In addition, nothing indicated that the district attorney’s office required additional time.
DISPOSITION
The judgment is affirmed. The County of Los Angeles is awarded its costs on appeal.
We concur: CHANEY, J. JOHNSON, J.