FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA SEP 10 2010
DIVISION TWO
COURT OF APPEALS
DIVISION TWO
)
In re ) 2 CA-CV 2010-0005
) DEPARTMENT B
BOND IN THE AMOUNT OF $75,000. )
) OPINION
)
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20082026
Honorable Lori Jones, Judge Pro Tempore
AFFIRMED
Barbara LaWall, Pima County Attorney
By Thomas J. Rankin Tucson
Attorneys for Appellee
T.S. Hartzell Tucson
Attorney for Appellant
V Á S Q U E Z, Presiding Judge.
¶1 Gloria Urias and American Liberty Bail Bonds (collectively, “American
Liberty”) appeal from the trial court‟s judgment forfeiting a $75,000 appearance bond
after the defendant, Jesus Gonzalez-Lugo, failed to appear for court proceedings,
including his criminal trial. American Liberty contends the court lacked jurisdiction to
initiate bond forfeiture proceedings after granting a judgment of acquittal and after failing
to issue an arrest warrant for the defendant while the case was pending. For the reasons
set forth below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court‟s
judgment. State v. Garcia Bail Bonds, 201 Ariz. 203, ¶ 5, 33 P.3d 537, 539 (App. 2001).
Gonzalez-Lugo was arrested and charged with possessing a narcotic drug for sale and
possessing drug paraphernalia. The magistrate conducting his initial appearance ordered
Gonzalez-Lugo held without bond based on the state‟s allegation that he was present in
the United States illegally. The trial court subsequently modified Gonzalez-Lugo‟s
release conditions, setting an appearance bond of $75,000. On June 12, 2008, Gloria
Urias, apparently as an agent of American Liberty, posted the bond in cash.
¶3 Gonzalez-Lugo was deported to Mexico on June 20, 2008, and he failed to
appear at a case management conference in July and a pretrial conference in August. At
the pretrial conference, the court set a trial date and informed defense counsel that he
“b[ore] the responsibility for arranging the defendant‟s return from Mexico for the trial.”
Gonzalez-Lugo failed to appear for trial and was tried in absentia. At the conclusion of
the state‟s case, the court granted defense counsel‟s motion for a judgment of acquittal
pursuant to Rule 20, Ariz. R. Crim. P., finding there was “no substantial evidence to
warrant a conviction, based upon insufficient identity of the defendant.”
¶4 After the trial court excused the jury, counsel moved to exonerate the
appearance bond. The court denied the motion and “referred [the matter] to the Superior
Court Hearing Officer for the commencement of bond forfeiture proceedings, based upon
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the defendant‟s failure to appear for his trial.” Noting that American Liberty had been
unable to locate Gonzalez-Lugo, the hearing officer set a hearing “with directions to the
[surety] to appear and show cause why the bond filed with the Court for the benefit of the
defendant should not be forfeited.” After a contested hearing, the court ordered the entire
amount of the bond forfeited, and this timely appeal followed.
Standard of Review
¶5 We review the trial court‟s order forfeiting the bond for an abuse of
discretion, but we review de novo its interpretation of the rules governing bail bonds.
Garcia Bail Bonds, 201 Ariz. 203, ¶ 5, 33 P.3d at 539. And, “[w]e interpret rules of
procedure, as we do statutes, by their plain meaning.” State v. Old West Bonding Co.,
203 Ariz. 468, ¶ 12, 56 P.3d 42, 45 (App. 2002). We look first to the rule‟s language
because “„the best and most reliable index of a [rule‟s] meaning is its language and, when
the language is clear and unequivocal, it is determinative of the [rule‟s] construction.‟”
Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, ¶ 8, 152 P.3d 490, 493
(2007), quoting Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222,
1223 (1991).
Discussion
A. Jurisdiction
¶6 First, American Liberty contends that, after the trial “[c]ourt . . . acquitted
Gonzalez-Lugo, it divested itself of jurisdiction . . . [and] . . . no longer had the authority
to order a hearing on the allegation [he had violated] a condition of the appearance bond,”
because criminal jurisdiction is based on the existence of a valid, pending complaint.
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However, “[f]orfeiture proceedings . . . are simply a streamlined substitute for a civil suit
resulting from a breach of contract.” Garcia Bail Bonds, 201 Ariz. 203, ¶ 14, 33 P.3d at
540; see also State v. Copperstate Bail Bonds, 222 Ariz. 193, ¶ 15, 213 P.3d 342, 344
(App. 2009). They thus are independent of the underlying criminal proceedings, and a
lack of jurisdiction over the criminal defendant does not deprive the court of jurisdiction
over the breach of contract claim between the state and the surety. 1 See State ex rel.
Ronan v. Superior Court, 96 Ariz. 229, 231, 393 P.2d 919, 920 (1964) (forfeiture
proceedings civil in nature resulting from breach of contract).
¶7 American Liberty cites Bail: Duration of Surety’s Liability on Pretrial
Bond, 32 A.L.R. 4th 504, § 2(a) (1984), to support its argument that “the jurisdiction of a
court to initiate forfeiture proceedings ends when the surety‟s „right to surrender‟ ends.”
It asserts “the surety‟s right to surrender the defendant is at the core of the relationship
between [the] surety and [the defendant].” And it maintains a surety no longer retains the
right to surrender the defendant after an acquittal has been entered. The annotation on
which American Liberty relies suggests that the right of surrender “appears to be a
common factor” in determining a surety‟s liability under a bond. 32 A.L.R. 4th 504,
1
American Liberty also cites State v. Ross, 475 A.2d 347 (Conn. 1984), for the
proposition that, “when a criminal case is disposed of without the possibility of appeal,
no jurisdiction remains to forfeit an appearance bond.” However, we find no support for
this proposition in that case. In Ross, the issue was whether the defendant, who had not
violated her bond conditions, could be discharged from release status after the charges
against her had been dismissed, but while the dismissal was pending on appeal. 475 A.2d
at 348. The court rejected her claim because the state‟s jurisdiction over her continued
through the pendency of the appeal, and it therefore could not discharge her completely
from the conditions of release. Id. Ross did not address the issue raised here: whether
proceedings to forfeit an appearance bond may be initiated after the court‟s jurisdiction
over the defendant in the criminal case has terminated.
4
§ 2(a). However, it also provides that “[t]he number of possible bond conditions,
combined with the differing statutes employed by the various states, prevent the
formulation of any general rules as to the point in the proceedings at which a pretrial bail
bond surety is released from liability by operation of law.” And, even though the right to
surrender may be central to the surety-defendant relationship, “[a] bail bond [also] is
considered a contract between the suret[y] and the state.” Id. “The primary purpose of
an appearance bond is to assure a defendant‟s appearance at the trial or other hearings.”
Garcia Bail Bonds, 201 Ariz. 203, ¶ 19, 33 P.3d at 542.
¶8 American Liberty does not dispute that the purpose of its undertaking was
to secure Gonzalez-Lugo‟s appearance at trial, notwithstanding his intervening
deportation to Mexico. Nor does it dispute that he had failed to appear for various
pretrial proceedings and for trial. State v. Bail Bonds USA, 223 Ariz. 394, ¶ 12, 224 P.3d
210, 213 (App. 2010) (“It is clear that transfer to federal custody followed by deportation
does not by itself excuse nonappearance.”). Finally, American Liberty has made no
showing it lacked the opportunity or the ability to locate Gonzalez-Lugo and surrender
him to the trial court while the criminal proceedings were pending. Its liability is based
on the failure to honor its contractual obligation to ensure Gonzalez-Lugo‟s presence at
trial and is not related to anything that occurred after the court entered its judgment of
acquittal. American Liberty‟s liability therefore did not end as a matter of law when its
right to surrender Gonzalez-Lugo ended. The court did not lack jurisdiction to order the
bond forfeiture proceedings by waiting to initiate them until after it had entered a
judgment of acquittal.
5
B. Mandatory Exoneration
¶9 Relying primarily on State v. Nunez, 173 Ariz. 524, 844 P.2d 1174 (App.
1992), American Liberty argues the “Arizona Rules [of Criminal Procedure] mandate
exoneration of an appearance bond when judgment of acquittal is entered before any
action is taken on the appearance bond.” In Nunez, the defendants had violated their
release conditions by failing to appear, but the charges against them subsequently were
dismissed with prejudice. 173 Ariz. at 525, 844 P.2d at 1175. A few weeks after the
dismissal, the defendants moved to exonerate their bonds, and, after a contested hearing,
the trial court ordered the bonds forfeited. Id. at 525-26, 844 P.2d at 1175-76. On
appeal, the defendants argued the bonds should have been exonerated because the
indictment had been dismissed before the forfeiture proceedings began. Id. at 526, 844
P.2d at 1176. This court agreed, relying primarily upon Rules 7.6(e) and 16.5(e), Ariz. R.
Crim. P., concluding that, because there was no further need for the appearance bonds
after the charges had been dismissed, the defendants had been entitled to have them
exonerated. Id.
¶10 However, Nunez’s analysis does not apply to this case. As it did when
Nunez was decided, Rule 16.5(e), now renumbered as Rule 16.6(e), provides that,
“[w]hen a prosecution is dismissed, the defendant shall be released from custody . . . and
any appearance bond exonerated.” Nunez, 173 Ariz. at 526, 844 P.2d at 1176. But
Rule 16 applies only to pretrial proceedings; its scope has been limited expressly to the
time “between arraignment and trial.” See Ariz. R. Crim. P. 16.1(a). Thus, Rule 16 does
not apply here. And, in any event, the inclusion within Rule 16 of a separate bond-
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forfeiture provision evinces an intent to create an exception to the general rule for bond-
forfeiture procedures provided in Rule 7.6(d), which are the procedures applicable to this
case.
¶11 Additionally, Rule 7.6 has been amended since Nunez was decided. Then,
Rule 7.6(e) provided, “At any time that the court finds that there is no further need for an
appearance bond, it shall exonerate the appearance bond and order the return of any
security deposit.” Nunez, 173 Ariz. at 526, 844 P.2d at 1176. The rule now provides
that, “[a]t any time before [a] violation that the court finds there is no further need for an
appearance bond, it shall exonerate the appearance bond and order the return of any
security deposited.” Ariz. R. Crim. P. 7.6(d)(1) (emphasis added). Thus, when a
defendant has violated the conditions of his release, Rule 7.6 does not require exoneration
of an appearance bond upon the termination of the criminal proceedings. In the event of
a violation, a trial court now has the discretion to determine whether to forfeit the bond
based on the circumstances of the particular case, and that determination is no longer
dependent upon a continuing need for the bond. See Ariz. R. Crim. P. 7.6(d)(2)-(3).
Therefore, applying Rule 7.6 as it existed when he failed to appear, because Gonzalez-
Lugo violated his bond conditions, the court was not required to exonerate the bond at the
time the charges were dismissed.
¶12 American Liberty nonetheless argues the addition of “[t]he language, „at
any time before a violation,‟ can not be construed to authorize a post-acquittal initiation
of a forfeiture proceeding” because it would lead to the absurd result that “a case . . .
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dismissed on motion [pursuant to Rule 16.6(e)], even without prejudice, . . . is in a
position superior to [one] being resolved by an unappealable acquittal.” We disagree.
¶13 “The very purpose of [an appearance] bond [i]s to assure the defendant‟s
presence at the time of trial.” United Bonding Ins. Co. v. City Court of Tucson, 6 Ariz.
App. 462, 464, 433 P.2d 642, 644 (1967); see also Nunez, 173 Ariz. at 526, 844 P.2d at
1176. When a defendant violates an appearance bond by failing to appear for a pretrial
hearing but the charges are dismissed before trial, the state has suffered little, if any,
inconvenience as a result of the defendant‟s absence. Thus, Rule 16.6 permits
exoneration of the bond notwithstanding the violation, if the state has failed to initiate
forfeiture proceedings before a dismissal is final.
¶14 But when a defendant fails to appear for trial, the state must either (1)
proceed with a trial wherein identification of the defendant as the perpetrator will be
more difficult and the likelihood of an acquittal due to the defendant‟s voluntary absence
is increased, or (2) postpone the trial after the state has put the time, effort, and expense
into preparing for it and risk that the strength of the case will erode with the passage of
time. If Rule 7.6 required the exoneration of a bond upon acquittal notwithstanding the
defendant‟s failure to appear, it would reward defendants for failing to appear and would
provide an incentive for defendants, at least in cases where identification is a key issue, to
employ non-appearance as a trial strategy. In some measure, forfeiture of the bond can
compensate the state for the waste of its resources caused by the defendant‟s absence
from trial, and Rule 7.6 affords the state greater latitude to initiate proceedings under
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these circumstances. The trial court therefore did not err in denying American Liberty‟s
motion to exonerate the bond.
C. Necessity of Arrest Warrant
¶15 American Liberty also argues “an arrest warrant is a necessary prerequisite
for a bond forfeiture proceeding,” and therefore, the initiation of “bond forfeiture
proceedings without the issuance of a warrant . . . requires reversal of the trial court‟s
order and judgment of forfeiture [with] instructions to exonerate the bond at issue.”
Rule 7.6(c) provides, in pertinent part:
(1) Notice and Hearing. If at any time it appears to
the court that the released person has violated a condition of
an appearance bond, it shall issue a bench warrant for the
person‟s arrest. Within ten days after the issuance of the
warrant, the court shall notify the surety, in writing or by
electronic means, that the warrant was issued. The court shall
also set a hearing within a reasonable time not to exceed 120
days requiring the parties and any surety to show cause why
the bond should not be forfeited. The court shall notify the
parties and any surety of the hearing in writing or by
electronic means.
American Liberty is correct that, according to Rule 7.6, when a bond condition has been
violated, the trial court is required both to issue a warrant and set a hearing for forfeiture
of the bond. See Phoenix Newspapers, Inc. v. Superior Court, 180 Ariz. 159, 161, 882
P.2d 1285, 1287 (App. 1993) (“shall” generally implies mandatory provision). However,
the rule does not condition the initiation of forfeiture proceedings upon the issuance of an
arrest warrant.
¶16 Furthermore, although a trial court‟s lack of strict compliance with the
procedures provided in Rule 7.6(c) constitutes error, we repeatedly have rejected the
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claim that this sort of error necessitates automatic reversal and have refused to reverse the
court‟s ruling unless the surety actually suffered prejudice. In re Bond Forfeiture in CR-
94019213, 191 Ariz. 304, ¶ 10, 955 P.2d 541, 544 (App. 1998) (“We conclude the surety
must demonstrate that it was, in fact, prejudiced by the court‟s failure to promptly inform
it of the defendant‟s failure to appear before a bond forfeiture order may be reversed on
this ground.”); State v. Jackson, 184 Ariz. 296, 300, 908 P.2d 1081, 1085 (App. 1995)
(affirming forfeiture when failure to follow procedure of Rule 7.6 did not result in
prejudice); State v. Rogers, 117 Ariz. 258, 261, 571 P.2d 1054, 1057 (App. 1977) (time
limits of prior version of Rule 7.6 not jurisdictional); State v. Rocha, 117 Ariz. 294, 297,
572 P.2d 122, 125 (App. 1977) (failure to hold hearing within ten days, under prior
version of Rule 7.6, harmless where “opportunity [to be heard] was provided and
appellant availed himself of it”).
¶17 It is the surety‟s burden to “demonstrate that it was, in fact, prejudiced by
the court‟s failure [to follow the procedures in Rule 7.6(c)] before a bond forfeiture order
may be reversed,” Bond Forfeiture in CR-94019213, 191 Ariz. 304, ¶ 10, 955 P.2d at
544, and American Liberty has made no attempt to meet this burden. The entire bond
amount was subject to forfeiture in July 2008, ten months before trial, when Gonzalez-
Lugo missed his first court hearing in violation of the conditions of the bond. See
Rule 7.6(c). And during the ten months Gonzalez-Lugo was absent, American Liberty
unquestionably had the authority to arrest and produce him even though a warrant had not
been issued. See State v. Affordable Bail Bonds, 198 Ariz. 34, ¶ 17, 6 P.3d 339, 343
(App. 2000) (“„The right of the surety to recapture his principal is not a matter of
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criminal procedure . . . . The bail [bondsman] can surrender his principal before the bond
is forfeited, and arrest him for that purpose without process.‟”), quoting Fitzpatrick v.
Williams, 46 F.2d 40, 40-41 (5th Cir. 1931); see also A.R.S. § 13-3885. American
Liberty failed to do so.
¶18 As noted above, American Liberty has not asserted that it otherwise was
unaware of Gonzalez-Lugo‟s absence prior to the initiation of the bond forfeiture
procedings or that it had attempted to apprehend and surrender Gonzalez-Lugo but in fact
could not do so without the warrant. Even assuming American Liberty had been able to
produce Gonzalez-Lugo, the trial court nonetheless had discretion to forfeit the entire
amount of the bond if it found his absence was neither explained nor excused. See
Rule 7.6(c)(2), (d); A.R.S. § 13-3974. American Liberty does not contend, and nothing
in the record suggests, the court would have forfeited less than the entire amount of the
bond under those circumstances. Therefore, we cannot say American Liberty has
demonstrated it suffered prejudice as a result of the court‟s failure to issue an arrest
warrant after finding Gonzalez-Lugo had violated the conditions of his release.
Disposition
¶19 We affirm the trial court‟s judgment forfeiting the appearance bond.
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
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In Re BOND IN THE AMOUNT OF $75,000
Court: Court of Appeals of Arizona
Date filed: 2010-09-10
Citations: 225 Ariz. 401, 238 P.3d 1275
Copy Citations