IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

) In re ) 2 CA

- CV 2010

- 0005 ) DEPARTMENT B BOND IN THE AMOUNT OF $75 , 00 0

. ) ) O P I N I O N ) )

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 o f acquittal and after failing 

### FILED BY CLERK

COURT OF APPEALS DIVISION TWO 

### SEP 10 20102

to issue an arrest warrant for the defendant while th e case was pending

. For the reasons set forth below, we affirm.
Fact ual and Procedur al 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 possessin g a narcotic drug for sale and possessin g drug paraphernalia. T he 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

. T he 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 o f 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. A t the conclusion of the state ‟s case, the court granted defense counsel ‟s mo tion 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 t he 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 upon3

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 sh ould not be forfeited. ” After a contested hearing, the court ordered the entire amount of the bond forfeited, a nd 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 revi ew 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.‟”
Dee r 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 , aft er 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 c ondition of the appearance bond,”
because criminal jurisdiction is based on the existence of a valid, pending complaint

.4

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), t o 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 r ight 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. T he annotation on which Am erican 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 th e 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.5

§ 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 r eleased 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 appearanc e 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 deport ation 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 th at 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

. I ts 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

a cquittal. 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 l ack jurisdiction to order the bond forfeit ure proceedings by waiting to initiate them until after it had e nter ed a judgment of acquittal

.6

B. Mandatory Exoneration ¶9 Relying primarily on State v. Nunez , 173 Ariz. 524, 844 P.2d 1174 (App. 1992) , American Liberty argu es 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 t he charges against them subsequently were dismissed with prejudice. 173 Ariz. a t 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 th e bonds should have been exonerated because the indictment had been dismissed before the forfeit ure 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

. , conclud ing that , b ecause 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 appl y 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 pre trial 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

-7

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 exist ed 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 . . .8

dismissed on motion [pursuant to Rule 16.6(e)], even without prejudice, . . . is in a position superior to [one] b eing resolved by an unappealable acquittal.” We disagree. ¶13 “T he 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
117 6

. 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 resul t 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 w hen 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 p ut the time, effort, and expense into preparing for it and risk that the strength of the case will erode with the passage of time. I f 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. I n some measure, forfeiture of the bond can compensate the state fo r the waste of its resources caused by the defendant‟s absence
from trial , and Rule 7.6 afford s the state greater latitude to initiate proceedings under9

these circumstances

. The trial court therefore did not err in denying American Liberty‟s
motion to exo nerate the bond. C . Necessity of Arrest Warrant ¶15 American Liberty also argues “an arrest warrant is a necessary prerequisite
fo r 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, i n 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 not ify 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 th e initiation of forfeiture proceedings upon the iss uance of an
arrest warrant

. ¶16 Furthermore, although a trial court‟s lack of strict compliance with the procedure s provided in Rule 7.6(c) constitutes error, we repeatedly have rejected the10

claim that this so rt of error necessitates automatic reversal and have refused to rev erse the court‟s ruling unless the surety actually suffered prejudice

. In r e 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, prejudice d 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, 26 1, 571 P.2d 1054, 1057 (App. 197 7) (time limits of prior version of Rule 7.6 not jurisd ictional) ; 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 procedur es 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 Ame rican Liberty has made no attempt to meet this burden. T he 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. 200 0) (“„The right of the surety to recapture his princip al is not a matter of11

criminal procedure . . . . The bail [bondsman] can surrender his princip al 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 forf eiture procedings or that it had attempted to apprehend and surrender Gonzalez

- Lugo but in fact could not do so without the warrant. E ven assuming American Liberty had been able to
pr oduce Gonzalez

- Lugo, the trial court nonetheless had discretion to forfeit the entire amount of the bond if it found his absence was neither explained n or excused

. S ee 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 forfeit ed 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 t o issue an arrest
warrant after finding Gonzalez

- Lugo had violated t he conditions of his release

. Disposition ¶19 We affirm the trial court‟s judgment forfeit ing 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