NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

OCTAVIANO HARO-GALVEZ, third party surety, Appellant.

No. 1 CA-CV 18-0202

Appeal from the Superior Court in Maricopa County

No. CR2017-110891-002

The Honorable Thomas Kaipio, Judge Pro Tempore

JUDGMENT VACATED; REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Kimberly Felcyn

Counsel for Appellee

Kercsmar & Feltus PLLC, Scottsdale

By Gregory B. Collins

Counsel for Appellant

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Jon W. Thompson joined.

FILED 11-27-2018
STATE v. HARO-GALVEZ

Decision of the Court

2

W I N T H R O P, Judge:

¶1 Octaviano Haro-Galvez appeals from the superior court’s 

order forfeiting the appearance bond he posted for his son, Jayro HaroLopez (“Defendant”). For the following reasons, we vacate the bond 

forfeiture and remand to the superior court with a direction to exonerate 

the bond.

FACTS AND PROCEDURAL HISTORY

¶2 In March 2017, Defendant was charged in Maricopa County 

Superior Court with several felony offenses. On March 11, Haro-Galvez 

posted a $30,000 cash bond, and Defendant was released from custody.

Immediately thereafter, Defendant was taken into federal custody on 

charges of “reentry of removed alien.” Because Defendant was in federal 

custody, he failed to appear on April 7 at a hearing in the superior court.

The superior court issued a bench warrant and set a bond forfeiture 

hearing. Defendant remained in federal custody until July 14, when he was 

returned to the custody of the State, where he has remained to date.

¶3 Haro-Galvez appeared to contest the forfeiture of the bond, 

requesting the superior court find that Defendant’s non-appearance while 

in federal custody for a crime that pre-dated the charged Arizona offenses

was excused. See generally Ariz. R. Crim. P. (“Rule”) 7.6(c). Additionally, 

Haro-Galvez requested the bond be exonerated because Defendant was 

then in state custody. See generally Rule 7.6(d). After a hearing, the court

denied both requests. Following entry of a judgment of bond forfeiture, 

Haro-Galvez timely appealed.

¶4 We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) § 12-2101(A)(1).

ANALYSIS

¶5 The primary purpose of an appearance bond is to ensure a 

criminal defendant appears at court proceedings. State v. Bail Bonds USA, 

223 Ariz. 394, 397, ¶ 9 (App. 2010) (citing State v. Garcia Bail Bonds, 201 Ariz. 

203, 208, ¶ 19 (App. 2001)). We review de novo the interpretation of court 

rules and statutes. E.g., Cranmer v. State, 204 Ariz. 299, 301, ¶ 8 (App. 2003)

(citations omitted).
STATE v. HARO-GALVEZ

Decision of the Court

3

I. Forfeiture

¶6 The superior court has discretion to forfeit all or part of an 

appearance bond if the defendant violates the bond and the violation is not 

excused. Rule 7.6(c). The court abuses its discretion by making an error of 

law or by making a discretionary ruling unsupported by the record.

MM&A Prods., LLC v. Yavapai-Apache Nation, 234 Ariz. 60, 66, ¶ 18 (App. 

2014); see also Bail Bonds USA, 223 Ariz. at 397, ¶ 10.

¶7 Haro-Galvez challenges the forfeiture of the appearance 

bond, arguing that, as a matter of law, Defendant’s failure to appear on 

April 7, 2017, should be excused under Rule 7.6(c). We agree.

¶8 Although reasonable cause may excuse a failure to appear 

(and accordingly avoid bond forfeiture), a failure to appear based on 

incarceration does not necessarily establish reasonable cause. State v. Rocha, 

117 Ariz. 294, 297 (App. 1977) (stating that the defendant’s incarceration 

leading to his failure to appear “was because of his own misconduct and is 

not excusable”); Garcia Bail Bonds, 201 Ariz. at 206, ¶ 12 (stating the 

generally-accepted rule that “the surety is not entitled to relief [when] the 

defendant’s inability to appear is the result of his own voluntary act in 

committing the second offense”). Such is not the case, however, when “an 

act of law” prevents the defendant’s appearance. Garcia Bail Bonds, 201 

Ariz. at 206, ¶ 12. As we have held, incarceration in a different jurisdiction 

will constitute reasonable cause for a defendant’s failure to appear when (1) 

the crime for which the defendant is incarcerated was committed before the 

defendant’s release on the bond and (2) the incarceration was the expected 

outcome of the defendant’s release. Bail Bonds USA, 223 Ariz. at 398, ¶ 13

(citing Garcia Bail Bonds, 201 Ariz. at 205-07, ¶¶ 10-16).

¶9 In this case, Defendant was in federal custody at the time of 

the hearing based on actions occurring before his release (i.e., his illegal 

presence in the country), and federal incarceration was the expected 

outcome of his release on the bond. Therefore, under Arizona law, his 

nonappearance was involuntary and not “due to [his] own fault.” See id.

We note the State offers no meaningful argument to the contrary. Compare 

Garcia Bail Bonds, 201 Ariz. at 205-07, ¶¶ 10-16 (finding the defendant’s 

failure to appear was excused because he was in custody in Colorado) and 

Bail Bonds USA, 223 Ariz. at 397-98, ¶¶ 12-13 (reversing forfeiture where the 

defendant was in federal custody on an immigration violation at the time 

of the missed hearing) with In re Bond Forfeiture in Pima Cty. Cause No. CR20031154, 208 Ariz. 368, 370, ¶ 7 (App. 2004) (affirming forfeiture because 

the defendant had been deported prior to the missed hearing); see also Bail 
STATE v. HARO-GALVEZ

Decision of the Court

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Bonds USA, 223 Ariz. at 397-98, ¶ 12 (“This case is different from Pima 

County Bond because the defendant has not been deported, but remains in 

federal custody.”). On this basis, we conclude the superior court erred in

finding Defendant’s incarceration by federal authorities did not excuse his 

failure to appear on April 7, 2017.

II. Exoneration

¶10 An appearance bond must be exonerated if a defendant does 

not violate a condition of the bond. State v. Old W. Bonding Co., 203 Ariz. 

468, 472-73, ¶ 17 (App. 2002). And, if there has been no violation, and no 

further need for a bond, the court must exonerate the bond and return the 

security. See Rule 7.6(d)(1). Accordingly, Haro-Galvez argues the 

appearance bond should have been exonerated because Defendant’s 

“violation” was involuntary as a matter of law and excused under Rule

7.6(c). Further, because Defendant was immediately placed in State 

custody (where he remains to date) when removed from federal custody, 

there was no further need for the bond. See Rule 7.6(d)(1). Again, we agree.

See Garcia Bail Bonds, 201 Ariz. at 207-08, ¶¶ 17-20.

¶11 The State argues that, pursuant to A.R.S. § 13-3974(A)(3), a 

surety is relieved from liability on a bond only if the defendant is 

transferred to the custody of another government agency and the surety 

establishes both that

(a) The surety did not know and could not have reasonably 

known of the release or transfer or that a release or transfer 

was likely to occur[, and]

(b) The defendant’s failure to appear was a direct result of the 

release or transfer.

In this case, though, Haro-Galvez does not request that the bond be 

exonerated, because Defendant was not transferred to federal custody.

Hence, we agree with Haro-Galvez that § 13-3974(A)(3) is inapplicable.

¶12 The State also argues that Garcia Bail Bonds can be

distinguished because, in that case, the State authorized the defendant to 

leave Maricopa County to self-surrender in Colorado, 201 Ariz. at 208, ¶ 20; 

however, we note this distinction was not drawn in Bail Bonds USA,

where—as here—the defendant “would not have been released into federal 

custody but for the Surety’s act of posting bond,” 223 Ariz. at 398, ¶ 13.

Indeed, in Bail Bonds USA, the record reflected the defendant “was in 

federal custody on the day of her hearing and every day thereafter.” Id. at 
STATE v. HARO-GALVEZ

Decision of the Court

5

¶ 16. But there—unlike here—an appearance bond was still needed 

because the defendant remained in federal custody and the surety had not 

proven custody could be re-obtained. Id. at ¶¶ 15-16.

CONCLUSION

¶13 For the foregoing reasons, we vacate the judgment of bond 

forfeiture and remand to the superior court with a direction to exonerate 

the bond. We award costs to Haro-Galvez upon compliance with Arizona 

Rule of Civil Appellate Procedure 21.