                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
                               FILED 11-27-2018


           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.
                         STATE v. HARO-GALVEZ
                           Decision of the Court

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 Haro-
Lopez (“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).




                                       2
                           STATE v. HARO-GALVEZ
                             Decision of the Court

       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. CR-
20031154, 208 Ariz. 368, 370, ¶ 7 (App. 2004) (affirming forfeiture because
the defendant had been deported prior to the missed hearing); see also Bail


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                        STATE v. HARO-GALVEZ
                          Decision of the Court

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


                                      4
                       STATE v. HARO-GALVEZ
                         Decision of the Court

¶ 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.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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