                                 IN THE
               ARIZONA COURT OF APPEALS
                              DIVISION TWO


                           STATE OF ARIZONA,
                            Plaintiff/Appellee,

                                    v.

         INTERNATIONAL FIDELITY INSURANCE COMPANY AND
                     REGULATOR BAIL BONDS,
                 Real Parties in Interest/Appellants.

                        No. 2 CA-CV 2014-0157
                         Filed August 28, 2015

           Appeal from the Superior Court in Pima County
                        No. CR20121143-002
           The Honorable Lori B. Jones, Judge Pro Tempore

                   REVERSED AND REMANDED


                               COUNSEL

Barbara LaWall, Pima County Attorney
By Christopher L. Straub, Deputy Pima County Attorney, Tucson
Counsel for Plaintiff/Appellee

Clifford Sherr, Phoenix
Counsel for Real Parties in Interest/Appellants
                     STATE v. INT’L FID. INS. CO.
                        Opinion of the Court


                               OPINION

Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Miller and Chief Judge Eckerstrom concurred.


E S P I N O S A, Judge:

¶1          International Fidelity Insurance Company (Surety), the
surety for Regulator Bail Bonds (Regulator), appeals from the trial
court’s judgment and order forfeiting $95,000 of a $100,000
appearance bond posted on behalf of defendant Augustin Rivera.
Surety argues the court abused its discretion in calculating the
$5,000 exoneration and by failing to consider the efforts of the
recovery agent and indemnitors as well as other relevant factors. It
further contends the court abused its discretion by admitting into
evidence certain state billing records. For the following reasons, we
reverse and remand for further proceedings.

                  Factual and Procedural Background

¶2          We examine the evidence in the light most favorable to
upholding the trial court’s judgment. In re Bond in Amount of
$75,000, 225 Ariz. 401, ¶ 2, 238 P.3d 1275, 1277 (App. 2010). In
March 2012, Rivera was arrested and charged with multiple felonies,
including three counts each of armed robbery, aggravated assault
with a firearm, aggravated robbery, and kidnapping. He was
released from custody in June after Regulator posted a $100,000
appearance bond.1 M.V., his mother, and E.G., his former girlfriend
and the mother of his children, became indemnitors on the bond.



      Rivera’s bail bond and release order executed by the
      1

bondsman includes the following “bail release agreement”:

          If the defendant has a pending criminal charge, this
          bond secures attendance at future court dates.
          Should the defendant fail to appear at any future
          court date for this charge, the bond may be forfeited.

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                   STATE v. INT’L FID. INS. CO.
                      Opinion of the Court

¶3          In April 2013, the trial court set a joint trial date of
September 10 for Rivera and his co-defendant, Rosario Soto. When
Rivera and Soto failed to appear for a pretrial hearing, the court
ruled that their trial would proceed in absentia. Neither man
appeared at trial and, following the jury’s guilty verdicts, the court
ordered that a bench warrant issue for Rivera and that forfeiture
proceedings commence.        Rivera surrendered on October 31
following a standoff with twenty to thirty officers. 2 He was
remanded to the Pima County jail on November 6, 2013, and on
December 2, the court found that the state had proven Rivera’s prior
convictions. He was sentenced to a prison term exceeding thirty-one
years on January 16, 2014.

¶4           On August 29, 2014, counsel for the state sent an
electronic mail message to Surety’s counsel providing evidence of
jail and medical costs incurred by Rivera and Soto after their
surrender.3 Surety filed a motion in limine to preclude the evidence
based on its untimely disclosure and because “the bills desired to be
submitted are not only legally insufficient and are the legal
obligation of the State, anyway.” The court denied the motion and
ordered that “the jail and medical cost records will be considered by
the Court.”

¶5          At the bond forfeiture hearing on September 18, 2014,
Surety introduced evidence that its fugitive-recovery agent, Marvin
Bordeaux, had spent hundreds of hours looking for Soto and Rivera.


       I understand this bond is subject to forfeiture if the
       defendant fails to appear at any future court date.
      2The  two men were heavily armed and showed signs of drug
use, with Soto so heavily drugged he required hospitalization.
      3The  state indicates the total claimed jail costs for Rivera was
$7,039.12 based on “a per diem rate multiplied by the 84 days of
Rivera’s incarceration from November 6, 2013, through his
sentencing on January 16, 2014, and his eventual release to the
[Arizona] Department of Corrections on January 29, 2014.” The
medical bills were for Soto only and totaled approximately $80,000.


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                    STATE v. INT’L FID. INS. CO.
                       Opinion of the Court

Bordeaux testified that, with the help of the indemnitors, he had
tracked Rivera to Silver City, New Mexico4 and had provided that
information to the United States Marshal Service. A U.S. marshal
based in New Mexico testified that, although initially guided by
Bordeaux’s information, he had used his own sources to locate
Rivera in Hurley, New Mexico, a small town approximately ten
miles from Silver City.

¶6           Following the hearing, the trial court stated that it
found “no legally recognizable reason for the Defendant’s failure to
appear.” It continued:

             I completely agree that . . . B[or]deaux’s
             testimony is compelling. He obviously did
             a lot of work. . . . [T]his is the first time I’ve
             ever received this much information about
             what a bail agent is doing, and . . . he
             certainly did a lot of work.

The court noted that Rivera’s family was in touch with Bordeaux
and giving him information “but still . . . the circumstances of
[Rivera’s] surrender and all of that . . . influences me in my
discretion to mitigate.” The court explained its decision to exonerate
$5,000 of the bond stating that Bordeaux had “claim[ed] his costs
were [$]2[,]400 or [$]2[,]500 [and] I’m doubling that.” It explained,
“when [Bordeaux] testified . . . he said something about hundreds of
hours [and] I don’t think that was reflected in whatever he turned
over to the company with respect to his hourly rate[, s]o I’ll double it
to [$]5,000.” The court noted that Soto and Rivera “weren’t in
custody somewhere else and they were in touch with family
members and they didn’t come back.” This appeal followed the
court’s formal order forfeiting $95,000 of the $100,000 bond.5 We



      4 Bordeaux   testified Silver City has a reputation for being
hostile to law enforcement.
      5The  trial court’s order did not contain language pursuant to
Rule 54(c), Ariz. R. Civ. P., certifying that “no further matters remain
pending and that the judgment is entered pursuant to Rule 54(c).”

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                   STATE v. INT’L FID. INS. CO.
                      Opinion of the Court

have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and
12-2101(A)(1).

                             Discussion

¶7           Surety argues the trial court abused its discretion in
calculating the $5,000 exoneration and by failing to consider the
efforts of the recovery agent and indemnitors and other relevant
factors. We review the court’s order forfeiting the bond for an abuse
of discretion, but consider its interpretation of rules governing bail
bonds de novo. State v. Garcia Bail Bonds, 201 Ariz. 203, ¶ 5, 33 P.3d
537, 539 (App. 2001).

¶8            The primary purpose of an appearance bond is to
ensure that the defendant appears at court proceedings. Id. ¶ 19.
Under Rule 7.6(c), Ariz. R. Crim. P., a trial court has discretion to
forfeit “all or part of the amount of [a surety] bond” when a criminal
defendant “has violated a condition of [the] bond” and the violation
“is not explained or excused.”            In determining whether a
defendant’s absence is excusable, a court reviews only the
defendant’s actions. See Garcia Bail Bonds, 201 Ariz. 203, ¶ 12, 33
P.3d at 540 (“[W]here a defendant’s non-appearance is due to his
own fault, the surety is not entitled to relief because the defendant’s
inability to appear is the result of his own voluntary act . . . .”).

¶9           Pursuant to Rule 7.6, even when a defendant’s actions
are not excusable, a trial court has discretion to determine whether
to exonerate all or part of a surety bond. See State v. Old W. Bonding
Co., 203 Ariz. 468, ¶ 25, 56 P.3d 42, 49 (App. 2002). In Old West
Bonding Co., we enumerated several factors “that might bear on the
court’s discretionary decision whether, and in what amount, to
forfeit an appearance bond.” Id. ¶ 26. Those factors include:

            (1) whether the defendant’s failure to
            appear due to incarceration arose from a
            crime committed before or after being


This court stayed the appeal in order for Surety to obtain a final
judgment certified under Rule 54(c), which it did.


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                   STATE v. INT’L FID. INS. CO.
                      Opinion of the Court

            released on bond; (2) the willfulness of the
            defendant’s violation of the appearance
            bond; (3) the surety’s effort and expense in
            locating and apprehending the defendant;
            (4) the costs, inconvenience, and prejudice
            suffered by the state as a result of the
            violation; (5) any intangible costs; (6) the
            public’s interest in ensuring a defendant’s
            appearance; and (7) any other mitigating or
            aggravating factors.

Id. “But the grant of discretion to a court does not mean that it can
be exercised arbitrarily.” Id. ¶ 25. Rather, it must be exercised
reasonably, and in furtherance of governing law. See id.

¶10          Citing Old West Bonding Co., Surety argues the trial
court “acted ‘wildly and whimsically’ and not reasonably” in
exonerating only five percent of the bond. It points out that the
indemnitors “provided critical information to the authorities which
directly le[]d to the apprehension and surrender of . . . Rivera,”
particularly the information that Rivera was in Silver City, “an area
notorious for . . . hostil[ity] to law enforcement.” It also notes that
despite knowing of Bordeaux’s fee agreement 6 and finding his
testimony “compelling,” the court “disregarded the ‘100’s and 100’s
of hours’ he spent looking for Rivera as well as all of the efforts and
information of the indemnitors” and calculated the exoneration by
merely doubling Bordeaux’s out-of-pocket expenses. Surety further
asserts the court did not consider the following factors: that “the
State suffered absolutely no ‘cost, inconvenience or prejudice’
whatsoever by Rivera’s absconding, capture and return,” because
those costs were borne by New Mexico local authorities and the U.S.
Marshal’s Service; the costs claimed by the state were only “a few
grand” for “additional time/costs in the Pima County jail”; the
efforts by Bordeaux and the indemnitors to protect the public by
locating Rivera; and the hardship to the indemnitors given the

      6According to Surety, Bordeaux would have received a seven
percent fee upon his apprehension and surrender of Rivera, but
otherwise no payment.


                                  6
                     STATE v. INT’L FID. INS. CO.
                        Opinion of the Court

forfeiture of ninety-five percent of the bond. Finally, Surety asserts
the court’s decision to “forfeit virtually all of the bond” is contrary to
good public policy, which favors encouraging a bonding community
to assist law enforcement in capturing defendants by providing
pertinent information.

¶11          On appeal, we presume the trial court exercised its
discretion by considering all the relevant factors to determine
whether to forfeit the entire bond amount or only a portion thereof.7
See Fuentes v. Fuentes, 209 Ariz. 51, ¶ 32, 97 P.3d 876, 883 (App. 2004)
(appellate court presumes trial court knows law and applied correct
standard unless presumption rebutted by record). And we do not
re-weigh those factors to determine whether we would reach the
same decision as the trial court. Cf. State v. Mincey, 141 Ariz. 425,
432, 687 P.2d 1180, 1187 (1984); Quigley v. City Court, 132 Ariz. 35, 37,
643 P.2d 738, 740 (App. 1982) (difference in judicial opinion not
synonymous with abuse of discretion).

¶12            “It is well settled . . . that a surety assumes the risk of a
defendant’s failure to appear.” In re Bond Forfeiture in Pima Cnty.
Cause No. CR–20031154, 208 Ariz. 368, ¶ 4, 93 P.3d 1084, 1085 (App.
2004). The burden is on Surety to establish, by a preponderance of
the evidence, a valid excuse or explanation for Rivera’s failure to
appear. State v. Bail Bonds USA, 223 Ariz. 394, ¶ 11, 224 P.3d 210, 213
(App. 2010). Although Surety presented evidence regarding efforts
by Bordeaux and the indemnitors to locate Rivera, it presented no
evidence to explain or excuse Rivera’s failure to appear or to
indicate any “aggravating or mitigating factors that prevented [him]
from appearing.” Pima Cnty. No. CR-20031154, 208 Ariz. 368, ¶ 5, 93
P.3d at 1086. The trial court was therefore within its discretion to
forfeit all or part of the bond. See Ariz. R. Crim. P. 7.6(c).




      7We  note that Surety failed to request specific findings of fact
and conclusions of law pursuant to Rule 52(a), Ariz. R. Civ. P., to
illuminate the trial court’s rationale and “enable this court to
examine the bases for the . . . court’s decision.” In re $ 26,980.00 U.S.
Currency, 199 Ariz. 291, ¶ 7, 18 P.3d 85, 88 (App. 2000).


                                     7
                    STATE v. INT’L FID. INS. CO.
                       Opinion of the Court

¶13           As noted above, however, the trial court’s discretion
must be exercised reasonably. Old W. Bonding Co., 203 Ariz. 468,
¶ 25, 56 P.3d at 49. Here, in making its decision, the court
considered evidence of the costs of incarcerating Rivera in the Pima
County jail following his capture, through his sentencing, and until
his release to the Arizona Department of Corrections (ADOC).
Although a court may properly evaluate “the costs, inconvenience,
and prejudice suffered by the state as a result of the violation,” id. ¶ 26
(emphasis added), in this case the county would have incurred the
costs of jailing Rivera following his conviction regardless of his
nonappearance. The purpose of an appearance bond is to ensure
that the defendant appears at court proceedings, Garcia Bail Bonds,
201 Ariz. 203, ¶ 19, 33 P.3d at 542, not to recoup expenses the state
would have incurred without issuance and violation of a bond, cf.
State v. Surety Ins. Co., 127 Ariz. 493, 496, 622 P.2d 52, 55 (App. 1980)
(reversing forfeiture decision based on defendant’s violations
unrelated to appearance bond).

¶14           The state implicitly acknowledges that for the jail costs
to be considered in the bond forfeiture proceeding, they had to have
been incurred as a result of the violation. It asserts the jail costs
“directly resulted from [Rivera’s] failure to appear,” and notes that
in calculating eighty-four days of jail costs, it “assume[d] in part that
had Rivera attended his trial he would have remained in release
status pending sentencing.” The state acknowledges, however, that
Rivera’s release following conviction would have been “unlikely”
given that Rule 7.2(c)(1), Ariz. R. Crim. P., bars such release “unless
it is established that there are reasonable grounds” to believe the
conviction may be set aside or reversed on appeal. Even so, the state
maintains, it is “certain . . . that Rivera spent more time in the Pima
County jail than he would have had he attended his trial in the first
instance.”8 The state provides no support for this statement, nor do


      8Seemingly,  once Rivera was in custody in the Pima County
jail, the scheduling of his sentencing hearing and his transfer to
ADOC would be routine, administrative decisions, as would follow
a typical criminal conviction reasonably resulting in a sentence of
imprisonment, and the state does not indicate otherwise.


                                    8
                    STATE v. INT’L FID. INS. CO.
                       Opinion of the Court

we see any in the record; we therefore disregard it. See Ariz. R. Civ.
App. P. 13(a)(7), (b)(1) (argument “must contain . . . [a]ppellant’s
contentions . . . with citations of legal authorities and appropriate
references to the portions of the record on which the appellant
relies”).

¶15           Because there is no basis for finding the jail cost an
additional expense incurred as result of Rivera’s violation, the trial
court abused its discretion in considering it as a factor in forfeiting
his bond.9 Cf. State v. Guilliams, 208 Ariz. 48, ¶ 27, 90 P.3d 785, 793
(App. 2004) (when basis for restitution order lacking, proper remedy
is to vacate that portion of sentence and remand to trial court). We
therefore reverse the bond forfeiture judgment and remand the case
to the trial court for its reconsideration, or if appropriate, a new
hearing on the matter, excluding evidence of the jail costs. 10 We
express no opinion on the court’s ultimate decision whether, and in
what amount, to forfeit the bond.

                              Disposition

¶16          For the foregoing reasons, the trial court’s bond
forfeiture judgment is reversed and the matter is remanded for
further proceedings consistent with this decision.




      9The   state points out that the trial court did not cite the jail
costs as a factor in its ruling. Although the court did not expressly
do so, it had stated its intent to consider jail costs, and its ruling does
not exclude them as a factor.
      10 Inso holding, we in no way preclude jail costs generally
from a trial court’s consideration in deciding to forfeit an
appearance bond. See Old W. Bonding Co., 203 Ariz. 468, ¶ 26, 56
P.3d at 49 (not possible to catalog all circumstances that might bear
on court’s discretionary decision whether and in what amount to
forfeit appearance bond). Such costs may be properly considered if
incurred as a result of a defendant’s failure to appear.



                                    9
