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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             ALL OUT NOW BAIL BONDS, et al., Appellants.

                             No. 1 CA-CV 18-0342
                              FILED 6-18-2019


           Appeal from the Superior Court in Maricopa County
                          No. 2016-002038-001
           The Honorable Thomas A. Kaipio, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Peter S. Spaw
Counsel for Appellee

Adair Law Group PLLC, Phoenix
By Marc A. Adair
Counsel for Appellants
                      STATE v. ALL OUT NOW, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Vice Chief Judge Peter B. Swann and Judge Diane M. Johnsen joined.


M c M U R D I E, Judge:

¶1             All Out Now Bail Bonds and Bankers Insurance Company
(collectively, “Bail Bonds”) appeal the superior court’s order forfeiting
$75,000 of a $100,000 appearance bond posted on behalf of Jose Angel
Acosta. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           In May 2016, Acosta was charged with burglary, two counts
of kidnapping, two counts of armed robbery, two counts of aggravated
robbery, and two counts of aggravated assault. In September 2016, Acosta
was released from custody pending trial after Bail Bonds posted a $100,000
appearance bond on his behalf.

¶3           On September 7, 2017—the date scheduled for trial—Acosta
failed to appear. The superior court issued a bench warrant for Acosta’s
arrest and scheduled a bond forfeiture hearing. Under Arizona Rule of
Criminal Procedure (“Rule”) 7.6(c)(1), 1 the court was required to notify Bail
Bonds within ten days, or by September 18, 2017, that it had issued the
warrant. However, Bail Bonds did not receive notice of the bench warrant
until September 26, 2017. Bail Bonds moved for continuances of the
bond-forfeiture hearing to allow time to locate and surrender Acosta. The
motions were granted, but Bail Bonds ultimately did not find him.

¶4            At the bond forfeiture hearing, Bail Bonds argued that the
court should substantially exonerate the bond for two reasons. First, Bail
Bonds claimed they suffered prejudice by the court’s failure to supply them
with timely notice of the bench warrant because they missed opportunities
to arrest Acosta immediately after he failed to appear for trial. To support


1     Rule 7.6 was amended while the bond forfeiture proceedings in this
case were pending. Because the new version contains no material changes
relevant to this appeal, we cite to the current version of the rule.



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                      STATE v. ALL OUT NOW, et al.
                          Decision of the Court

their argument, Bail Bonds presented the court with sign-in sheets allegedly
showing that Acosta physically checked into Bail Bonds’ office after the
bench warrant had issued but before Bail Bonds received notice. Second,
Bail Bonds argued the bond’s indemnitors, Acosta’s grandparents, would
suffer significant financial hardship if the court forfeited the bond in full.

¶5             After the hearing, the court exonerated $25,000 of the $100,000
bond and forfeited the remaining $75,000. The court explained that “most
of [its] reasoning” in deciding to exonerate the bond partially was based on
Bail Bonds’ hardship argument, and “not the notice issue.” Regarding Bail
Bonds’ contention that they were prejudiced by the delay in receiving notice
of the warrant, the court explicitly stated it did not find it “that compelling
or strong in this particular case.” Bail Bonds then moved for a new trial
under Arizona Rule of Civil Procedure 59(a), arguing the court failed to
properly weigh the prejudice they suffered by the untimely notice of the
bench warrant. The court denied the motion, stating:

       THE COURT FINDS that from the evidence presented at the
       hearing, [Bail Bonds] failed to prove actual prejudice. The
       Court will not presume prejudice to the bonding company
       under these facts.

Bail Bonds timely appealed, and we have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(5)(a).

                               DISCUSSION

¶6            We review the superior court’s forfeiture determination and
the denial of a motion for a new trial for an abuse of discretion. State v. Old
West Bonding Co., 203 Ariz. 468, 471, ¶ 9 (App. 2002) (forfeiture
determination); Jaynes v. McConnell, 238 Ariz. 211, 215–16, ¶ 13 (App. 2015)
(denial of a motion for new trial). We examine the record in the light most
favorable to sustaining the judgment. Old West, 203 Ariz. at 471, ¶ 9.

¶7             The primary purpose of an appearance bond is to ensure a
criminal defendant appears at court proceedings. State v. Garcia Bail Bonds,
201 Ariz. 203, 208, ¶ 19 (App. 2001). The superior court has the discretion to
forfeit all or part of the bond if a defendant violates a condition of the
appearance bond, and the violation is not explained or excused. Ariz. R.
Crim. P. 7.6(c)(3); see also Ariz. R. Crim. P. 7.6(d)(5) (unless exoneration is
required under Rule 7.6(d)(1) or (3), the court has the discretion to decide
whether and how to exonerate the bond). Relevant factors for the court to
consider when determining whether to forfeit all, part, or none of the bond
may include:


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                      STATE v. ALL OUT NOW, et al.
                          Decision of the Court

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

Old West, 203 Ariz. at 475, ¶ 26. The surety has the burden to show by a
preponderance of the evidence some explanation or other mitigating factor
excusing the defendant’s non-appearance. See State v. Bail Bonds USA, 223
Ariz. 394, 397, ¶ 11 (App. 2010).

¶8            Bail Bonds argues that the superior court erred by failing to
recognize and adequately weigh the prejudice they contend they suffered
by the untimely notice of the bench warrant. But the court was well within
its discretion to conclude that Bail Bonds’ prejudice argument was not
“compelling or strong” and that the evidence presented at the hearing
“failed to prove actual prejudice.” The only proof of prejudice Bail Bonds
presented at the hearing was the sign-in sheets, which Bail Bonds never
sought to admit as evidence or to corroborate or authenticate with witness
testimony or other evidence. See Ariz. R. Evid. 803(6) (conditions necessary
for admission under the business-records exception must be established by
testimony or certification); Ariz. R. Evid. 901(a) (“[T]he proponent must
produce evidence sufficient to support a finding that the item is what the
proponent claims it is.”); see also In re Bond Forfeiture in CR-94019213, 191
Ariz. 304, 306, ¶ 8 (App. 1998) (refusing to “presume prejudice” from
court’s failure to provide timely notice under Rule 7.6(c)(1) when surety
failed to provide sufficient evidence of prejudice). The court highlighted the
evidentiary concerns surrounding the sign-in sheets when it stated that it
did not know “who[se] signature” was on the sheet, and that Bail Bonds’
counsel was only “avowing that those are the signature[s] of [Acosta].”

¶9             Even assuming the sign-in sheets were authentic, and Acosta
had signed on the dates shown, they at most show the court’s violation of
Rule 7.6(c)(1) might have caused Bail Bonds to miss a single opportunity to




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                      STATE v. ALL OUT NOW, et al.
                          Decision of the Court

surrender Acosta back into custody. 2 The court could reasonably conclude
that evidence of a single missed chance to arrest Acosta—balanced against
the more than five months Bail Bonds had thereafter to locate and surrender
Acosta—was insufficient to prove they suffered prejudice from the court’s
delay in providing notice of the bench warrant. See State v. Sun Sur. Ins., 232
Ariz. 79, 82, ¶ 7 (App. 2013) (“[T]he purpose of [Rule 7.6(c)(1)] is to allow
the surety an opportunity to find and surrender the defendant and thereby
mitigate any forfeiture.”). Moreover, Bail Bonds does not acknowledge that
even if they had arrested Acosta promptly after receiving notice, the
superior court still had the discretion to forfeit the bond. See Old West, 203
Ariz. at 475, ¶ 28; CR-94019213, 191 Ariz. at 307, ¶ 9 (“[E]ven if the surety
does quickly locate and surrender the errant defendant to the court . . . this
accomplishment does not necessarily obviate the surety’s affirmative
obligation to explain or excuse the release condition violation.”).

¶10            While Bail Bonds correctly asserts that the superior court
must exercise its discretion under Rule 7.6(d)(5) “reasonably, not
whimsically,” Old West, 203 Ariz. at 475, ¶ 25, our review of the record
reveals no cause to conclude the court acted unreasonably here. See Sun Sur.
Ins., 232 Ariz. at 83, ¶ 10 (cautioning that “[a] surety may not be entitled to
exoneration of its bond any time a trial court fails to provide the notice
required by Rule 7.6(c)(1)”). The court considered Bail Bonds’ prejudice and
hardship arguments, found the hardship argument persuasive, properly
balanced it against other factors favoring forfeiture (such as the willfulness
of Acosta’s failure to appear), and partially exonerated the bond. We will
not substitute our judgment for that of the superior court by reweighing the
evidence presented or the discretionary factors upon which the court relied.
See Castro v. Ballesteros-Suarez, 222 Ariz. 48, 52, ¶ 11 (App. 2009).
Accordingly, we conclude the court did not abuse its discretion by
forfeiting $75,000 of the $100,000 bond or by denying Bail Bonds’ motion
for a new trial.




2       According to Bail Bonds’ counsel and the sign-in sheets, Acosta
checked in on September 7, September 13, and September 21, 2017. Only
one alleged check-in date, September 21, 2017, occurred after Rule
7.6(c)(1)’s notice period.



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             STATE v. ALL OUT NOW, et al.
                 Decision of the Court



                      CONCLUSION

¶11   For the foregoing reasons, we affirm.




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




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