                                                                         FILED BY CLERK
                          IN THE COURT OF APPEALS
                              STATE OF ARIZONA                               SEP 10 2010
                                DIVISION TWO
                                                                              COURT OF APPEALS
                                                                                DIVISION TWO


                                             )
In re                                        )         2 CA-CV 2010-0005
                                             )         DEPARTMENT B
BOND IN THE AMOUNT OF $75,000.               )
                                             )         OPINION
                                             )
                                             )


            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 of acquittal and after failing
to issue an arrest warrant for the defendant while the case was pending. For the reasons

set forth below, we affirm.

                         Factual and Procedural 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 possessing a narcotic drug for sale and

possessing drug paraphernalia. The 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.   The 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 of 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. At the conclusion of

the state‟s case, the court granted defense counsel‟s motion 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 the 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 upon
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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 should not be forfeited.” After a contested hearing, the court ordered the entire

amount of the bond forfeited, and 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 review 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.‟”

Deer 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, after 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 condition of the appearance bond,”

because criminal jurisdiction is based on the existence of a valid, pending complaint.
                                              3
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), to 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 right 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. The annotation on

which American 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 the 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.
                                             4
§ 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 released 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 appearance 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

deportation 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 that 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. Its 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

acquittal. 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 lack jurisdiction to order the

bond forfeiture proceedings by waiting to initiate them until after it had entered a

judgment of acquittal.
                                             5
B. Mandatory Exoneration

¶9           Relying primarily on State v. Nunez, 173 Ariz. 524, 844 P.2d 1174 (App.

1992), American Liberty argues 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 the charges against them subsequently were

dismissed with prejudice. 173 Ariz. at 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 the bonds should have been exonerated because the

indictment had been dismissed before the forfeiture 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., concluding that, because 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 apply 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 pretrial 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-
                                            6
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 existed 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 . . .



                                              7
dismissed on motion [pursuant to Rule 16.6(e)], even without prejudice, . . . is in a

position superior to [one] being resolved by an unappealable acquittal.” We disagree.

¶13           “The 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

1176. 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 result 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 when 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 put the time, effort, and expense

into preparing for it and risk that the strength of the case will erode with the passage of

time. If 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. In some measure, forfeiture of the bond can

compensate the state for the waste of its resources caused by the defendant‟s absence

from trial, and Rule 7.6 affords the state greater latitude to initiate proceedings under



                                              8
these circumstances. The trial court therefore did not err in denying American Liberty‟s

motion to exonerate the bond.

C. Necessity of Arrest Warrant

¶15           American Liberty also argues “an arrest warrant is a necessary prerequisite

for 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, in 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 notify 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 the initiation of forfeiture proceedings upon the issuance of an

arrest warrant.

¶16           Furthermore, although a trial court‟s lack of strict compliance with the

procedures provided in Rule 7.6(c) constitutes error, we repeatedly have rejected the
                                              9
claim that this sort of error necessitates automatic reversal and have refused to reverse the

court‟s ruling unless the surety actually suffered prejudice. In re 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, prejudiced 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, 261, 571 P.2d 1054, 1057 (App. 1977) (time

limits of prior version of Rule 7.6 not jurisdictional); 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 procedures 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 American Liberty has made no attempt to meet this burden. The 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. 2000) (“„The right of the surety to recapture his principal is not a matter of
                                             10
criminal procedure . . . . The bail [bondsman] can surrender his principal 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 forfeiture

procedings or that it had attempted to apprehend and surrender Gonzalez-Lugo but in fact

could not do so without the warrant. Even assuming American Liberty had been able to

produce Gonzalez-Lugo, the trial court nonetheless had discretion to forfeit the entire

amount of the bond if it found his absence was neither explained nor excused. See

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 forfeited 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 to issue an arrest

warrant after finding Gonzalez-Lugo had violated the conditions of his release.

                                       Disposition

¶19           We affirm the trial court‟s judgment forfeiting 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

                                           11
