Opinion
No. 1 CA-CV 16-0552
06-08-2017
STATE OF ARIZONA, Plaintiff/Appellee, v. ERIC RUBIO-CARRILLO, Defendant/Appellant.
COUNSEL Law Offices of Jose De La Luz Martinez PLLC, Phoenix By Jose De La Luz Martinez Counsel for Defendant/Appellant Maricopa County Attorney's Office, Phoenix By Jeffrey A. Beaver, Peter S. Spaw, Kimberley Felcyn Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR 2016-107982-001
The Honorable Julie Ann Mata, Judge Pro Tempore
AFFIRMED
COUNSEL Law Offices of Jose De La Luz Martinez PLLC, Phoenix
By Jose De La Luz Martinez
Counsel for Defendant/Appellant Maricopa County Attorney's Office, Phoenix
By Jeffrey A. Beaver, Peter S. Spaw, Kimberley Felcyn
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court, in which Judge Kenton D. Jones and Judge John C. Gemmill joined. DOWNIE, Judge:
The Honorable John C. Gemmill, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 Eric Rubio-Carrillo appeals from a bond forfeiture order issued by the superior court. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
"We view the facts in the light most favorable to upholding the trial court's judgment." In re Bond in Amount of $75,000, 225 Ariz. 401, 403, ¶ 2 (App. 2010).
¶2 Rubio-Carrillo was charged with two class two felony drug offenses. On February 19, 2016, the superior court signed a release order that required Rubio-Carrillo to post a cash appearance bond of $50,000. That order, which Rubio-Carrillo signed, stated, in pertinent part:
You must appear at all court proceedings in this case or your release conditions can be revoked, a warrant will be issued and proceedings may go forward in your absence. . . . If you violate any conditions of this release order, the court may order the bond and any security deposited in connection therewith forfeited to the State of Arizona. In addition, the court may issue a warrant for your arrest upon learning of your violation of any conditions of your release.Adept Bail Bonds posted the required $50,000 bond.
¶3 Rubio-Carrillo thereafter failed to appear for a scheduled hearing; the superior court issued a bench warrant for his arrest and also set a bond forfeiture hearing. Adept appeared at the bond forfeiture hearing, but Rubio-Carrillo did not. Finding "no reasonable cause or mitigation ha[d] been presented for the Defendant's failure to appear," the court forfeited the bond.
¶4 Rubio-Carrillo timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶5 The purpose of an appearance bond "is to assure a defendant's appearance at the trial or other hearings." State v. Bail Bonds USA, 223 Ariz. 394, 397, ¶ 9 (App. 2010). The court "shall" issue a bench warrant if it appears "the released person has violated a condition of an appearance bond," and "shall also set a hearing . . . requiring the parties and any surety to show cause why the bond should not be forfeited." Ariz. R. Crim. P. 7.6(c)(1). "The court may order all or part of an appearance bond forfeited 'if at the hearing, the violation is not explained or excused.'" Bail Bonds USA, 223 Ariz. at 397, ¶ 9 (quoting Ariz. R. Crim. P. 7.6(c)(2)). We review an order forfeiting a bond for an abuse of discretion. In re Bond in Amount of $75,000, 225 Ariz. 401, 404, ¶ 5 (App. 2010).
¶6 The opening brief includes no citations to the record, as required by Arizona Rule of Civil Appellate Procedure 13(a)(5). We have disregarded the unsupported factual assertions set forth in that brief. See Ariz. Dep't of Econ. Sec. v. Redlon, 215 Ariz. 13, 15, ¶ 2 (App. 2007). We have also not been provided with a transcript of the bond forfeiture hearing, even though the minute entry from that proceeding reflects that it was digitally recorded. The appealing party has a duty to identify and prepare the record in a manner that allows this Court to resolve the issues raised on appeal. State v. Mendoza, 181 Ariz. 472, 474 (App. 1995). We presume any missing transcripts would support the superior court's ruling. See State v. Zuck, 134 Ariz. 509, 512-13 (1982); see also State v. Rivera, 168 Ariz. 102, 103 (App. 1990) ("In the absence of a record to the contrary, we must presume that the trial court acted properly . . . .").
¶7 Although Rubio-Carrillo asserts that he failed to appear because he was in federal custody, nothing in the record establishes that "fact." Similarly, nothing in the record supports his assertion that the superior court knew of his status before forfeiting the bond. The minute entry from that proceeding states that "no reasonable cause or mitigation" was presented for his failure to appear. Under these circumstances, there is no basis upon which to conclude that the court abused its discretion by forfeiting the bond.
Even if Rubio-Carrillo had been in federal custody or deported, such status would not require exoneration of the bond. See In re Bond Forfeiture in Pima Cty. Cause No. CR-20031154, 208 Ariz. 368, 370, ¶ 7 (App. 2004) (upholding forfeiture of bond after deported defendant failed to appear for scheduled hearing). --------
¶8 We also reject Rubio-Carrillo's contention he was deprived of effective assistance of counsel because he was not represented at the bond forfeiture hearing. The Sixth Amendment applies to criminal proceedings, whereas a bond forfeiture hearing is civil in nature, "even though it originates in a criminal proceeding." State ex rel. Ronan v. Superior Court, 96 Ariz. 229, 231 (1964).
CONCLUSION
¶9 For the foregoing reasons, we affirm the judgment of the superior court.