Segura v. Cunanan

• Decision Date: 24 April 2008
• Docket Number: No. 1 CA-SA 07-0181.,No. 1 CA-SA 07-0179.,1 CA-SA 07-0179.,1 CA-SA 07-0181.
• Citation: 196 P.3d 831,219 Ariz. 228
• Parties: Jose SEGURA and Francisco Medrano Tovar, Petitioners, v. The Honorable David O. CUNANAN, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, The State of Arizona ex rel. Andrew Thomas, the Maricopa County Attorney, Real Party in Interest.
• Court: Arizona Court of Appeals

196 P.3d 831

219 Ariz. 228

Jose SEGURA and Francisco Medrano Tovar, Petitioners, v. The Honorable David O. CUNANAN, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge The State of Arizona ex rel. Andrew Thomas, the Maricopa County Attorney, Real Party in Interest.

No. 1 CA-SA 07-0179.

No. 1 CA-SA 07-0181.

Court of Appeals of Arizona, Division 1, Department E.

April 24, 2008.

Maricopa County Public Defender, Mikel Steinfeld, Deputy Public Defender, Phoenix, Attorneys for Petitioner Tovar.

Maricopa County Public Defender, Daniel B. Mestaz, Deputy Public Defender, Phoenix, Attorneys for Petitioner Segura.

Andrew P. Thomas, Maricopa County Attorney, David E. Wood, Deputy County Attorney, Phoenix, Attorneys for Real Party in Interest.

IRVINE, Presiding Judge.

¶ 1 Francisco Medrano Tovar and Jose Segura separately petition this court to accept jurisdiction of their special actions and to grant the relief requested. Each claims that he was deprived of his liberty without due process because he was held in custody without the benefit of an evidentiary hearing at which he could fully litigate whether the Arizona Constitution's no-bail provision applies to him. We accepted jurisdiction and granted substantial relief in earlier orders. We hold in this Opinion that if the State alleges that a defendant is not entitled to bail under the Arizona Constitution, due process requires that the defendant receive a full hearing at which the defendant may be represented by counsel, cross-examine witnesses, and present evidence.

FACTUAL AND PROCEDURAL BACKGROUND

Tovar

¶ 2 On July 9, 2007, Tovar was arrested on two counts of misconduct involving weapons, both class 4 felonies, and one count of possession of narcotic drugs, also a class 4 felony. That same day, Tovar's initial appearance was held. It is not entirely clear in the record before us, but it appears that the magistrate had a copy of the Release Questionnaire (Form 4), a Financial Information form signed by Tovar, and an Immigration Detainer — Notice of Action from the Immigration and Naturalization Service. The Release Questionnaire contained the following Probable Cause Statement, apparently authored by the arresting officer:

On 070907 at approximately 1445 hours, the def was contacted as a suspicious person in an alley around 29th Ave and Melvin Street. Upon contact, the def was the only occupant of the vehicle and jumped in the drivers seat as I pulled into the alley. The def stepped out of the truck at my request and I noticed the baggie of cocaine in plain view on the center consol of the truck. After the def was placed under arrest, a pistol was found under ther [sic] def floor mat of the drivers seat. Def was the only occupant of veh. Drugs tested positive.

¶ 3 Tovar's initial appearance proceeded quickly. According to the transcript, the entire hearing, excluding references to the interpreter, was as follows:

Judge Barth ("JB"): Francisco Medrano Tovar. Is your name Francisco Medrano Tovar?

Tovar: No, uh, the name is Francisco Tovar Medrano.

JB: And is your date of birth, sir, uh, [...]?

Tovar: Yes.

JB: Sir, you've been charged with possessionable [sic] weapon by a prohibited person, a class 4 felony, [p]ossession of use of a narcotic drug, a class 4 felony, [c]arrying — and carrying a concealed weapon without a permit, a misdemeanor. I find the proof evident presumption great that you committed a class 4 — one or more of the class 4 felonies of which you've been charged. That there is probable cause that you're in the United States illegally. Therefore under the law of Arizona you're not eligible for release. I have a county attorney to represent you. Step to the right [and the] clerk will give you paperwork with the date, time and location of your next hearing."

¶ 4 There is nothing in the record showing that Tovar received a copy of the Form 4 prior to the hearing or was informed of its contents at the hearing. No witnesses were called by either party nor was Tovar asked if he wished to speak. Tovar was not represented by counsel.

¶ 5 One week later, after counsel was appointed, Tovar requested a bail hearing pursuant to Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App.2004). A Simpson hearing was set for seven days later, on July 23, 2007. A few days before the scheduled hearing, the State filed a response in which it argued that Tovar had received his bail hearing at his initial appearance and his demand for a new hearing failed to list any additional evidence as required by Arizona Rule of Criminal Procedure 7.4(b). Separately, the State also informed the court that Tovar had been indicted by a grand jury and requested a continuance of the hearing. The court granted the continuance, referred Tovar's demand for a Simpson hearing to the presiding criminal judge, and then vacated its own order granting the hearing. After the hearing was vacated, Tovar filed a Motion to Modify Release Conditions, arguing that he should be released because the failure to hold an evidentiary hearing violated the seven day requirement of Arizona Rule of Criminal Procedure 7.4(b) and Simpson itself. This motion was then heard by Commissioner Cunanan on July 26, 2007.

¶ 6 Commissioner Cunanan rejected Tovar's seven-day argument. The State then essentially argued that Tovar had already had the only bail hearing he was entitled to at the initial appearance and to have another bail hearing he must allege new facts. The court appears to have agreed with the State's position and so treated the issue before it as an ordinary motion to modify release conditions rather than a Simpson hearing, at which the State would have the burden of proof. The court concluded that "under the rules that we have before us, in essence, I am not going to revisit the decision of the IA [Initial Appearance] Commissioner unless new facts, circumstances or arguments are brought to me that somehow change or would change the position that they took in findings that they had made."

Segura

¶ 7 On or about July 12, 2007, Segura was arrested for allegedly possessing a forged Mexican Voter Registration card. At an initial appearance held the next day, Segura did not have counsel and was not provided with the opportunity to cross-examine witnesses or present evidence. It is not entirely clear from the record, but it seems the IA commissioner had before him a copy of Segura's Release Questionnaire (Form 4) and a Financial Information form signed by Segura.

¶ 8 The Release Questionnaire contained the following Probable Cause Statement, apparently authored by the arresting officer:

On 07-12-07 AP Jose Hernandez Segura was stopped for traffic violations at 702 W Broadway Rd. He presented a forged Mexico voters card for identification. This voters card was identified by Det. M.N[.] ... and Det. J[.] ... as being forged. AP Segura stated, he got this ID from Mexico. This type of ID that was presented by AP Segura was not the type of ID issued by the Mexican government.

This forged voters card was made with unofficial materials not used by Mexico. The safety features of overlapping was not present on the picture, the face on the card was blurry and difficult to read, the front side and back side papers had holes on them that did not match. The print on the card was blurry and not bold as required by this card. This card was impounded for evidence.

The initial appearance commissioner held Segura non-bondable.

¶ 9 Shortly after the State filed a complaint charging Segura with the class 4 felony of forgery under Arizona Revised Statutes ("A.R.S.") section 13-2002(A)(3) (2001), Segura, through counsel, filed a Motion Demanding Hearing on Reexamination of Release Conditions. The presiding criminal judge granted the motion and scheduled a hearing before Commissioner Cunanan.

¶ 10 At the hearing, Segura argued that it was the State's burden to present evidence that the proof is evident or the presumption great that he committed a forgery and that there was probable cause to find that he was in the country illegally. The State responded, in essence, that if Segura produced no new evidence, he was not entitled to any hearing after the initial appearance.

¶ 11 Segura also argued that a photocopy of a validly-issued voter's registration card is not a forgery and there was no evidence that Segura was not registered to vote in Mexico or had tried to defraud anyone. Commissioner Cunanan denied the motion, finding no new evidence had been presented that would warrant a re-examination of the release conditions or that reflected that the determination made at the initial appearance was incorrect.

¶ 12 Segura was able to make a record regarding some of his arguments by questioning an employee of the Sheriff's office who testified he did not know if the arresting officer had ever received training from any Mexican entity as to identifying forged voter registration cards. The employee testified that the arresting officer had said Segura's card had been photocopied and laminated. The employee also testified that the arresting officer told him that Segura's card was made of materials not used by Mexico, that the card was blurry, that an overlapping safety feature was not present, and that holes on the front side did not match with holes on the back side. It appears to be undisputed that the name on the card was Segura's actual name.

Special Action Proceedings

¶ 13 In these special actions, Tovar and Segura phrase their issues slightly differently, but in essence each argues that he was denied his right to due process (1) by the initial appearance magistrate holding him non-bondable when he had no counsel, was unable to confront or cross-examine witnesses, or present evidence and (2) by the ruling that a later determination regarding bail would be made only if he was able to allege the existence of material new facts.¹ After hearing oral arguments, we issued an...