State v. Lorenzo
| Decision Date | 10 September 2018 |
| Docket Number | A-1-CA-35637 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. RAMON LORENZO, Defendant, and HOWELL BONDING, INC., Interested Party/Surety-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY
Hector H. Balderas, Attorney General
Walter M. Hart III, Assistant Attorney General
for Appellee
Titus and Murphy Law Firm
Tyson K. Gobble
Farmington, NM
for Appellant
{1} Howell Bonding, Inc. (Howell) appeals from a judgment partially forfeiting the bail bond it posted on behalf of Defendant Ramon Lorenzo. Howell argues that forfeiture of the bond was improper because the district court did not send it written notice within four days of the district court's declaration of forfeiture of the bond, as required by NMSA 1978, Section 31-3-2(B)(2)(b) (1993). Concluding that Howell has failed to show that it was prejudiced by the district court's failure to strictly comply with the statute, we affirm the district court's ruling. We decline to address Howell's argument on costs.
{2} Defendant was indicted on several felony charges in connection with a robbery and shooting at a diner in Milan, New Mexico. Howell posted a $100,000 bond on behalf of Defendant, who was set to go to trial with a co-defendant on the morning of October 5, 2015. Without explanation, Defendant failed to appear at his scheduled trial. The district court stated its intention to forfeit Defendant's bond if he did not appear by 1:00 p.m., but Defendant did not appear. The court issued a bench warrant for Defendant's arrest that same day. The district court proceeded with trial against the co-defendant, which ended on October 9, 2015.
{3} The State filed a request for a hearing on the bond forfeiture on October 19, 2015, and certified that it mailed the request to Howell that same day. The district court issued a notice of intent to forfeit the bond on October 23, 2015, and set a hearing on November 23, 2015. The clerk's office served this notice on Howell via certified mail on October 30, 2015.
{4} Howell began looking for Defendant in the Grants area on November 1, 2015. Howell contacted the District Attorney's Office to ask whether the prosecution had any information which might be helpful to Howell's search. Howell also spent time searching for Defendant by contacting his family and friends and by searching social media websites. Howell went to the Grants area three times, on November 1 for three to four hours, on November 6 or 7 for six hours, and "all day" on November 21, 2015. Defendant was arrested on November 21, 2015, by a Grants Police Department officer responding to a call about an individual who was running through some back yards in a residential area. The arresting officer recognized that Defendant was "wanted" after arresting him. The arrest was made while individuals working for Howell who were searching the area were having dinner at a nearby restaurant, taking a break from their search for Defendant. The arrest was made in an area that Howell had been searching.
{5} The hearing set for November 23, 2015 was rescheduled and was ultimately held on two days in January and February 2016. After presenting evidence aboutits efforts to locate Defendant, Howell argued that its bond should not be forfeited because the district court failed to comply with Section 31-3-2(B)(2)(b), which states that when a district court declares a bail bond forfeiture due to a criminal defendant's nonappearance in court, the district court "shall . . . give written notice thereof to the surety within four working days of declaration[.]" Howell also argued that the late notice prejudiced it by effectively giving Defendant a head start, making it harder to find him.
{6} At the end of the hearing, the district court acknowledged that the statutory notice of the declaration of forfeiture had not been sent to Howell within the required four-day period, but stated that it would have been impractical to send the notice during the co-defendant's jury trial, and that failure to comply with the four-day deadline did not mean that the bail bond was immune from forfeiture. The district court said that it would not forfeit the entire bond amount because notice was not provided to Howell in timely fashion, but that it would forfeit $30,000 of the bond because of the additional expenses the State would incur in holding a jury trial for Defendant.
{7} The district court later filed a written decision, with findings of fact and conclusions of law, confirming its oral decision that $30,000 of the $100,000 bond should be forfeited. In its order, the district court found that Howell had "demonstrated no prejudice" as a result of the district court's failure to send thefour-day notice of the bond forfeiture. The district court explained this finding as follows:
If prejudice could be claimed by Howell . . . , it would be that Howell could have reduced its liability by capturing . . . and delivering [Defendant] to the [c]ourt before the Grants Police Department arrested him. Even this is extremely thin and only conjecturally supported by the evidence. However, because there is some chance that Howell may have caught [Defendant] before the [p]olice arrested him if he had another ten days, there is no prejudice because the [c]ourt only forfeited $30,000[] of a possible $100,000[] and if Howell had delivered [Defendant], the [c]ourt obviously would have considered that matter favorably. The court is being quite lenient in only forfeiting 30 [percent] of the bond and considers that even though Howell did not deliver [Defendant] after thirty three days, the time [Defendant] was a fugitive was not extraordinarily lengthy, minimizing the cost and potential prejudice to the State.
{8} The district court further concluded that Section 31-3-2(B)(2)(b) is procedural in nature and that the four-day notice provision conflicts with Rules of Criminal Procedure 5-406(C) and 5-407 NMRA because the rules do not state a time in which notice of forfeiture must be provided to a surety. Because the district court found that the statute was procedural in nature, it found that the rules would supersede the statute and concluded that the statutory four-day notice requirement did not control. Though our reasoning differs from that of the district court, we agree that Howell was not prejudiced by the district court's failure to strictly comply with the statute's four-day notice provision, and therefore we affirm the district court's judgment on the bond.
{9} We review a district court's order forfeiting a bond for abuse of discretion. State v. Pacheco, 2008-NMCA-055, ¶ 25, 143 N.M. 851, 182 P.3d 834. "An abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by the facts and circumstances of the case." Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 11, 314 P.3d 688 (internal quotation marks and citation omitted). We review de novo the parties' arguments about the meaning and effect of the four-day notice deadline in Section 31-3-2(B)(2)(b) because statutory interpretation presents an issue of law. See State v. Smith, 2009-NMCA-028, ¶ 8, 145 N.M. 757, 204 P.3d 1267 ().
{10} We may affirm an order of the district court if it is right for any reason, so long as doing so does not require us to look beyond the factual allegations that were raised and considered below, and if it would not be unfair to the appellant to do so. Atherton v. Gopin, 2015-NMCA-003, ¶ 36, 340 P.3d 630. Further, we note that "an error is harmless unless the complaining party can show that it created prejudice." Kennedy v. Dexter Consol. Sch., 2000-NMSC-025, ¶ 26, 129 N.M. 436, 10 P.3d 115; see Pacheco, 2008-NMCA-055, ¶ 21 (); see also Rule 1-061 NMRA ( ).
{11} The purpose of a bail bond is to secure the defendant's appearance at trial. State v. Amador, 1982-NMSC-083, ¶ 13, 98 N.M. 270, 648 P.2d 309. It is not intended to be a source of revenue for the state. Id. By releasing a defendant on a bail bond, "[t]he state is relieved of the expense and burden of keeping the defendant pending his trial." Id. "The state is also aided in its efforts to recapture a fugitive defendant by the bondsman, who, it is presumed, will be moved by an incentive to prevent judgment (on the forfeiture) or, if it has been entered, to absolve it and to mitigate its penalties." Id. (internal quotation marks and citation omitted). To promote the purpose of bail, bondsmen should be encouraged to enter into bail contracts. Id. ¶ 14.
{12} The surety on a bail bond is considered to have custody of the defendant. Id. ¶ 7. The bondsman's obligation, however, is not to produce the defendant at trial, but rather is "an obligation to answer, to the extent of...
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