NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
1 CA-CR 10-0442
Appellee,
v.
VICTOR MANUEL CASTILLO ESTOBAR,
DIVISION ONE
FILED: 06/02/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT E
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appellant.
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-007077-001 DT
The Honorable Maria Del Mar Verdin, Judge
AFFIRMED AS MODIFIED
Thomas C. Horne, Attorney General
by
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Joseph T. Maziarz, Assistant Attorney General
Attorneys for Appellee
The Hopkins Law Office, PC
by
Cedric Martin Hopkins
Attorneys for Appellant
Phoenix
Tucson
I R V I N E, Judge
¶1
Victor
Manuel
Castillo
Estobar
(“Estobar”)
was
convicted by a jury of participation in a criminal syndicate,
smuggling,
two
counts
of
kidnapping
and
forgery.
On
appeal,
Estobar contends the trial court erred by not sentencing him to
concurrent
sentences
pursuant
to
Arizona
Revised
Statutes
(“A.R.S.”) section 13-116 (2010). For the reasons that follow,
we affirm Estobar’s convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2
The
underlying
facts
regarding
the
crimes
are
not
discussed because they are not relevant to the issue on appeal.
See State v. Garcia, 220 Ariz. 49, 50, ¶ 2, 202 P.3d 514, 515
(App.
2008).
Estobar
was
found
guilty
of
participation
in
a
criminal syndicate (count 1); smuggling (count 2); 2 counts of
kidnapping (counts 9 and 10); and forgery (count 11). 1 The jury
found aggravating factors for some of Estobar’s convictions. As
a result, the court sentenced Estobar as follows:
Count 1: 10 years from 5/25/10
Presentence Incarceration Credit: 473 days
Aggravated
Sentence is concurrent with Counts 2, 9, 10,
and 11.
Count 2: 2.5 years from 5/25/10
Presentence Incarceration Credit: 473 days
Presumptive
Sentence is concurrent with Counts 1, 9, 10
and 11.
Count 9: 16 years from upon completion of
sentence in Counts 1 and 2
Presentence Incarceration Credit: 0 days
Aggravated
1
For ease of reference in this decision, we refer to the counts
as they were numbered in the trial court.
2
This sentence is to be consecutive to Counts
1 and 2.
Count 10: 16 years from upon completion of
sentence in Counts 1, 2 and 9
Presentence Incarceration Credit: 0 days
Aggravated
This sentence is to be consecutive to Counts
1, 2, and 9.
Count 11: 2.5 years from 5/25/10
Presentence Incarceration Credit: 473 days
Presumptive
Sentence is concurrent with Counts 1, 2, 9,
and 10.
Estobar timely appealed.
DISCUSSION
¶3
Citing A.R.S. § 13-116, Estobar contends consecutive
sentences are improper because all his offenses arose out of the
same conduct. See State v. Gordon, 161 Ariz. 308, 315, 778 P.2d
1204, 1211 (1989). Section 13-116 states: “An act or omission
which is made punishable in different ways by different sections
of the laws may be punished under both, but in no event may
sentences
be
other
than
concurrent.”
We
review
de
novo
a
decision to impose consecutive sentences. See State v. Urquidez,
213 Ariz. 50, 52, ¶ 6, 138 P.3d 1177, 1179 (App. 2006). Because
Estobar failed to raise this objection below, however, we review
only for fundamental error. See State v. Henderson, 210 Ariz.
561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Estobar bears the
burden of establishing error, that the error was fundamental,
3
and that the error caused him prejudice. Id. at 568, ¶¶ 22-23,
115 P.3d at 608.
¶4
when
Although
a
A.R.S.
defendant’s
§
conduct
13-116
is
a
bars
consecutive
“single
act,”
it
sentences
does
not
preclude consecutive sentences for offenses involving multiple
victims. State v. Hampton, 213 Ariz. 167, 182, ¶¶ 64-65, 140
P.3d 950, 965 (2006). Estobar does not challenge the fact that
each
kidnapping
conviction
was
for
a
separate
victim.
Even
assuming Estobar’s crimes arose from a “single act,” because
there were two victims and he was convicted of two counts of
kidnapping, there was no error by the trial court in imposing
consecutive sentences for the kidnapping convictions. See, e.g.,
State v. Burdick, 211 Ariz. 583, 585, ¶ 6, 125 P.3d 1039, 1041
(App.
2005)
(consecutive
sentences
proper
where
crime
of
disorderly conduct committed against multiple victims); State v.
White, 160 Ariz. 377, 379-81, 773 P.2d 482, 484-86 (App. 1989)
(consecutive sentences upheld when a single criminal act harmed
multiple victims).
¶5
Estobar
also
argues
the
kidnappings
were
such
an
integral part of the criminal syndicate that the charges must be
viewed
as
a
single
act.
The
“victims”
of
the
crime
of
participation in a criminal syndicate are not the same as the
kidnapping
charges,
so
the
sentences
for
participating
in
a
criminal syndicate may also be consecutive to the kidnapping
4
convictions. Moreover, we agree with the State that the elements
of
participating
in
a
criminal
syndicate
and
kidnapping
are
sufficiently distinct that consecutive sentences may be imposed.
Kidnapping is not a necessary element of a criminal syndicate.
Therefore, consecutive sentences are permissible.
Sentencing order correction
¶6
Our review of the record indicates that the sentencing
minute
entry
is
inconsistent
with
the
oral
pronouncement
of
Estobar’s sentences. In its sentencing order, the trial court
ordered
count
1
to
run
concurrently
with
count
9,
and
then
ordered count 9 to run consecutive to count 1. Similarly, it
ordered
count
1
to
run
concurrent
with
count
10,
and
then
ordered count 10 to be consecutive to counts 1, 2 and 9. The
oral
pronouncement
of
Estobar’s
sentence
resolves
this
ambiguity. The court stated that in regards to count 9, “[t]his
term will run consecutive to Count 1 and 2” and then clarified
that count 9 “is an aggravated term of 16 years, consecutive to
Count 1 and 2.”
¶7
Where
there
is
an
inconsistency
between
the
oral
pronouncement of sentence and the sentencing order, the oral
pronouncement controls. State v. Zinsmeyer, 222 Ariz. 612, 622,
¶ 23, 218 P.3d 1069, 1079 (App. 2009). If the inconsistency can
be
resolved
by
reference
to
the
record,
we
can
correct
the
minute entry without a remand for resentencing. State v. Hanson,
5
138 Ariz. 296, 304, 674 P.2d 850, 858 (App. 1983). Therefore, we
clarify the sentencing order dated May 25, 2010, to reflect that
count 9 runs consecutively to counts 1 and 2, and count 10 runs
consecutively to counts 1, 2 and 9. 2
CONCLUSION
¶8
For
the
foregoing
reasons,
we
affirm
Estobar’s
convictions and sentences as modified.
/s/
PATRICK IRVINE, Judge
CONCURRING:
/s/
PETER B. SWANN, Presiding Judge
/s/
MAURICE PORTLEY, Judge
2
We order the trial court to prepare an amended sentencing
order reflecting the modification.
6
