State v. Navarette

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, v. JOSE NAVARETTE, ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) 1 CA-CR 09-0413 DIVISION ONE FILED: 05-25-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2005-126825-001 DT The Honorable Roland J. Steinle, III, Judge AFFIRMED Terry Goddard, Attorney General Phoenix by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Michael J. Mitchell, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Judge ¶1 Jose Navarette ( Appellant ) appeals the trial court s finding that he violated Conditions 1 and 20 of his probation terms, and the court s order revoking his probation. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 After altercation, an August Appellant 25, pled guilty class 3 nondangerous offense. probation for five years, 2005 to domestic aggravated violence assault, a The trial court placed him on with a six-month jail term. As conditions of his probation, Appellant was required to obey all laws ( Condition United States 1 ) and illegally [n]ot if remain deported voluntary departure ( Condition 20 ). in or or return processed to the through After sentencing, he was released to federal immigration authorities, and on June 19, 2006, he was deported, excluded, or removed from the United States. ¶3 On June 4, 2007, Appellant was detained in the United States. After Immigration and Customs Enforcement confirmed his illegal presence in the country, Appellant pled guilty in federal district court to illegal reentry after deportation. ¶4 While Appellant was incarcerated on the federal convictions, his state probation officer filed a petition in superior court to revoke probation. 1 On May 14, 2009, the court We review the facts in the light most favorable to sustaining the court s findings and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 held a hearing on the alleged violations at which the State s only witness, Appellant s probation officer, identified Appellant based on booking photos and his criminalist history. Appellant s counsel objected to the officer s testimony and to the introduction of Appellant s federal plea agreement; however, the trial court overruled the objections and admitted the evidence. ¶5 The trial court found that Appellant violated Conditions 1 and 20 of his probation, revoked his probation, and sentenced him to the presumptive term of three-and-a-half years in prison, to run consecutively to his federal sentence. Appellant filed a timely notice of appeal, and this court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). ANALYSIS ¶6 Appellant argues that the State presented insufficient evidence to support the trial court s finding that Appellant violated Conditions 1 and 20 of his probation. Central to Appellant s argument is the contention that the evidence did not establish country that Appellant illegally and was the committed triggering the probation violations. 3 individual the who federal We disagree. entered crime, the thus ¶7 We review probation revocation decisions for an abuse of discretion, and will uphold a finding of a probation violation unless the finding is arbitrary or unsupported by any theory of evidence. State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 114 (App. 1999); State v. Sanchez, 19 Ariz. App. 253, 254, 506 P.2d 644, 645 (1973). A probation violation must be of established court may by a preponderance consider any the reliable privileged, including hearsay. evidence, evidence and not the legally Ariz. R. Crim. P. 27.8(b)(3); see Thomas, 196 Ariz. at 313, ¶ 2, 996 P.2d at 114. Reliable evidence is evidence which is trustworthy and connotes that type of dependency which underlies exceptions to the hearsay rule. the generally recognized State v. Stotts, 144 Ariz. 72, 82, 695 P.2d 1110, 1120 (1985). ¶8 At the revocation hearing, Appellant s probation officer identified Appellant, who was sitting in the courtroom, based on a officer s booking photo. identification Appellant s identity. Appellant constituted The argues the insufficient probation probation evidence officer s of in-court identification, however, was not the sole piece of evidence that the State defense presented counsel s foundation the to confirm objection court also Appellant s essentially took judicial admitted Appellant s federal plea agreement. 4 identity. one of notice Over lack of of and In so doing, the court held that the Rules of Evidence don t generally apply in probation revocation proceedings, that a reliability standard applied to the evidence and, as a federal court document, the plea agreement was reliable and therefore, admissible. We agree. 2 ¶9 Admission of both the probation officer s testimony and Appellant s federal plea agreement was appropriate under the Arizona Rules of Criminal Procedure. Rule 27.8(b)(3) allows the court to consider any reliable evidence not legally privileged, including hearsay. 535 P.2d allegation 1297, was See State v. Belcher, 111 Ariz. 580, 581, 1298 (1975) reliable (probation and within officer s criminal rule hearsay allowing court to consider reliable evidence, including hearsay). The federal the court plea and agreement contained was date-stamped enough by identifying 2 the clerk information of about Appellant argues that the court improperly took judicial notice of the plea agreement because [a] court cannot usually take judicial notice of a separate court proceeding in order to establish the necessary facts to find existence of a prior for sentencing purposes. The cases Appellant cites for this proposition are distinguishable from the present case in that they both involved issues of proof of prior convictions as aggravators for sentencing purposes, not a conviction proving a violation of a term of probation. See State v. Morales, 215 Ariz. 59, 61, ¶ 6, 157 P.3d 479, 481 (2007); State v. Terrell, 156 Ariz. 499, 503, 753 P.2d 189, 193 (App. 1988). Evidentiary rules are relaxed in probation revocation proceedings where the standard of proof is a preponderance of the evidence. The cases Appellant cites required the State to meet their burden beyond a reasonable doubt. Neither Terrell nor Morales are controlling in this case. 5 Appellant to allow the trial court to consider it authentic, and thus reliable. ¶10 Further, identification the of court did Appellant or not its base either decision to the revoke Appellant s probation on a single factor, nor on a similarity of names alone, as Appellant asserts. corroborated Specifically, the probation Appellant s The federal plea agreement officer s in-court in statements identification. plea the agreement corresponded with the 2005 acts giving rise to probation in the first place: [F]or sentencing purposes, I admit that I was convicted of aggravated assault, a felony, on December 15, 2005, and that I was represented by an attorney. I was sentenced to 6 months in jail, and 5 years probation. ¶11 In summary, testimony of Appellant s probation officer, a copy of Appellant s federal plea agreement containing Appellant s admissions acknowledging his concerning 2005 conviction, his illegal and the entry trial and court s judicial notice of its own records, coupled with the fact that the trial judge was the same judge who accepted Appellant s original plea in this matter, all support the court s findings. We find this to be more than sufficient evidence to establish not only Appellant s identity, but also that he was the individual who committed a federal crime and, in so doing, also 6 violated the terms of his probation. Appellant presented no evidence to suggest otherwise. CONCLUSION ¶12 For the foregoing reasons, we affirm the trial court judgment revoking probation. ____________/S/_________________ LAWRENCE F. WINTHROP, Judge CONCURRING: ________________/S/________________ PATRICIA A. OROZCO, Presiding Judge ________________/S/________________ DANIEL A. BARKER, Judge 7

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