State v. Rios-Garate
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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,
)
)
Appellee, )
)
v.
)
)
HUGO RIOS-GARATE,
)
)
Appellant. )
)
__________________________________)
No. 1 CA-CR 10-0955
DIVISION ONE
FILED: 09/22/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-112087-002 DT
The Honorable Maria del Mar Verdin, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Spencer D. Heffell, Deputy Public Defender
Attorneys for Appellant
Phoenix
Hugo Rios-Garate
Appellant
Douglas
B R O W N, Judge
¶1
Hugo Rios-Garate (“Defendant”) appeals his convictions
and sentences for theft by extortion and unlawful use of means
of
transportation.
Counsel
for
Defendant
filed
a
brief
in
accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that
after searching the record on appeal, he was unable to find any
arguable
grounds
for
reversal.
Defendant
was
granted
the
opportunity to file a supplemental brief in propria persona, and
he has done so.
¶2
Our
obligation
reversible error.
is
to
review
289,
sustaining
293,
entire
record
for
We view the facts in the light most
the
conviction
reasonable inferences against Defendant.
Ariz.
the
State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2
P.3d 89, 96 (App. 1999).
favorable
to
778
P.2d
1185,
1189
and
resolve
all
State v. Guerra, 161
(1989).
Finding
no
reversible error, we affirm.
¶3
In
February
2009,
Defendant
was
charged
with
six
felony counts: Count 1, kidnapping, a class 2 dangerous felony
in violation of Arizona Revised Statutes (“A.R.S.”) section 131304 (2010); 1 Count 2, armed robbery, a class 2 dangerous felony
in
violation
of
A.R.S.
§
13-1904
(2010);
Count
3,
theft
by
extortion, a class 2 dangerous felony, in violation of A.R.S.
1
Absent material revision after the date
offense, we cite the statute’s current version.
2
of
the
alleged
§ 13-1804 (Supp. 2010); Count 4, aggravated assault, a class 3
dangerous felony, in violation of A.R.S. § 13-1204 (Supp. 2010);
Count
5,
violation
misconduct
of
A.R.S.
involving
§
weapons,
13-3102
a
(Supp.
class
2010);
4
felony,
in
Count
9,
and
unlawful use of means of transportation, a class 5 felony, in
violation of A.R.S § 13-1803 (2010).
The following evidence was
presented at trial.
¶4
The
victim
and
his
family
were
leaving
a
shopping
center when a group of men, including Defendant, accosted him at
gun-point
and
forced
him
into
an
awaiting
vehicle.
He
was
brought to a trailer in Eloy where he was held hostage for two
days.
¶5
Immediately
victim’s
wife
began
after
her
receiving
husband
ransom
was
kidnapped,
calls.
The
the
police
monitored her phone and were able to ascertain the phone number
the ransom calls were from, but could not obtain any information
about the person making the calls.
The victim’s family was able
to collect $40,000 to give to the police, together with the
victim’s Cadillac Escalade, as the ransom.
¶6
Police
officers
placed
the
$40,000
in
the
Cadillac
Escalade and drove the vehicle to a parking lot in the vicinity
of 51st Avenue and Baseline Road.
Defendant and an accomplice
arrived at the location in another car, entered the Cadillac,
and exited the parking lot.
Undercover officers followed the
3
Cadillac and the other vehicle, but they lost sight of the first
vehicle.
Eventually
the
officers
were
able
to
stop
the
Cadillac, finding Defendant and his accomplice along with two
handguns.
¶7
After a six-day trial, the jury found Defendant not
guilty
of
kidnapping
guilty
of
theft
transportation. 2
by
and
aggravated
extortion
and
assault,
unlawful
but
use
found
of
means
him
of
During the aggravation phase, the jury found
the State had proven four of the five aggravating factors it
presented.
Defendant was sentenced to concurrent prison terms
of 10.5 years for theft by extortion and .75 years for unlawful
use of means of transportation.
He also received credit for 651
days of presentence incarceration credit.
This timely appeal
followed.
¶8
In his supplemental brief, Defendant asserts that the
trial
court
lacked
jurisdiction
over
this
case
because
the
complaint was not filed within forty-eight hours from the time
of
his
initial
appearance,
Criminal Procedure 4.1(b).
in
violation
of
Arizona
Rule
of
Because Defendant did not raise this
issue in the trial court, we review for fundamental error only.
See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601,
607 (2005) (applying fundamental error review when a defendant
2
In a separate proceeding,
misconduct involving weapons.
4
Defendant
pled
guilty
to
failed to object to alleged trial error).
Fundamental error is
“error going to the foundation of the case, error that takes
from the defendant a right essential to his defense, and error
of such magnitude that the defendant could not possibly have
received a fair trial.”
review,
Defendant
must
Id.
To prevail on fundamental error
establish
both
that
fundamental
exists and that the error caused him prejudice.
error
Id. at 567, ¶
20, 115 P.3d at 607.
¶9
Defendant contends the trial court lacked jurisdiction
to hear this case because the complaint was untimely filed.
record
shows
that
Defendant
February 17, 2009.
had
his
initial
appearance
The
on
Defendant alleges that this hearing took
place prior to 9:55 a.m., but nothing in the record exists to
support that assertion.
2009 at 4:45 p.m.
The complaint was filed on February 19,
Rule 4.1(b) requires the State to promptly
file a complaint after a person is arrested without a warrant
and that
“[i]f a complaint is not filed within 48 hours from
the
of
time
magistrate,
[a
the
defendant’s]
defendant
initial
shall
be
appearance
released
before
from
[a]
jail.”
Assuming that a complaint was not filed within forty-eight hours
after Defendant’s initial appearance, a violation of the release
provision in Rule 4.1(b) does not deprive the superior court of
jurisdiction.
See State v. Rodriguez, 205 Ariz. 392, 395 n.1,
71 P.3d 919, 922 n.1 (App. 2003) (noting that the superior court
5
generally
has
subject
matter
case
which
the
defendant
in
information with a
¶10
jurisdiction
is
“over
charged
by
any
criminal
indictment
or
felony”).
Defendant also asserts that his “private affairs” were
disturbed
in
violation
Arizona Constitution. 3
of
the
Article
2,
Section
8,
of
the
To the extent Defendant was kept in jail
for several hours in violation of Rule 4.1(b), it was an error
in the proceedings, which should not be taken lightly.
However,
Defendant has failed to demonstrate that the error went to the
foundation
of
his
case,
took
away
a
right
essential
to
his
defense, or was so serious that he could not have received a
fair trial.
See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at
607; State v. Gilbert, 105 Ariz. 475, 477, 467 P.2d 63, 65
(1970) (recognizing that a defendant held “for an unreasonable
length
of
time”
has
other
avenues
to
enforce
the
right
of
release afforded by the rules of criminal procedure); State v.
Lee,
27
Ariz.
App.
294,
295,
554
P.2d
890,
891
(1976)
(“Violations must be viewed from a due process standpoint, and a
revocation
reversed
only
if
prejudice
is
demonstrated.”).
Thus, no fundamental error occurred regarding the violation of
Rule 4.1(b).
3
“No person shall be disturbed in his private affairs, or
his home invaded, without authority of law.”
6
¶11
We
have
searched
error and find none.
the
entire
record
for
fundamental
All of the proceedings were conducted in
accordance with the Arizona Rules of Criminal Procedure.
record
shows
that
Defendant
was
present
and
represented
The
by
counsel at all pertinent stages of the proceedings, was afforded
the opportunity to speak before sentencing, and the sentence
imposed was within statutory limits.
Accordingly, we affirm
Defendant’s convictions and sentences.
¶12
Upon the filing of this decision, counsel shall inform
Defendant of the status of the appeal and his options.
Defense
counsel has no further obligations unless, upon review, counsel
finds an issue appropriate for submission to the Arizona Supreme
Court by petition for review.
See State v. Shattuck, 140 Ariz.
582, 584-85, 684 P.2d 154, 156-57 (1984).
Defendant shall have
thirty days from the date of this decision to proceed, if he so
desires, with a pro per motion for reconsideration or petition
for review.
/s/
_________________________________
MICHAEL J. BROWN, Judge
CONCURRING:
/s/
___________________________________
PATRICIA A. OROZCO, Presiding Judge
/s/
_________________________________
DONN KESSLER, Judge
7
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