STATE v. CANO

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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, ) ) ) ) ) ) ) ) ) ) ) ) Appellee, v. VICTOR PEREZ CANO, Appellant. DIVISION ONE FILED: 09/20/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0473 DEPARTMENT B (AUGUST) MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200900193 The Honorable Maria Elena Cruz, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee The Law Offices of Kelly A. Smith By Kelly A. Smith Attorney for Appellant S W A N N, Judge Phoenix Yuma ¶1 Victor Perez Cano appeals the superior court s revocation of his probation and imposition of a prison sentence. Cano contends that the superior court erred by revoking his probation, because it improperly relied on information protected by federal confidentiality laws and improperly took judicial notice of its own minute entry terminating Cano from its Drug Court program. Cano also contends that the superior court erred by failing to recuse itself from the revocation proceedings. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Cano pled guilty to criminal damage and was placed on supervised probation for three years. The conditions of Cano s probation required him to submit to drug and alcohol testing as directed by the probation department or the court ( Condition 9 ), participate and cooperate in any counseling or assistance program directed by the probation department or the court ( Condition 10 ), and abide by the special conditions of the Yuma County Drug Court ( Condition 25 ). The special conditions of the Drug Court required him to comply with the orders of his treatment provider; information allow concerning his his treatment attendance provider and to progress disclose to the probation department and the court; and [c]omply with all the requirements of each of the Drug Court phases. 2 ¶3 In April 2011, Cano submitted a urine sample to a testing facility and methamphetamine. the sample tested positive for The next month, the court held a Drug Court status hearing at which Cano was represented by counsel and assisted by an interpreter. At the status hearing, the judge stated that she had previously spoken to Cano about his positive test result. The judge violations for which specifically describe also he had those stated been that Cano sanctioned, violations and had but other did sanctions. not When asked whether he had anything he would like to say, Cano stated: I want the program to come to an end, for you to terminate me. That is all I have to say. The court terminated Cano from the Drug Court program and ordered the probation department to file a petition to revoke Cano s probation by the next day. ¶4 Pursuant to the court s order, the probation department filed a petition to revoke Cano s probation based on violations of Conditions 10 and 25, as evidenced by Cano s termination from the Drug Court program after program rules violations. before the proceeding. terminating The same The Cano matter judge who court from proceeded had took the probation officer testified. to presided judicial Drug Court a revocation over notice hearing the Drug Court of its order program, and Cano s The state produced no additional evidence of why Cano was terminated from the Drug Court program 3 or how the state obtained the information that led to the termination. ¶5 Based on the termination order and the testimony introduced at the revocation hearing, the court found that Cano violated Condition 10 when he failed to participate and cooperate in the Drug Court program, and violated Condition 25 when he failed to successfully complete the program. The court revoked Cano s probation and imposed a one-year prison sentence. Cano appeals. Section 9 of We the have jurisdiction Arizona pursuant Constitution, and to Article A.R.S. 6, §§ 12- 120.21(A), 13-4031 and 13-4033. DISCUSSION I. THE COURT DID NOT ERR BY REVOKING CANO S PROBATION. ¶6 Cano revoking his contends probation that the because the superior court revocation was erred by based on information that is confidential pursuant to federal law and because the court could not take judicial notice of its own order. Cano also contends that the evidence was insufficient to support the revocation. Cano s contentions are unsupported by the record and the law. A. The Record Does Not Support Cano s Claim that the Revocation of His Probation Was Based on Confidential Information. ¶7 Federal law provides for the confidentiality of all information in records maintained in connection with programs 4 that are both treatment or (1) related to rehabilitation a and patient s (2) directly assisted by the federal government. C.F.R. §§ 2.11-2.12. substance or abuse indirectly 42 U.S.C. § 290dd-2(a); 42 Except as authorized by valid consent or a court order, such records may not be used to investigate the patient. may 42 U.S.C. § 290dd-2(b), (c); 42 C.F.R. § 2.12(d). the records be disclosed to agencies which Nor made participation in the program a condition of the disposition of a criminal proceeding or release from patient s written and signed consent. ¶8 custody, absent the 42 C.F.R. § 2.35(a). There is nothing in the record to indicate that Cano consented to any investigation or disclosure of records from his drug treatment program. to support Cano s federal assistance. claim But there is also nothing in the record that his treatment program received Cano was terminated from the Drug Court program after he submitted a urine sample that tested positive for methamphetamine and personally requested termination from the program after the court spoke to him about that test result.1 The conditions of Cano s probation permitted the probation department and the court to order Cano to submit to drug testing 1 Cano s claim that he and his counsel were unaware of the reasons for his termination from the Drug Court program is groundless. He appeared with counsel at the Drug Court proceedings. Further, even if the Drug Court proceedings were sealed or confidential, we are aware of no authority that prevented Cano from obtaining copies of records from his own case. 5 independent of any federally assisted program. We will not assume without evidence that Cano submitted to the drug test as part of a federally assisted federal confidentiality laws. treatment program subject to Moreover, even if the program did qualify under the statute, there is nothing in the record to indicate that the state obtained information from the program or its affiliated facilities. B. The Court Properly Took Judicial Notice of Its Order Terminating Cano from the Drug Court Program. ¶9 Cano next contends that the superior court erred when it took judicial notice of its own order terminating him from the Drug Court program. He contends that the court s order was part of a sealed drug treatment record that was not readily accessible and was subject to federal confidentiality laws. ¶10 We find no error. evidence to support As discussed above, there is no Cano s confidentiality laws apply. claim that the federal We reject the notion that even under federal confidentiality laws, a trial judge must ignore the content of his or her own orders -- such a holding would defy logic and render the courts toothless to perform their function. Cano s Further, there is nothing in the record to support claim that the order was otherwise sealed. If Cano believed the order was sealed, he had a duty to see that any document or other information necessary to support that claim 6 was included in the record. See State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d 939, 941 (App. 1995). He did not do so. And indeed, it appears that the order is readily accessible in the superior court file. The state noted as much in its motion to supplement the appellate record with the order, and there is nothing in the record to indicate the state had to petition the superior court to unseal the order before obtaining a copy. Again, a court may take judicial notice of its own records. State v. Gross, 201 Ariz. 41, 45, ¶ 13, 31 P.3d 815, 819 (App. 2001). C. The Revocation of Cano s Probation Was Supported by Sufficient Evidence. ¶11 Cano next contends that there was insufficient evidence to support the court s finding that he violated the conditions of his probation. The state must prove that a defendant violated a condition of probation by a preponderance of the evidence. Ariz. R. Crim. P. 27.8(b)(3); State Tulipane, 122 Ariz. 557, 558, 596 P.2d 695, 696 (1979). v. It is enough for the trial court to have a reason to believe that the individual is violating the conditions of his probation or engaging in criminal practices[.] State v. Smith, 112 Ariz. 416, 419, 542 P.2d 1115, 1118 (1975) (citation omitted). will not reverse the superior court s determination that We a defendant violated a condition of probation unless the court s 7 finding is evidence. arbitrary and unsupported by any theory of the State v. Stotts, 144 Ariz. 72, 79, 695 P.2d 1110, 1117 (1985). We view the evidence in the light most favorable to sustaining the court s finding. State v. Vaughn, 217 Ariz. 518, 519 n.2, ¶ 3, 176 P.3d 716, 717 n.2 (App. 2008). ¶12 Here, the state presented sufficient evidence to support the court s finding that Cano violated the conditions of his probation. Cano tested positive for methamphetamine while on probation and asked that the court terminate him from the Drug Court program, which the court did. The court could reasonably have found that this evidence showed Cano willfully violated Conditions 10 and 25 of his probation. ¶13 Cano argues, however, that there was no evidence the state provided him a Spanish-language version of the terms and conditions of his probation. The state provided Cano the written terms and conditions of his probation in English, a probation officer explained those terms and conditions to Cano with the assistance of a Spanish-speaking probation department employee, and Cano signed those conditions and initialed each term and required. condition that applied to him. Nothing more was See Ariz. R. Crim. P. 27.8(c)(2) (probationer must receive written copy of terms and conditions of probation). 8 II. THE JUDGE DID NOT ERR BY FAILING TO RECUSE HERSELF FROM THE REVOCATION PROCEEDINGS. ¶14 should Cano finally contends that the superior court judge have recused herself from the revocation proceedings because she had personal knowledge of the proceedings in the Drug Court and the reasons why Cano was terminated from the Drug Court program. Cano further implies, but does not directly argue, that the judge was biased or prejudiced. ¶15 Cano did not raise this issue below. We therefore review for fundamental error. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). We find no error, fundamental or otherwise. The reasons that the court terminated Cano from the Drug Court program and the evidence to support those reasons were available for use in subsequent proceedings, and the judge was not privy to any information not known by Cano and his counsel. ¶16 Further, allegations of judicial bias or prejudice must be specific and the supporting facts concrete. State v. Ellison, 213 Ariz. 116, 128, ¶ 37, 140 P.3d 899, 911 (2006) (citation omitted). or prejudice. Cano makes no specific allegations of bias The mere fact that the same judge who terminated Cano from the Drug Court program later revoked his probation based on that earlier termination is of no matter. [O]pinions formed by the judge on the basis of facts introduced or events 9 occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism antagonism that would make fair judgment impossible. or State v. Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768 (App. 2005) (alteration in original) (citation omitted). [J]udicial rulings alone almost never constitute a valid basis for a bias or partiality extrajudicial favoritism[.] motion, . . . source of without bias [ showing ]or [ any ]either an deep-seated Ellison, 213 Ariz. at 129, ¶ 40, 140 P.3d at 912 (first alteration added) (citations omitted). Cano does not even hint that the judge held any deep-seated favoritism or antagonism. The judge s failure to recuse herself was not error. 10 CONCLUSION ¶17 Because we find no error, we affirm the superior court s order revoking Cano s probation and imposing a prison sentence. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ JON W. THOMPSON, Presiding Judge /s/ ___________________________________ SAMUEL A. THUMMA, Judge 11

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