STATE v. CARBAJAL

Annotate this Case

Download PDF

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. RENE JOSEPH CARBAJAL, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 1/8/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0180 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2001-016679 The Honorable Jeffrey A. Rueter, Judge Pro Tem AFFIRMED ________________________________________________________________ Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Matthew H. Binford, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Paul J. Prato, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 Rene Joseph Carbajal and appeals the his resulting March 14, four-year 2012 probation revocation sentence. Carbajal was serving probation in connection with his 2002 sexual assault and kidnapping convictions. no error in the trial court s revocation prison Because we find of probation, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In 2002, Carbajal was convicted by a jury kidnapping and sexual assault, both class 2 felonies. of On June 20, 2002, Carbajal was sentenced to seven years imprisonment for the kidnapping conviction, followed probation on the sexual assault conviction. by seven years Carbajal served his prison sentence and was subsequently released. His probation period commenced on April 8, 2008. ¶3 Over surveillance alleging the next officers separate four filed years, probation infractions. three violation First, on of Carbajal s reports, March 23, each 2010, Carbajal was accused of failing to submit to mandated polygraph testing and to sex offender treatment. The court found that Carbajal had violated the terms of his probation, but at the disposition hearing his probation 2 was reinstated under the original terms. 1 ¶4 A second probation violation report was filed on July 21, 2011. sex Carbajal again was accused of failing to comply with offender treatment requirements. Shortly after Carbajal denied the accusation and a hearing date was set, the State withdrew its petition seeking probation revocation. ¶5 At issue in this appeal is Carbajal s third instance of alleged probation violations. The probation officer alleged that Carbajal provided false information to (his) polygrapher and failed to actively participate and cooperate in sex offender counseling or assistance, both of which would violate Term 11 of Carbajal s probation conditions. The report also alleged a Term 21 violation for failing to abide by the special conditions of a sex offender plus a Term 21.6 violation for not complying with sex offender treatment. ¶6 The facts surrounding the Term 11 allegation revolve around a meeting with polygrapher Marty Oeirich. 2012, Carbajal Polygraph reported Services. for a Carbajal polygraph revealed 1 to test On February 1, at Oeirich Clinical that he The court had previously corrected an error in the original 2002 sentencing minute entry. The 2002 sentencing for kidnapping and sexual assault was erroneously recorded because sexual assault, under Arizona law, was not eligible for probation. See Ariz. Rev. Stat. § 13-1406(B) (2010). The trial court corrected the record to clarify that Carbajal s seven year prison term satisfied his sexual assault conviction and he was placed on probation for the kidnapping conviction. 3 currently had an appeal pending in the Court of Appeals. Oeirich then explained he was forbidden from conducting the test because an ongoing appeal is grounds for immediate termination of polygraph services. probation officer, Soon after, Oeirich contacted Carbajal s Claudia Betancourt, to explain the circumstances leading to his termination of polygraph services. Betancourt investigated the supposed appeal to determine the truth of Carbajal s claim. ¶7 Carbajal s unconvincing. explanation of his supposed appeal was Upon request, Carbajal provided Betancourt with only one document. Betancourt identified a case number from the document and determined it was associated with the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit then verified that, while Carbajal had indeed filed an appeal, it had denied review in January 2011. ¶8 At a March 14, 2012 probation violation hearing, Carbajal continued to insist he had an active appeal in the District of Columbia. He claimed he had no verifying court documents because the government sealed it. persuasively explain his basis for believing Carbajal did not the appeal was still active. ¶9 To assess the Term 11 and Term 21.6 allegations that Carbajal failed treatment, the to actively court participate also received 4 in counseling testimony and regarding Carbajal s past failures in receiving treatment. Carbajal s surveillance officer testified that, on at least two occasions, Carbajal appeared for polygraph tests but exercised his Fifth Amendment right in refusing to answer questions. Carbajal had also refused to actively participate in directed sex offender treatment and appointments. probation even failed to appear at previous polygraph The trial court found Carbajal s actions violated Terms 11 and 21.6, revoked his probation, and ultimately sentenced him to a mitigated term of four years in prison. Carbajal timely appeals the March, 14 2012 probation revocation. DISCUSSION ¶10 Carbajal contends the court s ruling was not supported by sufficient evidence. He further claims (1) he acted properly at the February 1 polygraph meeting, (2) his past probation noncompliance is irrelevant, and (3) the State failed to provide sufficient evidence that he knew his appeal claim would cease polygraph testing. On this record, we find no abuse of discretion. ¶11 by In Arizona, a probation violation must be established a preponderance 27.8(b)(3). of the evidence. Ariz. R. Crim. P. Determining whether to revoke probation is a matter largely within the sound discretion of the trial court, but we review for abuse of discretion, capriciousness, or arbitrariness 5 on the part of the trial court. State v. Sanchez, 19 Ariz. App. 253, 254, 506 P.2d 644, 645 (1973). A trial court s finding that a probationer has violated probation will be upheld 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) (citation omitted). ¶12 The trial court had sufficient evidence to find that Carbajal violated both Term 11 and Term 21.6 of his probation. Term 11 mandated Carbajal (s)uccessfully complete any program of assistance, counseling probation department. or therapy as directed by the Similarly, Term 21.6 required Carbajal, a sex offender, to (s)ubmit to any program of psychological or physiological assessment at the direction of probation officer, including . . . the polygraph, to assist in treatment, planning and case monitoring. During the disposition hearing, the court heard testimony regarding Carbajal s dishonesty during polygraph testing and his past non-compliance with mandatory treatment. Relying on this testimony, the court argues absolutely revoked Carbajal s probation. ¶13 Carbajal he February 1 polygraph meeting. complied with the Carbajal explains he showed up for his appointment, was willing to pay the polygraph service fee, and the polygrapher was at fault for not issuing the test. Carbajal, though, downplays his 6 statement to the polygrapher that he had an appeal pending. as it was the basis for This revelation is significant Oeirich s termination of Carbajal s polygraph testing. ¶14 At the violation hearing, Carbajal s testimony offered little rationale for the court to accept that he truly believed in an active appeal. beyond an expired At no time did Carbajal offer anything case number. Carbajal even admitted he possessed nothing to prove he had a case pending as of February, 2012. Nevertheless, Carbajal s counsel stressed Carbajal is not educated in the law and, thus, could have actually believed his appeal was pending. Resolution of this issue requires a determination of Carbajal s credibility and the trial court is in the best position to assess credibility. The evidence in the record is sufficient to support the trial court s rejection of Carbajal s argument. ¶15 Carbajal next argues that his past unwillingness to comply with probation, and specifically polygraph testing, is irrelevant to the revocation at issue. The trial court overruled Carbajal s objection to this evidence, stating that the testimony was relevant to whether he knowingly provided false information to avoid taking the polygraph. evidentiary rulings for abuse of discretion. We review State v. Davolt, 207 Ariz. 191, 208, ¶ 60, 84 P.3d 456, 473 (2004) (citation omitted). We discern no abuse 7 of discretion in the trial court s determination in this regard. ¶16 Carbajal insufficient to further support contends that revocation of the his evidence was probation. He specifically argues that the trial court lacked direct evidence that he knew terminate though, or had testing may reason based uphold a on P.2d finding, 1110, based 1118 upon a trial circumstantial evidence. 695 to know pending court the polygrapher appeal. decision This based would Court, solely on See State v. Stotts, 144 Ariz. 72, 80, (1985) ( [W]e circumstantial hold the evidence trial alone, court s [was] not arbitrary and unsupported by any theory of the evidence. ); see also State v. Nash, 143 Ariz. 392, 404, 694 P.2d 222, 234 (1985) (citations omitted) (noting that even [c]riminal convictions may rest solely on circumstantial proof ). We conclude that the record evidence includes the court s probation by sufficient finding that providing circumstantial Carbajal false violated information the to to terms the support of his polygrapher regarding the existence of an appeal. CONCLUSION ¶17 court s Because the evidence in the record supports the trial revocation of probation and imposition of sentence, 8 we affirm. 2 _____/s/_____________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ___/s/______________________________ MARGARET H. DOWNIE, Judge ___/s/______________________________ LAWRENCE F. WINTHROP, Chief Judge 2 Because Carbajal s appeal focuses on the revocation of probation and does not challenge the sentence itself, we do not address any issue regarding the sentence. 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.