Opinion
No. 2 CA-CR 2018-0260
08-27-2019
THE STATE OF ARIZONA, Appellee, v. VIRIDIANA REYNA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20103459001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee James Fullin, Pima County Legal Defender
By Jeffrey Kautenburger, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Viridiana Reyna appeals from her conviction after a jury trial of possession of marijuana for sale and possession of drug paraphernalia, after which the trial court sentenced her to concurrent prison terms, the longer of which was three years. We affirm.
Factual and Procedural History
¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts." State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999). In September 2010, a Tucson Police Department officer was dispatched to a home due to shots being fired. At the home, the officer found 490 pounds of marijuana, along with drug paraphernalia, including a scale, sealable plastic bags, garbage bags, and plastic wrap. The officer also found "indicia of occupancy" in a dresser drawer identifying Reyna. Reyna later told police that she knew the marijuana was in the home.
¶3 In October 2012, Reyna, who was out of custody, failed to appear at both days of her trial. In finding that Reyna was voluntarily absent and that the trial would proceed without her, the trial court noted that Reyna had been present at three previous hearings and had been told at two of them of her need to appear at trial and the consequences should she fail to do so.
¶4 After the case had been submitted to the jury, the trial court asked if either counsel had "[a]nything for the record." Reyna's defense counsel stated that he wanted to put "one thing on the record" that went to "mitigation in terms of why she didn't show up" should she be "picked up" ten to fifteen years from now. He explained that Reyna "was an eyewitness who called the police in a murder case" in which the defendant was a "Mexican national," and there had been threats made against her mother, who resided in Mexico. Reyna had been subpoenaed to be a witness in that case, and she feared reprisal both in prison, should she be convicted in the instant case, and afterward in Mexico, should she be deported. Reyna's defense counsel indicated that he had learned about her being subpoenaed as a witness in the murder case at a hearing prior to trial. The court then stated, "You're assuming she's going to be convicted of something," to which Reyna's counsel responded that it was "a fairly safe assumption."
A defendant may be tried in absentia, however, sentencing, at which a defendant may offer mitigating evidence, is not held until the defendant appears before the trial court or is otherwise taken into custody and brought before the court. See State v. Fettis, 136 Ariz. 58, 59 (1986) (holding that although a defendant may be tried in absentia, "the defendant must be present at his sentencing except in extraordinary circumstances"); see also Ariz. R. Crim. P. 26.9 ("The defendant . . . must be present at sentencing.").
¶5 Reyna was indeed convicted, ultimately taken into custody, brought before the trial court, and sentenced as described above. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A).
Analysis
¶6 Reyna argues that following her defense counsel's presentation of mitigation evidence, the trial court committed structural error by not sua sponte revisiting its earlier finding that Reyna's absence was voluntary. We review a claim of structural error de novo. State v. Hancock, 240 Ariz. 393, ¶ 7 (2016). We evaluate claims of structural error even when, as here, it is raised for the first time on appeal. Id.
Because Reyna did not raise this issue before the trial court, and does not ask for fundamental error review, we only consider whether the court committed structural error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-25 (2005) (claims not raised at trial are reviewed only for fundamental error); State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (failure to argue fundamental error waives that argument on appeal).
¶7 Reyna relies on State v. Sainz, 186 Ariz. 470 (App. 1996). In Sainz, the defendant was absent on the second day of trial and the trial court proceeded in his absence when "there was no information regarding his whereabouts." Id. at 473. However, the next day, the court learned that the defendant had been in jail. Id. The court then made "a specific finding that the defendant's absence was voluntary" at the previous session when it "proceeded in [the defendant's] absence under the circumstances known to the court at that time." Id. In finding that the court erred in concluding that the defendant's absence was voluntary, we stated that "[t]he trial court did not consider the uncontroverted fact that defendant was unable to attend the commencement of trial because of his confinement in jail." Id. (emphasis added). In spite of finding error, the Sainz court did not find structural error but rather found the error harmless. Id. at 474-75.
¶8 Here, unlike Sainz, the trial court was not presented with "uncontroverted fact[s]" nor was it asked to reconsider its finding that Reyna had been voluntarily absent. In fact, defense counsel indicated he had known why Reyna was absent on the first day of trial when the court made its initial finding of voluntariness. Additionally, defense counsel offered his arguments for the explicit purpose of "mitigation" relative to Reyna's ultimate sentencing, whenever that might occur. As such, we find Sainz inapplicable, and the court did not err when it declined to reconsider, sua sponte, its determination that Reyna was voluntarily absent. Because proceeding in Reyna's absence was not erroneous, there is no structural error. See State v. Diaz, 223 Ariz. 358, ¶ 11 (2010) ("Regardless of how an alleged error ultimately is characterized, however, a defendant on appeal must first establish that some error occurred."); see also State v. Garcia-Contreras, 191 Ariz. 144, ¶¶ 17-22 (1998) (where trial court erred in proceeding with significant part of trial in defendant's absence, such error was structural).
¶9 In the alternative, Reyna requests that we remand this case for an evidentiary hearing to determine whether Reyna was voluntarily absent. Reyna argues such a hearing is required under Brewer v. Raines, 670 F.2d 117 (9th Cir. 1982) (finding Rule 9.1, Ariz. R. Crim. P., constitutional). However, we "are not bound by the Ninth Circuit's interpretations of federal constitutional protections." State v. Allen, 216 Ariz. 320, n.4 (App. 2007). Reyna points to no Arizona authority stating that such a hearing is required.
Rule 9.1, Ariz. R. Crim. P., allows the trial court to infer "that a defendant is voluntarily absent from a proceeding . . . if the defendant had personal notice of (1) the time of the proceeding, (2) the right to be present at it, and (3) a warning that the proceeding would go forward in his or her absence." Sainz, 186 Ariz. at 472.
Disposition
¶10 We affirm Reyna's convictions and sentences for the above reasons.