Opinion
2 CA-CR 2023-0192-PR
04-12-2024
The State of Arizona, Respondent, v. Orestes Roberto Ybarra, Petitioner.
Laura Conover, Pima County Attorney By James W. Rappaport, Deputy County Attorney, Tucson Counsel for Respondent Law Office of Hernandez &Hamilton PC, Tucson By Carol L. Lamoureux, Joshua F. Hamilton, and Clay Hernandez Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20154650001 The Honorable Casey F. McGinley, Judge
Laura Conover, Pima County Attorney By James W. Rappaport, Deputy County Attorney, Tucson Counsel for Respondent
Law Office of Hernandez &Hamilton PC, Tucson By Carol L. Lamoureux, Joshua F. Hamilton, and Clay Hernandez Counsel for Petitioner
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, Chief Judge
¶1 Petitioner Orestes Ybarra seeks review of the trial court's denial of his petition for post-conviction relief, filed under Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Ybarra has not sustained his burden of establishing such abuse here.
¶2 In 2015, Ybarra worked as an assistant at a physical therapy clinic and assaulted M.B., a fifteen-year-old patient, by penetrating her anus with his finger and his penis. In his first trial, at which Ybarra testified, a jury found him not guilty of sexual abuse and indecent exposure but could not reach a verdict on two sexual assault counts. At his second trial, at which Ybarra did not testify, a jury found him guilty of both counts of sexual assault. He was sentenced to a twenty-one year prison term. We affirmed his convictions and sentences on appeal. State v. Ybarra, No. 2 CA-CR 2017-0286 (Ariz. App. May 22, 2019) (mem. decision). Ybarra sought post-conviction relief, arguing that trial counsel had been ineffective by interfering with his right to testify and that newly discovered evidence "demonstrates that a state witness concealed material evidence at trial." Following a two-part evidentiary hearing, the trial court denied the petition. This petition for review followed.
¶3 After an evidentiary hearing on a Rule 32 petition, our review of the trial court's factual findings "is limited to a determination of whether those findings are clearly erroneous"; we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." State v. Sasak, 178 Ariz. 182, 186 (App. 1993). When "the trial court's ruling is based on substantial evidence, this court will affirm." Id. Ybarra first contends the trial court erred in denying his claim of newly discovered evidence under Rule 32.1(e). Ybarra is entitled to relief under this rule if he demonstrates that "newly discovered material facts probably exist, and those facts probably would have changed the judgment." Ariz. R. Crim. P. 32.1(e). To be newly discovered, the facts must have existed at the time of trial but could not be discovered until after trial. See State v. Bilke, 162 Ariz. 51, 52-53 (1989); Ariz. R. Crim. P. 32.1(e). Moreover, the evidence cannot be "merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony that was of such critical significance that the impeachment evidence probably would have changed the judgment or sentence." Ariz. R. Crim. P. 32.1(e)(3).
¶4 Ybarra claims that a civil lawsuit filed by M.B. after trial and a subsequent settlement was proof that, contrary to her parents' testimony at trial about their intent to bring an action, "M.B. and her family had always intended to file a civil lawsuit stemming from the sexual assault trial" and concealed that information to avoid impeachment and scrutiny. Ybarra contends that the state misconstrues his claim by asserting that the fact that M.B.'s lawsuit was not filed until after Ybarra's conviction "is fatal to his claim of newly discovered evidence." He maintains that the lawsuit itself does not constitute newly discovered evidence but rather asserts that it proves "M.B. and her family had always intended to file a civil lawsuit" and had "concealed that information at trial."
¶5 Assuming that evidence of M.B.'s civil lawsuit, coupled with her parents' testimony in the first trial regarding whether they intended to seek civil damages-however characterized-were to constitute newly discovered evidence, Ybarra's claim fails. Even were we to accept as true that M.B. intended to file a lawsuit and that her family concealed that intent at trial, it does no more than impeach the testimony of M.B.'s parents and is therefore insufficient under Rule 32.1(e).
¶6 More importantly, Ybarra has not explained how impeaching M.B.'s parents somehow impeaches M.B.'s credibility. The critical testimony at trial was that of M.B., who testified to each element of the sexual assaults Ybarra had committed against her. See A.R.S. §§ 13-1401(A)(4), 13-1406(A). M.B. was never asked about her representation by counsel or the possibility of a future lawsuit. And, as the trial court noted, M.B.'s lawsuit does not establish that her parents' testimony was false, inconsistent, or incredible. M.B.'s parents were not asked during the second trial if they ever intended to file a civil lawsuit related to the crime. Instead, they testified that they had met with a civil attorney who "represents victims for monetary compensation in civil cases," the attorney represents them as a victim representative, the time limit for them to file a lawsuit had expired, and they had not filed a civil lawsuit for what happened to M.B. Thus, we cannot say that the court abused its discretion in determining that the impeachment evidence was "of such critical significance" that it "probably would have changed the judgment." Ariz. R. Crim. P. 32.1(e).
¶7 Ybarra also claims the trial court erroneously precluded him from impeaching M.B.'s mother at the evidentiary hearing. At the hearing, the state objected on relevance grounds to Ybarra's question regarding whether M.B. had previously been a victim in a criminal case. Ybarra argued the question was relevant because M.B. had previously been "a victim of a sex case" yet "no victim advocate was retained or even sought in that case" but was in Ybarra's. The court sustained the objection, reasoning that whether M.B. had been a victim in a previous case and chose not to seek legal representation but did in this case is "not relevant." Further, to the extent Ybarra was implying that the mother's testimony that she had not discussed a civil lawsuit with the attorneys "was either inaccurate or incomplete," the court explained that "nothing about [M.B.'s] previous experience . . . would support that."
¶8 On review, Ybarra maintains the trial court erred in finding the question irrelevant. We review evidentiary decisions for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 122 (2009). Ybarra contends his question was "critical because it tended to show [M.B.'s mother] had not hired the [c]ivil [a]ttorneys out of unfamiliarity with the criminal court process" but instead "for the express purpose of seeking civil damages." He argues this would "show that the real motivation for hiring civil counsel in this case, but not the 2013 case, was the availability of a civil claim against" Ybarra's employer, a point "central" to his newly discovered evidence claim and proving M.B.'s mother's untruthfulness.
¶9 Evidence is relevant if it "has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Ariz. R. Evid. 401; see also Ariz. R. Crim. P. 32.13(b) (Arizona Rules of Evidence apply at evidentiary hearing). Whether M.B. had been a victim in a previous case and was not represented by counsel in that proceeding has no bearing on whether M.B.'s parents' trial testimony regarding the civil attorney was untruthful. Thus, it did not make any fact more or less probable. See Ariz. R. Evid. 401. And, as noted above, any evidence that went to impeaching M.B.'s parents was not of such "critical significance" that it would have changed the outcome of Ybarra's trial and does not qualify as newly discovered evidence. Ariz. R. Crim. P. 32.1(e). As such, the evidence was not "of consequence" to the issues at the evidentiary hearing. Ariz. R. Evid. 401. The trial court did not abuse its discretion in finding Ybarra's question irrelevant.
¶10 Ybarra also maintains the trial court erred by denying his ineffective assistance of counsel claim based on trial counsels' interference with his right to testify. To prevail on his claim, Ybarra must "demonstrate that counsel's conduct fell below an objective standard of reasonableness and that he was prejudiced thereby." State v. Bigger, 251 Ariz. 402, ¶ 8 (2021) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). We must therefore consider, "in light of all the circumstances, whether counsel's performance was reasonable under prevailing professional norms." Id. (quoting State v. Pandeli, 242 Ariz. 175, ¶ 5 (2017)).
¶11 Ybarra contends trial counsel "went too far by repeatedly urging him not to testify and by enlisting" his uncle "to work to convince him to succumb to that recommendation." He submitted an affidavit stating that his attorneys had not prepared him to testify at his second trial despite his "strong desire" to do so. He further asserted that based on counsels' advice that he not testify, he "no longer felt [he] had a choice" and "did not realize or understand that the decision to testify belonged solely to" him.
¶12 Ybarra had the burden of proving his factual allegations by a preponderance of the evidence. See Ariz. R. Crim. P. 32.13(c). And, the trial court was "the sole arbit[er] of the credibility of witnesses" at the evidentiary hearing. State v. Fritz, 157 Ariz. 139, 141 (App. 1988). Ybarra's affidavit and testimony at the evidentiary hearing are the only evidence in support of his claim on the record before us. Both trial counsel testified at the evidentiary hearing that despite their opinions that Ybarra should not testify at his second trial, they nevertheless had prepared him to do so, including by performing mock direct and cross-examinations. They also submitted an affidavit stating they had repeatedly advised Ybarra of his right and had prepared him to testify in his second trial. Contrary to Ybarra's assertion that counsel had used his uncle's "close bond" with him to convince him to "yield" to their preference that he avoid the witness stand, one of his attorneys testified that she had "expressed . . . continued concern and asked [Ybarra's uncle] to assist . . . in counseling the client," but did not believe she "would have ever told him to tell the client" that he could not testify. Counsel also testified that they had "provided [their] advice firmly and strenuously, but [they] did not ever tell him it was not his choice. [They] did not ever in any way apply threats or pressure or cajole him in any sort of way."
¶13 The suggestion that Ybarra did not know of his right to testify is also belied by his colloquy with the court at his second trial, in which the trial court told Ybarra twice that he had the right to testify. During that colloquy, Ybarra denied being forced, threatened, or coerced to choose not to testify and stated he was "very comfortable" with his decision not to testify. And as the court noted, counsel in the first trial had similarly expressed concerns and a desire that Ybarra not testify, but Ybarra had made the decision to testify anyway, further undercutting his assertion that he did not know the choice was his alone. It was for the trial court-as the factfinder-to resolve any conflicts in the evidence presented, see State v. Moody, 208 Ariz. 424, ¶ 81 (2004) (deferring to trial court's credibility evaluation), and that court found Ybarra's claims unsupported. That Ybarra may now regret his decision not to testify is insufficient to establish that counsel provided ineffective assistance in this regard. See State v. Schurz, 176 Ariz. 46, 58 (1993). Because counsel's performance did not fall below an objective standard of reasonableness, see Bigger, 251 Ariz. 402, ¶ 8, the court did not err in denying Ybarra's ineffective assistance of counsel claim.
¶14 We grant review but deny relief.