State v. Fuentes

247 Ariz. 516

452 P.3d 746

The STATE of Arizona, Appellee,

v.Francisco Baez FUENTES, Appellant.

No. 2 CA-CR 2018-0067

Court of Appeals of Arizona, Division 2.

Filed October 28, 2019

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Mariette S. Ambri, Assistant Attorney General, Tucson, Counsel for Appellee

Joel Feinman, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.

ECKERSTROM, Judge:

¶1 Francisco Fuentes appeals his convictions and sentences for first-degree murder and aggravated assault. For the reasons that follow, we affirm the convictions and the sentences for aggravated assault but vacate the sentence for first-degree murder and remand for new sentencing.

Factual and Procedural History

¶2 "We view the evidence and all reasonable inferences in the light most favorable to sustaining the jury’s verdicts." State v. Holle , 240 Ariz. 300, ¶ 2, 379 P.3d 197 (2016). One evening in February 2004, Fuentes was outside his residence with a man known as "Guero." A neighbor, J.P., stopped his truck outside Fuentes’s home. Fuentes approached the truck carrying a gun.¹ He walked to the passenger side, where J.P.’s cousin was sitting. Fuentes angrily asked what business J.P. and his cousin had at Fuentes’s residence. He then pulled J.P.’s cousin by the shirt and pointed the gun at him. After J.P. told Fuentes to calm down and threatened to call the police, Fuentes accused J.P. of being a "snitch," came around the truck, and hit J.P. in the face with the barrel of the gun hard enough to cause bleeding and contusions. J.P. became frightened and sped away, and Fuentes fired a shot at J.P.’s departing truck.

¶3 As he drove, J.P. phoned his older brother, A.P., to tell him Fuentes had hit him in the face with a gun. A.P. drove with three passengers to J.P.’s residence, where J.P. and his cousin were waiting outside. As A.P. approached, his headlights illuminated Fuentes standing at J.P.’s gate with Guero. Both Fuentes and Guero were holding guns.

¶4 Fuentes and Guero ran to a nearby mound of dirt and asphalt. When A.P. saw them running, he stopped the truck in the middle of the road and turned on his high-beam lights. His three passengers got out of the truck.

¶5 One of these passengers, D.P.—J.P. and A.P.’s brother, who knew Fuentes—approached the base of the mound to complain to Fuentes about what he had done to J.P. When D.P. was a foot or two away from him, Fuentes pointed his gun at D.P.’s chest. D.P. angrily asked Fuentes why he had hurt J.P. Fuentes then shot D.P. once, and D.P. collapsed. D.P. died at the scene from the bullet wound.

¶6 After shooting D.P., Fuentes threatened other witnesses with his gun and fired additional shots. As Fuentes ran down from the mound with his gun pointed, he passed A.P. in the driver’s seat of his truck, frightening him. A.P. drove his truck at Fuentes and nearly struck him, crashing into and knocking down the fence surrounding J.P.’s yard.

¶7 A grand jury charged Fuentes with first-degree murder for the death of D.P. and eight counts of aggravated assault with a deadly weapon, two of which related to the incidents outside Fuentes’s home and the remainder of which related to the incidents outside J.P.’s home.

¶8 After an eight-day trial for which Fuentes failed to appear, the jury found him guilty of first-degree murder and five counts of aggravated assault with a firearm.² The jury also found the state had proven beyond a reasonable doubt that the murder and the aggravated assaults at J.P.’s property were committed in the presence of an accomplice. The trial court sentenced Fuentes to natural life for the first-degree murder and 7.5 years for each aggravated assault, with all sentences to run concurrently. This appeal followed.³ We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Motion to Suppress⁴

¶9 Based on a tip shortly after the incident regarding Guero’s potential whereabouts, police visited a property in Marana that was registered in the name of Fuentes’s son. A fence surrounded the property, but police found the gate open when they arrived. They entered and approached a mobile home situated there.⁵ They found its door open, called out to any potential occupants, received no response, and entered to perform what they termed a "security sweep." Once inside, police observed a baseball cap like the one Guero was known to wear, as well as a handgun that appeared to be consistent with one known to be owned by Fuentes.⁶ The officers exited the mobile home, obtained a telephonic search warrant and, pursuant to that warrant, seized the cap and gun.

¶10 Before trial, Fuentes moved to suppress the evidence obtained from the mobile home. The trial court denied the motion on the ground that Fuentes did not have standing to challenge the search. On appeal, Fuentes contends: (a) he should have been permitted to challenge the search because he had a reasonable expectation of privacy in the residence; (b) the search was unconstitutional; and (c) the court’s error in denying his motion to suppress was not harmless. We address each of these arguments in turn.

Legitimate Expectation of Privacy

¶11 The protections afforded by the United States and Arizona Constitutions against unlawful searches and seizures relate to personal rights that "can be invoked only by a defendant with a ‘legitimate expectation of privacy in the invaded place.’ " State v. Peoples , 240 Ariz. 244, ¶ 8, 378 P.3d 421 (2016) (quoting Rakas v. Illinois , 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ).⁷ To be "legitimate," a defendant’s expectation of privacy must be "one that society is prepared to recognize as reasonable." Id. (quoting Minnesota v. Olson , 495 U.S. 91, 95-96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) ). As our supreme court illustrated in Peoples , a person need not technically own property to have an expectation of privacy in it. See id. ¶¶ 18-24. Rather, we "must examine the totality of the circumstances" to determine whether a defendant’s expectation of privacy "was in accord with social custom and reasonable." Id. ¶¶ 19, 22.

¶12 In this case, the trial court accepted as true Fuentes’s avowal that he had: (a) purchased the property to secure rental income; (b) placed it in the name of his son, who was serving in the military and to whom he planned to offer it upon his return; (c) purchased the mobile home, placed it, too, in his son’s name, and located it on the property; (d) collected rental income from the property; (e) worked on the mobile home shortly before his arrest, including painting it, repairing the roof, and acquiring a permit to install a septic tank; (f) periodically slept or napped in the mobile home when working on the property; (g) possessed the keys to the mobile home and left it locked; and (h) left personal property, including two bedrolls and beer, inside.

¶13 Under the totality of the circumstances, it was an abuse of discretion for the trial court to find that Fuentes "did not have a legitimate expectation of privacy in this particular place" based on these facts. See id . ¶ 7 (error of law constitutes abuse of discretion). Although Fuentes was no longer the record owner of the mobile home or the property on which it sat, the facts the trial court accepted as true demonstrate that Fuentes operated and asserted control over it in all respects. Not only had he previously collected rent payments and obtained a permit to conduct work to upgrade the residence; he also retained and exercised the rights to use it himself, left personal items there, and exercised unfettered authority to permit or exclude others from entering it. It was therefore "in accord with social custom and reasonable" for Fuentes to expect privacy in that residence. Id. ¶ 22 ; see also State v. Main , 159 Ariz. 96, 98, 764 P.2d 1155 (App. 1988) (factors relevant to privacy expectation include prior use, legitimate presence, and ability to control or exclude others’ use).

¶14 Our supreme court’s reasoning in Peoples requires this conclusion. There, the court found that a defendant retained a reasonable expectation of privacy in the home of his next-door neighbor, where he spent one night as a guest but left no personal belongings other than a cell phone. Id. ¶¶ 2, 17-25. In so holding, the court implicitly rejected the state’s argument, similar to one offered here, that a defendant has no expectation of privacy in a searched residence because another person may have a greater expectation of privacy in it or because the defendant may have another primary residence. Id. In this case, the totality of the circumstances demonstrates that Fuentes, the person exerting all functional control over the mobile home, had significantly more reason to expect privacy in that residence than a temporary overnight guest.

Constitutionality of the Search

¶15 The state concedes that it lacked a warrant for its initial entry into the mobile home. It contends, however, that the search was nonetheless lawful as a "protective sweep" to ensure the safety of the officers. See Maryland v. Buie , 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Fuentes counters that, because "there was no contemporaneous arrest in this case," the protective sweep exception to the warrant requirement does not apply. Although the trial court did not reject the motion to suppress on this basis, we must uphold the trial court’s ruling on any legal ground supported by the record. State v. Boteo-Flores , 230 Ariz. 551, ¶ 7, 288 P.3d 111 (App. 2012). We therefore address the question.

¶16 Under both the United States and Arizona Constitutions, a warrant is generally required before police may search a residence. State v. Ault , 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986). Although the United States Supreme Court has identified...