State v. Figueroa

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

IVAN TINEO FIGUEROA, Appellant.

No. 1 CA-CR 19-0082
1 CA-CR 19-0273
(Consolidated)
FILED 4-9-2020

Appeal from the Superior Court in Maricopa County
No. CR2014-001424-001
CR2014-109338-001
The Honorable Michael D. Gordon, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant

Ivan Tineo Figueroa, San Luis
Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.1

J O H N S E N, Judge:

¶1 Ivan Tineo Figueroa filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), following his resentencing after this court vacated and remanded
consecutive sentences that had been imposed in violation of Arizona
Revised Statutes ("A.R.S.") section 13-116 (2020).2 See State v. Figueroa, 1 CA-
CR 16-0193, 2018 WL 4374613, at *1, *6, *8, ¶¶ 1, 44, 49, 62 (Ariz. App. Sept.
13, 2018) (mem. decision). Figueroa's counsel searched the record on appeal
and found no arguable question of law that is not frivolous. See Smith v.
Robbins, 528 U.S. 259, 284 (2000); Anders, 386 U.S. at 744; State v. Clark, 196
Ariz. 530, 537, ¶ 30 (App. 1999). Counsel asked this court to search the
record for fundamental error. Figueroa filed a supplemental brief
identifying various issues, which we address below.

¶2 After this court's review of the record revealed possible
violations of A.R.S. § 13-116 arising from the resentencing, we ordered
briefing pursuant to Penson v. Ohio, 488 U.S. 75 (1988). For the reasons that
follow, we affirm Figueroa's sentences as modified.

1 Judge Johnsen was a sitting member of this court when the matter
was assigned to this panel of the court. She retired effective February 29,
2020. In accordance with the authority granted by Article 6, Section 3, of
the Arizona Constitution and pursuant to A.R.S. § 12-145 (2020), the Chief
Justice of the Arizona Supreme Court has designated Judge Johnsen as a
judge pro tempore in the Court of Appeals, Division One, for the purpose of
participating in the resolution of cases assigned to this panel during her
term in office. See Ariz. S. Ct., Admin. Order No. 2020-35.

2 Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.

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FACTS AND PROCEDURAL BACKGROUND

¶3 Figueroa committed a series of crimes against multiple
victims in a single day, including entering victims' homes or yards,
demanding their car keys, pointing a gun at several victims, and stealing
their cars or other belongings.3 The facts are further detailed in our decision
in Figueroa's first appeal from his convictions and sentences, see Figueroa,
2018 WL 4374613, at *1-2, ¶¶ 2-13. We need not recount them here in their
entirety.

¶4 At trial, a jury convicted Figueroa of the following offenses:4

• Count 1: armed robbery, a Class 2 dangerous felony;
• Count 2: armed robbery, a Class 2 dangerous felony;
• Count 4: theft of means of transportation, a Class 3
felony;
• Count 5: kidnapping, a Class 2 dangerous felony;
• Count 6: attempted kidnapping, a Class 3 dangerous
felony;
• Count 7: aggravated assault, a Class 3 dangerous
felony;
• Count 8: aggravated assault, a Class 3 dangerous
felony;
• Count 9: aggravated assault, a Class 3 dangerous
felony;
• Count 10: aggravated assault, a Class 3 dangerous
felony;
• Count 11: aggravated assault, a Class 3 dangerous
felony;
• Count 13: unlawful discharge of a firearm, a Class 6
felony;
• Count 14: criminal trespass, a Class 2 misdemeanor;
• Count 15: burglary, a Class 2 dangerous felony;
• Count 16: attempted armed robbery, a Class 3
dangerous felony;
• Count 17: aggravated assault, a Class 3 dangerous
felony;

3 We view the facts in the light most favorable to upholding Figueroa's
sentences. State v. Delgado, 232 Ariz. 182, 185, ¶ 2 (App. 2013).

4 We refer to the counts as renumbered in the consolidated indictment.

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• Count 18: attempted armed robbery, a Class 3
dangerous felony;
• Count 19: burglary, a Class 2 dangerous felony;
• Count 20: aggravated assault, a Class 3 dangerous
felony;
• Count 21: aggravated assault, a Class 2 dangerous
felony and dangerous crime against children;
• Count 22: armed robbery, a Class 2 dangerous felony;
• Count 23: burglary, a Class 2 dangerous felony;
• Count 24: aggravated assault, a Class 3 dangerous
felony;
• Count 25: aggravated assault, a Class 2 dangerous
felony and dangerous crime against children;
• Count 26: attempted armed robbery, a Class 3
dangerous felony;
• Count 27: burglary, a Class 2 dangerous felony;
• Count 28: aggravated assault, a Class 3 dangerous
felony;
• Count 30: armed robbery, a Class 2 dangerous felony;
• Count 31: burglary, a Class 2 dangerous felony;
• Count 32: theft of means of transportation, a Class 3
felony;
• Count 33: attempted theft of means of transportation,
a Class 4 felony; and
• Count 34: attempted robbery, a Class 5 felony.

¶5 After Figueroa appealed his convictions and sentences, we
vacated three convictions (Counts 4, 32 and 33), affirmed the remaining
convictions, and vacated and remanded 15 sentences because the superior
court improperly imposed them consecutively to other sentences for crimes
constituting the same act in violation of A.R.S. § 13-116. Id. at *1, *6, *8, ¶¶ 1,
44, 49, 62.

¶6 On remand, the superior court directed the parties to submit
a joint sentencing memorandum "identifying the counts that need to be re-
sentenced, including the length of sentence as to each count." The court
precisely followed the parties' joint memorandum when it imposed the
same term of years for each remanded count as it had in the original
sentencing. As we directed, the court ordered the sentences on the
remanded counts to be served concurrently rather than consecutively.

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¶7 Figueroa timely appealed.5 We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2020), 13-4031 (2020) and -4033(A)(4) (2020).

DISCUSSION

¶8 Because we already have reviewed Figueroa's convictions
and have affirmed the sentences we did not remand for resentencing, our
review is limited to matters arising from the resentencing. See State v.
Hartford (Hartford III), 145 Ariz. 403, 405 (App. 1985) (validity of underlying
conviction previously affirmed on appeal is "clearly beyond the scope of the
matter remanded to the trial court" and thus is not reviewable in appeal
from subsequent resentencing).

A. Consecutive Sentences Under A.R.S. § 13-116.

¶9 Because Figueroa did not object to the superior court's
imposition of any consecutive sentences at the time of resentencing, we
review for fundamental error only. See State v. Escalante, 245 Ariz. 135, 142,
¶ 21 (2018). An illegal sentence constitutes fundamental error. State v.
Martinez, 226 Ariz. 221, 224, ¶ 17 (App. 2011).

1. Legal principles.

¶10 As § 13-116 provides, "[a]n act or omission which is made
punishable in different ways by different sections of the laws may be
punished under both, but in no event may sentences be other than
concurrent." To determine whether Figueroa's conduct constituted a single
act requiring concurrent sentences, we first must determine which crime
was the "ultimate charge – the one that is at the essence of the factual nexus"
and "often . . . the most serious of the charges." State v. Gordon, 161 Ariz.
308, 315 (1989). We then "subtract[] from the factual transaction the
evidence necessary to convict on the ultimate charge"; if "the remaining
evidence satisfies the elements of the other crime," the conduct may
constitute multiple acts. Id. In that situation, we also consider whether "it
was factually impossible to commit the ultimate crime without also
committing the secondary crime" and "whether the defendant's conduct in

5 We note that although Figueroa initially failed to timely file a notice
of appeal in the CR2014-109338-001 matter, after the superior court granted
post-conviction relief and leave to file a delayed notice of appeal, Figueroa
thereafter timely appealed.

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committing the lesser crime caused the victim to suffer an additional risk of
harm beyond that inherent in the ultimate crime." Id.

2. Relevant facts.

¶11 As relevant here, the facts are as follows: As to victim G.G.,
Figueroa entered her house and asked for her car keys. After she told him
the car did not work, he pulled out a gun, pointed it at her and then pointed
it at her son. Figueroa then took some clothing, hopped out of the window
and ran away. As to G.G., Figueroa was convicted of Counts 20 (aggravated
assault), 22 (armed robbery) and 23 (burglary). The court resentenced
Figueroa on Counts 22 and 23 concurrently with each other, but
consecutively to Count 20. (The court originally had ordered the sentences
on Counts 20 and 22 to be concurrent but Count 23 to be consecutive.)

¶12 As to victim R.O., Figueroa entered her house through the
back door. R.O. told him to leave and Figueroa pulled out a gun, pointed
it at her daughter and demanded the keys. R.O. told Figueroa she did not
have a car, and Figueroa left. As to R.O., Figueroa was convicted of Counts
24 (aggravated assault), 26 (attempted armed robbery) and 27 (burglary).
The court resentenced Figueroa on Counts 26 and 27 concurrently with each
other, but consecutively to Count 24. (The court originally had ordered the
sentences on Counts 24 and 26 to be concurrent but Count 27 to be
consecutive.)

¶13 As to victim J.T., Figueroa jumped over the back fence and
entered J.T.'s house. Figueroa sat on the couch and laid a gun between him
and J.T.'s wife and asked for car keys; she replied she did not have them.
Figueroa then went from the house to the front yard, where J.T. was
watering, pointed a gun at J.T. and demanded the keys. Figueroa pulled
the keys from J.T.'s pocket, stole the car and drove away. As to J.T.,
Figueroa was convicted of Counts 28 (aggravated assault), 30 (armed
robbery) and 31 (burglary). The court resentenced Figueroa on Counts 30
and 31 concurrently with each other, but consecutively to Count 28. (The
court originally had ordered the sentences on Counts 28 and 30 to be
concurrent but Count 31 to be consecutive.)

3. Application of Gordon factors.

¶14 We first note the superior court may impose consecutive
sentences under § 13-116 for crimes committed against different victims.
State v. Riley, 196 Ariz. 40, 47, ¶ 21 (App. 1999). Our analysis, therefore,
concerns Figueroa's three sets of convictions, each committed against a
distinct victim: G.G., R.O., and J.T.

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¶15 For each set of crimes, Figueroa entered a victim's home – and
as to J.T., later his front yard – demanded the car keys while wielding a gun,
and stole (or attempted to steal), the victim's belongings. Considering only
the aggravated-assault and armed-robbery charges, the ultimate charge as
to each of these victims was armed robbery (or attempted armed robbery).6
See State v. Alexander, 175 Ariz. 535, 537 (App. 1993) (aggravated robbery
ultimate charge because "object of the episode was to rob the victim" and
aggravated assault was "simply ancillary"); see also State v. Price, 218 Ariz.
311, 313, 315, ¶¶ 2, 15 (App. 2008) (when aggravated assault was charged
along with armed or aggravated robbery, latter two charges were the
ultimate charges).

¶16 Figueroa's armed-robbery (or attempted armed-robbery)
convictions were based on his using force or threats to take (or attempt to
take) the victims' property while armed with a gun. See A.R.S. §§ 13-
1902(A) (2020), -1904(A) (2020). The aggravated-assault convictions were
based on Figueroa's "[i]ntentionally placing [the victims] in reasonable
apprehension of imminent physical injury" while wielding a gun. See A.R.S.
§§ 13-1203(A)(2) (2020), -1204(A)(2) (2020).

¶17 As for the first Gordon factor, after subtracting the evidence
necessary to prove the armed-robbery (or attempt) charges, the remaining
evidence is insufficient to satisfy the elements of the aggravated-assault
charges. See Gordon, 161 Ariz. at 315. Without the evidence Figueroa was
armed with a gun, the evidence is insufficient to prove he wielded or used
that gun for purposes of the aggravated assaults. See Price, 218 Ariz. at 316,
¶ 18 (Gordon analysis focuses on defendant's "actual conduct"). Concurrent
sentences therefore were required for these charges as they relate to each of
the victims. See Gordon, 161 Ariz. at 315; see also State v. Watson, 1 CA-CR
18-0838, 2020 WL 284085, at *5, ¶ 20 (Ariz. App. Jan. 21, 2020) (failure to
satisfy first Gordon factor ends inquiry).

¶18 The second and third Gordon factors further weigh toward a
single act. It was "factually impossible to commit the [armed robberies (or
attempted armed robberies)] without also committing" the aggravated
assaults. See Gordon, 161 Ariz. at 315. For Figueroa to use a gun to take or
attempt to take the victims' property, he necessarily had to place them in
reasonable apprehension of imminent physical injury while wielding that
gun. And because the underlying events in each episode were nearly

6 Because our resolution of this issue obviates any need to analyze the
burglary charges under Gordon, we consider only the aggravated-assault
and armed-robbery charges.

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simultaneous, the aggravated assaults exposed the victims to no additional
risk of harm beyond that of the armed robberies (or attempted armed
robberies). See Alexander, 175 Ariz. at 538; see also Price, 218 Ariz. at 316, ¶
18.

¶19 In sum, the conduct underlying the armed-robbery (or
attempted armed-robbery) and aggravated-assault charges related to the
same victim constituted the same act, and concurrent sentences were
required under § 13-116. In their respective Penson briefs, counsel for
Figueroa and the State agree (although the State argues that, under the
circumstances, the error would not extend the Figueroa's aggregate term of
incarceration).

¶20 Accordingly, we modify Figueroa's sentences such that (1)
Counts 20 (aggravated assault), 22 (armed robbery) and 23 (burglary) run
concurrently to each other, but consecutively to the remaining sentences;
(2) Counts 24 (aggravated assault), 26 (attempted armed robbery) and 27
(burglary) run concurrently to each other, but consecutively to the
remaining sentences; and (3) Counts 28 (aggravated assault), 30 (armed
robbery) and 31 (burglary) run concurrently to each other, but
consecutively to the remaining sentences. See State v. Wilson, 131 Ariz. 96,
99 (1981) (modifying, without remand, illegally imposed consecutive
sentence to run concurrently with remaining sentence); see also Ariz. R.
Crim. P. 31.19(c) ("The appellate court may reverse, affirm, or modify the
action of a lower court, and it may issue any necessary and appropriate
order in connection with its decision.").

B. Issues Raised in Supplemental Brief.

¶21 Figueroa argues the superior court erred by denying his pre-
trial motions to change counsel. He does not, however, contend the court's
denial of his motions affected the 2019 resentencing. Instead, Figueroa
argues his lack of communication with his attorney deprived him of an
adequate defense at trial. Because this argument is a challenge to his
underlying convictions, which we already have affirmed, see Figueroa, 2018
WL 4374613, at *1, ¶ 1, it is beyond the scope of our review in this appeal.
See Hartford III, 145 Ariz. at 405.7

7 For this reason, we also reject Figueroa's argument that insufficient
evidence supported his two convictions for Counts 21 and 25 (both
aggravated assaults and dangerous crimes against children). Additionally,

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C. Due-Process Review.

¶22 Our review of the resentencing proceeding does not reveal
any further fundamental error. The record does not show that during the
resentencing, the superior court ordered or considered a new presentence
report. See State v. Hartford (Hartford II), 133 Ariz. 328, 330 (1982) (ordering
conviction remanded for resentencing, "at which time a new presentence
report must be prepared"). Nonetheless, at the original sentencing
proceeding, the court received and considered a "Probation Violation
Report" that contained the essential elements of a presentence report, such
as circumstances of the offense, Figueroa's history, and the impact of the
offense on the victims. See A.R.S. § 12-253(4) (2020).

¶23 At resentencing, the superior court stated it had "reviewed the
file extensively including the sentencing memorandum provided originally
by the State." Further, the court stated it would not "resentence [Figueroa]
in a more harsh manner than originally sentenced." Indeed, just as it had
done at the first sentencing, the court resentenced Figueroa to the
presumptive term for all counts involving such discretion. Thus, even
assuming without deciding that error occurred, it was not fundamental
error because Figueroa was not prejudiced by the absence of a new
presentence report. See Escalante, 245 Ariz. at 142, ¶ 21 (prejudice required
under fundamental-error review).

¶24 Finally, other than the errors identified above, see supra ¶¶ 19-
20, the court re-imposed legal sentences for those crimes of which Figueroa
was convicted.

CONCLUSION

¶25 For the foregoing reasons, we affirm Figueroa's sentences as
modified, supra ¶ 20. Defense counsel's obligations pertaining to Figueroa's
representation in this appeal have ended. Counsel need do no more than

because we fully address the issue above, we need not further address
Figueroa's argument that the superior court erred by imposing consecutive
sentences for armed robbery and aggravated assault, or for Counts 21 and
25, under A.R.S. § 13-116. See supra ¶¶ 9-20; see also Riley, 196 Ariz. at 47, ¶
21 (consecutive sentences for crimes against different victims permissible
under § 13-116).

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inform Figueroa of the outcome of this appeal and his future options,
unless, upon review, counsel finds "an issue appropriate for submission" to
the Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). On the court's own motion, Figueroa has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Figueroa has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.

AMY M. WOOD • Clerk of the Court
FILED: AA

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