State v. Castillo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Petitioner,

v.

JUAN CASTILLO, Respondent.

No. 1 CA-CR 25-0225 PRPC
FILED 10-27-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2015-005445-001
The Honorable Michael C. Blair, Judge

REVIEW GRANTED; RELIEF GRANTED IN PART/DENIED IN PART

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jordan A. Smith
Counsel for Petitioner

OR.T.EGA & OR.T.EGA, PLLC, Phoenix
By Alane M. Ortega
Counsel for Respondent
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MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 The State petitions for review from the superior court’s grant
of post-conviction relief (“PCR”) to Juan Castillo on four counts of engaging
in sexual conduct with a minor under 15 (counts one, four, five, and six).
We grant review of the superior court’s decision to vacate the convictions,
and grant relief to the State on count one, but deny relief on counts four,
five, and six.

FACTS AND PROCEDURAL BACKGROUND

¶2 Shortly before marrying in 2008, Castillo began living with his
wife (“Mother”) and her young daughter, Emily (a pseudonym). In January
2015, Emily told a friend that Castillo was sexually abusing her. Emily’s
friend’s mother told Mother what Emily had said. Mother called the police,
who investigated. Emily disclosed some incidents to a detective and others
to a forensic interviewer, Dr. Amy Heil. State v. Castillo, 1 CA-CR 19-0224,
2020 WL 5242383, at *1, ¶ 6 (Ariz. App. Sep. 3, 2020) (mem. decision).

¶3 A grand jury later indicted Castillo on seven counts of sexual
conduct with a minor (counts one, two, four, five, six, seven, and eight),
class 2 felonies, and one count of molestation of a child (count three), also a
class 2 felony. Castillo, 1 CA-CR 19-0224, at *1, ¶ 7. While testifying at the
trial, Emily had trouble remembering when the alleged offenses occurred.
Because Emily could not narrow the timeframes sufficiently, the detective
and Dr. Heil testified about the dates discussed in their respective
interviews with Emily. Castillo’s trial counsel objected to the detective’s
testimony as hearsay but did not object to Dr. Heil’s testimony.

¶4 After a six-day trial, the jury convicted Castillo on all counts.
Castillo, 1 CA-CR 19-0224, at *1, ¶ 7. The superior court sentenced Castillo
to consecutive presumptive terms of 20 years on the seven sexual conduct
convictions and a 17-year consecutive term for the molestation conviction.
On appeal, we vacated one of the sexual conduct convictions (count eight)
for insufficient evidence. Id. at *1-*2, *3, ¶¶ 1, 8, 10, 25. We also reversed

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Castillo’s convictions on counts two and three, concluding that the
detective’s testimony relaying the timeframes was inadmissible hearsay. Id.
at *3-*4, ¶¶ 19, 21, 22, 25. We affirmed the remaining convictions and
sentences.

¶5 After his appeal, Castillo petitioned for PCR under Arizona
Rule of Criminal Procedure (“Criminal Rule”) 32.1, arguing that trial
counsel’s performance fell below an objective standard of reasonableness
when she failed to object to the hearsay statements in Dr. Heil’s testimony.
After an evidentiary hearing, the superior court found that trial counsel’s
failure to object constituted ineffective assistance of counsel (“IAC”) and set
aside the convictions on counts one, four, five, and six. The State petitioned
this court for review. We have jurisdiction under Arizona Revised Statutes
§ 13-4239(C) and Criminal Rule 32.16.

DISCUSSION

¶6 We review the superior court’s PCR rulings for an abuse of
discretion. State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021). When the superior
court commits an error of law or fails to investigate the facts supporting its
decision adequately, it constitutes an abuse of discretion. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). Whether Castillo received “ineffective
assistance [of counsel] is a mixed question of fact and law,” which we
review de novo. State v. Denz, 232 Ariz. 441, 444, ¶ 6 (App. 2013) (Both the
prejudice and performance prongs of an IAC claim are mixed questions of
law and fact.). So while we defer to the PCR court’s factual findings, we
review the ultimate legal conclusion de novo. Id.

¶7 To prevail on an IAC claim, a defendant must prove deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). In proving deficient performance, the defendant must prove that
counsel’s representation “fell below an objective standard of
reasonableness.” Hinton v. Alabama, 571 U.S. 263, 272 (2014) (quoting Padilla
v. Kentucky, 559 U.S. 356, 366 (2010)). We measure the standard of
reasonableness by the “practice[s] and expectations of the legal
community.” Padilla, 559 U.S. at 366. Still, in doing so, we presume that
“counsel’s conduct falls within the wide range of reasonable professional
assistance” that ”might be considered sound trial strategy.” Strickland, 466
U.S. at 689 (quotation omitted). To overcome the presumption, a defendant
is “required to show counsel’s decisions were not tactical in nature, but
were instead the result of ineptitude, inexperience or lack of preparation.”
Denz, 232 Ariz. at 444, ¶ 7 (quotation omitted); State v. Speers, 238 Ariz. 423,
427, ¶ 12 (App. 2015). Courts must make every effort to “eliminate the

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distorting effects of hindsight,” and “evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689.

¶8 If a defendant shows deficient performance, the inquiry shifts
to prejudice. Strickland, 466 U.S. at 687; State v. Miller, 251 Ariz. 99, 102, ¶ 9
(2021). To show IAC prejudice, a defendant needs to show a “reasonable
probability” that, but for counsel’s errors, the result of the proceeding
would have been different. Miller, 251 Ariz. at 105, ¶ 17. In other words, a
defendant must show that counsel’s errors deprived him or her of a fair trial
with a reliable result. Id. IAC is a constitutional violation, Strickland, 466 U.S.
at 685-86, and once the defendant has shown deficient performance and
prejudice, the burden shifts to the State to prove, beyond a reasonable
doubt, that the violation was harmless, id.; Ariz. R. Crim. P. 32.13.

A. Trial Counsel’s Failure to Object to Inadmissible Hearsay
Constitutes Deficient Performance.

¶9 At trial, Emily struggled to recall the exact times when the
charged offenses occurred. Dr. Heil offered a timeframe for the offenses
based on her forensic interview with Emily. For counts one and six, Dr. Heil
testified that Emily said the offenses occurred while she was in the seventh
grade. For count four, Dr. Heil testified that Emily stated the offense
occurred at the beginning of her eighth-grade year. For count five, Dr. Heil
testified that Emily said it was when she was in the seventh grade. Trial
counsel did not object to Dr. Heil’s testimony.

¶10 The State did not contest in the PCR proceedings or on review
that Dr. Heil’s testimony about the timeframes in which the offenses
occurred contained inadmissible hearsay. Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted. Ariz. R. Evid.
801(c); State v. Chavez, 225 Ariz. 442, 444, ¶ 7 (App. 2010). Unless an
exception applies, hearsay is inadmissible. Ariz. R. Evid. 802.

¶11 At the PCR evidentiary hearing, trial counsel articulated
several reasons for not objecting to Dr. Heil’s testimony. First, she believed
an objection would give the jury the impression she was hiding something.
But as the PCR court noted, trial counsel could have objected through a
motion in limine or requested a bench conference to prevent the jury from
drawing a negative inference.

¶12 Trial counsel also testified that she chose not to object because
she believed the court would overrule the objection. But during Dr. Heil’s
testimony, the court suggested it might sustain a hearsay objection when it
questioned the State about why the statements were not hearsay. In

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response, rather than objecting as suggested by the court’s inquiry, defense
counsel answered, “[a]nd [] we did talk about this yesterday. So the dates
are not hearsay. I just don’t want her going into great detail about the acts.”
Thus, trial counsel affirmatively argued for the testimony’s admissibility.

¶13 Finally, trial counsel testified she worried that if the objection
were sustained, the State would recall the “very credible, very likable, very
empathetic” victim to help “narrow the timeframe.” Trial counsel worried
recalling the victim would expose the jury to “more of what they already
saw” in “a good State witness.” But recalling the victim would have
allowed trial counsel to cross-examine her about her failure to remember
the timeframe. See Ariz. R. Evid. 611(b) (On cross-examination, a witness
may be examined about any relevant matter.). And the issue about when
the assaults happened was central to Castillo’s defense strategy of casting
doubt on Emily’s recollection of events.

¶14 Trial counsel’s decisions were not tactical but the result of
ineptitude, inexperience, or lack of preparation. See Denz, 232 Ariz. at 444,
¶ 7. Neither party argues on review that Dr. Heil’s testimony about the
alleged dates was admissible, as trial counsel stated at the trial. And the
superior court properly could conclude that the reasons stated at the PCR
evidentiary hearing (fear of being overruled or recalling the victim) do not
hold water. Preserving an alleged error for further review helps represent
a criminal defendant. See State v. Perez-Gutierrez, 257 Ariz. 334, 341, ¶ 30
(2024) (“A defendant should always object in a timely manner to any
perceived error.”); Speers, 238 Ariz. at 431, ¶¶ 28-30 (Counsel’s performance
may be deficient for failing to preserve an issue for appeal, causing the
appellate court to only review for fundamental error.). And trial counsel
offered no reason why she believed the victim would be more inclined to
remember the offense dates if recalled than she could when she testified
during direct examination. The superior court did not abuse its discretion
by finding that trial counsel engaged in deficient performance.

B. Trial Counsel’s Deficient Performance Prejudiced Castillo on
Counts Four, Five, and Six.

¶15 The State argues that trial counsel’s decision not to object did
not prejudice Castillo. The State is correct as to count one, but not as to
counts four, five, and six. Castillo’s trial strategy centered on questioning
Emily’s credibility based on her inability to recall details about the
incidents, including the timelines.

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¶16 As noted above, for two of the counts, the only evidence about
when the events occurred was the testimony of the detective. Trial counsel
objected, on hearsay grounds, to the detective’s testimony related to dates.
On the direct appeal, Castillo challenged the admission of the detective’s
testimony establishing the time frames for counts two and three. In the
appeal, the State argued that the statements were admissible as prior
consistent statements. Arizona Rule of Evidence 801(d)(1)(B)(ii) provides
that a declarant’s prior consistent statements are admissible if made “before
the existence of facts that indicate a bias arises.” Castillo, 1 CA-CR 19-0224,
at *3, ¶ 21 (quoting State v. Martin, 135 Ariz. 552, 554 (1983)). We held that
the prior consistent statement rule was inapplicable because the State failed
to present evidence showing when Emily’s motive to fabricate, reflecting
bias, began. Id. The same analysis applies to Dr. Heil’s testimony related to
Emily’s statements. Emily’s out-of-court statements to the doctor were
inadmissible as prior consistent statements, just as they were inadmissible
for the detective’s testimony.

¶17 For counts four, five, and six, the only evidence the State
offered at trial about the dates of the offenses was Dr. Heil’s testimony. See
State v. McGann, 132 Ariz. 296, 299 (1982) (Improperly admitted hearsay
evidence may be prejudicial.); cf. State v. Wood, 180 Ariz. 53, 65 (1994). For
those counts, Castillo has shown deficient performance and a reasonable
probability of a different trial outcome.

¶18 Unlike counts four, five, and six, Dr. Heil only corroborated
Emily’s testimony that count one occurred during the “seventh grade.”
Because Dr. Heil did not narrow the timeframe Emily offered, no prejudice
resulted from Dr. Heil’s inadmissible testimony about count one. See Wood,
180 Ariz. at 65 (When other witnesses present direct testimony on the same
issue, no prejudice results.). Thus, trial counsel’s failure to object to count
one did not prejudice Castillo, and we vacate the superior court’s grant of
relief on that count.

C. The State Failed to Show the Error Was Harmless.

¶19 By proving IAC, Castillo has established a constitutional
violation for counts four, five, and six. Strickland, 466 U.S. at 685-86 (The
Sixth Amendment recognizes the accused’s right to the effective assistance
of counsel.). Under Criminal Rule 32.13(c), the State bears the burden of
proving, beyond a reasonable doubt, that a constitutional violation was
harmless.

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¶20 The State asserts that it could have recalled the victim to
testify at the trial had an objection been sustained. But it offered no evidence
to show what the victim’s testimony would have been (or that it would have
been more precise than the victim’s original testimony), or how the error in
admitting Dr. Heil’s testimony was harmless. The State could have tried to
prove that the error was harmless by calling the victim to testify at the PCR
hearing about her ability to narrow the timeframes, but it did not do so.
Without proof that the victim would have been able to narrow the
timeframe, the State’s claim here is speculative. See State v. Portillo, 182 Ariz.
592, 596 (1995) (Proof beyond a reasonable doubt is firmly convincing.).
Thus, the State has failed to meet its burden, and as Castillo has proven the
constitutional error, the superior court correctly granted Castillo relief for
counts four, five, and six.

D. The State May Retry the Reversed Counts.

¶21 This court has reversed six of the eight convictions in two
appeals. One conviction cannot be retried because it was vacated for
insufficient evidence. State v. Rumsey, 136 Ariz. 166, 169 (1983) (If “the
defendant has been acquitted or the conviction reversed on the ground the
evidence was insufficient to convict, the principles underlying the double
jeopardy clause demand that he not be retried.”). The other reversed counts
were reversed for trial error and may be retried. State v. May, 210 Ariz. 452,
459, ¶ 25 (App. 2005) (“When a case is reversed for trial error, the State is
not foreclosed from a retrial or from presenting evidence at a new trial in
response to that error.”(cleaned up)).

CONCLUSION

¶22 We grant the State’s petition for review and grant relief as to
count one, but deny relief as to counts four, five, and six. We remand for
potential retrial on the reversed counts.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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