State v. Alba

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

JOSE LEONARDO ALBA, Petitioner.

No. 1 CA-CR 26-0055 PRPC
FILED 10-07-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2020-101481-001
The Honorable Suzanne E. Cohen, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Brown & Little PLC, Chandler
By Matthew O. Brown
Counsel for Petitioner

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Michael J. Brown joined.

STATE v. ALBA
Decision of the Court

P A T O N, Judge:

¶1 Petitioner Jose Leonardo Alba seeks review of the superior
court’s order summarily dismissing his petition for post-conviction relief
(“PCR”) filed under Arizona Rule of Criminal Procedure (“Rule”) 32.1. We
grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 The State charged Alba with possession of narcotic drugs for
sale, money laundering in the second degree, and possession of drug
paraphernalia. A jury acquitted Alba on the drug possession and money
laundering charges, but found him guilty of possession of drug
paraphernalia. The superior court sentenced him to a mitigated term of 0.33
years with 1,029 days of presentence incarceration credit. We affirmed his
conviction and sentence on appeal. State v. Alba, 1 CA-CR 22-0506, 2024 WL
340390 (Ariz. App. Jan. 30, 2024) (mem. decision).

¶3 We state the facts as relevant to Alba’s petition. Alba lived in
a house with his father, co-defendant Jose Jimenez. Police surveillance of
the house showed Alba, Jimenez, and Evan Zurow carrying a large duffel
bag out of the house and placing it in the backseat of Zurow’s car. After
stopping Zurow’s car, officers found $23,000 cash inside the duffel bag,
twenty Adderall pills, and a ledger. They also noticed the screws and
insulation in the back-door panel had been removed, creating a hollowed-
out space. Officers searched Zurow’s cell phone and saw a recent text
message from Alba and a note mentioning the address of the house.
Officers then executed a search warrant at the house.

¶4 At trial, case agent Officer Ryan testified the officers found
“small plastic Ziploc[] baggies” and a safe containing $33,000 cash bound
with rubber bands in Alba’s room. Officer Ryan testified that those baggies
were “typically used for lower street level deals to transport and to sell
illegal drugs.” He also testified he did not see “anything” in Alba’s room
“that could legitimately be packaged into those baggies.” He further
testified he believed the baggies were found in Alba’s room but also
conceded he could be mistaken. Officer Ryan did not personally find the
baggies and the police report did not specify in which room they were
found. Officers found $176,000 cash, 981 shrink-wrapped fentanyl pills,
two guns, a money counter, a scale, a vacuum sealer, and food-saver plastic
wrapping in Jimenez’s room at the house.

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STATE v. ALBA
Decision of the Court

¶5 During closing argument, defense counsel argued that Alba’s
mere presence at the house and knowledge of illegal activity did not make
him guilty of an offense. When distinguishing the cash found in Alba’s
room from the cash found in Jimenez’s room, Alba’s counsel stated:

Knowledge of the presence doesn’t make one guilty of any
illegal offense. You’re not going to get a jury instruction that
tells you that either. Being merely present, we’re not going to
give you an instruction that deals with that either. Why?
Because it’s not the law. And you swore and promised to
follow the law.

¶6 After we affirmed his conviction, Alba filed a PCR petition
alleging constitutional violations under Rule 32.1(a). He argued (1) his trial
counsel was ineffective for failing to request a mere presence jury
instruction and failing to impeach Officer Ryan regarding his testimony
about the plastic baggies, (2) the search warrant was illegal, and (3) the
superior court improperly denied his motion to suppress the evidence
found in the house.

¶7 The superior court dismissed Alba’s PCR petition, finding
that he failed to establish ineffective assistance of counsel and that Rule 32.2
precluded his remaining claims. The court also found the facts did not
support a mere presence instruction because Alba lived in the house and
had control over his bedroom. The court further found Alba failed to
demonstrate any resulting prejudice from counsel’s alleged failure.

¶8 Alba petitioned for review of the superior court’s ruling. We
grant review under Article 6, Section 9 of the Arizona Constitution, Arizona
Revised Statutes Section 13-4239(C), and Rule 32.16.

DISCUSSION

¶9 Alba only reasserts his ineffective assistance of counsel
(“IAC”) claim in his petition for review to us.1 We review the superior
court’s PCR rulings for an abuse of discretion, “which occurs if the court
makes an error of law or fails to adequately investigate the facts necessary
to support its decision.” State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021).

¶10 To prevail on an IAC claim, Alba must satisfy the Strickland
test by “demonstrat[ing] that counsel’s conduct fell below an objective

1 Because Alba does not raise his other Rule 32.1(a) claims in his
petition for review, he has waived them. Ariz. R. Crim. P. 32.16(c)(4).

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STATE v. ALBA
Decision of the Court

standard of reasonableness and that he was prejudiced thereby.” Bigger,
251 Ariz. at 407, ¶ 8 (citing Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). “A court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. We consider “in light of all the circumstances,
whether counsel’s performance was reasonable under prevailing
professional norms.” Bigger, 251 Ariz. at 407, ¶ 8 (quoting State v. Pandeli, 242 Ariz. 175, 180, ¶ 5 (2017)). A court’s analysis of counsel’s strategy is
“highly deferential,” and a “fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of
hindsight.” Id. at 408, ¶ 11 (quoting Strickland, 466 U.S. at 689). To establish
prejudice, Alba must “show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Pandeli, 242 Ariz. at 180, ¶ 6 (quoting Hinton v. Alabama, 571 U.S. 263, 275 (2014)). “Failure to satisfy either prong of the Strickland
test is fatal to an ineffective assistance of counsel claim.” State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006).

¶11 Alba argues his counsel was ineffective because, although he
argued a mere presence defense during closing argument, he did not
request a mere presence instruction. He also contends his counsel
misstated the law regarding the instruction.

¶12 Alba does not show counsel’s performance was deficient. He
was convicted only of possession of drug paraphernalia based on the plastic
baggies found in his bedroom. Possession can be constructive, meaning the
defendant “either exercised dominion and control over the drug itself, ‘or
the location in which the substance was found.’” State v. Gill, 248 Ariz. 274,
277, ¶ 7 (App. 2020) (citation omitted). Alba did not dispute that he lived
in the house or exercised control over his room. Thus, the superior court
reasonably concluded that the evidence did not support a mere presence
instruction and counsel was not deficient for not requesting it.

¶13 And even assuming counsel was deficient, Alba does not
show prejudice. At trial, counsel presented a mere presence defense during
closing argument, emphasizing that Alba’s presence in the house and his
knowledge of illegal activity did not establish guilt. See State v. Tarr, 235
Ariz. 288, 293, ¶ 14 (App. 2014) (holding that we evaluate jury instructions
in context, considering the facts, other instructions, and counsel’s closing
arguments). Counsel’s comment about the instruction, when read in
context, did not suggest the jury should disregard the principle. Alba does
not show a reasonable probability of a different outcome even if counsel
had requested the instruction.

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STATE v. ALBA
Decision of the Court

¶14 As part of his mere presence IAC argument, Alba also
contends his counsel was ineffective for failing to impeach Officer Ryan
regarding his testimony as to where the baggies were found. But Alba
again does not meet either the deficient performance or the prejudice
prongs under the Strickland test.

¶15 Counsel acted within his “wide range of reasonable
professional assistance” by not pursuing further impeachment of Officer
Ryan. Strickland, 466 U.S. at 689. Officer Ryan testified he believed that
officers found the baggies in Alba’s room but acknowledged he could be
mistaken. Further impeachment by counsel is not required when a witness
acknowledges their uncertainty. See State v. Hines, 130 Ariz. 68, 71 (1981)
(holding where inconsistent testimony was admitted, “[n]o further proof
[is] necessary”). Alba thereby failed to satisfy the deficient performance
prong of the Strickland test.

¶16 And even if Alba’s counsel’s performance was deficient, Alba
only satisfies the Strickland test if it is reasonably probable the outcome of
the proceeding would have been different but for counsel’s errors. See State
v. Salazar, 146 Ariz. 540, 542 (1985). The jury already knew that Officer Ryan
was unsure where officers found the baggies, and Alba does not explain
what additional impeachment would have accomplished. Thus, Alba also
failed to satisfy the prejudice prong of the Strickland test.

¶17 The superior court did not err in concluding that Alba failed
to state a colorable IAC claim.

CONCLUSION

¶18 We grant review but deny relief.

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

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