Fernando Navarro-Figueroa v. State of Arizona

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

FERNANDO NAVARRO-FIGUEROA,
Petitioner,

v.

THE STATE OF ARIZONA,
Respondent.

No. 2 CA-SA 2025-0028
Filed August 25, 2025

Special Action Proceeding
Pima County Cause No. CR20195850009
The Honorable J. Alan Goodwin, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Ralls & Wille, P.C., Tucson
By Clarissa M. Todd
Counsel for Petitioner

Kristin K. Mayes, Arizona Attorney General
By Nanette Morrow and Philip Casey Grove, Assistant Attorneys General,
Tucson
Counsel for Respondent
 NAVARRO-FIGUEROA v. STATE
Opinion of the Court

OPINION

Judge Vásquez authored the opinion of the Court, in which Presiding Judge
Eckerstrom concurred. Judge Sklar concurred in part and dissented in part.

V Á S Q U E Z, Judge:

¶1 Fernando Navarro-Figueroa seeks special action review of the
trial court’s order deferring consideration of his pretrial motion for a
probable cause determination of the alleged sentence enhancer until after
the state’s case in chief at trial. Because that ruling is inconsistent with the
plain language of our criminal rules and our supreme court’s directive in
Chronis v. Steinle, 220 Ariz. 559 (2009), we accept jurisdiction and grant
relief.

Factual and Procedural Background

¶2 Navarro-Figueroa, along with five co-defendants, has been
charged with eighteen counts relating to “THC vape pens, THC oil,
marijuana, money laundering, possession of a weapon, conspiracy, and
illegally conducting an enterprise.” In addition to aggravating
circumstances, the state filed an allegation that Navarro-Figueroa is a
serious drug offender under A.R.S. § 13-3410 and therefore subject to an
enhanced sentence of life imprisonment. Navarro-Figueroa timely filed a
pretrial motion for a probable cause determination of the alleged enhancer
under Rule 13.5(a), Ariz. R. Crim. P. After argument on the motion, the trial
court deferred its ruling on the motion until the conclusion of the state’s
case in chief. Navarro-Figueroa’s petition for special action followed.

Jurisdiction

¶3 “Whether to accept jurisdiction of an appellate special action
is within the court’s discretion . . . . ” Ariz. R. P. Spec. Act. 12(a). Factors
that support accepting jurisdiction include questions “of first impression,”
“of statewide importance,” and “the resolution of which will materially
advance the efficient management of the case.” Ariz. R. P. Spec. Act. 12(b).
Navarro-Figueroa’s petition raises an issue of first impression on a purely
legal question: the interpretation and application of Rule 13.5(a) in
non-capital cases. Moreover, Navarro-Figueroa is correct that the issue
would likely become moot in the event he is convicted and sentenced or

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acquitted. Cf. State v. Agnew, 132 Ariz. 567, 573 (App. 1982) (challenge to
probable cause determination moot after conviction). Accordingly, we
accept special action jurisdiction to address the issue.

Discussion

¶4 The interpretation of rules is an issue of law that we review
de novo. Johnson v. Hartsell, 254 Ariz. 585, ¶ 14 (App. 2023). We interpret
rules using the principles of statutory construction. State v. Greene, 255 Ariz.
37, ¶ 76 (2023). “Thus, we ‘interpret rules of procedure by their plain
meaning and we read them in conjunction with each other and harmonize
them whenever possible.’” Id. (quoting State v. Tillmon, 222 Ariz. 452, ¶ 8
(App. 2009)).

¶5 Rule 13.5(a)—which applies to non-capital defendants—
states, in part, “A defendant may challenge the legal sufficiency of the
State’s [sentencing] allegations by filing a motion under Rule 16.” Rule 16,
Ariz. R. Crim. P., governs “Pretrial Motions and Hearings.” Under Rule
16.1(b), parties “must make all motions no later than 20 days before trial.”
Rule 13.5(c)—which applies to capital defendants—has materially identical
language to Rule 13.5(a). In this case, Navarro-Figueroa’s motion for a
probable cause determination was filed February 21, 2025—well over two
months before the then scheduled trial date of May 5, 2025.

¶6 The state contends that although Rule 16.1 provides that the
defendant’s motion must be made before trial, the trial court is not required
to hold a pretrial hearing to address it. Although the state is correct that the
rules are silent as to the timing of a probable cause hearing,
Navarro-Figueroa cites Chronis as guidance for when that hearing must
occur.

¶7 In Chronis, our supreme court explained the meaning of a
“challenge [to] the legal sufficiency” in the context of Rule 13.5(c). 220 Ariz.
559, ¶¶ 5-10 (quoting Ariz. R. Crim. P. 13.5(c)). There, the state argued that
language meant the defendant could question whether the charging
documents provided sufficient notice. Id. ¶ 9. Our supreme court relied on
the petition for adoption of Rule 13.5(c), which was submitted to “quickly”
conform our statutes to the Constitution following Ring v. Arizona, 536 U.S.
584 (2002). Chronis, 220 Ariz. 559, ¶ 12. The court also quoted a later filed
motion to amend several Arizona Rules of Criminal Procedure, which
“explicitly represented that Rule 13.5(c) would ‘allow the defendant to
request a determination of probable cause [as to noticed aggravators] before
trial.’” Chronis, 220 Ariz. 559, ¶¶ 12, 14 (alteration in Chronis). Thus, the

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court determined that Rule 13.5(c) allows a defendant to request a probable
cause hearing following the procedures of Rule 5, Ariz. R. Crim. P. Chronis,
220 Ariz. 559, ¶¶ 15, 18.

¶8 Rule 5, which governs the “Preliminary Hearing,” sets forth
the procedures for a defendant to challenge probable cause when charged
with a felony by complaint. Those procedures contemplate a prompt
resolution of probable cause as a condition of further prosecution. It
requires a preliminary hearing to occur soon after the initial appearance.
Ariz. R. Crim. P. 5.1(a). And it allows for continuances only if
“extraordinary circumstances exist” and “delay is indispensable to the
interests of justice.” Ariz. R. Crim. P. 5.1(c). An in-custody defendant may
request a hearing “as soon as practicable,” and the magistrate must not
delay the hearing “more than necessary to secure the attendance of counsel
and necessary witnesses, and ensure the ability to record a verbatim record
of the proceeding.” Ariz. R. Crim. P. 5.1(d).

¶9 The state posits that Chronis should not extend beyond capital
defendants because those defendants are differently situated. Capital cases
indeed have some unique procedural features triggered by the allegation of
capital aggravating factors. Compare, e.g., Ariz. R. Crim. P. 19.1(e) (setting
forth trial procedures in capital case for jury determination of sentence),
with Ariz. R. Crim. P. 26 (setting forth procedures for judicial determination
of sentence in non-capital cases). But the language of Rule 13.5 sounds in
the similarities between capital and non-capital aggravating factors rather
than in their differences.

¶10 Perhaps most importantly, the respective rules allowing non-
capital and capital defendants to challenge the sufficiency of an alleged
aggravating factor are both found in Rule 13.5, are worded almost
identically, and were amended, on an emergency basis, simultaneously. See
Ariz. R. Crim. P. 13.5(a),(c) (both provisions state, “A defendant may
challenge the legal sufficiency of the State’s allegation[s] by filing a motion
under Rule 16,” with subsection (c) using the singular “allegation”); see also
Chronis, 220 Ariz. 559, ¶¶ 12-13. To conclude from this language and
context that Rule 13.5 establishes different procedural rights for capital and
non-capital defendants, we would offend long-settled norms of textual
interpretation—and semantic logic. See Kelly v. Blanchard, 255 Ariz. 197,
¶ 15 (App. 2023) (“[I]dentical words used in different parts of the same rule
are intended to have the same meaning.”).

¶11 Our supreme court had a logical reason for adopting identical
language in this context. In both the capital and non-capital arenas, a

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defendant is constitutionally entitled to a jury trial as to any sentencing
allegation, other than a prior conviction, that increases the sentencing range
available for the underlying offense. Apprendi v. New Jersey, 530 U.S. 466,
490 (2000); Ring, 536 U.S. at 602, 609. In both capital and non-capital cases,
such a finding may substantially increase the severity of the sentence the
defendant faces if convicted. The enhancement alleged against
Navarro-Figueroa, for example, subjects him to mandatory life
imprisonment. See § 13-3410.

¶12 But we need not speculate about the purpose energizing the
amendments to Rule 13.5. In Chronis, our supreme court explained that
Rule 13.5 was adopted to conform our procedures with Ring. 220 Ariz.
559, ¶¶ 12, 14. Ring applied Apprendi’s mandate to capital cases. 536 U.S.
at 602, 609. In so doing, the Court’s majority repeatedly questioned the
logic of distinguishing between the constitutional procedures for finding
the existence of capital and non-capital aggravating factors. Id. at 589, 601,
603, 606, 609. And, in articulating those procedures for non-capital offenses,
it listed the requirement of an indictment, a procedure for finding probable
cause. Id. at 600 (citing Jones v. United States, 526 U.S. 227, 243 n.6 (1999)).

¶13 Thus, in Chronis, the Arizona Supreme Court specifically
interpreted Rule 13.5(c) to allow a probable cause challenge to a capital
aggravating factor. It did so based on controlling jurisprudence that
required equal procedural treatment for capital and non-capital
aggravating factors at the stage of litigation. Accordingly, we must follow
the court’s own reasoning and conclude that its intent in adopting the rule
“was to provide a right to a probable cause determination on aggravators
as proposed by the Motion to Amend,” Chronis, 220 Ariz. 559, ¶ 15, that is,
“before trial,” id. ¶¶ 18-19 & 14.

¶14 By deferring its ruling on Navarro-Figueroa’s motion until
after the close of the state’s case in chief at trial, the trial court undermined
the purpose of Rule 5 proceedings—to facilitate a prompt resolution of
probable cause as a condition of further prosecution. Fulfilling that
purpose was not discretionary with the trial court but was required by
Chronis and the United States Constitution. Id. ¶ 14 (Rule 13.5 promulgated
to address constitutional concerns, arising from Ring, that Apprendi
aggravating factors be subject to species of probable cause determination);
see also Ring, 536 U.S. at 600 (under the Fifth and Sixth Amendments, “any
fact (other than prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment” (quoting Jones, 526 U.S. at 243
n.6)).

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¶15 By postponing that proceeding until the conclusion of the
state’s case in chief on the underlying charges, the trial court essentially
transformed the motion into one under Rule 20, Ariz. R. Crim. P. But Rule
20 already allows a defendant to challenge the sufficiency of “an
aggravating circumstance or other sentence enhancement.” Thus, the court
has rendered Rule 13.5(a) superfluous in a way that we cannot sustain.
See Stambaugh v. Killian, 242 Ariz. 508, ¶ 14 (2017) (we do not interpret
statutes in manner that would render clause superfluous). Moreover, the
court’s ruling deprives Navarro-Figueroa of the benefit of a pretrial
probable cause determination. If the allegation lacks probable cause,
Navarro-Figueroa’s prison exposure is significantly lower. See, e.g., A.R.S.
§§ 13-702, 13-703, 13-3410. Thus, whether a sentencing enhancement can go
to the jury has serious consequences on many of the defendant’s pretrial
considerations, including whether to retain private counsel and whether to
seek a plea bargain.

¶16 Rule 19.1, Ariz. R. Crim. P., likewise supports our conclusion
that the probable cause hearing must take place before trial. Rule 19.1(c)
mandates that “the trial must proceed initially as though there were no . . .
sentencing allegations, unless [it] is an element of the charged crime,”
including that evidence may not be admitted concerning the sentencing
allegation except as permitted by the rules of evidence. Moreover, nothing
in Rule 19.1(c) contemplates a probable cause hearing between the guilt
phase and aggravation phase of trial. In this case, the serious drug offender
allegation adds elements beyond those for the crimes for which
Navarro-Figueroa has been charged. Compare § 13-3410 (defining serious
drug offenders), with A.R.S. §§ 13-1003 (conspiracy), 13-2312 (illegal control
of an enterprise), 13-3405 (marijuana possession, use, production, sale, or
transportation), and 13-3408 (narcotics possession, use, production, sale, or
transportation). Therefore, the trial court’s statement that it would consider
whether probable cause had been established “based on the evidence
presented” during the state’s case in chief at trial is incongruent with Rule
19.1(c).1

1Deferring the probable cause determination may also give the state

an unfair second chance to prove probable cause. If, after the state’s case in
chief, the trial court is not satisfied that the state has shown probable cause
for the sentence enhancement and proceeds to a probable cause hearing,
then the state essentially receives a second opportunity to prove its
allegations—something it would not have if the hearing took place before
trial. See Ariz. R. Crim. P. 5.3(a)(3) (“At the close of the State’s case, the

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¶17 The state argues it will bear a substantial burden by having to
present evidence at a probable cause hearing. And our dissenting colleague
echoes the trial court’s apparent concerns regarding the extent of such a
hearing. But under Rule 5.4(c), the evidence presented at a probable cause
hearing “may include hearsay” from an expert’s written report, from
documentary evidence without foundation, and from a witness’s testimony
about another person’s declarations.2 Thus, we are unpersuaded that such
a hearing would resemble a trial or be particularly burdensome for the
state. 3 See Chronis, 220 Ariz. 559, ¶ 19 (“Given the focused nature of
probable cause hearings and the prosecution’s wide ability to offer different
forms of evidence, we are not persuaded by the State’s argument that
allowing probable cause determinations on aggravating factors will
impinge upon the authority of prosecutors or the rights of victims.”).
Perhaps more importantly, defendants are more likely to be incentivized to
contest aggravating factors and sentence enhancements well before trial to
garner the benefits of better-informed plea negotiations.

¶18 As our dissenting colleague points out, our review is limited
to the trial court’s stated intention for when it would hear
Navarro-Figueroa’s motion. But the court made clear it would not hold a
probable cause hearing before trial. Because that ruling deprives Navarro-
Figueroa of the very benefits intended from a pretrial determination of
probable cause under Rule 13.5(a) and Chronis, it is error.

magistrate must determine and state for the record whether the State’s case
establishes probable cause.”).
2At oral argument before this court, Navarro-Figueroa represented

that the state had brought one witness in anticipation of the probable cause
hearing below.
3 We do not address the state’s suggestion that because sentence
enhancement allegations can be filed after trial, Navarro-Figueroa is not
entitled to a pretrial Chronis hearing. But see State v. Nichols, 201 Ariz. 234,
¶¶ 13-15 (App. 2001) (allegation of serious drug offense enhancement must
be provided no later than twenty days before trial). The state’s argument is
based on hypothetical circumstances not present here, where the state filed
its sentencing enhancement allegations before trial.

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Disposition

¶19 We accept special action jurisdiction and grant relief, vacating
the trial court’s deferral and remanding for the court to consider
Navarro-Figueroa’s probable cause motion before trial.

S K L A R, Judge, concurring in part and dissenting in part:

¶20 I agree with the majority that Fernando Navarro-Figueroa is
entitled to a probable-cause hearing on the serious-drug-offender sentence
enhancement. Given the materially identical language in Rules 13.5(a) and
(c), I see no choice but to apply Chronis v. Steinle, 220 Ariz. 559 (2009). But I
disagree with the majority’s conclusion that the probable-cause
determination must occur before the trial’s guilt phase. As long as it occurs
before the aggravation phase, I would conclude that it complies with the
rules. Because the trial court’s order leaves open that possibility, I dissent
in part.

¶21 My analysis begins with the timing of Navarro-Figueroa’s
motion for a probable-cause determination. A grand jury indicted him in
November 2019, and the state filed the serious-drug-offender allegation in
March 2023. But he did not move for a probable-cause determination until
nearly two years later, in February 2025. By that point, trial was less than
three months away.

¶22 Navarro-Figueroa was within his rights to make the motion
at that time. As the majority points out, reading Rules 13.5 and 16.1 together
demonstrates that Navarro-Figueroa was entitled to file his motion until
twenty days before trial. He met this deadline.

¶23 But the timing was unusual. The rules generally envision
probable-cause motions being filed much earlier. See Ariz. R. Crim. P. 5.1(a)
(requiring preliminary hearings to commence within ten days of initial
appearance if defendant is in custody or within twenty days if defendant is
out of custody). The majority also identifies practical concerns that would
typically result in such motions being filed earlier than in this case, even in
the context of aggravating circumstances and sentence enhancements.

¶24 But for whatever reason—perhaps in part due to
Navarro-Figueroa apparently being absent and thus not available for plea
negotiations—the motion was filed later in the process here. Thus, by the
time of the initial hearing on the motion, the court had only a month before
trial. This left it with limited options for making a probable-cause
determination while preserving the trial date. The court also seemed to

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believe that a probable-cause hearing would take considerable time, noting
that it “would essentially have to hear the bulk of the evidence in order to
make a determination.” It is not clear whether the court’s calendar would
have allowed it to do so before trial.

¶25 Given these circumstances, the trial court chose to defer its
probable-cause determination. I disagree with the majority’s conclusion
that doing so was improper. In part, my disagreement stems from the
majority’s characterization of the court’s decision. The court’s words were:

So at the conclusion of the State’s evidence, in
addition to whatever Rule 20 motions are made
at that time, I will, at that time, address, under
13.5, the probable cause motion from the
Defense. And if I don’t find that there has been
PC established, based on the evidence
presented, then I’ll, you know, make an
appropriate ruling at that time.

The court later clarified, “[I]f I determine at the conclusion of the State’s
case that the allegation lacks probable cause, then it is not an allegation that
will ever go to the jury for their consideration.” From this language, the
majority extrapolates that the court would determine probable cause for the
sentence enhancement based solely on the state’s evidence in its guilt-phase
case-in-chief.

¶26 Had the trial court actually said it would do that, I agree that
it would be error. Under Rule 19.1(c)(1), the sentence enhancement—a
“noncapital sentencing allegation” that “must be found following a guilty
verdict”—may not be referenced during the guilt phase unless the
enhancement “is an element of the charged crime.” Indeed, that portion of
the trial “must proceed initially as though there were no . . . sentencing
allegations.” Ariz. R. Crim. P. 19.1(c)(1); see also State v. Larin, 233 Ariz. 202,
¶ 36 (App. 2013) (prohibiting “sentencing aggravator” from being
referenced during guilt phase). This language requires a bifurcated trial
with evidence concerning sentencing allegations presented at the
aggravation phase. Ariz. R. Crim. P. 19.1(c)(2)(B). Thus, determining
probable cause for a sentence enhancement based only on guilt-phase
evidence would likely exclude relevant evidence from the probable-cause
determination.

¶27 But that is not what the trial court said it would do. It simply
said that the jury would not make any determination about the sentence

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enhancement if probable cause was lacking. But it said nothing about the
process it would implement if it either believed probable cause existed or
needed more information. I do not believe we should infer from this scant
record that the court was imposing a process in violation of Rule 19.1(c).
Cf. Barnes v. Bernini, 245 Ariz. 185, ¶ 19 (App. 2018) (declining to infer from
limited record that trial court allowed parties to deviate from Rule
19.1(c)-required bifurcation).

¶28 It is not entirely clear what the trial court was planning.
Perhaps it intended to combine the probable-cause determination with a
decision on a Rule 20 motion at the aggravation phase. If so, I do not believe
doing so would be consistent with Chronis. But the court had not yet done
so, and it would be premature for this court to find such a violation. Even
if that was the court’s plan, it had the opportunity to reconsider. Given this
uncertainty, I am not entirely convinced that this court should accept
jurisdiction. We may be correcting a nonexistent error.

¶29 The trial court had at least one other option that was
consistent with the language of its ruling—setting a probable-cause hearing
after the trial’s guilt phase, but before the aggravation phase. If that were
its approach, I see no legal error. While Rule 16.1(b) requires a defendant
to move for a probable-cause determination no later than twenty days
before trial, it does not impose a deadline for holding the hearing. It
therefore provides the court with the flexibility necessary to hold a
probable-cause hearing in the limited time available due to the twenty-day
deadline of Rules 13.5 and 16.1. Flexibility is especially appropriate because
Rule 16.1 allows the court to modify the deadlines, including, presumably,
to allow a probable-cause motion to be filed even closer to trial. That
flexibility should not necessitate a trial delay.

¶30 Setting a probable-cause hearing before the aggravation
phase would also preserve the distinct nature of the probable-cause and
guilt determinations, consistent with Rule 5. And it would comply with
Rule 19.1(c)’s bifurcation requirement by ensuring that evidence relevant to
the sentence enhancement is excluded at the guilt phase. The majority
disagrees, concluding that Rule 19.1 does not “contemplate[] a probable
cause hearing between the guilt phase and aggravation phase.” But it
points to no language that precludes this procedure.

¶31 As a practical matter, the court would have valid reasons for
deferring a probable-cause ruling, especially given the timing of
Navarro-Figueroa’s motion. For example, it would have the benefit of
considering evidence from the trial’s guilt phase. This is significant, as

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much of the evidence concerning the serious-drug-offender allegation
would likely also be relevant at the guilt phase. See State v. Wassenaar, 215
Ariz. 565, ¶ 28 (App. 2007) (“The trial court has ‘broad discretion’ regarding
its management of the manner in which trial will be conducted, and has a
duty to exercise that discretion.” (quoting State v. Cornell, 179 Ariz. 314, 332
(1994))).

¶32 Thus, deferring the ruling would avoid the trial court’s stated
concern about needing to hear “the bulk of the evidence” before trial to
determine probable cause. On any additional issues, the court would
benefit from the flexible procedures governing probable-cause hearings
that would likely streamline the procedure further. See Ariz. R. Crim. P.
5.4(c) (allowing certain types of inadmissible evidence at probable-cause
hearings); see also Chronis, 220 Ariz. 559, ¶ 19 (recognizing “focused nature
of probable cause hearings and the prosecution’s wide ability to offer
different forms of evidence”). As long as the jurors were qualified for a
sufficient number of days to cover both phases of trial, it also would not
significantly inconvenience them. They would simply be excused for a day,
or perhaps less, while the probable-cause hearing took place.

¶33 Navarro-Figueroa points to other rules suggesting that
probable-cause hearings must take place before the guilt phase begins.
These include a twenty-five-day deadline for filing a motion under Rule 5.5
for review of a probable-cause determination. If that motion is granted, the
new hearing must take place within fifteen days. Ariz. R. Crim. P. 5.5(d).
It is not entirely clear to me that these deadlines apply in the context of a
probable-cause determination for a sentence enhancement, as they deal
with review of a “magistrate’s determination to bind over a defendant.”
Ariz. R. Crim. P. 5.5(a). Chronis does not say that they apply in this context.
220 Ariz. 559, ¶ 18.

¶34 If these deadlines do apply, it is difficult to see how they
interrelate with the twenty-day deadline of Rules 13.5 and 16.1. To the
extent the timing of Navarro-Figueroa’s motion created scheduling
challenges here, those challenges would be further heightened where
defendants file probable-cause motions on the last day possible. The rules
do not guide trial courts on how to navigate these challenges.

¶35 In short, I am not convinced that the trial court erred in
deferring its ruling on the probable-cause determination. While I am not
certain we need to accept jurisdiction, to the extent we do, I would grant
more limited relief than the majority. I would conclude only that

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Navarro-Figueroa is entitled to a probable-cause determination on the
sentencing enhancement before the trial’s aggravation phase.

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