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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
HECTOR HUGO GARCIA DEL CASTILLO,
Petitioner.
No. 1 CA-CR 19-0360 PRPC
FILED 9-1-2020
Appeal from the Superior Court in Maricopa County
No. CR2015-156226-001
The Honorable Dean M. Fink, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Hector H. Garcia Del Castillo, Tucson
Appellee
Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent
STATE v. GARCIA DEL CASTILLO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge James B. Morse Jr. joined.
T H U M M A, Judge:
¶1 Hector Hugo Garcia Del Castillo petitions this court for
review from the dismissal of his petition for post-conviction relief filed
under Arizona Rule of Criminal Procedure (Rule) 32.9(c).1 This court grants
review but denies relief.
FACTS AND PROCEDURAL HISTORY
¶2 In December 2015, two police officers noticed a rental car
missing its spare tire parked outside the house where Garcia Del Castillo
lived. The officers knocked and, after he answered, asked Garcia Del
Castillo if they could speak with him. Soon after, the officers asked if they
could search the house for drugs. Garcia Del Castillo invited the officers
inside and showed them the various bedrooms. While in Garcia Del
Castillo’s room, the officers noticed a spare tire, a tire iron and a “vacuum
sealer, which [police officers] commonly see smugglers using to vacuum
seal packages of illegal drugs.”
¶3 One of the officers then entered the attached garage and
noticed another spare wheel with the tire removed, an industrial roll of
plastic wrap and three burrito-shaped packages of contraband. At that
point, the officers detained Garcia Del Castillo, obtained a search warrant
and found additional contraband including methamphetamine hidden in
white cylindrical tubes that could fit inside tires. The officers ultimately
seized roughly ten pounds of methamphetamine and cocaine found in the
garage and a safe in a spare bedroom.
1 New rules governing post-conviction relief went into effect January 1,
2020. Ariz. S. Ct. Order No. R-19-0012 (Aug. 29, 2019). Because Garcia Del
Castillo’s petition was filed and decided by the superior court before
January 1, 2020, this court cites to the rule then in effect.
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STATE v. GARCIA DEL CASTILLO
Decision of the Court
¶4 After a four-day trial, where Garcia Del Castillo did not testify
or offer any evidence, the jury found him guilty of possession of dangerous
drugs for sale and possession of narcotic drugs for sale, both Class 2
felonies. See Ariz. Rev. Stat. (A.R.S.) §§ 13-3407, -3408 (2020).2 The court later
sentenced him to two concurrent prison terms, the longest of which was ten
years, and imposed $120,000 in fines. On appeal, this court affirmed. State
v. Garcia Del Castillo, 1 CA-CR 16-0564 (Ariz. App. Sept. 14, 2017) (mem.
dec.).
¶5 Following his direct appeal, Garcia Del Castillo timely filed a
notice of post-conviction relief, see Rule 32(c), and the superior court
appointed counsel to represent him. After reviewing the record, counsel
found no claims for relief to pursue in post-conviction proceedings. Garcia
Del Castillo then proceeded representing himself, arguing his defense
lawyer provided ineffective assistance of counsel. The superior court
summarily dismissed this petition for post-conviction relief and Garcia Del
Castillo timely seeks review of that decision by this court.3
DISCUSSION
¶6 Garcia Del Castillo reiterates three issues he raised with the
superior court, arguing his attorney provided ineffective assistance of
counsel by failing to (1) allow Garcia Del Castillo to testify at trial; (2)
request an instruction pursuant to State v. Willits, 96 Ariz. 184, 191 (1964)
and (3) file a motion to suppress. This court reviews a decision dismissing
a petition for post-conviction relief for an abuse of discretion. State v.
Amaral, 239 Ariz. 217, 219 ¶ 9 (2016). Garcia Del Castillo bears the burden
of establishing an abuse of discretion. State v. Poblete, 227 Ariz. 537, 538 ¶ 1
(App. 2011). To show ineffective assistance of counsel, Garcia Del Castillo
must show both deficient performance and resulting prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Bennett, 213 Ariz. 562, 567 ¶ 21
(2006). A failure to make a sufficient showing on either prong obviates the
need to determine whether the other prong was satisfied. State v. Salazar,
146 Ariz. 540, 541 (1985); Bennett, 213 Ariz. at 567 ¶ 21.
2 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.
3 In February 2020, Garcia Del Castillo filed a “Motion for Expedited
Review;” however, because he does not provide any basis for such relief,
that motion is denied.
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STATE v. GARCIA DEL CASTILLO
Decision of the Court
I. Garcia Del Castillo Failed to Notify the Superior Court of His
Desire to Testify at Trial.
¶7 Garcia Del Castillo argues his trial counsel “unilaterally
overrode [his] request to testify.” The decision of whether to testify at trial
is “exclusively the province of the accused.” State v. Nirschel, 155 Ariz. 206,
208 (1987) (quoting State v. Lee, 142 Ariz. 210, 215 (1984)); see Ariz. Const.
art. 2, § 24. The right to testify, however, is waived if the defendant does not
make the desire to testify known to the superior court at trial; it cannot be
raised “as an afterthought.” State v. Martin, 102 Ariz. 142, 147 (1967); see also
State v. Prince, 226 Ariz. 516, 531 ¶¶ 45-47 (2011). Nor is the superior court
generally required to make a record of the defendant’s waiver of the right
to testify. See State v. Gulbrandson, 184 Ariz. 46, 65 (1995); see also State v.
Allie, 147 Ariz. 320, 328 (1985) (“[A] sua sponte inquiry by the trial court as
to whether a defendant desires to testify is neither necessary nor
appropriate.”).
¶8 Garcia Del Castillo alleges in his petition and in a declaration
that he informed his trial counsel he wanted to testify. However, the trial
record reflects no such desire. Garcia Del Castillo made no on-the-record
statements that he wished to testify, and he failed to object when his
attorney stated the defense would not present any evidence. Indeed, after
the court asked “whether the Defense is going to present the case,” Garcia
Del Castillo had a brief off-the-record conversation with his attorney and
then did not object when his attorney told the court that “At this time, Your
Honor, the Defendant will not be presenting a case.”
¶9 Garcia Del Castillo claims he was confused about the
difference between “presenting a case” and “testifying,” but the court also
stated “we will remove the Defendant’s testimony instruction,” to which
Garcia Del Castillo failed to object. And after the State had rested, the court
asked if Garcia Del Castillo had any witnesses or evidence to present, to
which his attorney responded that “The Defense rests.” Again, Garcia Del
Castillo did not object. As noted by the Arizona Supreme Court, “[w]ere
defendant’s desires to testify in his own behalf as strong and unrelent[ing]
as he now claims they were, he would not have maintained his silence
throughout the entire trial. He might very easily have directed his request
to the court or made motion to have his attorney removed.” State v. Tillery,
107 Ariz. 34, 37 (1971). Because Garcia Del Castillo did not do so at trial, the
superior court did not err in denying his petition based on ineffective
assistance of counsel on this ground.
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STATE v. GARCIA DEL CASTILLO
Decision of the Court
II. Garcia Del Castillo Was Not Entitled to a Willits Instruction.
¶10 Garcia Del Castillo argues his attorney should have requested
a Willits instruction, because “the State failed to seize/impound evidence
potentially helpful to” him, meaning he could not conduct his own DNA or
fingerprint tests on “the spare tires/rims . . . and [the] white tubes” filled
with narcotics. “[A] defendant is entitled to an adverse-inference
instruction when the state loses or destroys evidence that would have been
useful to the defense, even if that destruction is innocent.” State v.
Glissendorf, 235 Ariz. 147, 149 ¶ 2, 150 ¶ 7 (2014) (police detective interview
recordings destroyed according to then-existing policy meant defendant
was entitled to a Willits instruction). “To be entitled to a Willits instruction,
a defendant must prove that (1) the state failed to preserve material and
reasonably accessible evidence that could have had a tendency to exonerate
the accused, and (2) there was resulting prejudice.” Id. at 150 ¶ 8 (quotation
omitted).
¶11 A Willits instruction is not appropriate for evidence admitted
into evidence, such as the white tubes used to store narcotics, where there
is no showing the evidence was lost or destroyed. See id. at 150 ¶ 7.
Moreover, other than arguing that the State failed to seize and preserve the
spare tires and rims allegedly used to hide and transport the narcotics,
Garcia Del Castillo does not explain how fingerprint or DNA evidence
would tend to exonerate him. Therefore, because Garcia Del Castillo failed
to “do more than simply speculate about how the evidence might have been
helpful,” he has not shown the court abused its discretion in denying his
petition on this ground of ineffective assistance of counsel. Id. at 150 ¶ 9.
III. Garcia Del Castillo Has Not Shown Ineffective Assistance of
Counsel Based on the Lack of a Motion to Suppress.
¶12 Garcia Del Castillo argues his attorney should have moved to
suppress the evidence seized because the officers exceeded the scope of
consent by “surreptitiously deviat[ing] from the guided tour [of the house]
and enter[ing] the garage without consent.” This court requested
supplemental briefing addressing (1) the scope of Garcia Del Castillo’s
consent to search the house and (2) whether the police officers exceeded the
scope of that consent by entering into, and searching, the garage before
seeking a warrant. See Ariz. R. Crim. P. 32.16(k). In his supplemental brief,
however, Garcia Del Castillo only asserts the police officers did not have
any consent to enter or search the house (which is contrary to the record).
Garcia Del Castillo’s supplemental brief fails to address whether the police
officers exceeded the scope of his consent by entering and searching the
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STATE v. GARCIA DEL CASTILLO
Decision of the Court
garage. Although the failure to develop an argument can result in waiver,
see State v. Sanchez, 200 Ariz. 163, 166 ¶ 8 (App. 2001), this court in its
discretion will address the merits.
¶13 In order to establish ineffective assistance of counsel for
failure to file a motion to suppress, the first prong of Strickland (deficient
performance) is satisfied when, “[a]bsent some compelling tactical reason,
a lawyer . . . neglects to move to suppress evidence obtained through a
questionably legal search.” State v. Fillmore, 187 Ariz. 174, 181 (App. 1996).
The second prong (prejudice) is met where the defendant demonstrates that
there is a reasonable likelihood the court would have granted the motion to
suppress. See State v. Berryman, 178 Ariz. 617, 622 (App. 1994)
(citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).4
¶14 Absent an applicable exception, evidence seized in a
warrantless search is suppressed. State v. Valenzuela, 239 Ariz. 299, 302 ¶ 10
(2016); see U.S. Const. amend. IV; Ariz. Const. art. II, § 8. One such exception
to the warrant requirement is where there was valid consent to conduct the
search. Valenzuela, 239 Ariz. at 302 ¶ 11. “The scope of a consensual search
is limited to the scope of the consent given.” State v. Paredes, 167 Ariz. 609,
612 (App. 1991). The scope of consent is determined by an “objective
reasonableness” standard: “what would the typical reasonable person have
understood by the exchange between the officer and the suspect?” Florida
v. Jimeno, 500 U.S. 248, 251 (1991) (holding that “it was objectively
reasonable for the police to conclude that the general consent to search
respondent’s car included consent to search containers within that car
which might bear drugs”); see State v. Becerra, 239 Ariz. 90, 93 ¶ 10 (App.
2016) (noting that objective reasonableness “depends on the rational beliefs
and knowledge of a reasonable person”).
4For purposes of this discussion, it is presumed that a successful motion to
suppress would have changed the outcome of this case. See Berryman, 178
Ariz. at 622 n.3.
6
STATE v. GARCIA DEL CASTILLO
Decision of the Court
¶15 At trial, the police officers testified that Garcia Del Castillo
invited them inside the house when they asked to look around for drugs.5
The trial record does not clearly establish the scope of consent and the body
camera footage that apparently recorded the consent interaction was lost.
Trial testimony by the officers did not focus on the precise scope of consent
and, instead, provided a general description:
Q. And so what happened after [Garcia Del
Castillo] let you inside the house . . .
A. I asked him if he had any large amounts of
illegal drugs inside the house, and he said he
didn’t. And I asked him if he could just show
us around the house to make sure that there
wasn’t anything laying around, large amounts
of drugs, and he did. He walked us down the
hallway, and he opened up each bedroom door
as we walked down the hallway, and he
described to me who stayed in each one of the
bedrooms.
...
Q. And when you arrived at the house, [Garcia
Del Castillo] then gave you a tour of the house?
A. Yes.
The officers also testified that Garcia Del Castillo made no objection to them
entering the garage:
[Q]: Did the defendant give [you] permission to
inspect the garage alone?
[OFFICER]: No.
...
5In his supplemental brief, Garcia Del Castillo asserts “the officers were not
given permission to enter his home,” but does not point to any factual basis
for his claim.
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STATE v. GARCIA DEL CASTILLO
Decision of the Court
Q. [D]id the defendant lead you into the garage?
A. I believe we were in the master bedroom and
I asked what was down the hallway, and he said
it was the garage. I then walked down towards
the garage and went inside.
Q. Okay. Did he come with you during this
interaction?
A. I believe he was still in the hallway near the
garage, or just on the threshold of the bedroom
door, still speaking with [the other officer], as I
went into the garage.
Q. Okay. So when he’s walking towards the
garage or gets in it, does he seem upset with you
that you’re in there?
A. Not at all.
¶16 Garcia Del Castillo’s failure to object or protest when the
officer asked about, and then went into, the garage indicates that it was
objectively reasonable for the officer to enter and search the garage. See
Jimeno, 500 U.S. at 251 (defendant failed to place any explicit limit on the
scope of the search); see also Paredes, 167 Ariz. at 612-13 (failure to object to
the continuation of a search is a factor when determining whether the scope
of consent was exceeded). Furthermore, once Garcia Del Castillo joined
both officers in the garage, he began explaining what was in the garage,
never objecting or revoking or limiting the scope of his prior consent. See
Paredes, 167 Ariz. at 612. During closing arguments, Garcia Del Castillo’s
trial attorney emphasized that Garcia Del Castillo could have, but did not,
revoke or limit his consent generally because he was trying to be helpful:
Not only does he let them in, he gives them a
guided tour of the house. At any point during
that tour [Garcia Del Castillo] could have said,
you know what? I don’t want this to go any
further. He could have stopped it at any time,
but he doesn’t. Why? Because he has nothing to
hide.
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STATE v. GARCIA DEL CASTILLO
Decision of the Court
Garcia Del Castillo’s failure to object when the officer entered the garage,
combined with his failure to address the scope of consent in supplemental
briefing when requested by this court indicates that the officers did not
exceed the scope of consent when they entered and searched the garage
before obtaining a warrant. Therefore, Garcia Del Castillo has not shown
the superior court abused its discretion in denying his petition on this
ground of ineffective assistance of counsel.
CONCLUSION
¶17 Accepting review of Garcia Del Castillo’s petition, because he
has shown no error, relief is denied.
AMY M. WOOD • Clerk of the Court
FILED: AA
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