State v. Castillo
| Decision Date | 12 April 2017 |
| Docket Number | No. 2 CA-CR 2016-0085,2 CA-CR 2016-0085 |
| Parties | THE STATE OF ARIZONA, Appellee, v. KEVIN LECIL CASTILLO, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
By Joy Athena, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISIONPresiding Judge Howard authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred.
¶1 After a jury trial held in his absence, Kevin Castillo was convicted of criminal damage, endangerment, driving while under the influence of intoxicating liquor, and driving with a blood alcohol concentration (BAC) of .08 or greater. The trial court sentenced him to concurrent prison terms, the longest of which is 2.25 years. On appeal, he argues the court erred in rejecting his motion to vacate the judgment, in which he asserted his absence from trial was involuntary and his conviction for driving under the influence must be vacated because the state did not prove he was impaired by intoxicating liquor. We affirm.
¶2 We view the evidence in the light most favorable to upholding the jury's verdicts. State v. Cox, 217 Ariz. 353, ¶ 22, 174 P.3d 265, 269 (2007). In August 2009, Castillo drove his car in the wrong direction on a one-way street, failed to stop at an intersection where cross-traffic was proceeding on a green light, and crashed into another car, injuring its driver. A police officer who spoke with Castillo testified that he had denied having been drinking despite smelling of intoxicants and showing other signs of intoxication. A second police officer also testified Castillo had showed signs of intoxication, including that his breath smelled of alcohol. Castillo exhibited six of six impairment signs during a horizontal gaze nystagmus test, and breath testing showed his BAC was .145 and .143. Castillo admitted to the second officer that he had "dr[u]nk mouthwash a few hours earlier" but denied having had anything else to drink. A criminologist confirmed that mouthwash sometimes contains alcohol.
¶3 Following his indictment, Castillo appeared for most but not all scheduled hearings. At a pretrial conference in May 2012, he was advised of the November 2012 trial date and admonished about the consequences of failing to appear, and confirmed he understood. He subsequently failed to maintain contact with the court or his counsel. In October 2012, defense counsel asked the court to prohibit trial from proceeding in Castillo's absence. The court declined to rule on that request, but reset the trial for April 2013. On the first day of trial, counsel informed the court she did not know Castillo's whereabouts, and the court ordered that trial would proceed in his absence.
¶4 After his arrest in Nevada in January 2016, Castillo was sentenced as described above. He then moved to vacate the judgment pursuant to Rule 24.2, Ariz. R. Crim. P., asserting he had been involuntarily absent from his trial. Castillo claimed he suffered from "a severe hernia requiring surgery" and, because he was "homeless [and] without funds," he had "used his last few dollars" to travel to California "where his family resides." He asserted, citing State v. Garcia-Contreras, 191 Ariz. 144, 953 P.2d 536 (1998), that his choice was involuntary because he was forced to choose "between court attendance and destitution and illness." He requested an evidentiary hearing to "explain, on the record, the details of his involuntary absence."
¶5 At the subsequent hearing, Castillo began to testify about his health problems when the trial court stopped the examination, questioning the relevance of that testimony and noting Castillo had been informed of the trial date and had been admonished of the consequences of failing to appear. Defense counsel explained that she wished to establish that, because Castillo was "homeless, destitute, and severely ill," he had no meaningful option other than to accept money from a family friend to travel to California for medical treatment. The court accepted counsel's "offer of proof," but nonetheless observed that Castillo had not informed the court or his counsel of the medical issues and left despite knowing the date of his trial. The court, however, allowedcounsel to make an additional offer of proof and introduce several exhibits.
¶6 Counsel avowed Castillo lacked health insurance or sufficient funds for treatment and had lost his "court documentation" when he was evicted, prompting his move to California where he could receive support from family and friends. She further asserted Castillo had unsuccessfully attempted to reach his attorney—ultimately leaving a message—as well as the court, leading him to conclude his case had been dismissed. The submitted exhibits included an affidavit from a friend of Castillo who claimed he had attempted to find information about Castillo's case via online databases and telephone inquiries, but had been unsuccessful. Counsel also submitted a letter from a medical doctor stating he had seen Castillo in March 2012 and had advised him "to seek emergent and quick help for hernia repair." The court "accept[ed] the avowals of [counsel]" as well as Castillo's limited testimony, but determined Castillo had been voluntarily absent from his trial, noting "[h]e had ample opportunity to contact the Court and other individuals while he was out of custody and prior to his leaving for California" and had been properly admonished both of his trial date and the consequences should he fail to appear. The court thus denied the motion to vacate, and this appeal followed.
¶7 "We review a trial court's denial of a motion to vacate a judgment for abuse of discretion." State v. Parker, 231 Ariz. 391, 408, ¶ 78, 296 P.3d 54, 71 (2013). A court may presume a defendant has waived the right to be present at trial if the defendant had personal notice of (1) the time of the proceeding, (2) the right to be present at it, and (3) a warning that the proceeding would go forward in the defendant's absence if he failed to appear. Ariz. R. Crim. P. 9.1. The rule creates a rebuttable presumption of voluntary waiver. See Ariz. R. Crim. P. 9.1 cmt. "The defendant bears the burden of overcoming the inference and showing that the absence was involuntary." State v. Sainz, 186 Ariz. 470, 473 n.2, 924 P.2d 474, 477 n.2 (App. 1996).
Castillo does not assert that the court acted improperly in initially inferring his absence from trial was voluntary, only that the court erred in concluding he had not overcome that inference during the post-judgment proceeding.
¶8 Relying primarily on State v. Bishop, 139 Ariz. 567, 679 P.2d 1054 (1984), Castillo first argues the trial court erred because it did not allow him to testify and thus improperly relied on "hearsay to presume waiver of a significant constitutional right." We find Bishop inapplicable. There, the trial court found the defendant was voluntarily absent based, in part, on out-of-court statements made to the court by deputies who claimed the defendant had refused to attend the relevant hearings. Id. at 569-70, 679 P.2d at 1056-57. In granting relief, the supreme court observed there are "difficulties presented by relying on hearsay to find a waiver of constitutional rights" and concluded the trial court had abused its discretion by not permitting the defendant to question those deputies or to testify. Id. at 570, 679 P.2d at 1057. But, here, the court accepted Castillo's avowals, and Castillo has not identified any relevant information he was unable to present in his offer of proof. Nor did the court make any credibility findings in rejecting Castillo's motion. In these circumstances, we cannot say the court erred in declining to allow Castillo to testify.1 See Ariz. R. Evid. 611(a) (); State ex rel. Montgomery v. Padilla, 239 Ariz. 314, ¶ 13, 371 P.3d 642, 646 (App. 2016) ().
¶9 Castillo next repeats his argument based on Garcia-Contreras that his failure to appear was involuntary because helacked a meaningful choice between appearing at his trial and obtaining needed medical care. In Garcia-Contreras, our supreme court determined that a defendant forced to choose between attending a hearing and his due process right to not appear before a jury in prison attire was not voluntarily absent. 191 Ariz. 144, ¶¶ 8, 14, 953 P.3d at 538-40. The court emphasized that Id. ¶ 11.
¶10 A defendant should not be forced to choose between waiving the right to be present at trial and seeking treatment for a "sudden unexpected medical emergency." State v. Reed, 196 Ariz. 37, ¶ 6, 992 P.2d 1132, 1134 (App. 1999), quoting Bottom v. State, 860 S.W.2d 266, 267 (Tex. App. 1993). But Castillo has not established his medical problems prevented him from appearing at trial. Nor has he established that they constituted a sudden emergency. Instead, the record indicates the medical issues had persisted for some time, and Castillo had been aware that he needed surgery months before the May 2012 pretrial hearing. Although we recognize Castillo may not have had the means to readily address his medical needs in Arizona, he...
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