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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                  JESSICA ANN CASTILLEJO, Appellant.

                             No. 1 CA-CR 18-0315
                               FILED 5-7-2019


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201601269
            The Honorable Billy K. Sipe, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                          STATE v. CASTILLEJO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


C R U Z, Judge:

¶1            Jessica Ann Castillejo was convicted by a jury of seven counts
of first-degree failure to appear in connection with a felony. The superior
court sentenced her to concurrent terms of seven years’ imprisonment on
each count. On appeal, Castillejo contends that the jury’s verdicts were not
supported by sufficient evidence and the superior court erred by enhancing
her sentences. For the following reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2            Castillejo was indicted for three felony charges in Mohave
County. In October 2014, while still in custody, Castillejo signed a
“Determination of Release Conditions and Release Order” that required
her, upon release from jail, to “[m]aintain contact with your attorney as
directed” and explained, “[i]f you fail to appear the court may issue a
warrant for your arrest and/or hold the trial or proceeding in your
absence.” She was arraigned on the charges in November 2014 and July
2015, where she was admonished that “her failure to appear at any further
hearing will result in the issuance of a bench warrant.”

¶3             At the July 2015 arraignment, Castillejo, again in custody,
signed a “Standard Conditions of Release” form, which ordered Castillejo
to “[a]ppear to answer and submit [herself] to all further orders and
processes of the court having jurisdiction of the case.” The court ordered
Castillejo to be released from jail on her own recognizance.

¶4            Castillejo appeared telephonically for a probation violation
hearing and a status conference on December 30, 2015, on all three
underlying charges, at which time she was specifically ordered to appear in
person for a violation hearing and status conference on February 12, 2016.

¶5           Castillejo did not appear at the February 12, 2016 hearing and
a bench warrant was issued for her arrest. The court scheduled the next
proceeding for March 16, 2016.



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                           STATE v. CASTILLEJO
                            Decision of the Court

¶6             The minute entry reflects that Castillejo failed to appear for
the final management conference on March 16, 2016. The court continued
the trial and set a final management conference for May 4, 2016. The minute
entries reflect that Castillejo also failed to appear for the May 4, 2016 hearing
and failed to appear at the four-day trial on May 23, 24, 25, and 26, 2016.
Ultimately, the court entered a judgment of acquittal after the jury trial.

¶7             Castillejo then was indicted for seven new counts of failure to
appear in the first degree, Arizona Revised Statutes (“A.R.S.”) section 13-
2507. Count 1 alleged Castillejo failed to appear at the February 12, 2016
hearing; count 2 alleged she failed to appear on March 16, 2016; count 3
alleged she failed to appear on May 4, 2016; count 4 alleged she failed to
appear on May 23, 2016; count 5 alleged she failed to appear on May 24,
2016; count 6 alleged she failed to appear on May 25, 2016; and count 7
alleged she failed to appear on May 26, 2016. Following a jury trial,
Castillejo was convicted and sentenced for all seven counts of failure to
appear. The jury found Castillejo committed these offenses while on felony
release and thus, pursuant to A.R.S. § 13-708(D), the court added two
additional years to the presumptive five-year sentence, and sentenced
Castillejo to seven years’ imprisonment for each count, all running
concurrently. Castillejo timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and
-4033(A).

                                DISCUSSION

I.     Notice of Proceedings

¶8            Castillejo contends her convictions were not supported by
sufficient evidence because the State did not present evidence showing
Castillejo had actual notice of her trial dates. We disagree.

¶9             We review de novo the claim that there was not substantial
evidence to support the jury’s verdicts. State v. Bible, 175 Ariz. 549, 595
(1993). “Reversible error based on insufficiency of the evidence occurs only
where there is a complete absence of probative facts to support the
conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (citation omitted).
When addressing a challenge to the sufficiency of the evidence, we view the
facts in the light most favorable to sustaining the verdict and resolve all
inferences against the defendant. State v. Spears, 184 Ariz. 277, 290 (1996).

¶10          Section 13-2507(A) provides, “A person commits failure to
appear in the first degree if, having been required by law to appear in
connection with any felony, such person knowingly fails to appear as


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                           STATE v. CASTILLEJO
                            Decision of the Court

required, regardless of the disposition of the charge requiring the
appearance.” In State v. Wiley, the court concluded that A.R.S. § 13-2507
“proscribes failing to appear in court in connection with a felony regardless
of whether the duty to appear originates in a statute, rule of procedure,
court order, or combination thereof.” 199 Ariz. 242, 244, ¶ 6 (App. 2001).
Thus, if Castillejo had a duty to appear that originated in a court order, then
she was “required by law” to appear under the meaning of § 13-2507.

¶11           Castillejo argues there is “no evidence that Ms. Castillejo
received actual notice of the trial dates” and therefore her convictions
should be reversed. The minute entries of her arraignments, pretrial
hearings, and four-day trial, and signed release orders on the underlying
offenses were admitted at Castillejo’s trial on the failure to appear charges.
As noted above, the release order compels Castillejo to appear for the trial
and all further court proceedings, and the minute entry for the December
30, 2015 hearing reflects the superior court’s order that Castillejo appear at
the February 12, 2016 hearing in person. Accordingly, we conclude the
State produced sufficient evidence that Castillejo was required to appear
and had adequate notice of the pretrial hearings and the four-day trial.

¶12          Castillejo further contends that because she was last present
at the December 30, 2015 hearing, she only had notice of the February 12,
2016 hearing. She argues that without actual notice of her trial dates, she
did not “knowingly” fail to appear.

¶13            Section 13-105(10)(b) states that a person acts “knowingly” if
she “is aware or believes that [her] conduct is of that nature or that the
circumstance exists.” The statute does not require any knowledge of the
unlawfulness of the act or omission. Thus, to establish that Castillejo was
guilty of failure to appear, the State needed to present evidence that she
knowingly failed to appear as required. The statute does not require proof
of actual notice.

¶14           Additionally, Castillejo was present telephonically at the
December 30, 2015 hearing. At that hearing, the court ordered Castillejo to
appear in person at the next hearing scheduled for February 12, 2016 and
affirmed the prior release orders. The December 2015 minute entry reflects
that an underlying charge was proceeding to trial. Contrary to her
arguments, A.R.S. § 13-2507 does not require Castillejo’s actual notice of her
court dates. The signed Standard Conditions of Release form ordered her
to “[a]ppear to answer and submit [herself] to all further orders and
processes of the court having jurisdiction of the case.” Further, she was
admonished at her arraignments that “her failure to appear at any further


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                          STATE v. CASTILLEJO
                           Decision of the Court

hearing will result in the issuance of a bench warrant.” Moreover, Castillejo
signed a release document that ordered her to “maintain contact with [her]
attorney” and explained the court may “hold the trial or proceeding in [her]
absence” as a consequence of failure to appear. Although Castillejo was
absent from seven hearings, her attorney was present throughout those
hearings without exception; if Castillejo had obeyed the court’s order to
remain in contact with her attorney, she would have known of all court
dates. This is sufficient evidence that Castillejo was required to appear at
all of her court dates and knowingly failed to appear as required.
Accordingly, the superior court did not err.

II.    Sentence Enhancement

¶15           Castillejo contends that putting her felony release status twice
at issue, once under the failure to appear conviction, A.R.S. § 13-2507, and
again to enhance her sentence under A.R.S. § 13-708(D), constitutes double
jeopardy. “Interpretation of a statute is a question of law that we review de
novo.” State v. Jensen, 193 Ariz. 105, 107, ¶ 16 (App. 1998).

¶16           We disagree with Castillejo’s contention that consideration of
her felony release status for purposes of enhancement under A.R.S. § 13-
708(D) constitutes double jeopardy. It is well established that the
enhancement effects of A.R.S. § 13-708 upon a term of imprisonment do not
create a separate, triable offense to which jeopardy can attach.1 See State v.
Hudson, 158 Ariz. 455, 456 (1988) (citing State v. Sowards, 147 Ariz. 156, 158
(1985)) (stating double jeopardy does not preclude new enhancement
evidence at resentencing). Castillejo did not face a “prosecution” on the
issue of her felony release status, and therefore was not subject to double
jeopardy protections on that basis.

¶17            Castillejo also argues that the superior court erred by
enhancing her sentence under A.R.S. § 13-708(D) because “felony release”
is also an element of failure to appear, A.R.S. § 13-2507. We disagree.

¶18           Under A.R.S. § 13-2507(A), a person commits failure to appear
“if, having been required by law to appear in connection with any felony,
such person knowingly fails to appear as required.” The statute does not
require a person to be on felony release to be convicted of failure to appear
regarding felony charges. We have held that § 13-2507 “proscribes failing
to appear in court in connection with a felony regardless of whether the


1      Section 13-708 was formerly A.R.S. § 13-607.01 and renumbered at
§ 13-604.02.


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                          STATE v. CASTILLEJO
                           Decision of the Court

duty to appear originates in a statute, rule of procedure, court order, or
combination thereof.” Wiley, 199 Ariz. at 244, ¶ 6. Accordingly, felony
release is not the only circumstance under which a person could commit
failure to appear. For instance, a criminal defendant may, having never
been in custody prior thereto, fail to appear pursuant to a properly served
summons in a felony case. In that case, there is no felony release status
which may be used to enhance any resulting sentence for the failure to
appear charge.

¶19            In Wiley, the defendant was indicted for failure to appear in
the first degree when he left the courthouse after a jury found him guilty
and the court ordered the parties to assemble in the courtroom for
sentencing. Id. at 243, ¶ 2. Although the defendant in Wiley similarly failed
to abide by an order of the court, the defendant was not on felony release.
Accordingly, we conclude that the provisions of A.R.S. §§ 13-708(D) and
-2507 focus on different circumstances, impose different sentencing
requirements, and can be applied independently to the same defendant. See
State v. Torrez, 141 Ariz. 537, 540 (App. 1984).

¶20          Finally, Castillejo argues the court erred by enhancing her
sentence under A.R.S. § 13-708(D) for committing failure to appear while
on felony release because she was ultimately acquitted at the trial she
missed. We disagree.

¶21          Under A.R.S. § 13-708(D):

      A person who is convicted of committing any felony offense
      that is committed while the person is released on bond or on the
      person’s own recognizance on a separate felony offense or while the
      person is escaped from preconviction custody for a separate felony
      offense shall be sentenced to a term of imprisonment two
      years longer than would otherwise be imposed for the felony
      offense committed while on release.

(emphasis added). The statute does not require a person to be convicted of
the “separate felony.” Id. Rather, the statute contemplates that the
sentencing enhancement applies when a defendant commits a new felony
while on release or escape from lawful custody due to a different felony
charge. The statute does not require a conviction of the “separate felony.”
See State v. Rios, 217 Ariz. 249, 250, ¶ 7 (App. 2007) (“We will refrain from
construing a statute to require something not within the plain intent of the
legislature as expressed by the language of the statute.”). Accordingly, the
superior court did not err.



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                  STATE v. CASTILLEJO
                   Decision of the Court

                       CONCLUSION

¶22   For the foregoing reasons, we affirm.




                AMY M. WOOD • Clerk of the Court
                FILED: AA




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