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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                               IN RE TYRUS T.


                             No. 1 CA-JV 19-0026
                               FILED 7-2-2019


             Appeal from the Superior Court in Yuma County
                          No. S1400JV20160449
              The Honorable Kathryn Stocking-Tate, Judge

                                  AFFIRMED


                                   COUNSEL

Yuma County Public Defender, Yuma
By Robert Trebilcock
Counsel for Appellant

Yuma County Attorney, Yuma
By Griselda Cordova, Chris Weede
Counsel for Appellee



                       MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Kenton D. Jones joined.


T H O M P S O N, Judge:
                             IN RE TYRUS T.
                           Decision of the Court

¶1            Tyrus T. (juvenile) appeals from the juvenile court’s order
transferring him to adult court. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In August 2018, Yuma police arrested juvenile after observing
him getting out of a Chevrolet Silverado that had been reported stolen.
Juvenile admitted that he took the truck. Police found two baggies of
marijuana in juvenile’s backpack and a loaded pistol magazine in the truck.
Juvenile was released to his guardian.

¶3             Later that month, police investigating a homicide learned that
juvenile had been driving a Hyundai Sonata that had been reported stolen.
On August 15, 2018, officers observed juvenile commit a minor traffic
infraction and attempted to pull him over. Juvenile did not pull over, and
a high-speed chase ensued. At one point, juvenile almost ran over an
elderly man. The chase ended after juvenile rear-ended a parked vehicle in
a residential area. Juvenile ran from police but was apprehended. Juvenile
admitted having stolen the Sonata.

¶4            In September 2018, the state filed a delinquency petition
alleging that juvenile had committed theft of means of transportation (the
Chevy Silverado), and possessed marijuana and drug paraphernalia. The
state filed a second delinquency petition in October 2018 alleging that
juvenile had committed theft of means of transportation (Hyundai Sonata),
unlawful flight from a law enforcement vehicle, endangerment, and two
counts of criminal damage.

¶5             In November 2018, the state filed a motion to transfer
juvenile’s charges to superior court for prosecution as an adult offender.
After a hearing in January 2019, the juvenile court found probable cause for
all of the charges against juvenile except the two criminal damage counts.
The court further found that public safety would be served by transferring
juvenile to adult court. Juvenile timely appealed. We have jurisdiction
pursuant to Arizona Rule of Procedure for Juvenile Court 103(A).

                              DISCUSSION

¶6             Juvenile raises two issues on appeal: 1) whether the juvenile
court abused its discretion by denying his requests to continue the transfer
hearing, and 2) whether the court used unconstitutionally vague criteria in
deciding whether to transfer the case to superior court because it decided
that all of juvenile’s charges were “serious,” and considered his previous
residential commitment.


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                              IN RE TYRUS T.
                            Decision of the Court

A. Motion to Continue Transfer Hearing

¶7             At the beginning of the transfer hearing, juvenile made an oral
motion for a continuance to seek a neuropsychological examination
performed by a forensic psychologist. The state objected, noting that it was
ready to proceed with the testimony of multiple subpoenaed witnesses and
that juvenile’s counsel had previously indicated that he would not be
requesting a psychological evaluation because he did not want the state to
have access to such an evaluation. The juvenile court denied the motion as
untimely and found that a continuance would cause undue delay. Prior to
the start of the public safety phase of the hearing, juvenile again moved to
continue the hearing and the court denied the motion.

¶8             “The granting of a continuance is within the discretion of the
trial court, and its decision will only be disturbed upon a showing of a clear
abuse of discretion and prejudice to [the] defendant.” State v. Amaya-Ruiz,
166 Ariz. 152, 164 (1990) (citations omitted). Arizona Rule of Procedure for
Juvenile Court (Rule) 15(A) provides that all motions shall be in writing
unless the court authorizes an oral motion. Rule 15(C) provides that a
motion to continue “shall be granted only upon a showing that good cause
exists and that delay is indispensable to the interests of justice.”

¶9            We find no abuse of discretion. As noted by the trial court,
the state’s motion to transfer was filed a full two months prior to the hearing
and yet juvenile did not move for a continuance until the day of the
hearing. 1 The court further noted that juvenile had previously decided not
to pursue a psychological or “mental statu[s] evaluation,” and that setting

1  Juvenile argues that the state delayed filing its petitions and motion to
transfer, giving it almost three months to strategize, while in contrast he
had less than sixty days to determine his course of action about seeking
specialized psychological testing. According to juvenile, he “was only
seeking adequate time to counteract the effect of the State’s delay of seeking
to transfer his case.” The acts juvenile was charged with in the September
25, 2018 petition allegedly occurred August 8-9, 2018, and the acts he was
charged with in the October 19, 2018 petition allegedly occurred on August
15, 2018. The state’s motion to transfer was filed on November 5, 2018.
Arizona Rule of Juvenile Court 34(D) provides that a motion to transfer
shall generally be filed within fifteen days of the advisory hearing. Here,
the motion to transfer was filed within twelve days of the October 24, 2018
advisory hearing. Juvenile’s argument that the state delayed and he was
prejudiced is without merit.



                                      3
                              IN RE TYRUS T.
                            Decision of the Court

one up could potentially delay the proceedings by several months. The
court also expressed a valid concern about the lack of a written motion to
continue which would have allowed the state to respond in writing before
the hearing. The court was well within its discretion to deny the motion to
continue.

B. Constitutionality of Transfer Statute & Decision to Transfer

¶10            We review the juvenile court’s transfer order for an abuse of
discretion. Coconino Cty. Juv. Action No. J-10359, 157 Ariz. 81, 89 (App. 1987).
We will not substitute our judgment for that of the juvenile court and will
sustain the court’s order if reasonable evidence in the record supports it.
Maricopa Cty. Juv. Action No. A-25525, 136 Ariz. 528, 533 (App. 1983). We
will presume a statute to be constitutional and will uphold the statute
unless it is clearly unconstitutional. State v. Ramos, 133 Ariz. 4, 6 (1982)
(citation omitted).

¶11           When the state seeks to transfer a juvenile to adult court,
Arizona Revised Statutes (A.R.S.) section 8-327(C) (2019) 2 requires the state
to prove “by a preponderance of the evidence that probable cause exists to
believe that the offense was committed, that the juvenile committed the
offense and that the public safety would best be served by the transfer of
the juvenile for criminal prosecution. . . .” In determining whether the
public safety would be best served by transferring the juvenile, the court
“shall consider the following factors . . .”:

              1. The seriousness of the offense involved.

              2. The record and previous history of the
              juvenile, including previous contacts with the
              courts and law enforcement, previous periods
              of any court ordered probation and the results
              of that probation.

              3. Any previous commitments of the juvenile to
              juvenile residential placements and secure
              institutions.




2  We cite to the current version of any statute unless the statute was
amended after the pertinent events and such amendment would affect the
result of this appeal.


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                              IN RE TYRUS T.
                            Decision of the Court

              4. If the juvenile was previously committed to
              the department of juvenile corrections for a
              felony offense.

              5. If the juvenile committed another felony
              offense while the juvenile was a ward of the
              department of juvenile corrections.

              6. If the juvenile committed the alleged offense
              while participating in, assisting, promoting or
              furthering the interests of a criminal street gang,
              a criminal syndicate or a racketeering
              enterprise.

              7. The views of the victim of the offense.

              8. If the degree of the juvenile’s participation in
              the offense was relatively minor but not so
              minor as to constitute a defense to prosecution.

              9.   The juvenile’s mental and emotional
              condition.

              10. The likelihood of the juvenile’s reasonable
              rehabilitation through the use of services and
              facilities that are currently available to the
              juvenile court.

A.R.S. § 8-327(D).

¶12           Juvenile argues that statutory factors (D)(1) and (D)(3) are
unconstitutionally vague as applied in this case. (OB at 20-21). Juvenile
argues that by not defining “serious,“ section (D)(1) “does not give fair
warning to ordinary persons as to what charges are included in that factor.”
Here, the juvenile court found that all of juvenile’s remaining offenses after
dismissal of the criminal damage counts were serious. The court noted:

              With regards to the Juvenile Court petition filed
              September 25th, 2018 [first petition], Tyrus is
              accused of stealing a car and when contacted by
              law enforcement . . . he was found to be in
              possession of marijuana, drug paraphernalia
              and several rounds of ammunition and a loaded
              9 millimeter pistol magazine.


                                      5
                              IN RE TYRUS T.
                            Decision of the Court

              With regards to the Juvenile Court petition filed
              October 19th, 2018 [second petition], Tyrus is
              accused of being in possession of a stolen
              vehicle . . . and when law enforcement
              attempted to contact Tyrus, he fled in the
              vehicle. While fleeing from law enforcement, he
              traveled at high rates of speeds through
              residential neighborhoods . . . at one point
              almost striking an elderly gentleman. After
              crashing the vehicle, Tyrus ran from law
              enforcement and engaged in a foot pursuit until
              he was taken into custody.

The court ultimately designated the counts of the criminal complaint upon
which juvenile would be tried in adult court as follows: first petition—
count one: theft of means of transportation, a class three felony; count two:
possession of marijuana, a class six felony; count three: possession of drug
paraphernalia, a class six felony; second petition—count one: theft of means
of transportation, a class three felony; count two: unlawful flight from
pursuing law enforcement, a class five felony; count three: endangerment,
a class six felony.

¶13           Noting the definitions of “serious” in several criminal statutes
that do not apply here, juvenile argues that the term “serious” means that
a high level of severity is required under the transfer statute and that the
charges in the petitions were not “serious.” However, all of juvenile’s
charges were ultimately designated as felony charges and the juvenile court
did not abuse its discretion in concluding the charges were serious. And
the statute’s lack of a definition for “serious” does not make it
unconstitutionally vague. A.R.S. § 8-327(D) is not a criminal statute, but
instead provides a list of criteria for the juvenile court to consider in making
a transfer decision. But cf. State v. Steiger, 162 Ariz. 138, 141 (App. 1989)
(“[A] penal statute is vague if it fails to give persons of average intelligence
reasonable notice of what behavior is prohibited or is drafted in such a
manner that it permits arbitrary and discriminatory enforcement.”)
(citation omitted).

¶14           Juvenile also argues that A.R.S. § 8-327(D)(3) is
unconstitutional because it does not provide guidance about how the
juvenile court should treat commitments to juvenile residential placements,
which allows courts to act arbitrarily. Here, the court found that juvenile
had previously been placed in residential substance abuse treatment. All
section (D)(3) requires is that the court consider whether a juvenile was


                                       6
                             IN RE TYRUS T.
                           Decision of the Court

previously committed to a juvenile residential placement or secure
institution. A.R.S. § 8-327(D)(3). The statute is not vague or unclear about
the requirement that the court consider previous residential placements,
and the court did not abuse its discretion or act arbitrarily by making the
finding.

                              CONCLUSION

¶15           For the foregoing reasons, we affirm the juvenile court’s
transfer order.




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




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