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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JAVIER V. ALARCON, Appellant.

                             No. 1 CA-CR 18-0165
                               FILED 1-14-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-436212-002
               The Honorable Warren J. Granville, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee

The Ferragut Law Firm PC, Phoenix
By Ulises A. Ferragut, Jr.
Counsel for Appellant
                           STATE v. ALARCON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.


C A T T A N I, Judge:

¶1            Javier V. Alarcon appeals his convictions and sentences for
first degree murder, two counts of kidnapping, two counts of armed
robbery, burglary in the first degree, and aggravated assault. For reasons
that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In April 2013, Alarcon and two other men (“co-defendants”)
participated in an armed home invasion that resulted in the murder of one
of the victims. At approximately 12:25 a.m., Alarcon and the co-defendants
broke through a patio door at the victims’ home. Yelling “A.T.F.” as they
entered, Alarcon and the co-defendants held N.B. and R.D. at gunpoint,
raided the home, and eventually shot N.B. multiple times, killing him.
Alarcon and the co-defendants fled before police officers responding to a
911 call could apprehend them, but law enforcement later identified them
through DNA, fingerprints, and cell phone records. Alarcon’s DNA was
found on zip ties, a glove, and a mask that were used in the attack and
recovered from the property.

¶3             In August 2013, a Maricopa County grand jury issued an
indictment charging Alarcon with the offenses listed above, and after a 12-
day trial, a jury convicted Alarcon of those offenses.1 The superior court
sentenced Alarcon to a combination of consecutive and concurrent terms of
imprisonment for the seven convictions, resulting in an aggregate term of
10.5 years, followed by a life sentence (with the possibility of release after
25 calendar years), followed by an additional 10.5 years. Alarcon timely
appealed, and we have jurisdiction under A.R.S. § 13-4033(A).



1      The indictment also charged Alarcon with additional counts of
kidnapping, armed robbery, and aggravated assault involving a different
victim, but the superior court granted defense motions for judgments of
acquittal as to those charges.


                                      2
                           STATE v. ALARCON
                           Decision of the Court

                               DISCUSSION

I.     Pre-Arraignment Delay.

¶4            Alarcon argues that failure to appoint counsel during a
months-long delay between his initial appearance in Pinal County and his
arraignment in Maricopa County resulted in structural error requiring
reversal of his convictions, and that double jeopardy precludes retrial. We
disagree. Although the delay was improper, it did not result in reversible
error.

¶5              Alarcon was indicted in this case and a warrant issued for his
arrest on August 9, 2013. At that time, Alarcon was, as the State was aware,
in jail in Pinal County on unrelated charges.2 The arrest warrant was served
to Alarcon that same day in the Pinal County jail. The Pinal County
Superior Court apparently conducted an initial appearance proceeding
with regard to the Maricopa County charges on August 14, 2013, during
which it set release conditions and scheduled an arraignment in the
Maricopa County Superior Court for August 19, 2013. For reasons that are
not clear from the record, that arraignment was not held.

¶6             Over the months that followed, the State (through the
Maricopa County Attorney’s Office) petitioned to secure Alarcon’s
attendance for initial appearance proceedings in Maricopa County in
October 2013 and again in February 2014. Although the Maricopa County
Superior Court granted these petitions, the initial appearance proceedings
did not take place on those dates. Also in October 2013, Alarcon filed in
Maricopa County Superior Court a motion to quash warrants regarding the
Maricopa County charges, requesting to be transported or, in the
alternative, that any pending warrants “be lifted & said court reset a court
date after [Alarcon is] release[d] so that [Alarcon] may appear in said court
for any & all final dispositions.”

¶7            Alarcon was not transported from the Pinal County jail to the
Maricopa County jail until March 13, 2014. On that date, he appeared for
an initial appearance hearing in Maricopa County Superior Court, at which
the court appointed him counsel and set an arraignment for March 20, 2014.
The court held his arraignment on March 17, 2014, at which Alarcon was
represented by counsel. The court entered a not guilty plea on Alarcon’s


2     Alarcon was eventually convicted of kidnapping and escape in that
matter, Pinal County Superior Court Case Number CR2013-00715, and was
sentenced to six years’ imprisonment in May 2014.


                                      3
                            STATE v. ALARCON
                            Decision of the Court

behalf, designated the matter complex, affirmed the appointment of
counsel, and set the next court hearing. Alarcon did not, however, object
or otherwise raise the issue of the delay.

¶8             He nevertheless claims on appeal that the delay of more than
seven months before his arraignment, without appointed counsel, resulted
in structural error.

       A.     Asserted Structural Error.

¶9              Structural errors are “defect[s] affecting the framework
within which the trial proceeds, rather than simply an error in the trial
process itself,” Arizona v. Fulminante, 499 U.S. 279, 310 (1991), that “deprive
defendants of basic protections without which a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or
innocence.” Neder v. United States, 527 U.S. 1, 8–9 (1999) (citation omitted).
Structural error, which has been recognized in relatively few contexts, is
prejudicial per se, and reversal is mandatory. Washington v. Recuenco, 548
U.S. 212, 218–19 & n.2 (2006); State v. Ring, 204 Ariz. 534, 552–53, ¶¶ 45–46
(2003); see also United States v. Cronic, 466 U.S. 648, 659 (1984).

¶10             The Sixth Amendment guarantees the right to representation
by counsel for criminal defendants. U.S. Const. amend. VI; see also Ariz.
Const. art. 2, § 24; Ariz. R. Crim. P. 6.1. This right to counsel applies to all
critical stages of the criminal trial process. Iowa v. Tovar, 541 U.S. 77, 80–81
(2004); see also State v. Gunches, 240 Ariz. 198, 202, ¶ 10 (2016). Deprivation
of this right rises to the level of structural error when a defendant suffers
the “complete denial of counsel . . . at a critical stage of his trial.” Cronic,
466 U.S. at 659; see also Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963)
(characterizing complete denial of counsel as structural error); State v.
Torres, 208 Ariz. 340, 344, ¶ 11 (2004).

¶11            For these purposes, a critical stage is one at which “substantial
rights of the accused may be affected.” State v. Conner, 163 Ariz. 97, 104
(1990) (citations omitted); see also United States v. Bohn, 890 F.2d 1079, 1080–
81 (9th Cir. 1989). Generally, the most critical period in a criminal trial runs
from arraignment through trial. United States v. Wade, 388 U.S. 218, 225
(1967). An initial appearance does not itself trigger the Sixth Amendment
right to counsel. State v. Cook, 150 Ariz. 470, 475 (1986). Instead, it “is a
proceeding at which a person is advised of his right to counsel and steps
are taken toward obtaining counsel for subsequent proceedings.” Id. at 475.

¶12         Alarcon has not established a deprivation of counsel
amounting to structural error. First, the period of the pre-arraignment


                                       4
                           STATE v. ALARCON
                           Decision of the Court

delay was not a critical stage of the trial process. Alarcon was not entitled
to counsel at the initial appearance in Pinal County. See id. No other
hearings or case events occurred until Alarcon was transported to Maricopa
County on March 13, 2014, at which point counsel was immediately
appointed, four days before Alarcon’s arraignment. Because no hearings
were held during the pre-arraignment delay, Alarcon was not subjected to
a confrontation with the State and did not face any “proceeding test[ing]
the merits” of his case. See Menefield v. Borg, 881 F.2d 696, 698–99 (9th Cir.
1989). Nor does the record show that Alarcon requested counsel or that the
court denied such a request, or that Alarcon lost any significant rights over
that period. See Bell v. Cone, 535 U.S. 685, 696 (2002) (describing critical
stages as those that, like arraignment, “h[o]ld significant consequences for
the accused”). Conversely, the record reflects a lengthy and robust pretrial
and trial process following arraignment (at which Alarcon was represented,
and at which no issue regarding delay was raised) including dozens of
court hearings, full representation by counsel, numerous litigated issues
(none of which involved pre-arraignment delay), and a fair trial.

¶13           Because Alarcon was not denied counsel at a critical stage, he
has not established structural error.

       B.     Fundamental Error Review.

¶14            Because Alarcon has not shown structural error and because
he made no timely objection in the superior court, we review for
fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 138, ¶ 1
(2018); see also Cronic, 466 U.S. at 658–59. To prevail on a claim of
fundamental error, a defendant must first demonstrate that error exists.
Escalante, 245 Ariz. at 142, ¶ 21. If error exists, we must determine based
upon the totality of the circumstances whether the error is fundamental and
prejudicial. Id. To establish fundamental error, a defendant must show that
the error: (1) went to the foundation of the case, (2) took from the defendant
a right essential to his defense, or (3) was so egregious that he could not
possibly have received a fair trial. Id. “If the defendant establishes
fundamental error under prongs one or two, he must make a separate
showing of prejudice . . . .” Id. “The defendant bears the burden of
persuasion at each step.” Id.

¶15           Alarcon has not established error, much less fundamental
error, related to appointment of counsel. From arraignment on, Alarcon
was represented by counsel at all points throughout a complex four-year
trial process, and approximately 23 months after the arraignment, the
superior court granted Alarcon’s request to change counsel. Alarcon has


                                      5
                           STATE v. ALARCON
                           Decision of the Court

not established that the initial delay, although unfortunate, adversely
affected his right to counsel.

¶16           To the extent Alarcon now asserts a speedy trial issue,
Alarcon did not raise a Rule 8 or constitutional speedy trial issue (whether
resulting from the pre-arraignment delay or otherwise) in the superior
court, and he offers no explanation for why he could not do so following
appointment of counsel. Moreover, the case was designated complex at his
arraignment, which increased the time period for trial from 150 to 270 days
after arraignment. Ariz. R. Crim. P. 8.2(a)(1), (3). Alarcon filed numerous
motions to continue trial that the superior court granted with exclusion of
time under Rule 8.4. These actions were unrelated to the pre-arraignment
delay. Alarcon’s trial was conducted within Rule 8 time limits, and he has
not shown any constitutional speedy trial violation. Moreover, Alarcon has
not established that the pre-arraignment delay restricted him post-
arraignment from asserting his speedy trial rights.

¶17             To the extent Alarcon asserts that the pre-arraignment delay
somehow hampered discovery, the record reflects that the State complied
with all of its obligations under Rule 15.1 of the Arizona Rules of Criminal
Procedure following Alarcon’s arraignment. On appeal, Alarcon does not
specify any discovery violation, much less one that resulted from pre-
arraignment delay, and no discovery violations were asserted in the
superior court. Alarcon has not established prejudice resulting from the
delay that occurred throughout the trial preparation process.

¶18            Alarcon further urges that the pre-arraignment delay
hindered his ability to obtain what he asserts was exculpatory evidence:
security video recordings from a convenience store and the identity of the
store’s clerk. Alarcon testified at trial that he was at a nearby convenience
store to purchase drugs when the home invasion happened, and he asserts
that the store’s security video or the clerk would have confirmed his
presence.

¶19           Although Alarcon attributes his inability to secure the video
to the pre-arraignment delay, Alarcon’s investigator testified that the video
would only have been available for a period of 60 days after recording. The
crimes took place on April 12, 2013, and the indictment was not returned
until August 9, 2013, long after that 60-day period expired. Accordingly,
the delay had no causal connection to Alarcon’s asserted inability to acquire
the video evidence. Moreover, the delay did not impede Alarcon from
presenting his alibi defense through other evidentiary means.




                                     6
                           STATE v. ALARCON
                           Decision of the Court

¶20            The delay likewise did not impair Alarcon’s ability to identify
and locate the convenience store clerk. In the significant pretrial process,
Alarcon had adequate opportunity to obtain the clerk’s information from
the store and to attempt to find the clerk. But Alarcon’s investigator
provided no testimony that he investigated, or was asked to investigate, the
clerk’s identity and location. The record does not substantiate Alarcon’s
alleged inability to identify, locate, or secure the attendance of the witness
because of the pre-arraignment delay. Thus, Alarcon has not demonstrated
any prejudice or otherwise established fundamental error requiring
reversal.

II.    Motion to Suppress.

¶21           Alarcon next argues that the superior court committed
reversible error by denying his motion to suppress the State’s DNA
evidence. Specifically, Alarcon contends that the State conducted an illegal
search and seizure by collecting Alarcon’s DNA from food and a handwipe
when he was incarcerated in the Pinal County jail. The superior court
denied suppression on the basis that Alarcon did not have a reasonable
expectation of privacy in the disposed items.

¶22           The Fourth Amendment protects individuals against
unreasonable searches and seizures. U.S. Const. amend. IV. Evidence
obtained by a search or seizure that violates Fourth Amendment
protections is generally inadmissible in a criminal trial. Mapp v. Ohio, 367
U.S. 643, 654–55 (1961); State v. Valenzuela, 239 Ariz. 299, 302, ¶ 10 (2016).
We review the denial of a motion to suppress evidence for an abuse of
discretion. State v. Mitchell, 234 Ariz. 410, 413, ¶ 11 (App. 2014). We review
de novo, however, the superior court’s legal determination whether a
search “complied with the dictates of the Fourth Amendment.” State v.
Valle, 196 Ariz. 324, 326, ¶ 6 (App. 2000). In doing so, we will uphold the
superior court’s ruling if it is legally correct for any reason. State v. Huez,
240 Ariz. 406, 412, ¶ 19 (App. 2016).

¶23           After gaining information from a co-defendant that Alarcon
participated in the home invasion, investigating officers located Alarcon in
the Pinal County jail and contacted detention officers there. The detention
officers agreed to assist the investigators in gathering Alarcon’s DNA.

¶24           On August 5, 2013, detention officers transported Alarcon
from his jail cell to a booking area for fingerprinting related to an active
misdemeanor warrant. The officers provided Alarcon with a lunch
consisting of a sandwich and a juice container, and Alarcon discarded the



                                      7
                             STATE v. ALARCON
                             Decision of the Court

remainder of these items into a trash can. Alarcon then used a handwipe
during the fingerprinting process that he discarded into the garbage. The
detention officers retrieved all of the discarded items from the trash can.
Alarcon’s DNA was recovered from the items and revealed a match with
DNA from the zip ties, mask, and glove found at the homicide scene. Mesa
police officers thereafter obtained a search warrant to take buccal swabs
from Alarcon, and this DNA profile also matched the homicide scene items.

¶25            The superior court did not err by denying Alarcon’s motion
to suppress. When detention officers retrieved the items from which DNA
was recovered, Alarcon was in custody and had at most a de minimis
expectation of privacy. See Hudson v. Palmer, 468 U.S. 517, 530 (1984) (“The
Fourth Amendment’s prohibition on unreasonable searches does not apply
in prison cells.”); Bell v. Wolfish, 441 U.S. 520, 546 (1979) (noting that this
limitation applies to pretrial detainees as well as convicted prisoners); State
v. Bishop, 137 Ariz. 361, 363 (App. 1983); see also State v. Apelt, 176 Ariz. 349,
364 (1993) (holding defendant has no expectation of privacy in non-legal
letters and notes seized from jail cell). Alarcon did not have a reasonable
expectation of privacy in lunch items or a handwipe provided and owned
by the jail while he was in custody, meaning the seizure of materials
containing his DNA on August 5, 2013 was not improper.

¶26            Moreover, Alarcon abandoned the items when he disposed of
them in the garbage, and as a result, he abandoned any privacy interest he
may have had. See Abel v. United States, 362 U.S. 217, 241 (1960). The
detention officers retrieved the items from a garbage can, where no
reasonable expectation of privacy exists. See California v. Greenwood, 486
U.S. 35, 37 (1988). No warrantless search or seizure implicating the Fourth
Amendment thus occurred, and the superior court did not err by denying
Alarcon’s motion to suppress this evidence.

                                CONCLUSION

¶27          For the foregoing reasons, we affirm Alarcon’s convictions
and sentences.




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


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