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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             No. 1 CA-CR 16-0736
                                 1 CA-CR 16-0737
                                 (Consolidated)
                               FILED 4-10-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-115872-001
                            CR2013-428986-001
                 The Honorable Pamela S. Gates, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
                           STATE v. AGUAYO
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1            Javier Aguayo appeals his convictions and sentences for
conspiracy to commit first-degree murder, attempted first-degree murder,
aggravated assault and disorderly conduct. For the following reasons, we
affirm the convictions and affirm the sentences as modified.

             FACTS AND PROCEDURAL BACKGROUND

¶2             P.D. was driving in Phoenix with T.F. and their young son one
evening, when their vehicle inadvertently cut off an Acura Integra.1
Decelerating quickly, the Acura darted behind P.D.'s vehicle, then swiftly
pulled up on its left side. When P.D. and T.F. glanced to their left, they
looked through the open car windows and clearly saw Aguayo in the
driver's seat, with his right arm extended, pointing a black handgun in their
direction. Fearing for their lives, P.D. immediately braked and called 9-1-
1, providing the emergency operator a description of the driver and the
Acura's license plate number. Less than an hour later, police officers
detained Aguayo, and both victims identified him as the person who had
pointed a gun at them.

¶3           Approximately four months later, Aguayo approached Ricco
Monge and asked him to help with a home-invasion robbery. As initially
presented to Monge, Aguayo planned to break into a home, restrain the
owners, then ransack the home, with Monge serving as the get-away driver.
During subsequent conversations, however, Aguayo revealed that he
actually planned to kill the homeowner, T.F.

¶4          In the weeks leading up to the planned home invasion,
Aguayo and Monge surveilled T.F. to learn her daily routine. At
approximately 7:15 a.m. one morning, Aguayo, Monge, and Monge's
roommate, Jeremie Villaverde, drove to T.F.'s house in Monge's Chevrolet


1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


                                     2
                           STATE v. AGUAYO
                           Decision of the Court

Cobalt. As the men pulled up, T.F. got into her car, preparing to drive to
work. Monge and Villaverde waited in the Chevrolet while Aguayo
walked toward T.F.'s car, firing five bullets. Although T.F. sustained
numerous gunshot wounds, she drove away and called 9-1-1.

¶5             Later that afternoon, a detective interviewed T.F. at the
hospital. Describing the shooter, T.F. explained that the man's face was
mostly covered, but his complexion, height, weight and overall build
resembled Aguayo, "that guy that . . . pulled a gun [on her] the first time."
T.F. also stated that she could not think of anyone else who might want to
harm her.

¶6            When the detective spoke with her again the following day,
T.F. explained that she had described the silver revolver used in the
shooting to P.D., which led P.D. to say his brother might have been the
shooter. The detective asked T.F. if she could exclude P.D.'s brother as a
suspect based on the shooter's physical appearance, and T.F. responded
that P.D.'s brother and the shooter shared a similar build. Nonetheless, as
the interview continued, T.F. repeatedly reaffirmed her belief that the
shooter looked like Aguayo.

¶7            During the ensuing investigation, detectives obtained a
warrant to attach a GPS tracking device to Aguayo's Acura. Later, they
obtained warrants for Aguayo's home, electronics, vehicle and telephone
records. Through these warrants, detectives (1) learned that Aguayo had
driven by T.F.'s residence after the shooting, (2) seized a store receipt for
Remington .357 Magnum shells from the Acura that an expert later
determined were consistent with bullet fragments recovered from the
shooting, (3) retrieved text messages from Aguayo's cell phone discussing
Monge's payment for his role as the get-away driver, and (4) obtained cell
tower data demonstrating that Aguayo's, Monge's, and Villaverde's phones
each accessed the tower closest to T.F.'s house near the time of the shooting.

¶8             The State charged Aguayo with one count of attempted first-
degree murder and three counts of aggravated assault (identifying T.F. as
the victim of the shooting and she and P.D. as victims in the road incident).
By separate indictment, the State also charged Aguayo with one count of
conspiracy to commit murder and further alleged multiple aggravating
circumstances. The superior court consolidated the charges for trial.

¶9           After a 28-day trial, a jury found Aguayo guilty of attempted
first-degree murder (renumbered Count 3), conspiracy to commit first-
degree murder (renumbered Count 5), aggravated assault against P.D.



                                      3
                            STATE v. AGUAYO
                            Decision of the Court

(renumbered Count 2), and the lesser-included offense of disorderly
conduct against T.F. (renumbered Count 1 – in the road incident). The
jurors were unable to reach a verdict on the other charge. After the jury
found multiple aggravating factors, the court sentenced Aguayo to a
presumptive term of 2.25 years' imprisonment on Count 1; a concurrent,
presumptive term of 7.5 years' imprisonment on Count 2; a consecutive
term of 25 years' imprisonment on Count 3; and a consecutive term of life
without the possibility of parole for 25 years on Count 5.2 Aguayo timely
appealed, and we have jurisdiction pursuant to Arizona Revised Statutes
("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018), and -4033(A)(1)
(2018).3

                               DISCUSSION

A.     Validity of Warrant Affidavits.

¶10            Aguayo contends that the affidavits supporting the search
warrants for his vehicle, home and cellular phone records omitted material
facts in violation of Franks v. Delaware, 438 U.S. 154 (1978).

¶11            Early in the prosecution, Aguayo requested a Franks hearing
and moved to suppress the evidence obtained from the GPS tracking device
placed on his vehicle. To support his requests, Aguayo identified the
following facts, recounted in police reports and interviews but omitted
from the warrant affidavit, that he claimed would have altered the judicial
officer's probable cause analysis if they been disclosed in the warrant
affidavit: (1) T.F.'s statement that P.D. suspected his brother was the
shooter, (2) eyewitnesses' contradictory descriptions of the shooter, (3)
Villaverde's criminal history and admitted drug use, and (4) Villaverde's
exculpatory statements regarding Aguayo.

¶12          The superior court denied Aguayo's request for an
evidentiary hearing and his motion to suppress, finding the affidavit

2      Under the relevant statute, the sentence on the conspiracy
conviction, Count 5, is stated as "life imprisonment without possibility of
release on any basis until the service of twenty-five calendar," Ariz. Rev.
Stat. ("A.R.S.") § 13-1003(D) (2018), and we modify the judgment
accordingly. See A.R.S. § 13-4037(A) (2018) (authorizing an appellate court
to "correct" an illegal sentence); Ariz. R. Crim. P. 31.19(d) (authorizing court
to modify a judgment).
3     Absent a material revision of a statute or rule of procedure since the
relevant date, we cite the current version.


                                       4
                           STATE v. AGUAYO
                           Decision of the Court

submitted in support of the warrant did not contain "any false statements
made knowingly, intentionally or with reckless disregard for the truth."
The court noted, however, that the affidavit "may have failed to convey
accurately some equivocal statements made by [T.F.] regarding the
identification of the shooter." The court also rejected Aguayo's contention
that the other eyewitnesses' descriptions of the shooter were inconsistent
with the affidavit and further found that the limited "information regarding
Mr. Villaverde" did not render the affidavit "false, incomplete, or
misleading."

¶13            Aguayo then filed another request for a Franks hearing and
moved to suppress all evidence seized pursuant to the search warrants
executed on his home and vehicle, as well as the cellular phone records that
investigating officers obtained pursuant to a warrant. The superior court
held a five-day evidentiary hearing on these motions, and after considering
the evidence presented – including testimony from the investigating
detectives – the court ruled the search warrants were valid.4 The court
found that the affidavits did not contain any false statements made
knowingly, intentionally or with reckless disregard for the truth, although
it again acknowledged that the affidavits "failed to convey accurately some
equivocal statements" T.F. made regarding the shooter. The court further
noted that even without T.F.'s statement that she was "sure" Aguayo was
the shooter, the "remaining content" in the affidavits was "sufficient to
establish probable cause." With respect to Aguayo's other contentions, the
court found that neither the summation of the other eyewitnesses' accounts
nor the omission of certain information regarding Villaverde rendered the
affidavits false, incomplete or misleading. Accordingly, the court denied
Aguayo's motions to suppress.

¶14            Under Franks, "a defendant may challenge the truthfulness of
the factual statements in an affidavit supporting a warrant," State v. Carter,
145 Ariz. 101, 108 (1985), and may contest any "deliberate or reckless
omissions of facts that tend to mislead," Frimmel v. Sanders, 236 Ariz. 232,
239, ¶ 27 (2014) (quotation omitted). The superior court must suppress
evidence seized pursuant to a warrant if the defendant proves, by a
preponderance of the evidence, that (1) the affiant intentionally, knowingly,
or with reckless disregard for the truth omitted material information, and

4       Although the court's minute entry rulings expressly denied
Aguayo's requests for a Franks hearing, and Aguayo argues error on that
basis, the record clearly reflects that the court held a lengthy evidentiary
hearing on the motions, which provided Aguayo a full opportunity to
explore the alleged omissions.


                                      5
                           STATE v. AGUAYO
                           Decision of the Court

(2) the omitted material information, if included, would have rendered the
affidavit insufficient to support a finding of probable cause. See State v.
Poland, 132 Ariz. 269, 279 (1982).

¶15            On appeal, our review is limited to the evidence the superior
court considered at the suppression hearing, and we view the facts in the
light most favorable to sustaining the court's ruling. State v. Hausner, 230
Ariz. 60, 70, ¶ 23 (2012). We uphold the court's finding "on whether the
affiant deliberately . . . excluded material facts" unless it is clearly
erroneous. State v. Buccini, 167 Ariz. 550, 554 (1991). We review de novo,
however, a superior court's finding "whether a redrafted search warrant
affidavit is sufficient to establish probable cause." Id. at 555.

¶16           "[I]nnocent or negligent" errors in an affidavit do not satisfy
the first prong of the Franks test; instead, the defendant must prove that the
affiant did not believe the avowals or at least entertained serious doubts
about their truth. Carter, 145 Ariz. at 109. Such doubts may "be shown by
actual deliberation" or "by obvious reasons to doubt" the veracity or
accuracy of the information relied upon. Poland, 132 Ariz. at 279 (quotation
omitted).

¶17           Although not identical, the underlying affidavits relied on to
establish probable cause for the search warrants set forth substantially
similar information regarding T.F.'s description and identification of the
shooter, the other eyewitnesses' descriptions of the shooter, and
Villaverde's involvement in the case. T.F. described the shooter as a male
wearing a red and blue plaid jacket, jeans, a gray hoodie pulled over his
head and a dark blue beanie pulled over his mouth and nose. Based on the
shooter's body type, body shape and skin tone, T.F. positively identified
Aguayo as the shooter; she was certain the shooter was the same man who
had previously pointed a gun at her. Other witnesses generally described
the shooter as a slender Hispanic man in his 20's, between 5'6" to 6'0" tall,
wearing a hooded sweatshirt and a ski mask, running or walking with a
limp. Meanwhile, a detective observed Villaverde as he met with Aguayo
in a parking lot, and said he drove a vehicle that matched the eyewitnesses'
description of the getaway car, and the men appeared to examine and
remove something from inside the trunk of Villaverde's car. A short time
later, when Villaverde was pulled over for traffic violations, he admitted
possessing illegal drugs in his trunk and also acknowledged selling illegal
drugs.

¶18          At the evidentiary hearing, the affiant detective testified that
she interviewed Villaverde at length and acknowledged that she did not


                                      6
                            STATE v. AGUAYO
                            Decision of the Court

incorporate many of his statements in the affidavits, such as his contentions
that he had never seen Aguayo act violently or possess a gun. She
explained, however, that she is trained to provide a short and succinct
probable cause statement, and therefore, as a matter of course, includes
only "enough information to show that there [was] probable cause." When
pressed on that point, the detective avowed that, in this case, she included
all relevant and pertinent information that she believed would be helpful
to the judicial officer charged with assessing probable cause.

¶19            Because the superior court is in a "unique position to judge"
an affiant's credibility, we defer to its finding as to whether the affiant knew
material facts had been omitted from the affidavit. See Buccini, 167 Ariz. at
555. Here, the investigating detective's testimony supported the superior
court's conclusion that the detective did not intend to mislead the judicial
officer. See Carter, 145 Ariz. at 109. Thus, to the extent there arguably were
material omissions, the record supports a finding that they were only
innocent or negligent mistakes. See id. Accordingly, the superior court did
not err in finding that the affiant detective was not recklessly, knowingly or
intentionally deceitful by failing to include the challenged information in
the affidavits.

¶20           Moreover, if redrafted to include the excluded facts, the
affidavits would have provided sufficient information to support a finding
of probable cause. Incorporating the challenged omitted facts, the affidavits
would have informed the judicial officer that: (1) T.F. believed she
recognized Aguayo as the shooter, (2) P.D. believed his brother may have
been the shooter based on T.F.'s description of the handgun, (3) other
eyewitnesses uniformly described the shooter as a young, slender male
whose face and body was mostly covered, but inconsistently reported his
height, providing a range between 5'6" to 6' tall, and race (some reported
the shooter was Hispanic and at least one reported the shooter was white),
(4) Aguayo met with Villaverde, who drove a vehicle similar in appearance
to the getaway car described by eyewitnesses, (5) Aguayo associated with
Monge, who owned a .357 revolver handgun matching T.F.'s description of
the shooter's weapon, (6) Villaverde was involved in criminal drug activity,
and (7) Villaverde claimed he never saw Aguayo act violently or possess a
gun.

¶21          Contrary to Aguayo's argument, P.D.'s suspicion that his
brother might have been the shooter because he owned a silver handgun
did not undermine T.F.'s repeated avowals that she recognized Aguayo as
the shooter. Although T.F. arguably equivocated on her identification of
the shooter during her second interview by mentioning P.D.'s suspicion


                                       7
                            STATE v. AGUAYO
                            Decision of the Court

and noting that P.D.'s brother and the shooter had a similar build, when
pressed by the detective, T.F. reaffirmed her identification of Aguayo,
stating he and not P.D.'s brother was the shooter. Therefore, viewed in
context, P.D.'s suspicion did not preclude a finding of probable cause.

¶22            Furthermore, the affidavits' composite of the eyewitnesses'
descriptions was not false or misleading; explaining that there were some
discrepancies in the eyewitnesses' accounts would not have defeated a
finding of probable cause. And, to the extent Aguayo argues Villaverde's
criminal activity and drug use were relevant, the affidavits clearly detailed
that Villaverde admitted transporting and selling illegal drugs, thereby
providing the judicial officer a meaningful opportunity to evaluate his
veracity. Cf. Frimmel, 236 Ariz. at 240, ¶¶ 33-34 (affiant's failure to provide
background information regarding informants deprived magistrate "of the
opportunity to meaningfully and neutrally evaluate the veracity of the
informants").     Given his admitted criminal activity and suspected
involvement in the shooting, there is no basis to conclude that Villaverde's
exculpatory statements regarding Aguayo would have changed the judicial
officer's probable cause determination. Therefore, read in their entirety and
including the omitted facts, the affidavits provided sufficient information
to support a finding of probable cause, and the superior court did not err in
holding the search warrants were valid.

B.     Denial of Motions to Suppress.

¶23          The federal and state constitutions protect individuals against
unreasonable searches and seizures, U.S. Const. amend. IV; Ariz. Const. art.
2, § 8, and "any evidence collected in violation" of these provisions "is
generally inadmissible in a subsequent criminal trial." State v. Valenzuela,
239 Ariz. 299, 302, ¶ 10 (2016); see State v. Peoples, 240 Ariz. 244, 247, ¶ 9
(2016) ("A warrantless search is per se unreasonable . . . unless an exception
to the warrant requirement applies.").

¶24            We review the denial of a motion to suppress evidence for an
abuse of discretion. Brown v. McClennen, 239 Ariz. 521, 524, ¶ 10 (2016). In
doing so, we defer to the superior court's determination of officers'
credibility, State v. Mendoza-Ruiz, 225 Ariz. 473, 475, ¶ 6 (App. 2010), and
uphold the court's ruling if it is legally correct for any reason. State v. Huez,
240 Ariz. 406, 412, ¶ 19 (App. 2016).




                                       8
                            STATE v. AGUAYO
                            Decision of the Court

       1.     Cell phone evidence.

¶25           Aguayo contends the superior court improperly denied his
motion to suppress evidence from the cell phones seized from his home.
He argues police officers who executed an initial search warrant on his
home unlawfully searched the cell phones they found there by accessing
them before they obtained a second search warrant that specifically
included electronics. See Peoples, 240 Ariz. at 249, ¶ 15 (holding cell phones
"are intrinsically private," and therefore cell phone owners have a
"legitimate expectation of privacy" that their phones will be protected from
unlawful search and seizure). In a series of motions to suppress, Aguayo
moved to suppress evidence obtained from two cell phones seized from his
home. Citing police records, Aguayo argued the phones were manipulated
twenty minutes before a judicial officer issued the electronics warrant,
reasoning the cell phones therefore were seized unlawfully.

¶26           Officers executed a warrant on Aguayo's home that
authorized the search and seizure of Aguayo, a buccal swab from Aguayo,
all firearms, all ammunition, and any biological evidence.          While
conducting an initial sweep of the property, a sergeant noticed two cell
phones in Aguayo's bedroom on a desk in plain view. He then contacted
the investigating detective and asked her to draft a second affidavit for a
search warrant on the residence that included electronics. The resulting
electronics warrant identified the phone carrier and described the cell
phones to be seized.

¶27           At the evidentiary hearing on the motion to suppress, the
officers who executed the warrants on Aguayo's home avowed that no one
touched or otherwise manipulated the cell phones before the electronics
warrant issued. However, when defense counsel asked a sergeant how the
officers had determined which carrier serviced the cell phones, as noted in
the electronics warrant, the sergeant answered that he did not "remember"
how that information was obtained. Nonetheless, he testified that, as a
matter of routine protocol, officers do not turn on electronic devices before
they are seized pursuant to a warrant. At that point, defense counsel
pressed further, asserting "something had to be done physically" to the cell
phones to ascertain the identifying information set forth in the affidavit. In
response, the sergeant replied, "[I]t's extremely possible, yes." When
defense counsel suggested that someone may have turned the phone
"around," the sergeant agreed, "That's probabl[e]." When prompted on
redirect, however, the sergeant recalled that Villaverde had disclosed
Aguayo's cell phone number to police officers before the first search
warrant was executed, as noted in the initial affidavit, and officers were able


                                      9
                           STATE v. AGUAYO
                           Decision of the Court

to use that information to determine the service provider listed on the
warrant without manipulating the phone. Accordingly, the sergeant
reaffirmed that the officers seized the cell phones only after the electronics
warrant had issued, not before.

¶28            In denying the motion to suppress, the superior court
specifically found the sergeant's testimony credible and concluded there
was "no evidence" that law enforcement officers searched or seized the
phones before the electronics warrant issued. Accordingly, the court
determined the cell phone evidence was lawfully seized, and denied the
motion to suppress.

¶29          The record supports the court's findings. Although the
sergeant equivocated on cross-examination when asked whether officers
may have manipulated the cell phones to obtain service-provider
information, he clarified his testimony on redirect and explained that it
would not have been necessary to access the phones because Villaverde
already had disclosed Aguayo's cell phone number, which by itself would
have been sufficient to determine the phone's service provider.

¶30           To the extent Aguayo argues the police records show that the
cell phones were seized 20 minutes before the electronics warrant issued,
we note that the cited police reports state that the phones were "located"
and "found" at 1:25 p.m. Without question, these items were found before
the affiant drafted the second affidavit and the judicial officer issued the
corresponding electronics warrant at 1:45 p.m., but the police records do
not reflect that the phones were searched or seized before the electronics
warrant issued. Therefore, the superior court did not abuse its discretion
by denying the motion to suppress the cell phone evidence.

       2.     Vehicle evidence.

¶31           Aguayo contends the superior court improperly denied his
motion to suppress all evidence seized from his car. Because a police officer
impounded the Acura five days before a search warrant issued, Aguayo
argues his car was unlawfully seized and therefore any subsequent search
was likewise illegal.

¶32            At the evidentiary hearing, an investigating detective
explained that police officers tracked Aguayo's Acura to a repair shop,
where the car was inoperable. Because the shop was not secure, officers
decided to seize the vehicle before obtaining a warrant. Consistent with the
detective's testimony, the officer who ordered the Acura towed to a police
crime lab explained he did so without a warrant because he was concerned


                                     10
                             STATE v. AGUAYO
                             Decision of the Court

evidence might be tampered with or destroyed. And the officer avowed
that police did not open the Acura until a vehicle search warrant issued five
days later.

¶33           After taking the matter under advisement, the superior court
denied the motion to suppress, finding the warrantless seizure was not
unlawful. Noting law enforcement officers may seize a car from a public
place without a warrant when they have probable cause to believe that the
vehicle contains evidence of a crime, the court found Aguayo "had the same
or lesser expectation of privacy" in his vehicle when it was housed at a
repair shop than if it had "been parked in a public street because a repair
person would presumably have access to the interior of the vehicle, the
engine, and the trunk."

¶34            Under the automobile exception to the warrant requirement,
law enforcement officials acting with probable cause do not need a warrant
to seize a readily mobile vehicle parked in a street, parking lot or other open
space because such a seizure does "not involve any invasion of privacy."
Florida v. White, 526 U.S. 559, 566 (1999) (quotation omitted). Although this
exception recognizes the "impracticability of securing a warrant to search a
vehicle that could be quickly moved," it is "also justified by a lessened
expectation of privacy with respect to vehicles." State v. Reyna, 205 Ariz.
374, 375, ¶ 5 (App. 2003); see also California v. Carney, 471 U.S. 386, 391 (1985)
("Besides the element of mobility, less rigorous warrant requirements
govern because the expectation of privacy with respect to one's automobile
is significantly less than that relating to one's home or office.") (quotation
omitted). As such, "the justification to conduct . . . a warrantless search does
not vanish once [a] car has been immobilized; nor does it depend upon a
reviewing court's assessment of the likelihood . . . that the car would have
been driven away, or that its contents would have been tampered with,
during the period required for the police to obtain a warrant." Michigan v.
Thomas, 458 U.S. 259, 261 (1982); see also Reyna, 205 Ariz. at 378, ¶ 15
("exigent circumstances are not needed to authorize a warrantless search"
under the automobile exception "when probable cause exists to believe the
vehicle contains contraband").

¶35            Consistent with the superior court's findings, the record
reflects that Aguayo's privacy interest in the Acura was lessened by the
vehicle's location in a commercial facility. Indeed, Aguayo does not dispute
that repair shop employees could access the interior of his car. Although
the Acura was temporarily inoperable, a mechanic told police the car's
malfunction had been diagnosed, and therefore it was unclear how long the
vehicle would remain immobile. See United States v. Mercado, 307 F.3d 1226,


                                       11
                          STATE v. AGUAYO
                          Decision of the Court

1229 (10th Cir. 2002) ("temporary immobility due to a readily repairable
problem while at an open public repair shop does not remove [a] vehicle
from the category of 'readily mobile'"). Given these circumstances and the
officers' probable cause to believe that the Acura contained evidence of a
crime, the automobile exception authorized the vehicle's seizure.

                             CONCLUSION

¶36          As stated, see note 2, supra, we modify the sentence imposed
on Count 5, conspiracy to commit first-degree murder, to "life
imprisonment without possibility of release on any basis until the service
of twenty-five calendar." See A.R.S. § 13-1003(D). Otherwise, for the
foregoing reasons, we affirm the convictions and affirm the sentences as
modified.




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




                                      12
