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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              JOSE UBALDO RUBIO FIGUEROA, Appellant.

                             No. 1 CA-CR 18-0055
                               FILED 4-4-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR 2016-129015-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

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

Bain & Lauritano PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
                          STATE v. FIGUEROA
                          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            Jose Ubaldo Rubio Figueroa appeals his conviction and
sentence for second degree murder, a class 1 felony, and interfering with
judicial proceedings when he violated an order of protection, a class 1
misdemeanor. Figueroa argues the court erred when it permitted the two
charges to be tried jointly, because hearing evidence of the misdemeanor
charge prejudiced the jury in their deliberation on the murder charge.
Figueroa further argues the superior court erred by allowing the jury to
determine the question of guilt as to the misdemeanor charge. Finding no
reversible error, we affirm Figueroa’s convictions and sentences.

                  FACTS1 AND PROCEDURAL HISTORY

¶2          Figueroa was charged and convicted of killing Maria
Herminia Rivera by stabbing her to death on June 17, 2016, in the hair salon
where she was employed. Rivera’s body was found by a letter-carrier.
When paramedics arrived, Rivera had no pulse and was not breathing; she
was pronounced dead at the scene.

¶3              A search of Rivera’s purse revealed a copy of the protection
order Rivera had obtained against Figueroa. The order prohibited Figueroa
from going to the salon where Rivera was murdered. A police officer
testified he served Figueroa with the order of protection nearly two months
before the date of Rivera’s murder. Rivera’s work friend, Maria Solomon,
testified that she was out at the grocery store with Rivera two weeks before
her murder. They came across Figueroa who, despite the order of
protection, followed them to church and sat next to them during the service.
When Rivera later left, Figueroa told Solomon that Rivera “had one week”
to come back to him, or else he would kill her.

¶4           Figueroa’s sister-in-law, Blanca Lydia Reyes Rios, testified
Figueroa called her after the murder and said that a “tragedy” had


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


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                            STATE v. FIGUEROA
                            Decision of the Court

happened: that he had stabbed Rivera with a knife he found in the salon
because he was angry after an argument they had.

¶5            After the murder, Figueroa drove Rivera’s car to a nearby
park, where he called police and claimed he was cut and Rivera had been
hurt. When police arrived at the park, they discovered Figueroa with
multiple lacerations on his hands and in possession of Rivera’s vehicle.
Police discovered blood in Rivera’s vehicle, in the park bathroom, and on
Figueroa’s clothes. They asked Figueroa where the knife was, to which he
responded that he did not have it, that it was at the salon with Rivera. Police
later found a bloody knife outside the salon, near a dumpster behind the
building; results of DNA testing showed the blood on the knife was that of
both Figueroa and Rivera.

¶6              Regarding the misdemeanor charge only, at the close of
evidence the court inquired whether the parties wished to submit the issue
of guilt to the court or the jury. Neither party expressed a preference on the
issue and both counts were ultimately submitted to the jury for a
determination of guilt.

¶7            Figueroa was convicted of both counts and sentenced to
twenty-five years’ imprisonment for second degree murder, and six
months’ jail for interfering with judicial proceedings. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (“A.R.S.”) sections 13-4031 and -4033(A)(1).

                               DISCUSSION

I.     Evidence of Protective Order

¶8           Figueroa argues the court committed reversible error when it
admitted evidence that he violated a protective order by going to Rivera’s
place of employment. He disputes the admissibility of the evidence because
it was not relevant to prove the murder charge, he “never had the
opportunity to dispute the potential underlying facts about the order,” and
the information was unduly prejudicial since it “may have left an
impression to the jury that [Figueroa] had committed other bad acts.”

¶9             Since Figueroa did not object to admission of this evidence at
trial, he must now prove that admission of evidence of the protective order
constitutes “error that was both fundamental and prejudicial.” State v.
Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) (citation omitted). “[T]he first step
in fundamental error review is determining whether trial error exists.” Id.
at 142, ¶ 21. Fundamental error is error going to the foundation of the case,


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                            STATE v. FIGUEROA
                            Decision of the Court

error that takes from the defendant a right essential to his defense, or error
of such magnitude that the defendant could not possibly have received a
fair trial. Id.

       A.     Relevance

¶10             “Relevant evidence is evidence that has any tendency to make
the existence of any fact in dispute more or less probable.” State v. Connor,
215 Ariz. 553, 562, ¶ 30 (App. 2007) (citing Ariz. R. Evid. (“Rule”) 401).
Because it was probative of (1) the ill will between Figueroa and Rivera,
(2) Rivera’s fear of and desire to have no contact with Figueroa, and
(3) Figueroa’s awareness that he was not welcome at and prohibited from
Rivera’s place of employment, evidence of the protective order properly
served on Figueroa was admissible under Rule 401. See State v. Jeffers, 135
Ariz. 404, 418 (1983) (explaining the relevance of evidence of “prior trouble
between the victim and the accused”). Furthermore, Solomon testified that
Figueroa disobeyed the order on at least one occasion prior to the murder
when he accompanied the women to church, and thereafter threatened to
kill Rivera if she did not come back to him within one week. These factors
tend to show that Rivera perceived Figueroa as a potential threat to her
safety and that Figueroa was willing to disobey a court order to have
contact with Rivera. These factors also tend to show Figueroa’s anger and
frustration towards Rivera resulted in Figueroa’s visit to Rivera’s place of
employment—likely for the purpose of inflicting harm on her. Thus, the
protective order was relevant in proving Figueroa’s mental state, a fact of
consequence to the charge of second degree murder.

       B.     No Opportunity To Dispute Facts Underlying the Order

¶11            Figueroa claims it was unfair to introduce evidence of the
protective order at trial because he never had the opportunity to dispute
the potential underlying facts about the order. This argument is wholly
without merit. Arizona Rule of Protective Order Procedure 38(a) provides
that “[a]t any time while a protective order . . . is in effect, a defendant may
request one hearing in writing.” See also A.R.S. § 13-3602(I). Additionally,
Figueroa had the opportunity to cross-examine the foundational witness at
trial and to argue against any implication that he ever behaved in a manner
that could have frightened Rivera.

       C.     Unduly Prejudicial

¶12          Figueroa also argues that information regarding the
protective order “may set [him] out in a bad light and may have left an
impression to the jury that [he] committed other bad acts.” To be sure, the


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                            STATE v. FIGUEROA
                            Decision of the Court

superior court may “preclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” State v.
Trujillo, 245 Ariz. 414, 423, ¶ 30 (App. 2018) (citing Ariz. R. Evid. 403)
(internal quotations omitted). Here, in order to minimize any potential
prejudice from reviewing the entire protective order, jurors were presented
with only the first page of the order. As such, jurors did not see the victim’s
summary of threatening facts, as included in her petition for the protective
order, or any prejudicial language in the protective order itself. Any
prejudice against Figueroa posed by the jury’s simple awareness of the
order’s existence was minimal. Additionally, the court instructed the jury
to “not concern yourselves with the reasons why some portions of the
exhibits [were] deleted [and to] not speculate upon what the deleted
portions might or might not reveal.” See State v. Ramirez, 178 Ariz. 116, 127
(1994) (explaining the presumption that jurors follow their instructions,
absent evidence to the contrary).

¶13           On the other hand, the probative value of the protective order
outweighed any potential prejudice. Evidence of the protective order—and
more specifically, evidence of Figueroa’s violation of the order on the day
he threatened to kill Rivera—was probative of motive and of the evil intent
when he tracked down Rivera and violently killed her. See Ariz. R. Evid.
404(b). The evidence of the protective order was both relevant to and
probative of the murder charge, and the judge gave the limiting Rule 404(b)
“other acts” instruction to the jury. Accordingly, because the superior court
did not err in admitting it at trial, Figueroa has failed to establish error,
much less fundamental error.

II.    Jury Verdict—Misdemeanor Charge

¶14            Finally, Figueroa argues that because interfering with a
judicial proceeding is a misdemeanor charge, with punishment of not more
than six months, he was not entitled to a jury trial on that charge, and in
fact, submitting the matter to the jury was error. Although the trial court
alerted the parties to the fact that Figueroa was not entitled to a jury trial as
to the misdemeanor count, Figueroa did not request the court rule on the
issue of guilt. We review de novo whether a defendant is entitled to a bench
trial.

¶15             The constitutions of both the United States and Arizona
clearly give the defendant in a criminal case the right to trial by jury; but
“[i]t is well established that the right to a jury trial may be waived when the
accused is aware of this right and voluntarily and intelligently relinquishes
it.” State v. Durham, 111 Ariz. 19, 20 (1974) (citing Patton v. United States, 281


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                            STATE v. FIGUEROA
                            Decision of the Court

U.S. 276 (1930)). The Arizona Constitution provides that “[t]he right of jury
trial as provided by this constitution shall remain inviolate, but trial by jury
may be waived by the parties . . . with the consent of the court in any
criminal cause.” Ariz. Const. art. VI, § 17. Accordingly, although a criminal
defendant in Arizona may waive his right to a jury trial, such waiver is not
without limits—the consent of both the State and the judge is required.
A.R.S. § 13-3983 (“A trial by jury may be waived in criminal actions by the
consent of both parties expressed in open court and entered on its
minutes.”); Durham, 111 Ariz. at 20 (“Before any waiver can become
effective, the consent of [the State] and the sanction of the court must be had
. . . .”).

¶16            Because waiver of a jury trial in a criminal case requires the
consent of the State and the court, it logically follows that there is no right
to a bench trial. See Singer v. United States, 380 U.S. 24, 34-35 (1965) (“The
ability to waive a constitutional right does not ordinarily carry with it the
right to insist upon the opposite of that right. For example, although a
defendant can . . . waive his constitutional right to a public trial, he has no
absolute right to compel a private trial . . . .”) (citation omitted). The record
reflects no affirmative attempt by Figueroa to sever the charges, nor did he
present any argument as to why a bench trial was required for the
misdemeanor charge. Although a jury trial was not required for the
misdemeanor charge, it was within the judge’s discretion to propose
submitting the charge to the jury. Additionally, the court specifically asked
the parties if the charge should be taken from the jury and decided by the
court—Figueroa did not respond. He has no tenable claim of error when
he did not request the waiver, the prosecutor did not consent to any such
waiver, and the court did not err by submitting the case to the jury. We find
no merit to Figueroa’s complaint.

                                CONCLUSION

¶17           We affirm Figueroa’s convictions and sentences.




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




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