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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         ERNIE ORTEGA, Appellant.

                             No. 1 CA-CR 16-0047
                               FILED 11-15-2016


             Appeal from the Superior Court in Yuma County
                           No. S1400CR201401399
              The Honorable Lisa W. Bleich, Commissioner

                                  AFFIRMED


                                   COUNSEL

Yuma County Legal Defender’s Office, Yuma
By Terri L. Capozzi
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
                            STATE v. ORTEGA
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.


K E S S L E R, Judge:

¶1             Appellant, Ernie Ortega, seeks reversal of a conviction for
aggravated assault against a correctional officer. He argues on appeal that
the trial court committed structural error by failing to establish jurisdiction.
For the following reasons, we affirm Ortega’s conviction and sentence.

               FACTUAL AND PROCEDURAL HISTORY

¶2             In 2013, Ortega was an inmate at the Arizona Department of
Corrections in Yuma. Ortega shared a cell with inmate Galindo. On
December 13, 2013, Correctional Officer GG visited Ortega’s cell to talk to
Galindo about a disciplinary matter. Officer GG opened the cell door to talk
to Galindo. Ortega shoved Galindo aside and struck Officer GG’s face twice
with his fist. Officer GG backed away. Ortega unsuccessfully attempted to
punch Officer GG once again. Officer GG then managed to subdue Ortega
with pepper spray.

¶3            Officer GG suffered a cut under his lip, a loose tooth, swelling
under his eye, and a stiff neck. Special Investigator JS conducted an
investigation into the incident and prepared a report. The report states that
the incident occurred at Arizona State Prison Complex-Dakota in San Luis,
Arizona.

¶4            Ortega was charged with aggravated assault and voluntarily
waived his right to a jury trial. During trial, Officer GG and Special
Investigator JS testified that the incident occurred at the Arizona state
prison in Yuma.1 The location was also referred to as “Yuma prison.”

¶5           Prior to closing arguments, Ortega made a motion for
acquittal pursuant to Arizona Rule of Criminal Procedure 20. Ortega
argued in part that jurisdiction had not been established by the requisite

1      Officer GG testified that he worked at the Arizona state prison in
Yuma and that the incident occurred there. Special Investigator JS testified
that he worked at the prison in Yuma and that the incident occurred there.


                                       2
                             STATE v. ORTEGA
                             Decision of the Court

standard. The court denied the motion and convicted Ortega of aggravated
assault. Subsequently, Ortega appealed the denial of his Rule 20 motion at
the sentencing hearing. The court denied the motion for being untimely
under Rule 20(b). Ortega was sentenced to imprisonment for the
presumptive term of 2.25 years. Ortega timely appealed. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) § 12-
120.21(A)(1) (2016).

                                DISCUSSION

¶6            On appeal, Ortega exclusively raises the issue of jurisdiction.
Asserting that subject matter jurisdiction is an element of the crime, Ortega
argues that the State must prove it beyond a reasonable doubt. Ortega’s
argument is that the State did not sufficiently establish that “Yuma prison”
is located in Yuma County, Arizona. Thus, he contends that the State did
not meet its burden and asks that we vacate his conviction for structural
error.

¶7             This case does not warrant a structural error inquiry.
Structural errors “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, 571 U.S. 1, 8-9
(1999) (citation and quotations omitted); see State v. Valverde, 220 Ariz. 582,
584, ¶ 10 (2009); State v. Ring, 204 Ariz. 534, 552, ¶ 45 (2003). Thus, structural
error is only found in a “very limited class of cases.” Neder, 571 U.S. at 8
(quotations omitted). This is not one such case. See Ring, 220 Ariz. at 552-53,
¶ 46 (“[I]nstances [of structural error] involve errors such as a biased trial
judge, complete denial of criminal defense counsel, denial of access to
criminal defense counsel during an overnight trial recess, denial of self-
representation in criminal cases, defective reasonable doubt jury
instructions, exclusion of jurors of the defendant’s race from grand jury
selection, excusing a juror because of his views on capital punishment, and
denial of a public criminal trial.”).

¶8            Rather, Ortega is appealing for insufficiency of evidence to
show jurisdiction. Thus, we view the evidence and all reasonable inferences
therein in the light most favorable to upholding the conviction. State v.
Arredondo, 155 Ariz. 314, 316 (1987). Ortega contends that the location of the
crime is a question of Arizona’s territorial jurisdiction which must be
proven beyond a reasonable doubt. The State contends that the location of
the crime, as long as it occurred in Arizona, is a question of venue, which
must be proven by a mere preponderance of the evidence.




                                        3
                             STATE v. ORTEGA
                             Decision of the Court

¶9             Both parties rely on State v. Willoughby, 181 Ariz. 530 (1995),
for the standard by which jurisdiction must be established. In Willoughby,
the Arizona Supreme Court held “[i]n the very rare case in which
jurisdiction is legitimately in issue because of contradicting jurisdictional
facts, Arizona’s territorial jurisdiction must be established beyond a
reasonable doubt.” Id. at 538. However, when the issue is venue, it may be
established by a preponderance of the evidence. Id. at 537-38.

¶10            We need not resolve the issue of the standard of proof of
review. Regardless of whether the location of the crime in Arizona must be
proven beyond a reasonable doubt or only by a preponderance of the
evidence, the testimony was clear and uncontradicted that the crime
occurred in Yuma County. The repeated references to the Arizona state
prison in Yuma make the meaning of “Yuma prison” unambiguous.2
Furthermore, the report by Special Investigator JS explicitly states that the
incident occurred at “Arizona State Prison Complex -Dakota” in “San Luis,
Arizona.” The court also could take judicial notice under Arizona Rule of
Evidence 201 that San Luis is in Yuma County. Ariz. R. Evid. 201;3 see In re
Sabino R., 198 Ariz. 424, 425, ¶ 4 (App. 2000) (“[Rule 201] allows [the Court
of Appeals] to take judicial notice of anything of which the trial court could
take              notice”);             State            of           Arizona,
http://www.printablee.com/postpic/2015/06/detailed-arizona-
map_183580.jpg (last visited Nov. 7, 2016). Thus, the evidence presented at
trial was sufficient to establish jurisdiction or venue.




2     This is very clear in the transcript. For example, the following
exchange is the first time that the term “Yuma prison” is used:
Q.    Okay. Are you assigned to the Arizona state prison here in Yuma?
A.    Yes, I am.
Q.    And two years ago in December -- on December 13th, 2013, were you
      working at the Yuma prison also at that time?
A.    Yes, I was.

3      Arizona Rule of Evidence 201(b) provides:
       The court may judicially notice a fact that is not subject to
       reasonable dispute because it: (1) is generally known within
       the trial court’s territorial jurisdiction; or (2) can be accurately
       and readily determined from sources whose accuracy cannot
       reasonably be questioned.



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                        STATE v. ORTEGA
                        Decision of the Court

                            CONCLUSION

¶11         For the foregoing reasons, we affirm Ortega’s conviction and
sentence.




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




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