                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

           VICTOR MANUEL CASTILLO ESTOBAR, Petitioner.

                         No. 1 CA-CR 13-0110 PRPC
                               FILED 08-21-2014


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-007077-001
               The Honorable Maria del Mar Verdin, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Victor Manuel Castillo Estobar, Douglas
Petitioner Pro Se



                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Maurice Portley joined.
                           STATE v. ESTOBAR
                           Decision of the Court

D O W N I E, Judge:

¶1            Petitioner Victor Manuel Castillo Estobar petitions this Court
for review from the dismissal of his petition for post-conviction relief. For
the following reasons, we grant review and deny relief.

¶2             A jury convicted Estobar of participating in a criminal
syndicate, smuggling, forgery, and two counts of kidnapping. The trial
court sentenced him to an aggregate term of forty-two years’ imprisonment,
and we affirmed the convictions and sentences as modified on direct
appeal. State v. Estobar, 1 CA-CR 10-0442, 2011 WL 2306651, *2, ¶ 8 (Ariz.
App. June 2, 2011) (mem. decision). Estobar filed a pro se petition for post-
conviction relief after his counsel found no colorable claims for relief. The
trial court summarily dismissed the petition, and Estobar now seeks review.
We have jurisdiction pursuant to Arizona Rule of Criminal Procedure
32.9(c).

¶3           Estobar first argues his convictions were based in part on
information law enforcement officers obtained illegally when they placed a
Global Positioning System (“GPS”) device on Estobar’s vehicle without
obtaining a warrant.1 This issue is precluded because Estobar could have
raised it on direct appeal. See Ariz. R. Crim. P. 32.2(a). None of the
exceptions under Rule 32.2(b) apply.

¶4             Estobar next argues the trial court erred when it allowed one
victim to remain in the courtroom during the testimony of another victim.
This issue is also precluded because Estobar could have raised it on direct
appeal. Further, Rule 9.3(a) provides that a victim has the right to be
present at all proceedings at which a defendant has the right to be present.
This includes the right to be present during the testimony of another victim.

¶5            Finally, Estobar argues his counsel was ineffective when he
failed to file a motion to suppress all evidence obtained directly or
indirectly through the warrantless use of the GPS device. To state a
colorable claim of ineffective assistance of counsel, a defendant must show
that counsel’s performance fell below objectively reasonable standards and
that the deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984). We deny relief. At the time of
Estobar’s 2010 trial, then-current decisions of the United States Supreme
Court and the Ninth Circuit held that the warrantless use of an electronic


1       Estobar conceded below that no GPS evidence was actually admitted
at trial.


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                             STATE v. ESTOBAR
                             Decision of the Court

device to track the movements of a suspect’s vehicle did not violate the
Fourth Amendment. See United States v. Knotts, 460 U.S. 276, 281-82 (1983);
United States v. Pineda-Moreno, 591 F.3d 1212, 1216-17 (9th Cir. 2010), vacated,
132 S. Ct. 1533 (2012), affirmed on remand, 688 F.3d 1087 (9th Cir. 2012)
(affirming in part because law enforcement agents acted within then-
existing circuit precedent in attaching tracking devices to defendant’s
vehicle). Counsel’s failure to file a suppression motion in light of the law
existing at that time did not fall below objectively reasonable standards.2

¶6              Although the petition for review arguably presents additional
issues, Estobar did not raise those issues in the petition for post-conviction
relief he filed below. A petition for review may not present issues not first
presented to the trial court. Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169
Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991).

¶7             For the reasons stated, we grant review and deny relief.




                                      :gsh




2      Estobar makes no reference to the Supreme Court’s subsequent
decision in United States v. Jones, in which the Court held for the first time
that government installation of a GPS device on a vehicle to monitor
movement constitutes a “search” that ordinarily requires a warrant. United
States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 949 (2012). Even so, defense
counsel’s failure to predict the Supreme Court’s decision in Jones, which
came nearly two years after Estobar’s trial, did not fall below objectively
reasonable standards.


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