State v. Navarrette ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CARLOS EDUARDO NAVARRETTE, Appellant.
No. 1 CA-CR 22-0083
FILED 3-21-2023
Appeal from the Superior Court in Maricopa County
No. CR2020-104809-001
The Honorable Howard D. Sukenic, Judge (retired)
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
The Susser Law Firm, PLLC, Chandler
By Adam M. Susser
Counsel for Appellant
STATE v. NAVARRETTE
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 Carlos Eduardo Navarrette appeals from his convictions and
sentences for sexual assault, aggravated assault, kidnapping, and
misconduct involving weapons. Navarrette’s counsel filed a brief per
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969), certifying that, after a diligent search of the record, he found no
arguable question of law that was not frivolous. We allowed Navarrette to
file a supplemental brief, but he did not do so. Counsel asks this court to
search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988);
State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the
record, we modify the sentencing order by vacating the requirement that
Navarrette pay for DNA testing. In all other respects, we affirm.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 Navarrette first met the victim, Megan,2 at a restaurant. The
two exchanged phone numbers and eventually left in separate cars for an
after-party. They arrived at a dirt lot, and Megan parked next to Navarrette
and entered the passenger seat of his car. In the car, Navarrette tried to kiss
Megan despite her repeated refusals. Navarrette climbed on top of Megan
in the passenger seat, preventing her from moving. He tried to have sex
with Megan, and when she refused, he grabbed a gun from underneath the
driver’s seat and pointed it at her head. He told Megan to remove her
clothes and demanded oral and vaginal sex. Megan complied with
Navarrette’s demands out of fear for her life. After the acts, Navarrette
allowed Megan to leave. Megan drove home, and her family called the
police.
1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
2 We refer to the victim by a pseudonym to protect her identity.
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STATE v. NAVARRETTE
Decision of the Court
¶3 In the hours following the incident, Navarrette sent Megan
apologetic text messages. Megan also consented to a nurse exam and rape
kit, and officers investigated the crime and found the car and gun as Megan
described.
¶4 The State charged Navarrette with Count 1, sexual assault
(oral sex), a class 2 dangerous felony; Count 2, sexual assault
(penile/vaginal intercourse), a class 2 dangerous felony; Count 3,
aggravated assault, a class 3 dangerous felony; Count 4, kidnapping, a class
2 dangerous felony; and Count 5, misconduct involving weapons, a class 4
felony.
¶5 A jury convicted Navarrette on Counts 2, 3, 4, and 5 but found
him not guilty of Count 1. The jury found aggravating circumstances of
dangerousness and physical or emotional harm to the victim for Counts 2,
3, and 4. The court sentenced Navarrette to a “less than maximum term” of
12 years flat time for Count 2, a “less than maximum term” of 9 years for
Count 3, a “less than maximum term” of 12 years for Count 4, and a
presumptive sentence of 2.5 years for Count 5 as a repetitive offense. The
court ordered the sentences to run concurrently, and Navarrette received
presentence incarceration credit for 750 days. The court also ordered
Navarrette to pay costs associated with DNA testing required under A.R.S.
§ 13-610.
¶6 Navarrette appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
¶7 We have read and considered counsel’s brief and have
reviewed the record for arguable issues. See Leon, 104 Ariz. at 300.
¶8 At all stages of the proceedings against him, Navarrette was
present or waived his presence and was represented by counsel. The record
reflects the superior court afforded Navarrette all his constitutional and
statutory rights and conducted the proceedings following the Arizona
Rules of Criminal Procedure. The court held appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdicts. Navarrette’s sentences fall within the range
prescribed by law, with proper credit given for presentence incarceration.
¶9 The court erred, however, by ordering Navarrette to pay costs
associated with DNA testing required under A.R.S. § 13-610. See State v.
Reyes, 232 Ariz. 468, 472, ¶ 14 (App. 2013) (“[B]ecause § 13-610 does not
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STATE v. NAVARRETTE
Decision of the Court
require a convicted defendant to be assessed the cost of his DNA testing,
there was no basis for the provision to be imposed.”).
CONCLUSION
¶10 We vacate the portion of the sentencing order requiring
Navarrette to pay for DNA testing. We affirm Navarrette’s convictions and
sentences in all other respects.
¶11 After the filing of this decision, defense counsel’s obligations
for Navarrette’s representation in this appeal will end after informing
Navarrette of the outcome of this appeal and his future options unless
counsel’s review reveals an issue appropriate for submission to the Arizona
Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582,
584–85 (1984).
AMY M. WOOD • Clerk of the Court
FILED: AA
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