Court of Appeals of Arizona, First Division, Department C
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Petition for Special Action from the Superior Court in Yuma County Cause No. S1400CR201300100 The Honorable David M. Haws, Judge
Kris A. Moe, Yuma County Deputy Public Defender Yuma Attorney for Petitioner.
Jon R. Smith, Yuma County Attorney Yuma by Karolyn Kaczorowski, Deputy County Attorney Attorneys for Real Party in Interest.
SAMUEL A. THUMMA, Judge.
¶1 On December 3, 2012, while Petitioner Jessica Amador was at work, her seven month old child K.F. died at home. Petitioner was indicted on ten counts, the most serious of which is second degree murder, a Class 1 felony and a domestic violence (DV) offense or, in the alternative, manslaughter, a Class 2 felony and a DV offense or, in the alternative, negligent homicide, a Class 4 felony and a DV offense. The other nine counts allege child abuse, Class 4 felonies and DV offenses, against nine of Petitioners' children, occurring "on or about November 2010 through December 2012." The indictment alleges Petitioner was on felony probation at the time of these offenses and that Petitioner has one historical prior felony conviction.
¶2 Petitioner filed a timely motion to remand to the grand jury, challenging various aspects of the grand jury presentment and the indictment. After full briefing and argument, the superior court denied the motion. Petitioner then filed this special action. This court has reviewed the Petition and attachments, the State's response and attachments and Petitioner's reply.
I. Special Action Jurisdiction.
¶3 "A challenge to the denial of a motion for remand generally must be made by special action before trial, and is not reviewable on direct appeal."
Francis v. Sanders, 222 Ariz. 423, 426, ¶ 9, 215 P.3d 397, 400 (App. 2009) . Because the Petition raises purely legal issues, and because Petitioner has no equally plain, speedy or adequate remedy by appeal, this court accepts special action jurisdiction. See Ariz. R.P. Spec. Act. 1(a); Bashir v. Pineda, 226 Ariz. 351, 353, ¶ 6, 248 P.3d 199, 2 01 (App. 2011).
II. The Superior Court Properly Denied The Motion To Remand.
¶4 As applied, "grand jury proceedings may be challenged only by motion for a new finding of probable cause alleging that the defendant was denied a substantial procedural right." Ariz. R. Crim. P. 12.9(a). This court reviews the superior court's legal interpretations de novo. State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997) . With this background, the court addresses the issues properly raised in the Petition.
A. The Grand Jury Properly Was Instructed On Causation.
¶5 Petitioner claims the grand jury was not properly instructed on causation, ...