from the Superior Court in Pima County No. CR20040598 The
Honorable Deborah Bernini, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Mariette S. Ambri, Assistant Attorney General,
Tucson Counsel for Appellee
Feinman, Pima County Public Defender By Erin K. Sutherland,
Assistant Public Defender, Tucson Counsel for Appellant
Eckerstrom authored the opinion of the Court, in which
Presiding Judge Eppich and Judge Espinosa concurred.
Francisco Fuentes appeals his convictions and sentences for
first-degree murder and aggravated assault. For the reasons
that follow, we affirm the convictions and the sentences for
aggravated assault but vacate the sentence for first-degree
murder and remand for new sentencing.
and Procedural History
"We view the evidence and all reasonable inferences in
the light most favorable to sustaining the jury's
verdicts." State v. Holle, 240 Ariz. 300,
¶ 2 (2016). One evening in February 2004, Fuentes was
outside his residence with a man known as "Guero."
A neighbor, J.P., stopped his truck outside Fuentes's
home. Fuentes approached the truck carrying a
He walked to the passenger side, where J.P.'s cousin was
sitting. Fuentes angrily asked what business J.P. and his
cousin had at Fuentes's residence. He then pulled
J.P.'s cousin by the shirt and pointed the gun at him.
After J.P. told Fuentes to calm down and threatened to call
the police, Fuentes accused J.P. of being a
"snitch," came around the truck, and hit J.P. in
the face with the barrel of the gun hard enough to cause
bleeding and contusions. J.P. became frightened and sped
away, and Fuentes fired a shot at J.P.'s departing truck.
As he drove, J.P. phoned his older brother, A.P., to tell him
Fuentes had hit him in the face with a gun. A.P. drove with
three passengers to J.P.'s residence, where J.P. and his
cousin were waiting outside. As A.P. approached, his
headlights illuminated Fuentes standing at J.P.'s gate
with Guero. Both Fuentes and Guero were holding guns.
Fuentes and Guero ran to a nearby mound of dirt and asphalt.
When A.P. saw them running, he stopped the truck in the
middle of the road and turned on his high-beam lights. His
three passengers got out of the truck.
One of these passengers, D.P.-J.P. and A.P.'s brother,
who knew Fuentes-approached the base of the mound to complain
to Fuentes about what he had done to J.P. When D.P. was a
foot or two away from him, Fuentes pointed his gun at
D.P.'s chest. D.P. angrily asked Fuentes why he had hurt
J.P. Fuentes then shot D.P. once, and D.P. collapsed. D.P.
died at the scene from the bullet wound.
After shooting D.P., Fuentes threatened other witnesses with
his gun and fired additional shots. As Fuentes ran down from
the mound with his gun pointed, he passed A.P. in the
driver's seat of his truck, frightening him. A.P. drove
his truck at Fuentes and nearly struck him, crashing into and
knocking down the fence surrounding J.P.'s yard.
A grand jury charged Fuentes with first-degree murder for the
death of D.P. and eight counts of aggravated assault with a
deadly weapon, two of which related to the incidents outside
Fuentes's home and the remainder of which related to the
incidents outside J.P.'s home.
After an eight-day trial for which Fuentes failed to appear,
the jury found him guilty of first-degree murder and five
counts of aggravated assault with a firearm. The jury also
found the state had proven beyond a reasonable doubt that the
murder and the aggravated assaults at J.P.'s property
were committed in the presence of an accomplice. The trial
court sentenced Fuentes to natural life for the first-degree
murder and 7.5 years for each aggravated assault, with all
sentences to run concurrently. This appeal followed.
have jurisdiction pursuant to A.R.S. §§
12-120.21(A)(1), 13-4031, and 13-4033(A).
Based on a tip shortly after the incident regarding
Guero's potential whereabouts, police visited a property
in Marana that was registered in the name of Fuentes's
son. A fence surrounded the property, but police found the
gate open when they arrived. They entered and approached a
mobile home situated there. They found its door open, called
out to any potential occupants, received no response, and
entered to perform what they termed a "security
sweep." Once inside, police observed a baseball cap like
the one Guero was known to wear, as well as a handgun that
appeared to be consistent with one known to be owned by
Fuentes. The officers exited the mobile home,
obtained a telephonic search warrant and, pursuant to that
warrant, seized the cap and gun.
Before trial, Fuentes moved to suppress the evidence obtained
from the mobile home. The trial court denied the motion on
the ground that Fuentes did not have standing to challenge
the search. On appeal, Fuentes contends: (a) he should have
been permitted to challenge the search because he had a
reasonable expectation of privacy in the residence; (b) the
search was unconstitutional; and (c) the court's error in
denying his motion to suppress was not harmless. We address
each of these arguments in turn.
Expectation of Privacy
The protections afforded by the United States and Arizona
Constitutions against unlawful searches and seizures relate
to personal rights that "can be invoked only by a
defendant with a 'legitimate expectation of privacy in
the invaded place.'" State v. Peoples, 240
Ariz. 244, ¶ 8 (2016) (quoting Rakas v.
Illinois, 439 U.S. 128, 143 (1978)). To be
"legitimate," a defendant's expectation of
privacy must be "one that society is prepared to
recognize as reasonable." Id. (quoting
Minnesota v. Olson, 495 U.S. 91, 95-96 (1990)). As
our supreme court illustrated in Peoples, a person
need not technically own property to have an expectation of
privacy in it. See id. ¶¶ 18-24. Rather,
we "must examine the totality of the circumstances"
to determine whether a defendant's expectation of privacy
"was in accord with social custom and reasonable."
Id. ¶¶ 19, 22.
In this case, the trial court accepted as true Fuentes's
avowal that he had: (a) purchased the property to secure
rental income; (b) placed it in the name of his son, who was
serving in the military and to whom he planned to offer it
upon his return; (c) purchased the mobile home, placed it,
too, in his son's name, and located it on the property;
(d) collected rental income from the property; (e) worked on
the mobile home shortly before his arrest, including painting
it, repairing the roof, and acquiring a permit to install a
septic tank; (f) periodically slept or napped in the mobile
home when working on the property; (g) possessed the keys to
the mobile home and left it locked; and (h) left personal
property, including two bedrolls and beer, inside.
Under the totality of the circumstances, it was an abuse of
discretion for the trial court to find that Fuentes "did
not have a legitimate expectation of privacy in this
particular place" based on these facts. See id.
¶ 7 (error of law constitutes abuse of discretion).
Although Fuentes was no longer the record owner of the mobile
home or the property on which it sat, the facts the trial
court accepted as true demonstrate that Fuentes operated and
asserted control over it in all respects. Not only had he
previously collected rent payments and obtained a permit to
conduct work to upgrade the residence; he also retained and
exercised the rights to use it himself, left personal items
there, and exercised unfettered authority to permit or
exclude others from entering it. It was therefore "in
accord with social custom and reasonable" for Fuentes to
expect privacy in that residence. Id. ¶ 22;
see also State v. Main, 159 Ariz. 96, 98 (App. 1988)
(factors relevant to privacy expectation include prior use,
legitimate presence, and ability to control or exclude
Our supreme court's reasoning in Peoples
requires this conclusion. There, the court found that a
defendant retained a reasonable expectation of privacy in the
home of his next-door neighbor, where he spent one night as a
guest but left no personal belongings other than a cell
phone. Id. ¶¶ 2, 17-25. In so holding, the
court implicitly rejected the state's argument, similar
to one offered here, that a defendant has no expectation of
privacy in a searched residence because another person may
have a greater expectation of privacy in it or because the
defendant may have another primary residence. Id. In
this case, the totality of the circumstances demonstrates
that Fuentes, the person exerting all functional control over
the mobile home, had significantly more reason to expect
privacy in that residence than a temporary overnight guest.
of the Search
The state concedes that it lacked a warrant for its initial
entry into the mobile home. It contends, however, that the
search was nonetheless lawful as a "protective
sweep" to ensure the safety of the officers. See
Maryland v. Buie, 494 U.S. 325, 327 (1990). Fuentes
counters that, because "there was no contemporaneous
arrest in this case," the protective sweep exception to
the warrant requirement does not apply. Although the trial
court did not reject the motion to suppress on this basis, we
must uphold the trial court's ruling on any legal ground
supported by the record. State v. Boteo-Flores, 230
Ariz. 551, ¶ 7 (App. 2012). We therefore address the
Under both the United States and Arizona Constitutions, a
warrant is generally required before police may search a
residence. State v. Ault,150 Ariz. 459, 463 (1986).
Although the United States Supreme Court has identified
exceptions to the warrant requirement, those exceptions
"must be narrowly tailored to the circumstances that
justify their creation." See State v. Kempton,166 Ariz. 392, 396 (App. 1990) (citing Florida v.
Royer,460 U.S. 491, ...