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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IVAN TINEO FIGUEROA, Appellant.

No. 1 CA-CR 19-0082

 1 CA-CR 19-0273

(Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2014-001424-001

 CR2014-109338-001

The Honorable Michael D. Gordon, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Robert A. Walsh

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Mikel Steinfeld

Counsel for Appellant

Ivan Tineo Figueroa, San Luis

Appellant

FILED 4-9-2020
STATE v. FIGUEROA

Decision of the Court

2

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.1

J O H N S E N, Judge:

¶1 Ivan Tineo Figueroa filed this appeal in accordance with 

Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 

(1969), following his resentencing after this court vacated and remanded 

consecutive sentences that had been imposed in violation of Arizona 

Revised Statutes ("A.R.S.") section 13-116 (2020).

2 See State v. Figueroa, 1 CACR 16-0193, 2018 WL 4374613, at *1, *6, *8, ¶¶ 1, 44, 49, 62 (Ariz. App. Sept. 

13, 2018) (mem. decision). Figueroa's counsel searched the record on appeal 

and found no arguable question of law that is not frivolous. See Smith v. 

Robbins, 528 U.S. 259, 284 (2000); Anders, 386 U.S. at 744; State v. Clark, 196 

Ariz. 530, 537, ¶ 30 (App. 1999). Counsel asked this court to search the

record for fundamental error. Figueroa filed a supplemental brief 

identifying various issues, which we address below.

¶2 After this court's review of the record revealed possible 

violations of A.R.S. § 13-116 arising from the resentencing, we ordered 

briefing pursuant to Penson v. Ohio, 488 U.S. 75 (1988). For the reasons that 

follow, we affirm Figueroa's sentences as modified.

1 Judge Johnsen was a sitting member of this court when the matter 

was assigned to this panel of the court. She retired effective February 29, 

2020. In accordance with the authority granted by Article 6, Section 3, of 

the Arizona Constitution and pursuant to A.R.S. § 12-145 (2020), the Chief 

Justice of the Arizona Supreme Court has designated Judge Johnsen as a 

judge pro tempore in the Court of Appeals, Division One, for the purpose of 

participating in the resolution of cases assigned to this panel during her 

term in office. See Ariz. S. Ct., Admin. Order No. 2020-35.

2 Absent material revision after the date of an alleged offense, we cite 

the current version of a statute or rule.
STATE v. FIGUEROA

Decision of the Court

3

FACTS AND PROCEDURAL BACKGROUND

¶3 Figueroa committed a series of crimes against multiple 

victims in a single day, including entering victims' homes or yards, 

demanding their car keys, pointing a gun at several victims, and stealing 

their cars or other belongings.

3 The facts are further detailed in our decision 

in Figueroa's first appeal from his convictions and sentences, see Figueroa, 

2018 WL 4374613, at *1-2, ¶¶ 2-13. We need not recount them here in their 

entirety.

¶4 At trial, a jury convicted Figueroa of the following offenses:

4

• Count 1: armed robbery, a Class 2 dangerous felony;

• Count 2: armed robbery, a Class 2 dangerous felony;

• Count 4: theft of means of transportation, a Class 3 

felony;

• Count 5: kidnapping, a Class 2 dangerous felony;

• Count 6: attempted kidnapping, a Class 3 dangerous 

felony;

• Count 7: aggravated assault, a Class 3 dangerous 

felony;

• Count 8: aggravated assault, a Class 3 dangerous 

felony;

• Count 9: aggravated assault, a Class 3 dangerous 

felony;

• Count 10: aggravated assault, a Class 3 dangerous 

felony;

• Count 11: aggravated assault, a Class 3 dangerous 

felony;

• Count 13: unlawful discharge of a firearm, a Class 6 

felony;

• Count 14: criminal trespass, a Class 2 misdemeanor;

• Count 15: burglary, a Class 2 dangerous felony;

• Count 16: attempted armed robbery, a Class 3 

dangerous felony;

• Count 17: aggravated assault, a Class 3 dangerous 

felony;

3 We view the facts in the light most favorable to upholding Figueroa's 

sentences. State v. Delgado, 232 Ariz. 182, 185, ¶ 2 (App. 2013).

4 We refer to the counts as renumbered in the consolidated indictment.
STATE v. FIGUEROA

Decision of the Court

4

• Count 18: attempted armed robbery, a Class 3 

dangerous felony;

• Count 19: burglary, a Class 2 dangerous felony;

• Count 20: aggravated assault, a Class 3 dangerous 

felony;

• Count 21: aggravated assault, a Class 2 dangerous 

felony and dangerous crime against children;

• Count 22: armed robbery, a Class 2 dangerous felony;

• Count 23: burglary, a Class 2 dangerous felony;

• Count 24: aggravated assault, a Class 3 dangerous 

felony;

• Count 25: aggravated assault, a Class 2 dangerous 

felony and dangerous crime against children;

• Count 26: attempted armed robbery, a Class 3 

dangerous felony;

• Count 27: burglary, a Class 2 dangerous felony;

• Count 28: aggravated assault, a Class 3 dangerous 

felony;

• Count 30: armed robbery, a Class 2 dangerous felony;

• Count 31: burglary, a Class 2 dangerous felony;

• Count 32: theft of means of transportation, a Class 3 

felony;

• Count 33: attempted theft of means of transportation, 

a Class 4 felony; and

• Count 34: attempted robbery, a Class 5 felony.

¶5 After Figueroa appealed his convictions and sentences, we

vacated three convictions (Counts 4, 32 and 33), affirmed the remaining 

convictions, and vacated and remanded 15 sentences because the superior 

court improperly imposed them consecutively to other sentences for crimes

constituting the same act in violation of A.R.S. § 13-116. Id. at *1, *6,*8, ¶¶ 1, 

44, 49, 62.

¶6 On remand, the superior court directed the parties to submit 

a joint sentencing memorandum "identifying the counts that need to be resentenced, including the length of sentence as to each count." The court 

precisely followed the parties' joint memorandum when it imposed the

same term of years for each remanded count as it had in the original 

sentencing. As we directed, the court ordered the sentences on the 

remanded counts to be served concurrently rather than consecutively.
STATE v. FIGUEROA

Decision of the Court

5

¶7 Figueroa timely appealed.5 We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-

120.21(A)(1) (2020), 13-4031 (2020) and -4033(A)(4) (2020).

DISCUSSION

¶8 Because we already have reviewed Figueroa's convictions 

and have affirmed the sentences we did not remand for resentencing, our 

review is limited to matters arising from the resentencing. See State v. 

Hartford (Hartford III), 145 Ariz. 403, 405 (App. 1985) (validity of underlying 

conviction previously affirmed on appeal is "clearly beyond the scope of the 

matter remanded to the trial court" and thus is not reviewable in appeal 

from subsequent resentencing).

A. Consecutive Sentences Under A.R.S. § 13-116.

¶9 Because Figueroa did not object to the superior court's 

imposition of any consecutive sentences at the time of resentencing, we 

review for fundamental error only. See State v. Escalante, 245 Ariz. 135, 142, 

¶ 21 (2018). An illegal sentence constitutes fundamental error. State v. 

Martinez, 226 Ariz. 221, 224, ¶ 17 (App. 2011).

1. Legal principles.

¶10 As § 13-116 provides, "[a]n act or omission which is made 

punishable in different ways by different sections of the laws may be 

punished under both, but in no event may sentences be other than 

concurrent." To determine whether Figueroa's conduct constituted a single 

act requiring concurrent sentences, we first must determine which crime 

was the "ultimate charge – the one that is at the essence of the factual nexus"

and "often . . . the most serious of the charges." State v. Gordon, 161 Ariz. 

308, 315 (1989). We then "subtract[] from the factual transaction the 

evidence necessary to convict on the ultimate charge"; if "the remaining 

evidence satisfies the elements of the other crime," the conduct may 

constitute multiple acts. Id. In that situation, we also consider whether "it 

was factually impossible to commit the ultimate crime without also 

committing the secondary crime" and "whether the defendant's conduct in 

5 We note that although Figueroa initially failed to timely file a notice 

of appeal in the CR2014-109338-001 matter, after the superior court granted 

post-conviction relief and leave to file a delayed notice of appeal, Figueroa 

thereafter timely appealed.
STATE v. FIGUEROA

Decision of the Court

6

committing the lesser crime caused the victim to suffer an additional risk of 

harm beyond that inherent in the ultimate crime." Id.

2. Relevant facts.

¶11 As relevant here, the facts are as follows: As to victim G.G., 

Figueroa entered her house and asked for her car keys. After she told him 

the car did not work, he pulled out a gun, pointed it at her and then pointed 

it at her son. Figueroa then took some clothing, hopped out of the window 

and ran away. As to G.G., Figueroa was convicted of Counts 20 (aggravated 

assault), 22 (armed robbery) and 23 (burglary). The court resentenced 

Figueroa on Counts 22 and 23 concurrently with each other, but 

consecutively to Count 20. (The court originally had ordered the sentences 

on Counts 20 and 22 to be concurrent but Count 23 to be consecutive.)

¶12 As to victim R.O., Figueroa entered her house through the 

back door. R.O. told him to leave and Figueroa pulled out a gun, pointed 

it at her daughter and demanded the keys. R.O. told Figueroa she did not

have a car, and Figueroa left. As to R.O., Figueroa was convicted of Counts 

24 (aggravated assault), 26 (attempted armed robbery) and 27 (burglary). 

The court resentenced Figueroa on Counts 26 and 27 concurrently with each 

other, but consecutively to Count 24. (The court originally had ordered the 

sentences on Counts 24 and 26 to be concurrent but Count 27 to be 

consecutive.)

¶13 As to victim J.T., Figueroa jumped over the back fence and 

entered J.T.'s house. Figueroa sat on the couch and laid a gun between him 

and J.T.'s wife and asked for car keys; she replied she did not have them. 

Figueroa then went from the house to the front yard, where J.T. was 

watering, pointed a gun at J.T. and demanded the keys. Figueroa pulled 

the keys from J.T.'s pocket, stole the car and drove away. As to J.T., 

Figueroa was convicted of Counts 28 (aggravated assault), 30 (armed 

robbery) and 31 (burglary). The court resentenced Figueroa on Counts 30 

and 31 concurrently with each other, but consecutively to Count 28. (The 

court originally had ordered the sentences on Counts 28 and 30 to be 

concurrent but Count 31 to be consecutive.)

3. Application of Gordon factors.

¶14 We first note the superior court may impose consecutive 

sentences under § 13-116 for crimes committed against different victims. 

State v. Riley, 196 Ariz. 40, 47, ¶ 21 (App. 1999). Our analysis, therefore, 

concerns Figueroa's three sets of convictions, each committed against a 

distinct victim: G.G., R.O., and J.T.
STATE v. FIGUEROA

Decision of the Court

7

¶15 For each set of crimes, Figueroa entered a victim's home – and 

as to J.T., later his front yard – demanded the car keys while wielding a gun, 

and stole (or attempted to steal), the victim's belongings. Considering only 

the aggravated-assault and armed-robbery charges, the ultimate charge as 

to each of these victims was armed robbery (or attempted armed robbery).6 

See State v. Alexander, 175 Ariz. 535, 537 (App. 1993) (aggravated robbery 

ultimate charge because "object of the episode was to rob the victim" and 

aggravated assault was "simply ancillary"); see also State v. Price, 218 Ariz. 

311, 313, 315, ¶¶ 2, 15 (App. 2008) (when aggravated assault was charged 

along with armed or aggravated robbery, latter two charges were the 

ultimate charges).

¶16 Figueroa's armed-robbery (or attempted armed-robbery) 

convictions were based on his using force or threats to take (or attempt to 

take) the victims' property while armed with a gun. See A.R.S. §§ 13-

1902(A) (2020), -1904(A) (2020). The aggravated-assault convictions were 

based on Figueroa's "[i]ntentionally placing [the victims] in reasonable 

apprehension of imminent physical injury" while wielding a gun. See A.R.S. 

§§ 13-1203(A)(2) (2020), -1204(A)(2) (2020).

¶17 As for the first Gordon factor, after subtracting the evidence 

necessary to prove the armed-robbery (or attempt) charges, the remaining 

evidence is insufficient to satisfy the elements of the aggravated-assault 

charges. See Gordon, 161 Ariz. at 315. Without the evidence Figueroa was 

armed with a gun, the evidence is insufficient to prove he wielded or used 

that gun for purposes of the aggravated assaults. See Price, 218 Ariz. at 316, 

¶ 18 (Gordon analysis focuses on defendant's "actual conduct"). Concurrent 

sentences therefore were required for these charges as they relate to each of 

the victims. See Gordon, 161 Ariz. at 315; see also State v. Watson, 1 CA-CR 

18-0838, 2020 WL 284085, at *5, ¶ 20 (Ariz. App. Jan. 21, 2020) (failure to 

satisfy first Gordon factor ends inquiry).

¶18 The second and third Gordon factors further weigh toward a 

single act. It was "factually impossible to commit the [armed robberies (or 

attempted armed robberies)] without also committing" the aggravated 

assaults. See Gordon, 161 Ariz. at 315. For Figueroa to use a gun to take or 

attempt to take the victims' property, he necessarily had to place them in 

reasonable apprehension of imminent physical injury while wielding that 

gun. And because the underlying events in each episode were nearly

6 Because our resolution of this issue obviates any need to analyze the 

burglary charges under Gordon, we consider only the aggravated-assault 

and armed-robbery charges.
STATE v. FIGUEROA

Decision of the Court

8

simultaneous, the aggravated assaults exposed the victims to no additional 

risk of harm beyond that of the armed robberies (or attempted armed 

robberies). See Alexander, 175 Ariz. at 538; see also Price, 218 Ariz. at 316, ¶ 

18.

¶19 In sum, the conduct underlying the armed-robbery (or 

attempted armed-robbery) and aggravated-assault charges related to the 

same victim constituted the same act, and concurrent sentences were 

required under § 13-116. In their respective Penson briefs, counsel for 

Figueroa and the State agree (although the State argues that, under the 

circumstances, the error would not extend the Figueroa's aggregate term of 

incarceration). 

¶20 Accordingly, we modify Figueroa's sentences such that (1) 

Counts 20 (aggravated assault), 22 (armed robbery) and 23 (burglary) run 

concurrently to each other, but consecutively to the remaining sentences; 

(2) Counts 24 (aggravated assault), 26 (attempted armed robbery) and 27 

(burglary) run concurrently to each other, but consecutively to the 

remaining sentences; and (3) Counts 28 (aggravated assault), 30 (armed 

robbery) and 31 (burglary) run concurrently to each other, but 

consecutively to the remaining sentences. See State v. Wilson, 131 Ariz. 96, 

99 (1981) (modifying, without remand, illegally imposed consecutive 

sentence to run concurrently with remaining sentence); see also Ariz. R. 

Crim. P. 31.19(c) ("The appellate court may reverse, affirm, or modify the 

action of a lower court, and it may issue any necessary and appropriate 

order in connection with its decision.").

B. Issues Raised in Supplemental Brief.

¶21 Figueroa argues the superior court erred by denying his pretrial motions to change counsel. He does not, however, contend the court's 

denial of his motions affected the 2019 resentencing. Instead, Figueroa

argues his lack of communication with his attorney deprived him of an 

adequate defense at trial. Because this argument is a challenge to his

underlying convictions, which we already have affirmed, see Figueroa, 2018 

WL 4374613, at *1, ¶ 1, it is beyond the scope of our review in this appeal. 

See Hartford III, 145 Ariz. at 405.7

7 For this reason, we also reject Figueroa's argument that insufficient 

evidence supported his two convictions for Counts 21 and 25 (both 

aggravated assaults and dangerous crimes against children). Additionally, 
STATE v. FIGUEROA

Decision of the Court

9

C. Due-Process Review.

¶22 Our review of the resentencing proceeding does not reveal

any further fundamental error. The record does not show that during the 

resentencing, the superior court ordered or considered a new presentence 

report. See State v. Hartford (Hartford II), 133 Ariz. 328, 330 (1982) (ordering 

conviction remanded for resentencing, "at which time a new presentence 

report must be prepared"). Nonetheless, at the original sentencing

proceeding, the court received and considered a "Probation Violation 

Report" that contained the essential elements of a presentence report, such 

as circumstances of the offense, Figueroa's history, and the impact of the 

offense on the victims. See A.R.S. § 12-253(4) (2020).

¶23 At resentencing, the superior court stated it had "reviewed the 

file extensively including the sentencing memorandum provided originally 

by the State." Further, the court stated it would not "resentence [Figueroa] 

in a more harsh manner than originally sentenced." Indeed, just as it had 

done at the first sentencing, the court resentenced Figueroa to the 

presumptive term for all counts involving such discretion. Thus, even 

assuming without deciding that error occurred, it was not fundamental

error because Figueroa was not prejudiced by the absence of a new 

presentence report. See Escalante, 245 Ariz. at 142, ¶ 21 (prejudice required 

under fundamental-error review).

¶24 Finally, other than the errors identified above, see supra ¶¶ 19-

20, the court re-imposed legal sentences for those crimes of which Figueroa 

was convicted.

CONCLUSION

¶25 For the foregoing reasons, we affirm Figueroa's sentences as 

modified, supra ¶ 20. Defense counsel's obligations pertaining to Figueroa's 

representation in this appeal have ended. Counsel need do no more than

because we fully address the issue above, we need not further address 

Figueroa's argument that the superior court erred by imposing consecutive 

sentences for armed robbery and aggravated assault, or for Counts 21 and 

25, under A.R.S. § 13-116. See supra ¶¶ 9-20; see also Riley, 196 Ariz. at 47, ¶ 

21 (consecutive sentences for crimes against different victims permissible 

under § 13-116).
STATE v. FIGUEROA

Decision of the Court

10

inform Figueroa of the outcome of this appeal and his future options, 

unless, upon review, counsel finds "an issue appropriate for submission" to 

the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 

Ariz. 582, 584-85 (1984). On the court's own motion, Figueroa has 30 days 

from the date of this decision to proceed, if he wishes, with a pro per motion 

for reconsideration. Figueroa has 30 days from the date of this decision to 

proceed, if he wishes, with a pro per petition for review.