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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

Respondent,

v.

HECTOR HUGO GARCIA DEL CASTILLO, 

Petitioner.

No. 1 CA-CR 19-0360 PRPC

Appeal from the Superior Court in Maricopa County

No. CR2015-156226-001

The Honorable Dean M. Fink, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Hector H. Garcia Del Castillo, Tucson

Appellee

Maricopa County Attorney’s Office, Phoenix

By Lisa Marie Martin

Counsel for Respondent

FILED 9-1-2020
STATE v. GARCIA DEL CASTILLO

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in 

which Judge Randall M. Howe and Judge James B. Morse Jr. joined.

T H U M M A, Judge:

¶1 Hector Hugo Garcia Del Castillo petitions this court for 

review from the dismissal of his petition for post-conviction relief filed 

under Arizona Rule of Criminal Procedure (Rule) 32.9(c).

1 This court grants

review but denies relief.

FACTS AND PROCEDURAL HISTORY

¶2 In December 2015, two police officers noticed a rental car 

missing its spare tire parked outside the house where Garcia Del Castillo

lived. The officers knocked and, after he answered, asked Garcia Del 

Castillo if they could speak with him. Soon after, the officers asked if they 

could search the house for drugs. Garcia Del Castillo invited the officers

inside and showed them the various bedrooms. While in Garcia Del 

Castillo’s room, the officers noticed a spare tire, a tire iron and a “vacuum 

sealer, which [police officers] commonly see smugglers using to vacuum 

seal packages of illegal drugs.”

¶3 One of the officers then entered the attached garage and 

noticed another spare wheel with the tire removed, an industrial roll of 

plastic wrap and three burrito-shaped packages of contraband. At that 

point, the officers detained Garcia Del Castillo, obtained a search warrant

and found additional contraband including methamphetamine hidden in 

white cylindrical tubes that could fit inside tires. The officers ultimately 

seized roughly ten pounds of methamphetamine and cocaine found in the 

garage and a safe in a spare bedroom.

1 New rules governing post-conviction relief went into effect January 1, 

2020. Ariz. S. Ct. Order No. R-19-0012 (Aug. 29, 2019). Because Garcia Del 

Castillo’s petition was filed and decided by the superior court before 

January 1, 2020, this court cites to the rule then in effect.
STATE v. GARCIA DEL CASTILLO

Decision of the Court

3

¶4 After a four-day trial, where Garcia Del Castillo did not testify 

or offer any evidence, the jury found him guilty of possession of dangerous 

drugs for sale and possession of narcotic drugs for sale, both Class 2 

felonies. See Ariz. Rev. Stat. (A.R.S.) §§ 13-3407, -3408 (2020).

2 The court later 

sentenced him to two concurrent prison terms, the longest of which was ten

years, and imposed $120,000 in fines. On appeal, this court affirmed. State 

v. Garcia Del Castillo, 1 CA-CR 16-0564 (Ariz. App. Sept. 14, 2017) (mem. 

dec.).

¶5 Following his direct appeal, Garcia Del Castillo timely filed a 

notice of post-conviction relief, see Rule 32(c), and the superior court 

appointed counsel to represent him. After reviewing the record, counsel 

found no claims for relief to pursue in post-conviction proceedings. Garcia 

Del Castillo then proceeded representing himself, arguing his defense

lawyer provided ineffective assistance of counsel. The superior court 

summarily dismissed this petition for post-conviction relief and Garcia Del 

Castillo timely seeks review of that decision by this court.

3

DISCUSSION

¶6 Garcia Del Castillo reiterates three issues he raised with the 

superior court, arguing his attorney provided ineffective assistance of 

counsel by failing to (1) allow Garcia Del Castillo to testify at trial; (2) 

request an instruction pursuant to State v. Willits, 96 Ariz. 184, 191 (1964)

and (3) file a motion to suppress. This court reviews a decision dismissing 

a petition for post-conviction relief for an abuse of discretion. State v. 

Amaral, 239 Ariz. 217, 219 ¶ 9 (2016). Garcia Del Castillo bears the burden 

of establishing an abuse of discretion. State v. Poblete, 227 Ariz. 537, 538 ¶ 1 

(App. 2011). To show ineffective assistance of counsel, Garcia Del Castillo

must show both deficient performance and resulting prejudice. Strickland v. 

Washington, 466 U.S. 668, 687 (1984); State v. Bennett, 213 Ariz. 562, 567 ¶ 21 

(2006). A failure to make a sufficient showing on either prong obviates the 

need to determine whether the other prong was satisfied. State v. Salazar, 

146 Ariz. 540, 541 (1985); Bennett, 213 Ariz. at 567 ¶ 21.

2 Absent material revisions after the relevant dates, statutes cited refer to 

the current version unless otherwise indicated. 

3 In February 2020, Garcia Del Castillo filed a “Motion for Expedited 

Review;” however, because he does not provide any basis for such relief, 

that motion is denied.
STATE v. GARCIA DEL CASTILLO

Decision of the Court

4

I. Garcia Del Castillo Failed to Notify the Superior Court of His

Desire to Testify at Trial.

¶7 Garcia Del Castillo argues his trial counsel “unilaterally

overrode [his] request to testify.” The decision of whether to testify at trial 

is “exclusively the province of the accused.” State v. Nirschel, 155 Ariz. 206, 

208 (1987) (quoting State v. Lee, 142 Ariz. 210, 215 (1984)); see Ariz. Const. 

art. 2, § 24. The right to testify, however, is waived if the defendant does not 

make the desire to testify known to the superior court at trial; it cannot be 

raised “as an afterthought.” State v. Martin, 102 Ariz. 142, 147 (1967); see also 

State v. Prince, 226 Ariz. 516, 531 ¶¶ 45-47 (2011). Nor is the superior court 

generally required to make a record of the defendant’s waiver of the right 

to testify. See State v. Gulbrandson, 184 Ariz. 46, 65 (1995); see also State v. 

Allie, 147 Ariz. 320, 328 (1985) (“[A] sua sponte inquiry by the trial court as 

to whether a defendant desires to testify is neither necessary nor 

appropriate.”).

¶8 Garcia Del Castillo alleges in his petition and in a declaration 

that he informed his trial counsel he wanted to testify. However, the trial 

record reflects no such desire. Garcia Del Castillo made no on-the-record

statements that he wished to testify, and he failed to object when his 

attorney stated the defense would not present any evidence. Indeed, after 

the court asked “whether the Defense is going to present the case,” Garcia 

Del Castillo had a brief off-the-record conversation with his attorney and 

then did not object when his attorney told the court that “At this time, Your 

Honor, the Defendant will not be presenting a case.”

¶9 Garcia Del Castillo claims he was confused about the 

difference between “presenting a case” and “testifying,” but the court also 

stated “we will remove the Defendant’s testimony instruction,” to which 

Garcia Del Castillo failed to object. And after the State had rested, the court 

asked if Garcia Del Castillo had any witnesses or evidence to present, to 

which his attorney responded that “The Defense rests.” Again, Garcia Del 

Castillo did not object. As noted by the Arizona Supreme Court, “[w]ere 

defendant’s desires to testify in his own behalf as strong and unrelent[ing] 

as he now claims they were, he would not have maintained his silence 

throughout the entire trial. He might very easily have directed his request 

to the court or made motion to have his attorney removed.” State v. Tillery, 

107 Ariz. 34, 37 (1971). Because Garcia Del Castillo did not do so at trial, the 

superior court did not err in denying his petition based on ineffective 

assistance of counsel on this ground.
STATE v. GARCIA DEL CASTILLO

Decision of the Court

5

II. Garcia Del Castillo Was Not Entitled to a Willits Instruction. 

¶10 Garcia Del Castillo argues his attorney should have requested 

a Willits instruction, because “the State failed to seize/impound evidence

potentially helpful to” him, meaning he could not conduct his own DNA or 

fingerprint tests on “the spare tires/rims . . . and [the] white tubes” filled 

with narcotics. “[A] defendant is entitled to an adverse-inference 

instruction when the state loses or destroys evidence that would have been 

useful to the defense, even if that destruction is innocent.” State v. 

Glissendorf, 235 Ariz. 147, 149 ¶ 2, 150 ¶ 7 (2014) (police detective interview 

recordings destroyed according to then-existing policy meant defendant 

was entitled to a Willits instruction). “To be entitled to a Willits instruction, 

a defendant must prove that (1) the state failed to preserve material and 

reasonably accessible evidence that could have had a tendency to exonerate 

the accused, and (2) there was resulting prejudice.” Id. at 150 ¶ 8 (quotation 

omitted).

¶11 A Willits instruction is not appropriate for evidence admitted 

into evidence, such as the white tubes used to store narcotics, where there 

is no showing the evidence was lost or destroyed. See id. at 150 ¶ 7. 

Moreover, other than arguing that the State failed to seize and preserve the 

spare tires and rims allegedly used to hide and transport the narcotics, 

Garcia Del Castillo does not explain how fingerprint or DNA evidence 

would tend to exonerate him. Therefore, because Garcia Del Castillo failed 

to “do more than simply speculate about how the evidence might have been 

helpful,” he has not shown the court abused its discretion in denying his 

petition on this ground of ineffective assistance of counsel. Id. at 150 ¶ 9.

III. Garcia Del Castillo Has Not Shown Ineffective Assistance of 

Counsel Based on the Lack of a Motion to Suppress.

¶12 Garcia Del Castillo argues his attorney should have moved to

suppress the evidence seized because the officers exceeded the scope of

consent by “surreptitiously deviat[ing] from the guided tour [of the house]

and enter[ing] the garage without consent.” This court requested

supplemental briefing addressing (1) the scope of Garcia Del Castillo’s

consent to search the house and (2) whether the police officers exceeded the

scope of that consent by entering into, and searching, the garage before

seeking a warrant. See Ariz. R. Crim. P. 32.16(k). In his supplemental brief, 

however, Garcia Del Castillo only asserts the police officers did not have

any consent to enter or search the house (which is contrary to the record).

Garcia Del Castillo’s supplemental brief fails to address whether the police

officers exceeded the scope of his consent by entering and searching the
STATE v. GARCIA DEL CASTILLO

Decision of the Court

6

garage. Although the failure to develop an argument can result in waiver,

see State v. Sanchez, 200 Ariz. 163, 166 ¶ 8 (App. 2001), this court in its

discretion will address the merits.

¶13 In order to establish ineffective assistance of counsel for

failure to file a motion to suppress, the first prong of Strickland (deficient 

performance) is satisfied when, “[a]bsent some compelling tactical reason, 

a lawyer . . . neglects to move to suppress evidence obtained through a 

questionably legal search.” State v. Fillmore, 187 Ariz. 174, 181 (App. 1996).

The second prong (prejudice) is met where the defendant demonstrates that

there is a reasonable likelihood the court would have granted the motion to

suppress. See State v. Berryman, 178 Ariz. 617, 622 (App. 1994)

(citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).

4

¶14 Absent an applicable exception, evidence seized in a

warrantless search is suppressed. State v. Valenzuela, 239 Ariz. 299, 302 ¶ 10

(2016); see U.S. Const. amend. IV; Ariz. Const. art. II, § 8. One such exception 

to the warrant requirement is where there was valid consent to conduct the 

search. Valenzuela, 239 Ariz. at 302 ¶ 11. “The scope of a consensual search 

is limited to the scope of the consent given.” State v. Paredes, 167 Ariz. 609, 

612 (App. 1991). The scope of consent is determined by an “objective 

reasonableness” standard: “what would the typical reasonable person have 

understood by the exchange between the officer and the suspect?” Florida 

v. Jimeno, 500 U.S. 248, 251 (1991) (holding that “it was objectively 

reasonable for the police to conclude that the general consent to search 

respondent’s car included consent to search containers within that car 

which might bear drugs”); see State v. Becerra, 239 Ariz. 90, 93 ¶ 10 (App. 

2016) (noting that objective reasonableness “depends on the rational beliefs 

and knowledge of a reasonable person”).

4 For purposes of this discussion, it is presumed that a successful motion to 

suppress would have changed the outcome of this case. See Berryman, 178

Ariz. at 622 n.3.
STATE v. GARCIA DEL CASTILLO

Decision of the Court

7

¶15 At trial, the police officers testified that Garcia Del Castillo

invited them inside the house when they asked to look around for drugs.5

The trial record does not clearly establish the scope of consent and the body 

camera footage that apparently recorded the consent interaction was lost.

Trial testimony by the officers did not focus on the precise scope of consent

and, instead, provided a general description:

Q. And so what happened after [Garcia Del 

Castillo] let you inside the house . . .

A. I asked him if he had any large amounts of 

illegal drugs inside the house, and he said he 

didn’t. And I asked him if he could just show 

us around the house to make sure that there 

wasn’t anything laying around, large amounts 

of drugs, and he did. He walked us down the 

hallway, and he opened up each bedroom door 

as we walked down the hallway, and he 

described to me who stayed in each one of the 

bedrooms.

. . .

Q. And when you arrived at the house, [Garcia 

Del Castillo] then gave you a tour of the house?

A. Yes.

The officers also testified that Garcia Del Castillo made no objection to them 

entering the garage:

[Q]: Did the defendant give [you] permission to 

inspect the garage alone?

[OFFICER]: No. 

. . .

5 In his supplemental brief, Garcia Del Castillo asserts “the officers were not 

given permission to enter his home,” but does not point to any factual basis 

for his claim.
STATE v. GARCIA DEL CASTILLO

Decision of the Court

8

Q. [D]id the defendant lead you into the garage?

A. I believe we were in the master bedroom and 

I asked what was down the hallway, and he said 

it was the garage. I then walked down towards 

the garage and went inside.

Q. Okay. Did he come with you during this 

interaction?

A. I believe he was still in the hallway near the 

garage, or just on the threshold of the bedroom 

door, still speaking with [the other officer], as I 

went into the garage.

Q. Okay. So when he’s walking towards the 

garage or gets in it, does he seem upset with you 

that you’re in there?

A. Not at all.

¶16 Garcia Del Castillo’s failure to object or protest when the 

officer asked about, and then went into, the garage indicates that it was 

objectively reasonable for the officer to enter and search the garage. See

Jimeno, 500 U.S. at 251 (defendant failed to place any explicit limit on the 

scope of the search); see also Paredes, 167 Ariz. at 612-13 (failure to object to

the continuation of a search is a factor when determining whether the scope 

of consent was exceeded). Furthermore, once Garcia Del Castillo joined 

both officers in the garage, he began explaining what was in the garage, 

never objecting or revoking or limiting the scope of his prior consent. See 

Paredes, 167 Ariz. at 612. During closing arguments, Garcia Del Castillo’s 

trial attorney emphasized that Garcia Del Castillo could have, but did not,

revoke or limit his consent generally because he was trying to be helpful:

Not only does he let them in, he gives them a 

guided tour of the house. At any point during 

that tour [Garcia Del Castillo] could have said, 

you know what? I don’t want this to go any 

further. He could have stopped it at any time, 

but he doesn’t. Why? Because he has nothing to 

hide. 
STATE v. GARCIA DEL CASTILLO

Decision of the Court

9

Garcia Del Castillo’s failure to object when the officer entered the garage, 

combined with his failure to address the scope of consent in supplemental 

briefing when requested by this court indicates that the officers did not 

exceed the scope of consent when they entered and searched the garage

before obtaining a warrant. Therefore, Garcia Del Castillo has not shown 

the superior court abused its discretion in denying his petition on this

ground of ineffective assistance of counsel.

CONCLUSION

¶17 Accepting review of Garcia Del Castillo’s petition, because he 

has shown no error, relief is denied.