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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE UBALDO RUBIO FIGUEROA, Appellant.

No. 1 CA-CR 18-0055

Appeal from the Superior Court in Maricopa County

No. CR 2016-129015-001

The Honorable David O. Cunanan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jillian Francis

Counsel for Appellee

Bain & Lauritano PLC, Glendale

By Sheri M. Lauritano

Counsel for Appellant

FILED 4-4-2019
STATE v. FIGUEROA

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.

C R U Z, Judge:

¶1 Jose Ubaldo Rubio Figueroa appeals his conviction and 

sentence for second degree murder, a class 1 felony, and interfering with 

judicial proceedings when he violated an order of protection, a class 1 

misdemeanor. Figueroa argues the court erred when it permitted the two 

charges to be tried jointly, because hearing evidence of the misdemeanor 

charge prejudiced the jury in their deliberation on the murder charge. 

Figueroa further argues the superior court erred by allowing the jury to 

determine the question of guilt as to the misdemeanor charge. Finding no 

reversible error, we affirm Figueroa’s convictions and sentences.

FACTS1 AND PROCEDURAL HISTORY

¶2 Figueroa was charged and convicted of killing Maria 

Herminia Rivera by stabbing her to death on June 17, 2016, in the hair salon 

where she was employed. Rivera’s body was found by a letter-carrier. 

When paramedics arrived, Rivera had no pulse and was not breathing; she

was pronounced dead at the scene.

¶3 A search of Rivera’s purse revealed a copy of the protection 

order Rivera had obtained against Figueroa. The order prohibited Figueroa

from going to the salon where Rivera was murdered. A police officer 

testified he served Figueroa with the order of protection nearly two months 

before the date of Rivera’s murder. Rivera’s work friend, Maria Solomon, 

testified that she was out at the grocery store with Rivera two weeks before 

her murder. They came across Figueroa who, despite the order of 

protection, followed them to church and sat next to them during the service. 

When Rivera later left, Figueroa told Solomon that Rivera “had one week” 

to come back to him, or else he would kill her.

¶4 Figueroa’s sister-in-law, Blanca Lydia Reyes Rios, testified 

Figueroa called her after the murder and said that a “tragedy” had 

 

1 We view the facts in the light most favorable to sustaining the 

verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
STATE v. FIGUEROA

Decision of the Court

3

happened: that he had stabbed Rivera with a knife he found in the salon

because he was angry after an argument they had.

¶5 After the murder, Figueroa drove Rivera’s car to a nearby 

park, where he called police and claimed he was cut and Rivera had been 

hurt. When police arrived at the park, they discovered Figueroa with 

multiple lacerations on his hands and in possession of Rivera’s vehicle. 

Police discovered blood in Rivera’s vehicle, in the park bathroom, and on

Figueroa’s clothes. They asked Figueroa where the knife was, to which he 

responded that he did not have it, that it was at the salon with Rivera. Police 

later found a bloody knife outside the salon, near a dumpster behind the 

building; results of DNA testing showed the blood on the knife was that of 

both Figueroa and Rivera.

¶6 Regarding the misdemeanor charge only, at the close of 

evidence the court inquired whether the parties wished to submit the issue 

of guilt to the court or the jury. Neither party expressed a preference on the 

issue and both counts were ultimately submitted to the jury for a 

determination of guilt.

¶7 Figueroa was convicted of both counts and sentenced to 

twenty-five years’ imprisonment for second degree murder, and six 

months’ jail for interfering with judicial proceedings. We have jurisdiction 

pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona 

Revised Statutes (“A.R.S.”) sections 13-4031 and -4033(A)(1).

DISCUSSION

I. Evidence of Protective Order

¶8 Figueroa argues the court committed reversible error when it 

admitted evidence that he violated a protective order by going to Rivera’s 

place of employment. He disputes the admissibility of the evidence because 

it was not relevant to prove the murder charge, he “never had the 

opportunity to dispute the potential underlying facts about the order,” and 

the information was unduly prejudicial since it “may have left an 

impression to the jury that [Figueroa] had committed other bad acts.”

¶9 Since Figueroa did not object to admission of this evidence at 

trial, he must now prove that admission of evidence of the protective order

constitutes “error that was both fundamental and prejudicial.” State v. 

Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) (citation omitted). “[T]he first step 

in fundamental error review is determining whether trial error exists.” Id.

at 142, ¶ 21. Fundamental error is error going to the foundation of the case, 
STATE v. FIGUEROA

Decision of the Court

4

error that takes from the defendant a right essential to his defense, or error 

of such magnitude that the defendant could not possibly have received a 

fair trial. Id.

A. Relevance

¶10 “Relevant evidence is evidence that has any tendency to make 

the existence of any fact in dispute more or less probable.” State v. Connor, 

215 Ariz. 553, 562, ¶ 30 (App. 2007) (citing Ariz. R. Evid. (“Rule”) 401).

Because it was probative of (1) the ill will between Figueroa and Rivera, 

(2) Rivera’s fear of and desire to have no contact with Figueroa, and 

(3) Figueroa’s awareness that he was not welcome at and prohibited from

Rivera’s place of employment, evidence of the protective order properly 

served on Figueroa was admissible under Rule 401. See State v. Jeffers, 135 

Ariz. 404, 418 (1983) (explaining the relevance of evidence of “prior trouble 

between the victim and the accused”). Furthermore, Solomon testified that 

Figueroa disobeyed the order on at least one occasion prior to the murder 

when he accompanied the women to church, and thereafter threatened to 

kill Rivera if she did not come back to him within one week. These factors 

tend to show that Rivera perceived Figueroa as a potential threat to her 

safety and that Figueroa was willing to disobey a court order to have 

contact with Rivera. These factors also tend to show Figueroa’s anger and 

frustration towards Rivera resulted in Figueroa’s visit to Rivera’s place of 

employment—likely for the purpose of inflicting harm on her. Thus, the 

protective order was relevant in proving Figueroa’s mental state, a fact of 

consequence to the charge of second degree murder.

B. No Opportunity To Dispute Facts Underlying the Order

¶11 Figueroa claims it was unfair to introduce evidence of the 

protective order at trial because he never had the opportunity to dispute 

the potential underlying facts about the order. This argument is wholly 

without merit. Arizona Rule of Protective Order Procedure 38(a) provides 

that “[a]t any time while a protective order . . . is in effect, a defendant may 

request one hearing in writing.” See also A.R.S. § 13-3602(I). Additionally, 

Figueroa had the opportunity to cross-examine the foundational witness at 

trial and to argue against any implication that he ever behaved in a manner 

that could have frightened Rivera.

C. Unduly Prejudicial

¶12 Figueroa also argues that information regarding the 

protective order “may set [him] out in a bad light and may have left an 

impression to the jury that [he] committed other bad acts.” To be sure, the 
STATE v. FIGUEROA

Decision of the Court

5

superior court may “preclude relevant evidence if its probative value is 

substantially outweighed by a danger of . . . unfair prejudice.” State v. 

Trujillo, 245 Ariz. 414, 423, ¶ 30 (App. 2018) (citing Ariz. R. Evid. 403) 

(internal quotations omitted). Here, in order to minimize any potential 

prejudice from reviewing the entire protective order, jurors were presented 

with only the first page of the order. As such, jurors did not see the victim’s 

summary of threatening facts, as included in her petition for the protective 

order, or any prejudicial language in the protective order itself. Any 

prejudice against Figueroa posed by the jury’s simple awareness of the 

order’s existence was minimal. Additionally, the court instructed the jury 

to “not concern yourselves with the reasons why some portions of the 

exhibits [were] deleted [and to] not speculate upon what the deleted 

portions might or might not reveal.” See State v. Ramirez, 178 Ariz. 116, 127 

(1994) (explaining the presumption that jurors follow their instructions, 

absent evidence to the contrary).

¶13 On the other hand, the probative value of the protective order 

outweighed any potential prejudice. Evidence of the protective order—and 

more specifically, evidence of Figueroa’s violation of the order on the day 

he threatened to kill Rivera—was probative of motive and of the evil intent 

when he tracked down Rivera and violently killed her. See Ariz. R. Evid.

404(b). The evidence of the protective order was both relevant to and 

probative of the murder charge, and the judge gave the limiting Rule 404(b)

“other acts” instruction to the jury. Accordingly, because the superior court 

did not err in admitting it at trial, Figueroa has failed to establish error, 

much less fundamental error.

II. Jury Verdict—Misdemeanor Charge

¶14 Finally, Figueroa argues that because interfering with a 

judicial proceeding is a misdemeanor charge, with punishment of not more 

than six months, he was not entitled to a jury trial on that charge, and in 

fact, submitting the matter to the jury was error. Although the trial court 

alerted the parties to the fact that Figueroa was not entitled to a jury trial as 

to the misdemeanor count, Figueroa did not request the court rule on the 

issue of guilt. We review de novo whether a defendant is entitled to a bench 

trial.

¶15 The constitutions of both the United States and Arizona 

clearly give the defendant in a criminal case the right to trial by jury; but 

“[i]t is well established that the right to a jury trial may be waived when the 

accused is aware of this right and voluntarily and intelligently relinquishes 

it.” State v. Durham, 111 Ariz. 19, 20 (1974) (citing Patton v. United States, 281 
STATE v. FIGUEROA

Decision of the Court

6

U.S. 276 (1930)). The Arizona Constitution provides that “[t]he right of jury 

trial as provided by this constitution shall remain inviolate, but trial by jury 

may be waived by the parties . . . with the consent of the court in any 

criminal cause.” Ariz. Const. art. VI, § 17. Accordingly, although a criminal 

defendant in Arizona may waive his right to a jury trial, such waiver is not 

without limits—the consent of both the State and the judge is required. 

A.R.S. § 13-3983 (“A trial by jury may be waived in criminal actions by the 

consent of both parties expressed in open court and entered on its

minutes.”); Durham, 111 Ariz. at 20 (“Before any waiver can become 

effective, the consent of [the State] and the sanction of the court must be had

. . . .”).

¶16 Because waiver of a jury trial in a criminal case requires the 

consent of the State and the court, it logically follows that there is no right 

to a bench trial. See Singer v. United States, 380 U.S. 24, 34-35 (1965) (“The 

ability to waive a constitutional right does not ordinarily carry with it the 

right to insist upon the opposite of that right. For example, although a 

defendant can . . . waive his constitutional right to a public trial, he has no 

absolute right to compel a private trial . . . .”) (citation omitted). The record 

reflects no affirmative attempt by Figueroa to sever the charges, nor did he 

present any argument as to why a bench trial was required for the 

misdemeanor charge. Although a jury trial was not required for the 

misdemeanor charge, it was within the judge’s discretion to propose 

submitting the charge to the jury. Additionally, the court specifically asked 

the parties if the charge should be taken from the jury and decided by the 

court—Figueroa did not respond. He has no tenable claim of error when

he did not request the waiver, the prosecutor did not consent to any such 

waiver, and the court did not err by submitting the case to the jury. We find 

no merit to Figueroa’s complaint.

CONCLUSION

¶17 We affirm Figueroa’s convictions and sentences.