Driver found guilty: South Phoenix Hit-and-run

7/11/2009: location listed only as “South Phoenix”,  in the early morning hours of Saturday,  hit-and-run. Police apprehended Max Ramiro Garcia, 33, in an unrelated traffic stop (speeding). ( azcentral.com,  KPHO). was charged with manslaughter and leaving the scene in the death of cyclist Robert Flakes; Superior Court Case Number CR2009-145409 case minutes

He’s had a bunch of civil traffic cases over the years, search supremecourt.az.gov and justice court.

This is one of a chain of similar fatal hit-and-runs in Phoenix that occurred in summer of 2009.

The ACR

The ACR is available from city of Phoenix. This is adot incident=2295567 and all seems to be as it was described. Note that the 2nd cyclist who was cycling with the victim apparently was uninvolved in the actual crash, he’s listed on the ACR as a witness.

The Trial and Verdict

The defendant is charged with manslaughter, endangerment, and hit-and-run w/death. And case went to a full-blown trial (sort of unusual), which lasted seven days. I have no idea what went on, or what was the nature of the defense.

The Verdict came in on 5/13/2010. the defendant was found guilty of Neg Hom ( a lesser charge, one notch down from manslaughter), and endangerment. The jury also found those two to be “dangerous” offenses, which factors in to sentencing.

The jury also found the defendant guilty of leaving the scene of a fatal, but (strangely?) found that it was “not proven” that he caused the collision. There isn’t really any clues as to why this might be.

6/17/2010 Sentencing minute:

1. Negligent Homicide a class 4 dangerous felony; 6 years (jury knocked this down from Manslaughter)
2. Endangerment a class 6 dangerous felony, 2.25 years concurrent with count 1
3. Leaving the Scene of a Fatal Accident a class 3 felony 3.5 years in prison CONSECUTIVE to counts 1 and 2 for a total of 9.5 years in prison. This was reduced from a F2 due to jury not finding fault; note there is a typo in the sentencing minute, says he got a F2.

I.e. he was sentenced to a real, consecutive prison sentence for hit-and-run.

The Appeal

Court of Appeals upheld his conviction and sentence in a memorandum decision, State v. Max Ramiro Garcia, No. 1-CA-CR-10-0554 (Ariz. App. October 4, 2011).  The appeal was based on  a claim of jury selection problems (called a Batson challenge, i suppose, this comes up later in PCR) as well as a number of technical sentencing minutia (e.g. that credit for time served was incorrectly calculated),  The appeal didn’t go anywhere.

Facts of the case

A.C. (the other bicyclist) testified that on July 11, he and his friend, R.F. (Robert Flakes, the fatally injured bicyclist), rode their bicycles (together) down 16th Street to go to work at their 4:00 a.m. shift. A.C.’s bike had a light on the front and back, and R.F. wore a reflective vest… (after the collision) A.C. yelled for the vehicle to stop, but it accelerated and sped away

Detective Tuttle calculated that the (Ramiro-Garia’s) SUV was traveling approximately forty to forty-nine miles per hour upon impact. After examining all the evidence, he concluded that Appellant’s vehicle rear-ended R.F.’s bicycle.

In response to questioning by Officer Castillo, Appellant (Ramiro-Garcia) stated that he had “a few drinks a couple of hours earlier.” Detective Jacobs arrived and spoke with Appellant. The detective noticed that Appellant had watery, bloodshot eyes, slurred speech, and a moderate odor of an intoxicating beverage. Appellant told Detective Jacobs that he was “a little buzzed.” Blood drawn from Appellant at 6:19 a.m. indicated he had a blood alcohol level of .114. The collision had occurred at approximately 3:36 a.m.

An interesting footnote about house-arrest and how that (doesn’t) counts as time-served:

5 Appellant may believe that his presentence incarceration credit is incorrect because he was under house arrest for a period of time. However, defendants only receive presentence incarceration credit for time spent in custody. See A.R.S. § 13-712(B) (2010). “In custody” means actual incarceration in a prison or jail, and not merely a substantial restraint of freedom…

PCR (Post Conviction Relief)

Ramiro Garcia’s pro se PCR petition was denied in an interesting 1/22/2013 case minute. One of the issues, although it didn’t go anywhere, is he argues that since he didn’t cause the collision (according to the jury), the negligent homicide (and endangerment) conviction should not have been found to be “dangerous” during the aggravation phase. ( i.e. then he could have / would have received lighter sentence ascribed to non-dangerous crimes).