State v. Morales-Carrillo ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
OSCAR MORALES-CARRILLO, Appellant.
No. 1 CA-CR 12-0391
FILED 3-25-2014
Appeal from the Superior Court in Maricopa County
No. CR2009-006257-002
The Honorable Michael D. Jones, Judge (Retired)
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Myles Braccio
Counsel for Appellee
Ballecer & Segal, Phoenix
By Natalee E. Segal
Counsel for Appellant
STATE v. MORALES-CARRILLO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 Oscar Morales-Carrillo appeals the restitution order
imposed following his conviction and sentence for aggravated assault.
We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(2), 13-4031, and 13-4033(A).
Facts and Procedural History
¶2 Following the beating and shooting death of G.G., Morales-
Carrillo and his co-defendants Christian Molina and Jose Carrillo were
each charged with aggravated assault (causing “serious physical injury”),
a class three dangerous felony; Jose Carrillo also was charged with first-
degree murder. A jury convicted Morales-Carrillo of aggravated assault, a
non-dangerous offense, and Molina of the lesser-included offense of
assault; in a separate trial after a mistrial, a jury convicted Carrillo of the
charged offenses. The jury found as an aggravating factor that Morales-
Carrillo’s offense involved the presence of an accomplice, and the court
imposed a four-year term of probation, with four months in jail as one of
its terms.
¶3 At a restitution hearing, the victim’s sister testified that the
family incurred in excess of $40,000 in expenses as a result of G.G.’s
injuries and death, including funeral expenses, the cost of travel to and
from their home in El Paso, Texas, for court hearings, lost wages, meals,
and the cost of tires and a tune-up for the automobile they used for the
travel. The trial court found that all of the monies requested by the family
were necessary and reasonable. The trial court further found that the
victim had died as a result of the concerted action of Morales-Carrillo and
his two co-defendants, Jose Carrillo and Christian Molina, and that each
defendant therefore should be held jointly and severally liable for all of
the claimed expenses, including the funeral expenses. Morales-Carrillo
appealed the restitution order.
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STATE v. MORALES-CARRILLO
Decision of the Court
Discussion
¶4 Morales-Carrillo argues that his conduct did not cause the
victim’s death, and the court accordingly erred in ordering him to pay
restitution for funeral expenses. Economic losses are recoverable as
restitution if they would not have been incurred except for the defendant’s
criminal conduct, and they were directly caused by his criminal conduct.
State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7, 39 P.3d 1131, 1133 (2002). We
review a court’s restitution order for abuse of discretion, State v. Slover,
220 Ariz. 239, 242, ¶ 4, 204 P.3d 1088, 1091 (App. 2009), viewing the facts
in the light most favorable to supporting its decision. State v. Lewis, 222
Ariz. 321, 323, ¶ 2, 214 P.3d 409, 411 (App. 2009).
¶5 The record on appeal does not provide this court any basis
to conclude that the trial court abused its discretion. In holding Morales-
Carrillo jointly and severally liable for all of the claimed expenses,
including funeral expenses, the trial court properly considered Morales-
Carrillo’s individual criminal conduct and the conduct “undertaken in
concert with others.” Lewis, 222 Ariz. at 327, ¶ 18, 214 P.3d at 415; cf.
A.R.S. § 13-804(F) (“If more than one defendant is convicted of the offense
that caused the loss, the defendants are jointly and severally liable for the
restitution.”). Morales-Carrillo specified that only the record of the
restitution hearing be forwarded to this court on appeal. No evidence was
presented at the restitution hearing on the issues of liability or causation.
In reciting the facts underlying its restitution order, the court clearly relied
instead on evidence introduced at trial. See A.R.S. § 13-804(I) (restitution
order “may be supported by . . . any evidence previously heard by the
judge during the proceedings”). Because Morales-Carrillo failed to ensure
that the record underlying the trial court’s finding was forwarded to this
court, we presume the record supported the trial court’s finding. State v.
Zuck, 134 Ariz. 509, 512-13, 658 P.2d 162, 165-66 (1982). We accordingly
find no abuse of discretion in the trial court’s order holding Morales-
Carrillo liable for funeral expenses.
¶6 Morales-Carrillo also argues that he was denied due process
because he was not afforded an opportunity to review the documents
supporting the restitution request, or to adequately cross-examine the
witness who prepared them. Due process entitles a defendant to “the
opportunity to contest the information on which the restitution award is
based, to present relevant evidence, and to be heard.” State v. Fancher, 169
Ariz. 266, 268, 818 P.2d 251, 253 (App. 1991). Morales-Carrillo failed to
raise any claim of denial of due process at the hearing or in a post-hearing
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STATE v. MORALES-CARRILLO
Decision of the Court
brief, limiting this court to review for fundamental error only. See State v.
Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶7 Morales-Carrillo has failed to demonstrate that he was
denied due process. The victim’s sister testified as to the total financial
loss suffered by the family as a result of the defendants’ criminal conduct,
and defense counsel cross-examined her on specific claimed expenses.
Although the documents offered as exhibits at the hearing did not itemize
every loss, Morales-Carrillo does not dispute the state’s avowal that the
prosecutor had forwarded a spreadsheet documenting all of the losses to
defense counsel several months before the restitution hearing. Moreover,
the record reflects that defense counsel had the opportunity to view the
entire spreadsheet on a computer at the hearing, and to cross-examine the
witness who had prepared it, and that the prosecutor agreed to forward
electronic copies of the spreadsheet and supporting receipts to defense
counsel within a week. The trial court in turn granted counsel 45 days to
file supplemental briefs outlining their objections to the restitution claims.
On this record, this court is not persuaded that Morales-Carrillo was
denied an opportunity to contest the basis for the restitution award.
¶8 Morales-Carrillo finally argues that the victim’s family was
not entitled to restitution for costs incurred attending his first trial, which
he contends ended in a mistrial. Morales-Carrillo has failed to cite to any
portion of the record showing that a mistrial was declared as to him, and
we can find none. Insofar as this record reflects, the trial court declared a
mistrial only as to his co-defendant, Jose Carrillo. The trial court denied a
mistrial as to Morales-Carrillo, and the jury shortly thereafter convicted
him of aggravated assault. This argument accordingly fails for lack of
support in the record.
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STATE v. MORALES-CARRILLO
Decision of the Court
Conclusion
¶9 For the foregoing reasons, we affirm the restitution order.
:MJT
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