State of Arizona v. Elifonso Anthony Cruz ( 2022 )


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  •                                 IN THE
    ARIZONA COURT OF APPEALS
    DIVISION TWO
    THE STATE OF ARIZONA,
    Appellant,
    v.
    ELIFONSO ANTHONY CRUZ,
    Appellee.
    No. 2 CA-CR 2021-0035
    Filed January 26, 2022
    Appeal from the Superior Court in Pima County
    No. CR20102664001
    The Honorable D. Douglas Metcalf, Judge
    VACATED AND REMANDED
    COUNSEL
    Laura Conover, Pima County Attorney
    By Myles A. Braccio, Section Chief of Criminal Appeals, Tucson
    Counsel for Appellant
    Snell & Wilmer LLP, Tucson
    By Rory J. Bennett
    and
    Civil Rights Restoration Clinic, Rogers College of Law, University of
    Arizona, Tucson
    By Andrew Silverman
    Counsel for Appellee
    STATE v. CRUZ
    Opinion of the Court
    OPINION
    Presiding Judge Eckerstrom authored the opinion of the Court, in which
    Chief Judge Vásquez and Judge Espinosa concurred.
    E C K E R S T R O M, Presiding Judge:
    ¶1            The State of Arizona appeals from the trial court’s order
    setting aside Elifonso Anthony Cruz’s conviction for aggravated assault.
    Because Cruz’s plea agreement included an express admission of sexual
    motivation, rendering his conviction ineligible to be set aside under A.R.S.
    § 13-905(N), 1 we vacate the court’s order and remand for further
    proceedings consistent with this opinion.
    Factual and Procedural Background
    ¶2             In 2010, the state indicted Cruz on charges of sexual assault
    and kidnapping. After a jury could not agree on the verdict, prompting a
    mistrial, the state again indicted Cruz, this time on charges of sexual assault,
    kidnapping, and sexual conduct with a minor. The second trial also ended
    in a mistrial due to a deadlocked jury.
    ¶3             Before his third trial, Cruz entered into a plea agreement in
    which he admitted to one count of aggravated assault committed in
    violation of, inter alia, A.R.S. §§ 13-118 and 13-1204. In the plea agreement,
    Cruz admitted he had committed the aggravated assault for the purpose of
    sexual gratification pursuant to § 13-118.2 He further agreed to admit he
    had engaged in “non-consensual sexual contact with the victim,” he was
    1The legislature amended § 13-905 in 2021, after the trial court had
    set aside Cruz’s conviction. See 2021 Ariz. Sess. Laws, ch. 159, § 1. This
    amendment resulted in a renumbering of the subsection relevant to Cruz’s
    appeal but did not substantively modify the text of the subsection. See id.
    2 As  the trial court noted, the agreement mistakenly cited A.R.S.
    § 13-811, which addresses disposition of fines, rather than § 13-118, which
    provides for a special allegation of sexual motivation. However, § 13-118 is
    correctly cited earlier in the document.
    2
    STATE v. CRUZ
    Opinion of the Court
    “pleading to committing an offense with sexual motivation,”3 and he could
    be required later to register as a sex offender. He further “agree[d] to all
    the attached conditions,” which set forth special conditions of probation for
    sex offenders.
    ¶4            At the change of plea hearing, Cruz stated he had touched the
    victim’s breasts even though “she didn’t have the capacity to consent”
    because she was intoxicated. The sentencing court accepted the plea
    agreement but deferred deciding whether to require Cruz to register as a
    sex offender. In accepting the plea, the court also incorporated the grand
    jury transcript, which included testimony supporting the sexual offense
    charges brought against Cruz. The court later sentenced Cruz to .5 years’
    incarceration. It did not require Cruz to register as a sex offender.
    ¶5            In March 2021, the trial court granted Cruz’s motion to set
    aside his conviction over the state’s objection. The court reasoned that
    § 13-118 requires a sentencing court to “find sexual motivation by special
    verdict,” similar to the now-outdated process by which judges found an
    aggravating circumstance in the capital punishment sentencing context.4
    After reviewing portions of the transcripts from the change of plea and
    sentencing hearings, the court concluded that Cruz’s “mere recitation of the
    facts” was insufficient to “constitute a finding of sexual motivation by the
    sentencing judge,” and no other such finding existed on the record. It
    therefore granted Cruz’s motion to set aside his conviction under § 13-905.
    ¶6             The state appealed, arguing that “Cruz admitted in his plea
    agreement to the sexual motivation for the crime and the underlying nature
    of the crime clearly showed sexual motivation.” We have jurisdiction under
    A.R.S. § 12-120.21(A)(1).
    Discussion
    ¶7           The state contends the trial court erred in setting aside Cruz’s
    conviction, arguing “he pleaded guilty to a sexually motivated crime”
    3Here,   again, the plea agreement mistakenly cited § 13-811 instead of
    § 13-118.
    4As the trial court correctly noted, this has not been the process since
    before the United States Supreme Court held in Ring v. Arizona, 
    536 U.S. 584
    , 588-89, 609 (2002), that capital defendants are entitled to a jury
    determination on aggravating factors necessary for imposition of the death
    penalty.
    3
    STATE v. CRUZ
    Opinion of the Court
    under § 13-118, rendering the conviction ineligible for set-aside under
    § 13-905. We review a trial court’s decision whether to set aside a conviction
    for abuse of discretion, and we review de novo issues of statutory
    construction. See State v. Hall, 
    234 Ariz. 374
    , ¶ 3 (App. 2014). “An error of
    law committed in reaching a discretionary conclusion may . . . constitute an
    abuse of discretion.” 
    Id.
     (alteration in Hall) (quoting State v. Wall, 
    212 Ariz. 1
    , ¶ 12 (2006)).
    ¶8            In setting aside Cruz’s conviction, the trial court reasoned
    “when accepting a guilty plea that includes an allegation of sexual
    motivation, the Court must make a finding of sexual motivation” and that
    finding “must be made just like an element of the offense.” Cruz similarly
    argues the state did not meet § 13-118’s procedural requirements because it
    filed no special allegation of sexual motivation, nor was there a “special
    verdict” of sexual motivation other than that “implied” by the record.
    ¶9             We disagree. Cruz’s plea agreement constituted more than a
    mere allegation of sexual motivation. Rather, it was an admission of sexual
    motivation, and the sentencing court’s acceptance of the plea agreement’s
    terms thus constituted a finding of sexual motivation under § 13-118. See
    Fushek v. State, 
    218 Ariz. 285
    , ¶ 28 (2008) (Section 13-118’s requirement that
    state prove sexual motivation beyond reasonable doubt “akin to an element
    of an aggravated offense”); State v. Ring, 
    204 Ariz. 534
    , ¶ 93 (2003) (when
    “defendant stipulates, confesses or admits to facts sufficient to establish an
    aggravating circumstance, we will regard that factor as established”). Cruz
    expressly admitted in the plea agreement that he had acted in furtherance
    of sexual gratification and in violation of § 13-118. He also agreed that he
    could be required to register as a sex offender. And, he agreed to admit to
    non-consensual sexual contact with the victim, which he did during the
    change of plea hearing. The court’s acceptance of these admissions
    therefore satisfied § 13-118’s requirement that the trier of fact find the crime
    was committed with sexual motivation.
    ¶10           We are not persuaded by Cruz’s argument that the state was
    required to file a special allegation under § 13-118 for the sentencing court
    to find that the assault was committed with sexual motivation. The
    indictment that formed the basis for the plea agreement charged Cruz with
    sexual assault and sexual conduct with a minor under eighteen. Both
    crimes are expressly listed as sexual offenses in our state’s criminal code,
    and a conviction of either would have required Cruz to register as a sex
    offender, making him ineligible for a set-aside under § 13-905(N)(2). See
    A.R.S. §§ 13-1405, 13-1406, 13-3821(A)(4), (5). Thus, the state was not
    required to file a special allegation of sexual motivation under § 13-118 to
    4
    STATE v. CRUZ
    Opinion of the Court
    pursue these consequences. See § 13-118(A) (“In each criminal case
    involving an offense other than a sexual offense, the prosecutor may file a
    special allegation of sexual motivation . . . .”) (emphasis added). It would
    be unreasonable to adopt Cruz’s position that the prosecutor had somehow
    “avoid[ed] the requirement of filing a special allegation” of sexual
    motivation, when that aspect of the crime was inherent in the charging
    documents.5 Rather, by requiring Cruz to admit to sexual motivation in the
    plea agreement, the state included as part of its bargain the indictment’s
    intent to render Cruz ineligible for a set-aside and to have him considered
    for registration as a sex offender.
    ¶11           Finally, both parties cite our recent opinion in State v. Tyau,
    
    250 Ariz. 659
     (App. 2021), as supporting their position. In affirming a trial
    court’s denial of a motion to set aside convictions for criminal trespass, we
    concluded that § 13-118 does not require a court to make the finding of
    sexual motivation formalistically. Tyau, 
    250 Ariz. 659
    , ¶¶ 5-12. Rather, we
    reasoned that the finding of sexual motivation has been made if it is clear
    from the record, in its totality. See id. ¶¶ 10-12. Here, we similarly conclude
    that an express admission of sexual motivation in a plea agreement
    supports a court’s finding of sexual motivation under § 13-118 in accepting
    the agreement.
    Disposition
    ¶12          Because Cruz’s conviction included a finding of sexual
    motivation pursuant to § 13-118, it is ineligible for set-aside under
    § 13-905(N). We therefore vacate the trial court’s order setting aside Cruz’s
    conviction, and we remand for further proceedings consistent with this
    opinion.
    5The parties do not argue, and we do not address, whether one count
    in an indictment charging a sexual offense can serve as an allegation of
    sexual motivation under § 13-118 for a different, non-sexual count in the
    same indictment.
    5
    

Document Info

Docket Number: 2 CA-CR 2021-0035

Filed Date: 1/26/2022

Precedential Status: Precedential

Modified Date: 1/26/2022