State v. Flores

• Decision Date: 21 August 2018
• Docket Number: No. 1 CA-CR 17-0403,1 CA-CR 17-0403
• Citation: 428 P.3d 502
• Parties: STATE of Arizona, Appellee, v. Oscar Manuel MONTES FLORES, Appellant.
• Court: Arizona Court of Appeals

428 P.3d 502

STATE of Arizona, Appellee,

v.Oscar Manuel MONTES FLORES, Appellant.

No. 1 CA-CR 17-0403

Court of Appeals of Arizona, Division 1.

FILED August 21, 2018

Arizona Attorney General's Office, Phoenix, By Eliza C. Ybarra, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Mark E. Dwyer, Counsel for Appellant

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.

JOHNSEN, Judge:

¶ 1 Oscar Manuel Montes Flores told the employee behind the counter of a convenience store that he had a gun and moved his hand beneath his shirt and waistband as if he was holding a weapon. He demanded money, and the employee gave him what there was in the cash register. A jury convicted Montes Flores of armed robbery and other charges. We affirm, holding that it did not matter that the victim of the robbery did not see him use his hand to simulate a weapon.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Montes Flores entered a convenience store before dawn one morning, selected some sunflower seeds and a bottle of water and paid for them at the front counter.¹ His transaction complete, Montes Flores looked toward the front door, then turned again in the direction of the assistant manager behind the counter. Sliding his hand beneath his shirt and under the waistband of his pants, Montes Flores leaned forward and demanded, "Give me all your money, I have a gun." Not immediately understanding, the victim responded, "Excuse me?" After Montes Flores repeated his statement, the victim quickly opened the register and began to pull money from the drawer. Montes Flores told him to put the money in a bag. As soon as the victim handed him the bag, Montes Flores walked out of the store and drove off in a stolen SUV. Surveillance cameras captured the robbery in its entirety.

¶ 3 Police arrested Montes Flores after he crashed the SUV not far away. The State charged him with armed robbery, theft of a means of transportation and criminal damage caused in connection with the theft of the SUV. The State also alleged aggravating circumstances and that Montes Flores had historical prior felony convictions.

¶ 4 The jury found Montes Flores guilty as charged. At sentencing, he admitted two historical prior felony convictions. The superior court sentenced him to concurrent terms of incarceration, the longest of which was 14 years. Montes Flores timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018), and -4033(A)(1) (2018).²

DISCUSSION

A. Constitutional Validity of A.R.S. § 13-1904.

¶ 5 Montes Flores was convicted under A.R.S. § 13-1904(A) (2018), which provides that an armed robbery occurs when one who commits robbery:

1. Is armed with a deadly weapon or a simulated deadly weapon; or

2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon.

¶ 6 Nothing in the record suggests that Montes Flores used an actual deadly weapon to commit the robbery. The theory of the prosecution was that he used his hand to simulate a deadly weapon. Montes Flores argues the statute is unconstitutionally vague because it is unclear whether it applies to a robber who uses his hand, not an object, to simulate a weapon.

¶ 7 We review the constitutionality of a statute de novo . State v. McDermott , 208 Ariz. 332, 335, ¶ 12, 93 P.3d 532, 535 (App. 2004). "When a statute is challenged as vague, we presume that it is constitutional," and the complaining party bears the burden of "demonstrating the statute's invalidity." Id . at 335-36, ¶ 12, 93 P.3d at 535–36.

¶ 8 "A statute is void for vagueness if it fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly." State v. Burbey , 243 Ariz. 145, 149, ¶ 15, 403 P.3d 145, 149 (2017) (quotations omitted) (alteration in original). "Such laws violate due process because they fail to provide fair warning of criminal conduct and do not provide clear standards to law enforcement to avoid arbitrary or discriminatory enforcement." Id ."Due process does not require, however, that a statute be drafted with absolute precision." State v. Burke , 238 Ariz. 322, 326, ¶ 6, 360 P.3d 118, 122 (App. 2015) (quotation omitted). "It requires only that the language of a statute convey a definite warning of the proscribed conduct." Id. (quotation omitted). Accordingly, a "statute is not void for vagueness because it fails to explicitly define a term or because it can be interpreted in more than one way." McDermott , 208 Ariz. at 336, ¶ 13, 93 P.3d at 536.

¶ 9 Arizona statutes do not define the term "simulated deadly weapon." See A.R.S. §§ 13-105 (2018), -1901 (2018), -1904. Citing State v. Bousley , 171 Ariz. 166, 829 P.2d 1212 (1992), and State v. Garza Rodriguez , 164 Ariz. 107, 791 P.2d 633 (1990), Montes Flores contends case authorities have created confusion by interpreting the term inconsistently.

¶ 10 The defendant in Garza Rodriguez was convicted of two armed robberies even though, like Montes Flores, she carried no weapon. 164 Ariz. at 108, 791 P.2d at 634. In the first robbery, she approached the cashier's booth of a self-serve gas station, demanded money and threatened to "shoot the smile off" the cashier's face. Id. She neither brandished an actual weapon nor used any object as a simulated weapon. In the second, she demanded money from a clerk at a convenience store while claiming to possess a gun. When the clerk challenged her to show the gun, the defendant "began moving her hands back and forth under the serape she was wearing," but, as in the first episode, she showed no weapon. Id . The supreme court reversed both convictions, holding "that a mere verbal threat to use a deadly weapon, unaccompanied by the actual presence of a deadly weapon, dangerous instrument or simulated deadly weapon, does not satisfy the statutory requirement for a charge of armed robbery." Id. at 112, 791 P.2d at 638.

¶ 11 In Bousley , the supreme court faced an issue not present in Garza Rodriguez : "[W]hether a defendant may be convicted of armed robbery under A.R.S. § 13-1904 when he commits robbery while positioning a part of his body under his clothing in such a way that he appears to have a deadly weapon." 171 Ariz. at 167, 829 P.2d at 1213. Distinguishing the prior case, the Bousley court observed that "[t]he crucial fact in Rodriguez was that nothing resembling a weapon was actually present; the defendant simply implied that she had a gun when she threatened to ‘shoot the smile off’ the cashier's face." Id. at 168, 829 P.2d at 1214. By contrast, the Bousley court reasoned that when robbers "positioned their hands" to make it appear they are carrying weapons, "simulated weapons were actually present." Id. In such circumstances, Bousley announced, Garza Rodriguez "is not controlling." Id .

¶ 12 Contrary to Montes Flores's argument, Bousley leaves no doubt that use of one's concealed hands to create the appearance of a weapon may satisfy the element of a "simulated deadly weapon" in § 13-1904. Because the term "simulated deadly weapon," as used in the statute and interpreted by controlling case law, adequately describes the proscribed conduct, the statute is not unconstitutionally vague.

B. Constructive Amendment to the Indictment.

¶ 13 Montes Flores also argues the superior court erred by impliedly amending the indictment through the instructions it gave the jury. He argues the resulting amendment was not a mere correction of a mistake or defect, but a substantive change to the charge against him, in violation of Arizona Rule of Criminal Procedure 13.5(b) and the Sixth Amendment.

¶ 14 As relevant here, the indictment charged Montes Flores with "taking property of another ... while ... armed with a ... simulated deadly weapon." Although those words describe a crime charged under subpart (A)(1) of § 13-1904, the superior court's instructions to the jury instead mirrored subpart (A)(2) of the statute by informing jurors they could convict Montes Flores if they found he "used or threatened to use a simulated deadly weapon" in the robbery.

¶ 15 Because Montes Flores failed to object in the superior court, we review only for fundamental, prejudicial error. See State v. Henderson , 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607–08 (2005) ; see also State v. Freeney , 223 Ariz. 110, 114, ¶ 23, 219 P.3d 1039, 1043 (2009) (violations of Rule 13.5(b)"do not fall into [the] category" of structural error). "Fundamental error is limited to those rare cases that involve error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Valverde , 220 Ariz. 582, 585, ¶ 12, 208 P.3d 233, 236 (2009) (internal quotation omitted). A defendant arguing fundamental error also must prove "that the error caused him prejudice." Id.

¶ 16 An indictment "limits the trial to the specific charge or charges" alleged. Ariz. R. Crim. P. 13.5(b). "Unless the defendant consents, a charge may be amended only to correct mistakes of fact or remedy formal or technical defects." Id . When an indictment is amended to allege an offense with materially different elements—"even if the two [crimes] are defined in subsections of the same statute"—the result is a "change in the nature of the offense" that violates Rule 13.5(b). Freeney , 223 Ariz. at 113, ¶¶ 16-17, 219 P.3d at 1042.

¶ 17 Separate from Rule 13.5(b), the Sixth Amendment requires that a defendant receive "actual notice" of the pending charges. Freeney , 223 Ariz. at 114, ¶ 24, 219 P.3d at 1043. But not every violation of Rule 13.5(b) infringes a defendant's Sixth Amendment right to notice. Freeney , 223 Ariz. at 114, ¶ 25, 219 P.3d at 1043. Even when the...