State v. Mendoza-Tapia

• Decision Date: 03 April 2012
• Docket Number: No. 1 CA–CR 09–0809.,1 CA–CR 09–0809.
• Citation: State v. Mendoza-Tapia, 229 Ariz. 224, 273 P.3d 676, 631 Ariz. Adv. Rep. 4 (Ariz. App. 2012)
• Parties: STATE of Arizona, Appellee, v. Noe MENDOZA–TAPIA, Appellant.
• Court: Arizona Court of Appeals

229 Ariz. 224

273 P.3d 676

631 Ariz. Adv. Rep. 4

STATE of Arizona, Appellee,

v.Noe MENDOZA–TAPIA, Appellant.

No. 1 CA–CR 09–0809.

Court of Appeals of Arizona, Division 1, Department D.

April 3, 2012.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Craig W. Soland, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James L. Haas, Maricopa County Public Defender ByKathryn L. Petroff, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

THOMPSON, Presiding Judge.

¶ 1Noe Mendoza–Tapia appeals his convictions and sentences on one count each of kidnapping and theft by extortion, both class two felonies and dangerous offenses.He argues that the evidence was insufficient to prove the use of a deadly weapon or dangerous instrument in the theft by extortion, that the judge reversibly erred in refusing to order a retroactive competency hearing, and that the court miscalculated his presentence incarceration credit.For the reasons that follow, we affirm his convictions and sentences, but remand for recalculation of his presentence incarceration credit.

¶ 2 A grand jury indicted Mendoza–Tapia, Jhonnatan Ochoa–Suarez, and Eulalio Plascencia–Moreno each on one count of kidnapping and one count of theft by extortion, both class two felonies and dangerous offenses.¹The judge severed Mendoza–Tapia's trial from the trial of Ochoa–Suarez and Plascencia–Moreno.The evidence introduced at Mendoza–Tapia's trial, viewed in the light most favorable to supporting his convictions,² was as follows.On the afternoon of October 15, 2007, Mendoza–Tapia forced the victim to lie face down in the backseat of the victim's vehicle by threatening him, first, with a knife, and then, with a gun.Another of the accomplices drove the vehicle to a vacant house in central Phoenix.The kidnappers blindfolded the victim, beat him, and tied him up.

¶ 3 The kidnappers then called the victim's wife and threatened to kill the victim if she did not pay them a ransom.The victim's wife testified: “They told me I had to get the money.If not, they were going to kill him.And the first thing that was going to—that I was going to find by the door of my house was going to be his head.”The kidnapping victim testified that, when the kidnappers put him on the phone with his wife, he told her “[t]o do what she was told to do, because they were hitting me.”

¶ 4 Police arrested Mendoza–Tapia and two others after observing them acting suspiciously in a parked vehicle near the place where police had arranged to drop off the ransom.Police found a loaded handgun under the passenger seat in which Mendoza–Tapia was seated, and another under the driver's seat.Mendoza–Tapia directed police to the house where they found the victim alone, blindfolded, tied up, and beaten about the face.Mendoza–Tapia told police he had been hired to act as a lookout at the house where the victim was held, and to pick up the ransom, and that he had made three or four calls to the victim's wife directing her to the ransom site.

¶ 5 The jury convicted Mendoza–Tapia of kidnapping and theft by extortion, and found each to be a dangerous offense.³The jury found the existence of aggravating circumstances.The judge sentenced Mendoza–Tapia to an aggravated term of fifteen years on the kidnapping conviction, a class two dangerous felony, and an aggravated term of twelve years on the theft by extortion conviction, also a class two dangerous felony, both sentences to be served consecutively.Mendoza–Tapia timely appealed.

Conviction for Theft, a Class Two Dangerous Felony

¶ 6 Mendoza–Tapia argues that the state offered insufficient evidence to convict him of a class two felony for theft by extortion, to find that it was a dangerous offense, and to prove the aggravating circumstance of “use of a gun or a deadly weapon” during this offense.He argues first that this court should apply the law of the case doctrine and find dispositive its 2009 decision that the same evidence offered at the trial of defendantJhonnatan Ochoa–Suarez was insufficient to prove that the kidnappers threatened use of a deadly weapon or dangerous instrument in the ransom calls.SeeState v. Ochoa–Suarez, 1 CA–CR 08–0503, 2009 WL 2525274(Ariz.App.Aug.18, 2009)(mem. decision).⁴He argues alternatively that if this court declines to apply the law of the case doctrine, it should nevertheless find that insufficient evidence supported the conviction, sentencing enhancement, and aggravating circumstance.

¶ 7We find the law of the case doctrine inapplicable, because this case involves a different defendant, a different judge, and a different trial.SeeState v. Bocharski,218 Ariz. 476, 489, ¶ 60, 189 P.3d 403, 416(2008)(noting that law of the case rule applies to rulings “ in the same case, provided the facts and issues are substantially the same as those on which the first decision rested”(emphasis added));State v. Whelan,208 Ariz. 168, 171, ¶ 10, 91 P.3d 1011, 1014(App.2004)(rejecting application of law of the case doctrine to two separate actions).Furthermore, the state conceded in Ochoa–Suarez that the evidence failed to support a conviction of theft by extortion.Ochoa–Suarez, 1 CA–CR 08–0503at 3, ¶ 13.The state makes no such concession here.

¶ 8We accordingly review de novo the sufficiency of the evidence to support the conviction.State v. West,226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191(2011).In reviewing the sufficiency of evidence, we view the facts in the light most favorable to upholding the jury's verdict, and resolve all conflicts in the evidence against Mendoza–Tapia.SeeState v. Girdler,138 Ariz. 482, 488, 675 P.2d 1301, 1307(1983).“Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction.”State v. Soto–Fong,187 Ariz. 186, 200, 928 P.2d 610, 624(1996)(citation omitted).“A conviction ‘may rest solely on circumstantial proof,’ but mere ‘[s]peculation concerning possibilities is an insufficient basis' to sustain a conviction.”State v. Garcia,227 Ariz. 377, 379, ¶ 9, 258 P.3d 195, 197(App.2011)(citations omitted).

¶ 9 Theft by extortion is a class two felony if the defendant“knowingly obtain[s] or seek[s] to obtain property ... by means of a threat to ... [c]ause physical injury to anyone by means of a deadly weapon or dangerous instrument.”A.R.S. § 13–1804(A)(1), (C)(Supp.2010).⁵Theft by extortion is a class four felony if the defendant seeks to obtain property by threatening to cause physical injury, but not by means of a deadly weapon or dangerous instrument.A.R.S. § 13–1804(A)(2), (C).A dangerous offense for sentencing enhancement purposes in pertinent part is one that involves “the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.”A.R.S. §§ 13–105(13), –704 (2010).

¶ 10 The class two felony offense thus requires proof that the defendant sought to obtain property by threatening to cause physical injury to the kidnapping victim by means of a deadly weapon or dangerous instrument.Garcia,227 Ariz. at 379, ¶ 10, 258 P.3d at 197.Black's Law Dictionary defines “threat” as a “communicated intent to inflict harm or loss on another or on another's property” or an “indication of an approaching menace.”Black's Law Dictionary 1519 (8th ed. 2004).Similarly, Webster's Dictionary defines “threat” as an “expression of an intention to inflict something harmful” or an “indication of impending danger or harm.”Webster's II New College Dictionary 1149 (1995).Intention can “be expressed by words, gestures, or actions.”State v. Flynt,199 Ariz. 92, 94, ¶ 6, 13 P.3d 1209, 1211(App.2000).“No precise words are necessary to convey a threat.Conduct takes its legal color and quality more or less from the circumstances surrounding it.All that is necessary is that the alleged threat be definite and understandable to the mind of ordinary intelligence.”Bush v. State,19 Ariz. 195, 200, 168 P. 508, 510(1917)(implied threat to accuse victim's son of crime if victim did not transfer property was sufficient to support extortion conviction).

¶ 11 In Garcia,we held that, by itself, a threat to kill the victim was insufficient evidence to prove that the threat was to cause physical injury using a deadly weapon or dangerous instrument, and thus insufficient to support a conviction under section (A)(1).SeeGarcia,227 Ariz. at 381, ¶¶ 16–18, 258 P.3d at 199.In finding the evidence insufficient, we rejected the state's argument that “a jury should be permitted to assume that because the victim's life was threatened the use of a deadly weapon or dangerous instrument may be inferred.”Id. at 380–81, ¶¶ 13–16, 258 P.3d at 198–99.Here, however, the circumstances surrounding the threats to kill the victim were not such that a jury would have to speculate about the use of a deadly weapon or dangerous instrument.

¶ 12 The evidence at trial showed that Mendoza–Tapia kidnapped the victim first using a knife and then a gun.The victim testified that Mendoza–Tapia forced him into the back of the vehicle at gunpoint, held him there at gunpoint, and told him “[n]ot to move, because, otherwise, he was going to kill [him].”Mendoza–Tapia moved to the backseat and began hitting the victim in the head with his gun and continued to threaten to kill him.At the stash house, the kidnappers would “rack the guns” in order to scare the victim, and he testified that he believed the kidnappers would kill him.With this foundation of fear in place, the kidnappers told the victim that they wanted money, and that if the ransom was not paid they would kill him and his son.The men told the victim's wife that if she did not get the money, the victim would be killed and his head would be found on her doorstep.As a result of the threats, beatings, and the use of the guns, the victim told...