State v. Munoz
| Decision Date | 21 August 2020 |
| Docket Number | No. 2 CA-CR 2018-0309,2 CA-CR 2018-0309 |
| Parties | THE STATE OF ARIZONA, Appellee, v. CARLOS V. MUNOZ, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Santa Cruz County
The Honorable Thomas Fink, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
Mark Brnovich, Arizona Attorney General
Michael T. O'Toole, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee
Scott A. Martin, Tucson
Counsel for Appellant
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
¶1 Carlos Munoz appeals from his convictions and sentences for continuous sexual abuse of a child, sexual conduct with a minor under fifteen, sexual assault, and child molestation. He raises six issues, contending that: (1) the trial court grossly misinformed him about the sentence he faced if he "lost at trial"; (2) the court and prosecutor misinformed the jury that the state argues last because it has the burden of proof at trial; (3) the court erroneously sentenced him under A.R.S. § 13-705(A) on the sexual assault and sexual conduct counts; (4) the court erred in sentencing him to consecutive sentences for offenses that the jury likely based on a single act; (5) the court erroneously imposed mutually consecutive sentences; and (6) the court erroneously aggravated his sentence based on a factually incorrect factor. Because the trial court erred in sentencing Munoz under § 13-705(A), we vacate his life sentences for sexual assault and sexual conduct with a minor and remand for resentencing under § 13-705(C) on those counts. To correct error in imposing mutually consecutive sentences, the trial court's amended order should specify the order in which Munoz is to serve his consecutive sentences. We otherwise affirm.
¶2 "We view the facts in the light most favorable to sustaining the jury's verdict." State v. Murray, 247 Ariz. 447, ¶ 2 (App. 2019). In June 2015, twelve-year-old A.M. was watching television in her parents' bedroom when Munoz—her stepfather—came into the room, locked the door, and performed various sexual acts on her, ignoring her plea to stop and overcoming her attempt to get away. Afterward, when A.M. told Munoz that she would report the abuse to her mother, he replied that her mother would not believe her if she reported it, and he already knew what he was going to say. A.M. did not tell anyone about the abuse.
¶3 A few days later, Munoz abused A.M. again, and then over the next year and a half, repeatedly sexually abused and assaulted her two or three times a week. He also coerced her silence by closely monitoringher communications, tightly restricting her travel outside the home, and threatening that he would hurt her mother and sisters or cause her grandmother to go to jail or prison by reporting her legal issues to police. In December 2016, A.M. nonetheless told a trusted aunt of the abuse, which was reported to police the next day.
¶4 The state charged Munoz with separate counts of continuous sexual abuse of a child, sexual conduct with a minor under fifteen, sexual assault, and child molestation. After a five-day jury trial, Munoz was convicted on all counts. The trial court sentenced him to consecutive and concurrent sentences of imprisonment totaling life plus twenty-seven years. Munoz timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶5 Munoz contends that at his Donald hearing,1 the trial court grossly misinformed him about the sentence he faced if he were convicted at trial. In that hearing, the court stated that Munoz would be eligible for "parole" after thirty-five years if the maximum life sentence were imposed on the sexual conduct and sexual assault counts, failing to inform Munoz that he was not eligible for parole because parole had been abolished. See State v. Dansdill, 246 Ariz. 593, n.10 (App. 2019) (). The court also did not mention that he faced mandatory consecutive sentences on some counts.
¶6 Munoz acknowledges that such claims are generally raised in a proceeding under Rule 32, Ariz. R. Crim. P., and he raises it here only in an abundance of caution that the issue might be deemed waived for failure to raise it on appeal. Indeed, to determine how errors in the trial court's advisement affected Munoz, we would need to consider trial counsel's performance. Therefore, to the extent that this claim is not mooted by our disposition of other issues in this appeal, Munoz must raise it in a Rule 32 proceeding. See State ex rel. Thomas v. Rayes, 214 Ariz. 411, ¶ 16 (2007) (); State v. Spreitz, 202 Ariz. 1, ¶ 9 (2002) (). His mention of the issue here has no preclusive effect in such a proceeding. Spreitz, 202 Ariz. 1, ¶ 9.
¶7 Munoz argues that structural or fundamental error occurred when the trial court gave the jury an instruction—highlighted by the state in its closing argument—that the state has the right to argue last because it has the burden of proof at trial. Munoz argues that the instruction erroneously implied that the state had a constitutional right to argue last.
¶8 Munoz concedes he did not object at trial. But beyond that, as the state points out, Munoz actually requested the complained-of instruction. He thus invited any error, and any claim of error is deemed waived. See State v. Logan, 200 Ariz. 564, ¶ 8 (2001) ().
¶9 Munoz contends that the trial court erred in sentencing him for sexual assault and sexual conduct with a minor under § 13-705(A). He points out that § 13-705(A) does not apply to offenses involving masturbatory contact and the jury was instructed that masturbatory contact can constitute those offenses. He argues that because the charging document does not identify the specific acts constituting sexual assault or sexual conduct and no jury interrogatory establishes that the jury based its verdicts for those counts on non-masturbatory contact, jurors could conceivably have based those verdicts on the victim's testimony of masturbatory contact—Munoz's manipulation of her vagina with his fingers—rather than her testimony that Munoz penetrated her vagina with his penis. He therefore maintains that he should have been sentenced for those offenses under § 13-705(C), not § 13-705(A).
¶10 Under the Sixth Amendment to the United States Constitution, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). "[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict," unless the defendantadmitted the facts. Blakely v. Washington, 542 U.S. 296, 303 (2004).2 "When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,' and the judge exceeds his proper authority." Id. at 304 (quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872)).
¶11 Because Munoz did not object in the trial court, we review for fundamental error only. See State v. Henderson, 210 Ariz. 561, ¶ 19 (2005). "[T]he first step in fundamental error review is determining whether trial error exists." State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). If error exists, the defendant shows that the error is fundamental "by showing that (1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. If fundamental error is established under the first or second prong, the defendant must make a separate showing of prejudice from the error. Id. A sentencing error under Apprendi constitutes fundamental error because it denies a defendant "the right to have certain facts decided by a jury beyond a reasonable doubt" and thus goes to the foundation of the case. Henderson, 210 Ariz. 561, ¶ 25. To show prejudice from an Apprendi error, the defendant "must show that a reasonable jury, applying the appropriate standard of proof, could have reached a different result than did the trial judge" in finding the fact that exposed him to the aggravated sentence. Id. ¶ 27.
¶12 Section 13-705, A.R.S., provides enhanced penalties for dangerous crimes against children, including sexual assault and sexual conduct with a minor. Under § 13-705(A), an adult defendant who is convicted of first-degree sexual assault of, or sexual conduct with, a minor twelve years old or younger must be sentenced to a life sentence. Section 13-705(A) "does not apply to masturbatory contact," however. If convictions for these crimes is based on masturbatory contact with a twelve-year-old victim, § 13-705(C), which applies "[e]xcept as otherwise provided in this section," provides a more lenient sentence. Thus, the statutory maximum sentence under Apprendi for these offenses is provided in § 13-705(C). See also State v. Brown, 212 Ariz. 225, ¶ 7 (2006) (...
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