Opinion
No. 2 CA-CR 2016-0041
03-14-2017
THE STATE OF ARIZONA, Appellee, v. JUAN JOSE VARGAS-CAPITAN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Dean Brault, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pima County
No. CR20150500001
The Honorable Richard D. Nichols, Judge
AFFIRMED AS CORRECTED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee Dean Brault, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Howard and Chief Judge Eckerstrom concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Juan Vargas-Capitan was convicted of two counts of kidnapping and one count each of aggravated assault, armed robbery, attempted armed robbery, and first-degree burglary. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 20.5 years. On appeal, Vargas-Capitan argues that the court's failure to strike a federal law enforcement agent for cause from the jury pool amounted to a denial of his right to due process. He also contends that the court improperly enhanced one of his sentences for kidnapping as a dangerous crime against children. For the following reasons, we affirm the convictions and sentences as corrected.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining Vargas-Capitan's convictions. See State v. Molina, 211 Ariz. 130, ¶ 2, 118 P.3d 1094, 1096 (App. 2005). In January 2015, M.C. and her twelve-year-old daughter N.C. were watching television in M.C.'s bedroom when M.C. got up to find Vargas-Capitan looking through her purse in another room. He lunged at M.C. with a knife from her kitchen. As the two struggled, N.C. approached them with a hollow curtain rod, but M.C. told her daughter not to hit Vargas-Capitan, fearing that it would only "make him madder." Vargas-Capitan then pulled M.C. into another bedroom and ordered N.C. to go with them. There, he forced M.C. to lie face down on the floor, tied her hands and feet behind her back, and put a rag in her mouth. As he was searching for tape to bind M.C., Vargas-Capitan also looked around the room for money and jewelry.
¶3 When Vargas-Capitan demanded the computer tablet that N.C. was holding, she offered to get him a "bigger one," but he replied that he was "going to take both." N.C. then told Vargas-Capitan that she would go find the other tablet, but instead she ran outside to nearby apartments to get help. As she did so, she saw Vargas-Capitan run into the desert in the opposite direction. N.C. found a neighbor and explained what had happened; the neighbor contacted someone else who called the police and then went to help M.C.
¶4 After the police arrived, M.C. discovered that her kitchen knife was missing, along with approximately twenty-eight dollars in cash. Because this incident occurred in Lukeville, which is a port of entry from Mexico to the United States, the responding officers from the Pima County Sheriff's Department relayed information about the incident and Vargas-Capitan's description to agents with the United States Customs and Border Protection. Shortly thereafter, Vargas-Capitan was detained trying to enter Mexico, and both M.C. and N.C. positively identified him. He was wearing one of M.C.'s sweaters.
¶5 A grand jury indicted Vargas-Capitan for two counts of kidnapping and armed robbery and one count each of aggravated assault with a deadly weapon or dangerous instrument, aggravated assault of a person under fifteen, and first-degree burglary. The state alleged that the counts of kidnapping and aggravated assault pertaining to N.C. were dangerous crimes against children under A.R.S. § 13-705.
The allegation identified the counts of kidnapping and armed robbery pertaining to M.C., as opposed to N.C., as dangerous crimes against children. However, neither below nor on appeal did Vargas-Capitan argue that he had insufficient notice of which counts the allegation actually concerned. Indeed, the charge of aggravated assault of a person under fifteen, as alleged in the indictment, as well as the state's witness list, made clear that N.C. was the child. See State v. Davis, 137 Ariz. 551, 561-62, 672 P.2d 480, 490-91 (App. 1983) (no error with sentencing allegation where defendant had notice). Moreover, as to armed robbery, the jury did not find either the count pertaining to M.C. or N.C. to be a dangerous crime against children, and the trial court did not enhance the sentences for those counts on that basis. See § 13-705(P) (armed robbery not listed as dangerous crime against children).
¶6 At trial, the court granted Vargas-Capitan's motion for a judgment of an acquittal for the armed robbery of N.C., instead allowing the jury to consider whether he had committed attempted armed robbery. The jury found Vargas-Capitan not guilty of aggravated assault of N.C. but found him guilty of the remaining offenses. The court sentenced him as noted above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1) and (4).
The state filed a second indictment on the same day as the first amending the armed robbery of N.C. to attempted armed robbery. At trial, however, the charge was read to the jury as armed robbery.
Failure to Strike a Federal Law Enforcement Agent for Cause
¶7 Vargas-Capitan argues that the trial court's failure to remove a federal law enforcement agent from the jury panel for cause constituted a denial of his right to due process. Generally, we review for an abuse of discretion a trial court's refusal to remove a juror for cause. State v. Cruz, 218 Ariz. 149, ¶ 28, 181 P.3d 196, 205 (2008). However, we review de novo constitutional due process claims. State v. Carlson, 237 Ariz. 381, ¶ 57, 351 P.3d 1079, 1095 (2015).
¶8 During jury selection, one potential juror identified himself as "a federal law enforcement agent" with Homeland Security Investigations. He said he had previously "investigate[d] crimes in connection with the County Attorney's Office" and acknowledged that, if he were in Vargas-Capitan's position, he "probably" would not want himself on the jury. But the agent stated that he did not "have any problems being impartial" and that he could "[a]bsolutely" give Vargas-Capitan a fair trial. Over Vargas-Capitan's objection, the trial court declined to remove the agent for cause. Vargas-Capitan used one of his peremptory strikes to remove the agent from the panel.
¶9 As a preliminary matter, Vargas-Capitan acknowledges on appeal that "he has waived any argument that he was denied an impartial jury." See U.S. Const. amend. VI. As the Supreme Court has determined, "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Ross v. Oklahoma, 487 U.S. 81, 88 (1988). This is because "peremptory challenges are not of constitutional dimension." Id.
¶10 Although Vargas-Capitan instead maintains that his right to due process was violated, see U.S. Const. amends. V, XIV, the Supreme Court has rejected this argument as well. In United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000), the Court found no violation of the defendant's Fifth Amendment right to due process when he used a peremptory challenge to strike a juror who should have been removed for cause. The Court reasoned that, consistent with Rule 24(b), Fed. R. Crim. P., the defendant received and exercised eleven peremptory strikes and "[t]hat is all he is entitled to under the Rule." Martinez-Salazar, 528 U.S. at 315. It explained that the defendant did not lose a peremptory challenge; "[r]ather, he used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury." Id. at 315-16. Thus, the Court found no violation of "any rule-based or constitutional right." Id. at 307. The same reasoning applies here. See also Ross, 487 U.S. at 88-89 (rejecting defendant's claim that trial court's failure to remove potential juror for cause violated Fourteenth Amendment right to due process by depriving defendant of peremptory challenge).
Aside from citing article II, § 4 of the Arizona Constitution, Vargas-Capitan provides no argument as to his state due process right. See Ariz. R. Crim. P. 31.13(c)(1)(iv). We therefore limit our discussion to the federal constitution. See State v. Dean, 206 Ariz. 158, n.1, 76 P.3d 429, 432 n.1 (2003).
¶11 Nevertheless, in Martinez-Salazar, the Supreme Court did not determine:
[W]hether it is reversible error to refuse to afford a defendant a peremptory challenge beyond the maximum otherwise allowed, when he has used a peremptory challenge to cure an erroneous denial of a challenge for cause and when he shows that he would otherwise use his full complement of peremptory challenges for the noncurative purposes that are the focus of the peremptory right.528 U.S. at 317-18 (Souter, J., concurring). And this seems to be the thrust of Vargas-Capitan's argument. He maintains, "[P]rejudice should include the occasion where the defendant is robbed of peremptory strikes by forcing him to use them on jurors which should have been excused for cause, while the state is not robbed of any of its peremptory strikes, thereby resulting in a non-level playing field."
¶12 But in State v. Hickman, 205 Ariz. 192, ¶¶ 20-21, 68 P.3d 418, 422-23 (2003), our supreme court followed a majority of other state courts in requiring "a showing of prejudice before a case will be reversed when a defendant uses a peremptory challenge to remove a juror the trial court should have excused for cause." The court reasoned that, "when a defendant secures an impartial jury, even through the curative use of a peremptory challenge, a conviction by that jury will not have prejudiced that defendant." Id. ¶ 31. Because the record did not show that the defendant had exhausted all of his peremptory challenges, the court concluded "an objectionable juror was not forced upon him" and thus affirmed the defendant's convictions. Id. ¶ 41. In other words, prejudice requires "a showing that the remaining juror was biased or incompetent and subject to a challenge for cause." State v. Rubio, 219 Ariz. 177, ¶ 6, 195 P.3d 214, 216 (App. 2008).
¶13 Here, Vargas-Capitan used all six of his peremptory strikes. See Ariz. R. Crim. P. 18.4(c)(1)(ii). However, he did not argue either below or on appeal that, because he used one of those to strike the agent, he was unable to remove another objectionable empaneled juror. Cf. Martinez-Salazar, 528 U.S. at 318 (Souter, J., concurring) (defendant "did not show that, if he had not used his peremptory challenge curatively, he would have used it peremptorily against another juror"). The alleged "non-level playing field" resulting from Vargas-Capitan's use of the peremptory challenge to remove the agent is insufficient, standing alone, to show prejudice. See Hickman, 205 Ariz. 192, ¶ 34, 68 P.3d at 426 (rejecting belief that prejudice of having one less peremptory challenge than other side enough for reversal). Thus, because an objectionable juror was not forced upon Vargas-Capitan, any error in failing to remove the agent for cause was harmless. See id. ¶¶ 28, 41.
¶14 Vargas-Capitan also contends that the trial court's failure to remove the potential juror for cause violated A.R.S. § 21-211. That statute provides, in part, that "[p]ersons interested directly or indirectly in the matter under investigation" must be "disqualified to serve as jurors in [that] particular action." § 21-211(2).
Section 21-211(4) also disqualifies "[p]ersons biased or prejudiced in favor of or against either of the parties." Vargas-Capitan offers no separate, meaningful argument as to this subsection. See Ariz. R. Crim. P. 31.13(c)(1)(iv). We therefore do not address it. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995).
¶15 In State v. Eddington, 228 Ariz. 361, ¶ 18, 266 P.3d 1057, 1061 (2011), our supreme court interpreted the meaning of § 21-211(2). In that case, a potential juror worked as a deputy with the Pima County Sheriff's Department, the same law enforcement agency that had investigated the crime. Id. ¶ 2. The trial court refused to excuse the deputy for cause, and the defendant used a peremptory strike to remove him from the panel. Id. ¶ 3. On appeal, this court found that the trial court had erred in refusing to remove the deputy, explaining that, "when a peace officer is currently employed by the same agency, office, or department that conducted the investigation in a criminal case, that officer has, at minimum, an indirect interest in the case and must therefore be stricken for cause from a venire panel under § 21-211(2)." State v. Eddington, 226 Ariz. 72, ¶ 8, 244 P.3d 76, 80 (App. 2010) (footnote omitted). However, we concluded that the error was harmless because the deputy did not sit on the jury and the defendant was unable to articulate "beyond mere speculation how the trial court's error affected the outcome of the case." Id. ¶¶ 18-19.
¶16 The supreme court affirmed this court's opinion, echoing our conclusion that § 21-211(2) bars a peace officer currently employed by the same law enforcement agency that investigated the case from sitting as a juror. Eddington, 228 Ariz. 361, ¶¶ 18-19, 266 P.3d at 1061. The court noted that the term "interested" under § 21-211(2) is "not limited to pecuniary concerns" and may "include a desire to see one side prevail in litigation." Eddington, 228 Ariz. 361, ¶ 11, 266 P.3d at 1061. The court then discussed the close working relationship between the investigating law enforcement agency and the prosecution, finding that allowing the deputy to sit on the jury would have affected the perception of fairness. Id. ¶¶ 11-14.
¶17 Vargas-Capitan, apparently relying on Eddington, reasons that "[i]t is basic human nature for people to defend and support their profession and professional relationships that they have chosen to develop, even if they profess outwardly to be unbiased and impartial." However, Eddington is distinguishable. First, unlike the deputy in Eddington, the agent in this case was not currently employed by the investigating agency—he worked for Homeland Security Investigations, not the Pima County Sheriff's Department. Second, although Customs and Border Patrol agents assisted in Vargas-Capitan's apprehension, Homeland Security Investigations is a different agency under the broad umbrella of the United States Department of Homeland Security. Thus, the interest between the agent, the investigating agency, and the prosecution was considerably less direct than that addressed in Eddington.
One of the Customs officers who assisted in locating and apprehending Vargas-Capitan was working for Homeland Security Investigations at the time of the trial. However, the agent said he did not know this witness.
¶18 Even assuming the trial court erred in failing to strike the agent because of an improper interest under § 21-211(2), such error "is nevertheless subject to harmless error review." Eddington, 226 Ariz. 72, ¶ 18, 244 P.3d at 83. As discussed above, Vargas-Capitan has not argued that his use of a peremptory strike to remove the agent prevented him from striking an objectionable empaneled juror. Because Vargas-Capitan has not articulated how the purported error affected the outcome of the case, we conclude any such error was harmless. See id. ¶ 19.
Kidnapping as a Dangerous Crime Against Children
¶19 Vargas-Capitan also contends that the trial court improperly enhanced his sentence for kidnapping N.C. pursuant to § 13-705, the dangerous crimes against children (DCAC) statute. "Whether the trial court applied the correct sentencing statute is a question of law, which we review de novo." State v. Hollenback, 212 Ariz. 12, ¶ 12, 126 P.3d 159, 163 (App. 2005). However, because Vargas-Capitan failed to raise this issue below, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). Vargas-Capitan does not argue that such error occurred here, and we could therefore deem his argument waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008). Nevertheless, because the imposition of an illegal sentence constitutes fundamental error, State v. Snider, 233 Ariz. 243, ¶ 12, 311 P.3d 656, 660 (App. 2013), we nonetheless address his argument, cf. State v. Lewis, 222 Ariz. 321, ¶¶ 13-14, 214 P.3d 409, 413-14 (App. 2009) (addressing waived argument).
¶20 The DCAC statute provides an enhanced sentencing scheme for specifically enumerated offenses, including kidnapping, if the offense is "committed against a minor who is under fifteen years of age." § 13-705(P)(1)(i); see also A.R.S. § 13-1304(B). In State v. Williams, 175 Ariz. 98, 103, 854 P.2d 131, 136 (1993), our supreme court explained that "committed against a minor who is under fifteen years of age" means "the defendant's conduct must be focused on, directed against, aimed at, or target a victim under the age of fifteen." Accord State v. Sepahi, 206 Ariz. 321, ¶ 19, 78 P.3d 732, 735 (2003) (reaffirming Williams's holding). However, the statute does not apply to defendants "who fortuitously injure children by their unfocused conduct." Williams, 175 Ariz. at 103, 854 P.2d at 136.
Section 13-705 was previously numbered A.R.S. § 13-604.01, which both Williams and Sepahi discuss. See 2008 Ariz. Sess. Laws, ch. 301, § 17. We cite the current version here.
¶21 For example, in Williams, the supreme court concluded that the trial court should not have sentenced the defendant under the DCAC statute for his aggravated assault conviction based on reckless conduct. 175 Ariz. at 104, 854 P.2d at 137. The defendant, while drunk, had rammed his truck into the back of a station wagon, from which a fourteen-year-old boy was thrown and badly injured. Id. at 99, 854 P.2d at 132. The court explained that the defendant "drove his pickup truck in an extremely dangerous and aggressive manner," but "there was no evidence that his behavior was directed at or focused upon the victim, or that he was even aware of the minor's presence in the station wagon." Id. at 104, 854 P.2d at 137.
¶22 Vargas-Capitan analogizes this case to Williams. He maintains that "the focus and target of his criminal conduct" was M.C. and that N.C.'s "presence was merely incidental" thereto. He claims that he "went through [M.C.'s] purse, attacked her with a knife, grabbed her arm and led her into the bedroom, and bound her," while "he never touched [N.C.], . . . did not take any of her things, and . . . never made any attempt to stop her when she ran away."
¶23 As our supreme court has pointed out, "the question of whether the child victim is the target of the defendant's criminal conduct will rarely be an issue." Williams, 175 Ariz. at 103-04, 854 P.2d at 136-37. "A person commits kidnapping by knowingly restraining another person with the intent to . . . [i]nflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony." § 13-1304(A)(3). And "knowingly" means "that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists." A.R.S. § 13-105(10)(b). Thus, unlike the aggravated assault conviction at issue in Williams, which was based upon the defendant's reckless conduct, "[i]t is impossible to imagine how . . . kidnapping . . . could be committed without targeting persons." 175 Ariz. at 104, 854 P.2d at 137.
¶24 Vargas-Capitan also relies on State v. Samano, 198 Ariz. 506, ¶¶ 18-20, 11 P.3d 1045, 1050-51 (App. 2000), where another panel of this court concluded that the DCAC statute did not necessarily apply to the defendant's kidnapping conviction and remanded the case for the trial court to reconsider whether to impose the enhancement. There, the defendant entered the victim's apartment with a gun, ordered her to sit down and hold her young son, "who had been wandering around the apartment," and then took several items and left. Id. ¶¶ 2-3. The court concluded that, because "the kidnapping statute already contains an enhancement based on the child's young age," the trial court needed to make a separate finding to support the DCAC enhancement. Id. ¶ 1. In reaching this conclusion, the court reasoned that "the element of preying on a child," as discussed in Williams, 175 Ariz. at 102, 854 P.2d at 135, was absent. Samano, 198 Ariz. 506, ¶ 17, 11 P.3d at 1050. Vargas-Capitan similarly argues, "[T]here is no evidence [he] has ever posed . . . a threat to Arizona's children."
¶25 However, Samano was decided before Sepahi, in which our supreme court rejected such a broad reading of Williams. See Sepahi, 206 Ariz. 321, ¶¶ 13-17, 78 P.3d at 734-35; see also State v. Miranda-Cabrera, 209 Ariz. 220, ¶¶ 18-19, 99 P.3d 35, 39 (App. 2004) (recognizing Samano abrogated by Sepahi). Indeed, the court noted that the DCAC statute does not require "proof of some sort of special continuing dangerous status on the part of the defendant." Sepahi, 206 Ariz. 321, ¶ 16, 78 P.3d at 735.
¶26 Here, Vargas-Capitan entered the victims' home without permission. While holding a knife and pulling M.C., Vargas-Capitan ordered twelve-year-old N.C. to go into a bedroom, which she did. He then tied up M.C., searched for money and jewelry, and demanded the tablet that N.C. was holding. Vargas-Capitan does not dispute any of these facts. This conduct, unlike that in Williams, 175 Ariz. at 104, 854 P.2d at 137, was not "unfocused"; it was necessarily directed, at least in part, at N.C. Although Vargas-Capitan did not physically attack or restrain N.C. as he did M.C., the test for focused conduct does not involve a comparison of the defendant's conduct directed at each victim, as Vargas-Capitan seems to suggest. See id. at 103, 854 P.2d at 136. Under § 13-705(D) and (M), the trial court properly imposed a minimum ten-year prison term consecutive to his other sentences. Therefore, Vargas-Capitan has failed to show fundamental, prejudicial error in the court's DCAC enhancement of his kidnapping sentence. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607-08.
We correct the sentencing minute entry by deleting the identical commencement date for this consecutive sentence imposed for count two, kidnapping N.C. Cf. State v. Ovante, 231 Ariz. 180, ¶ 39, 291 P.3d 974, 982 (2013) (correcting similar error). "It is . . . manifestly impossible for consecutive sentences to both begin on the same date." State v. Young, 106 Ariz. 589, 591, 480 P.2d 345, 347 (1971). --------
Disposition
¶27 For the foregoing reasons, we affirm Vargas-Capitan's convictions and sentences as corrected.