Opinion
No. 1 CA-CR 18-0501
07-30-2019
STATE of Arizona, Appellee, v. Javier ANGULO-CHAVEZ, Appellant.
Arizona Attorney General's Office, Phoenix, By Nicholas Chapman-Hushek, Counsel for Appellee White Law Offices PLLC, Flagstaff, By Wendy F. White, Counsel for Appellant
Arizona Attorney General's Office, Phoenix, By Nicholas Chapman-Hushek, Counsel for Appellee
White Law Offices PLLC, Flagstaff, By Wendy F. White, Counsel for Appellant
Judge James B. Morse Jr. delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Maria Elena Cruz joined.
MORSE, Judge:
¶1 Javier Angulo-Chavez appeals his conviction and sentence for transportation of dangerous drugs (methamphetamine) for sale. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The evidence at trial, viewed in the light most favorable to supporting the convictions, showed that on October 9, 2017, an officer with Arizona Department of Public Safety ("DPS") stopped Angulo-Chavez for speeding. Though the officer was not fluent in Spanish and Angulo-Chavez spoke little English, they were able to effectively communicate. After issuing a warning for the speeding violation, the officer asked Angulo-Chavez whether he would answer additional questions and he agreed. As they spoke, the officer became increasingly suspicious Angulo-Chavez was engaged in illegal activity. Eventually, Angulo-Chavez orally agreed to allow the officer to search his car and signed a Spanish-language DPS consent-to-search form.
See State v. Harm , 236 Ariz. 402, 404, ¶ 2, n.2, 340 P.3d 1110, 1112 (App. 2015).
¶3 The officer found approximately 18 pounds of methamphetamine hidden in sealed packages behind a panel in the trunk. An analyst later identified Angulo-Chavez's fingerprint on one of the packages. The State subsequently charged Angulo-Chavez with one count of transportation of dangerous drugs for sale, a class 2 felony.
¶4 Before trial, Angulo-Chavez moved to suppress the evidence and argued, in relevant part, that the officer unlawfully extended the traffic stop in violation of his Fourth Amendment rights. Following a suppression hearing in which the DPS officer and Angulo-Chavez testified, the superior court denied the motion to suppress.
¶5 A jury found Angulo-Chavez guilty as charged, and further found one aggravating factor. The superior court sentenced Angulo-Chavez to the presumptive term of 10 years' imprisonment. Angulo-Chavez timely appealed his conviction and sentence. 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), 13-4031, and -4033.
DISCUSSION
I. Motion to Suppress
¶6 Angulo-Chavez argues the superior court erred when it denied his motion to suppress. He asserts that his continued detention exceeded the purpose of the traffic stop in violation of his Fourth Amendment rights. We review the court's ruling on a motion to suppress for abuse of discretion, consider only the evidence presented at the suppression hearing, and view the evidence in a light most favorable to sustaining the ruling. State v. Adair , 241 Ariz. 58, 60, ¶ 9, 383 P.3d 1132, 1134 (2016). We review the court's legal conclusions de novo. Id .
¶7 A routine traffic stop is "more analogous to a so-called ‘Terry stop’ ... than to a formal arrest." Berkemer v. McCarty , 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (citing Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). As with a Terry stop, the duration of the officer's inquiries must extend only so long as to effectuate the purpose of the traffic stop or any related safety concerns. Rodriguez v. United States , ––– U.S. ––––, 135 S. Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) ; State v. Sweeney , 224 Ariz. 107, 112, ¶ 17, 227 P.3d 868, 873 (App. 2010). After the original purpose of the stop has been resolved, the officer must permit the driver to leave "without further delay or questioning unless: (1) the encounter between the officer and the driver ceases to be a detention, but becomes consensual, or (2) during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity." State v. Teagle , 217 Ariz. 17, 23, ¶ 22, 170 P.3d 266, 272 (App. 2007) (internal quotation marks and citations omitted).
¶8 The Supreme Court has "held repeatedly that mere police questioning does not constitute a seizure." Muehler v. Mena , 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (quoting Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ). If a driver agrees to answer additional questions after the conclusion of the traffic stop, he has not been "seized" under the Fourth Amendment and the consensual encounter may extend as "long as a reasonable person would feel free to disregard the police and go about his business." Bostick , 501 U.S. at 434, 111 S.Ct. 2382 (internal quotation marks and citations omitted). Within the context of a consensual encounter, the officer may ask the driver whether he is carrying any drugs or illegal items, and for consent to search the car. See Ohio v. Robinette , 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (holding that an officer may obtain consent to search a vehicle following a traffic stop without expressly stating that the driver is "free to go").
¶9 Here, the officer testified at the suppression hearing that he gave Angulo-Chavez the written warning, then asked if Angulo-Chavez would answer additional questions, and Angulo-Chavez orally agreed. Angulo-Chavez testified that he did not agree to additional questioning but admitted he could understand most of the officer's questions and signed the Spanish-language consent-to-search form. There was no suggestion that the officer threatened, intimidated, or coerced Angulo-Chavez to provide that consent. See, e.g., State v. Acinelli , 191 Ariz. 66, 70, 952 P.2d 304, 308 (App. 1997). The officer testified that, had Angulo-Chavez asked, he would have been free to leave. Though the officer was not fluent in Spanish, they were able to communicate and nothing from Angulo-Chavez's demeanor showed he did not understand the questions posed by the officer.
¶10 Deferring to the superior court's assessment of witness credibility and the weight given to conflicting testimony, we find the court did not abuse its discretion in denying Angulo-Chavez's motion to suppress. See State v. Olquin , 216 Ariz. 250, 252, ¶ 10, 165 P.3d 228, 230 (App. 2007). The continuation of the original encounter was consensual, reasonable, and did not constitute a seizure under the Fourth Amendment. The resulting search of Angulo-Chavez's car was consensual and lawful. See Robinette , 519 U.S. at 38-40, 117 S.Ct. 417.
II. Imposition of Fine Under A.R.S. § 13-3407(H)
¶11 Under A.R.S. § 13-3407(H), the superior court must order "a fine of not less than one thousand dollars or three times the value as determined by the court of the dangerous drugs involved in or giving rise to the charge, whichever is greater" for any person convicted of an offense listed in A.R.S. § 13-3407(A). Angulo-Chavez argues that A.R.S. § 13-3407(H) violates his jury trial rights protected by the Sixth Amendment of the United States Constitution because it allows the superior court to determine facts that establish the amount of the mandatory minimum fine. Because Angulo-Chavez raises this issue for the first time on appeal, he must prove fundamental error occurred and such error caused him prejudice or "was so egregious that he could not possibly have received a fair trial." State v. Escalante , 245 Ariz. 135, 140, 142, ¶¶ 12, 21, 425 P.3d 1078, 1083 (2018) ; State v. James , 242 Ariz. 126, 133-34, ¶ 26, 393 P.3d 467, 474-75 (App. 2017). We review the constitutionality of a statute de novo. State v. Burke , 238 Ariz. 322, 325, ¶ 4, 360 P.3d 118, 121 (App. 2015).
¶12 A jury must find any fact that increases a defendant's sentence beyond a statutory maximum or mandatory minimum. See Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; Alleyne v. United States , 570 U.S. 99, 116-18, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ; Blakely v. Washington , 542 U.S. 296, 303, 308, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This rule has been applied to the imposition of criminal fines. S. Union Co. v. United States , 567 U.S. 343, 346, 360, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012) ; see also State v. Marquez-Sosa , 161 Ariz. 500, 503, 779 P.2d 815, 818 (App. 1989) ("A fine is a criminal penalty that constitutes a sentence."). The State concedes that the language in A.R.S. § 13-3407(H) allowing the court to determine the value of the methamphetamine for the purposes of increasing the mandatory minimum fine is unconstitutional and, thus, the superior court committed fundamental error in imposing the fine absent a jury finding as to the value of the methamphetamine involved. The State's concession is well taken. The State further argues, however, that (1) the clause "as determined by the court" in A.R.S. § 13-3407(H) can be severed without disturbing the legislative intent of the statute; and (2) the court's error did not amount to prejudicial error. We agree with both arguments.
¶13 In safeguarding a defendant's due process and jury trial rights, the holdings in Apprendi and Southern Union Company require a specific finding by the jury as to any fact that increases a mandatory minimum criminal fine. Because the value of the dangerous drugs involved in the offense increases the mandatory minimum fine established in A.R.S. § 13-3407(H), the provision that such value be "determined by the court" absent a jury finding is unconstitutional.
¶14 We nonetheless decline to declare A.R.S. § 13-3407(H) unconstitutional in its entirety. Where the valid portions of a statute can be severed from those that are unconstitutional without compromising its operability or frustrating legislative purpose, severance is preferred. See State v. Prentiss , 163 Ariz. 81, 86, 786 P.2d 932 (1989). As the State argues, A.R.S. § 13-3407(H) was enacted to enhance the penalties for drug offenses and provide funding for anti-drug programs. See Ariz. Session Laws, Chapter 307, H.B. 2202, 38th Legis., 1st Reg. Sess. (1987); see also State v. Wise , 164 Ariz. 574, 577, 795 P.2d 217, 220 (App. 1990) (noting that a large fine linked to the value of drugs "is a rational attempt to take the profits out of this activity"). Severance of the language, "as determined by the court," does not render A.R.S. § 13-3407(H) inoperative or disturb the underlying purpose of the statute. We therefore hold that the clause, "as determined by the court," can be severed from A.R.S. § 13-3407(H) without invalidating the remainder of the statute.
¶15 Finally, our supreme court has held that Apprendi error, though fundamental, does not constitute structural error. See State v. Henderson , 210 Ariz. 561, 565, ¶ 12, 115 P.3d 601, 605 (2005). Angulo-Chavez did not contest the drug value at trial, so the error was not so egregious as to deny the possibility of a fair trial. See State v. Rutledge , 205 Ariz. 7, 13, ¶¶ 32-33, 66 P.3d 50 (2003) (noting that the impact of the error depends on the context of the case). Accordingly, Angulo-Chavez bears the burden of proving that he was prejudiced by the fundamental error, i.e. , he must "show that a reasonable jury, applying the appropriate standard of proof, could have reached a different result than did the trial judge." Henderson , 210 Ariz. at 568-69, ¶¶ 26-27, 115 P.3d 601. It is not enough to simply assert that the jury could have rejected the state's evidence; Angulo-Chavez must demonstrate that there was evidence upon which a reasonable jury could have based a contrary decision. See State v. Lizardi , 234 Ariz. 501, 506, ¶ 20, 323 P.3d 1152 (App. 2014) (rejecting argument that "the jury ‘could have reached a different conclusion than the court on the credibility of the parole officer,’ who testified .... [Defendant], however, never cross-examined the parole officer or offered any challenge to her testimony").
¶16 Angulo-Chavez does not argue prejudice or point to evidence that could establish prejudice. Therefore, he has waived his claim. State v. Burns , 237 Ariz. 1, 17, ¶ 50, n.5, 344 P.3d 303 (2015) (finding waiver where an issue was not supported by argument or citation to the record). Moreover, even if we were to overlook waiver, the record in this case demonstrates that Angulo-Chavez could not establish prejudice. At trial, witnesses with DPS testified that Angulo-Chavez possessed approximately 18 pounds of methamphetamine, valued between $40,000 and $60,000. Angulo-Chavez did not dispute the value of the methamphetamine. The superior court sentenced Angulo-Chavez pursuant to A.R.S. § 13-3407 and, without objection, imposed a fine of $120,000, based on three times the value of the methamphetamine Angulo-Chavez possessed, as mandated by A.R.S. § 13-3407(H). The testimony about the value and amount of the methamphetamine involved was uncontroverted and the court used the lowest valuation based on this testimony to determine the resulting fine. Neither the court nor the jury was presented with evidence of a different valuation, and Angulo-Chavez did not suggest or argue that a different value was appropriate. See State v. Ring , 204 Ariz. 534, 562-63, ¶ 92, 65 P.3d 915, 943-44 (2003) (collecting cases in which Apprendi error was found not to be reversible because evidence was uncontroverted or unchallenged at trial); see also Henderson , 210 Ariz. at 570, ¶ 33, 115 P.3d at 610 (affirming trial court finding of aggravating factor where "[t]his fact was not disputed; no reasonable jury could have failed to find the existence of this aggravator beyond a reasonable doubt"); Lizardi , 234 Ariz. at 506, ¶ 20, 323 P.3d at 1157.
¶17 Accordingly, we are satisfied that Angulo-Chavez was not prejudiced by the error.
CONCLUSION
¶18 For the foregoing reasons, we affirm Angulo-Chavez's conviction and sentence.