Opinion
No. 1 CA-CR 17-0160 No. 1 CA-CR 17-0161 Consolidated
01-24-2019
STATE OF ARIZONA, Appellee, v. VICTOR TED HERNANDEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Terry M. Crist Counsel for Appellee The Poster Law Firm P.L.L.C., Phoenix By Rick D. Poster Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2015-005377-001 No. CR2015-114889-002
The Honorable M. Scott McCoy, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Terry M. Crist
Counsel for Appellee The Poster Law Firm P.L.L.C., Phoenix
By Rick D. Poster
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig joined. JONES, Judge:
¶1 Victor Hernandez appeals his convictions and sentences for two counts of participating in a criminal street gang. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Melanie F. began corresponding with Hernandez, then incarcerated in the Maricopa County Jail, after discovering his profile on a website that promotes correspondence with inmates. A month later, Melanie started accepting collect telephone calls from Hernandez. Melanie spoke with Hernandez for an hour each day, eventually learning that Hernandez was a member of the East Side Sycos and Mexican Mafia. At Hernandez's request, Melanie managed his social media accounts and set up a P.O. box where he could be reached.
"We view the facts in the light most favorable to sustaining the convictions with all reasonable inferences resolved against the defendant." State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).
¶3 In late 2014, again at Hernandez's direction, Melanie wrote letters, forwarded documents containing concealed messages, and relayed coded messages between members of the Mexican Mafia. These communications, and others between Hernandez and known members of the Mexican Mafia, were captured in recordings of jail calls. Topics included the transfer of funds belonging to the Mexican Mafia, the display of Mexican Mafia tattoos, and the control of Mexican Mafia members within the jail.
¶4 In June 2015, law enforcement officers executed a search warrant on Melanie's home. The officers seized notebooks containing contact information for known Mexican Mafia members, messages Hernandez had dictated for Melanie to relay, and a letter from a senior Mexican Mafia member instructing Hernandez to defer to another Mexican Mafia member inside the jail.
¶5 The State charged Hernandez in separate complaints with two counts of participating in a criminal street gang — the first occurring on or between August 27, 2014 and March 30, 2015, and the second occurring on or between June 9 and June 19, 2015. The charges were consolidated for trial.
¶6 At trial, a certified gang expert testified that the Mexican Mafia is a recognized criminal street gang whose objective is to acquire money through various illegal activities. The expert explained that gang members frequently set up P.O. boxes to facilitate and conceal gang communications, encode messages in various ways, and manipulate and exploit women to help relay the messages. The expert also linked Hernandez's tattoos to his membership in both the East Side Sycos and Mexican Mafia.
¶7 A jury convicted Hernandez of both counts of participating in a criminal street gang and found numerous aggravating circumstances. The trial court then found Hernandez had two historical prior felony convictions and sentenced him to concurrent, aggravated, and enhanced terms of imprisonment, the longest of which was twenty-five years. The court ordered these sentences to be served consecutively to the sentence imposed in Maricopa County Superior Court Cause No. CR2014-156118-001 (the 2014 Case). Hernandez timely appealed his convictions and sentences, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1). The cases were consolidated for appellate review on the Court's own motion.
Absent material changes from the relevant date, we cite the current version of rules and statutes.
DISCUSSION
I. Constitutional Validity of A.R.S. §§ 13-105(8) , (9), and -2321
¶8 Hernandez argues the trial court erred by denying his motion to dismiss the charges on the grounds that the terms "criminal street gang" and "criminal street gang member" are unconstitutionally vague and overbroad. Whether a law is unconstitutional presents a question of law subject to de novo review. State v. Boehler, 228 Ariz. 33, 35, ¶ 4 (App. 2011). In determining whether a law is valid, "we presume it is constitutional," and the challenging party "bears the burden of establishing its invalidity." Id. (citing State v. Seyrafi, 201 Ariz. 147, 149, ¶ 4 n.4 (App. 2001), and State v. Lycett, 133 Ariz. 185, 190 (App. 1982)).
¶9 Pursuant to A.R.S. § 13-105(8), a "criminal street gang" is "an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act and that has at least one individual who is a criminal street gang member." A "criminal street gang member" is a person who meets at least two of the following seven criteria indicative of criminal street gang membership:
(a) Self-proclamation.A.R.S. § 13-105(9). A person commits participating in a criminal street gang by "[i]ntentionally organizing, managing, directing, supervising or financing a criminal street gang with the intent to promote or further the criminal objectives of the criminal street gang." A.R.S. § 13-2321(A)(1).
(b) Witness testimony or official statement.
(c) Written or electronic correspondence.
(d) Paraphernalia or photographs.
(e) Tattoos.
(f) Clothing or colors.
(g) Any other indicia of street gang membership.
¶10 Hernandez argues the "generalized criteria" indicative of criminal street gang membership are "equally applicable to many classes of citizens," including police officers and attorneys, and improperly punish innocent conduct. See Maricopa Cty. Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 186 (App. 1984) ("The evil to be avoided by overbroad statutes is that the net may be so large that it snares the innocent as well as the guilty."). Hernandez fails to establish that the statutes are unconstitutional on this basis. Even if he is correct that a group of police officers or attorneys could qualify generally as a "gang" under the criteria set forth in A.R.S. § 13-105(9), "these statutes do not criminalize mere association with others or even gang membership." State v. Baldenegro, 188 Ariz. 10, 15 (App. 1996); cf. McCoy v. Stewart, 282 F.3d 626, 632-33 (9th Cir. 2002) (reversing the defendant's conviction for participating in or assisting a criminal syndicate where the evidence did not demonstrate any specific intent to further illegal conduct). Rather, A.R.S. § 13-105(8) and (9) simply provide definitions that allow a judge or jury to ascertain whether a person's actions qualify as "participating in a criminal street gang" as proscribed by A.R.S. § 13-2321. See Baldenegro, 188 Ariz. at 15 (citations omitted). Moreover, because a key aspect of the criminal street gang is the furtherance of illegal conduct, Hernandez's claim that the statutes could criminalize innocent conduct is unfounded. See State v. Ochoa, 189 Ariz. 454, 461 (App. 1997) (rejecting the claim that the definition for "criminal street gang" could encompass a girl or boy scout troop because those groups lack the required nexus to an "association whose members engage in the commission, attempted commission, facilitation or solicitation of any felony act") (quoting now A.R.S. § 13-105(8)).
II. Sufficiency of the Evidence
¶11 Hernandez suggests the State failed to prove either that he participated in the Mexican Mafia or that the Mexican Mafia qualifies "as a criminal street gang." See A.R.S. § 13-2321(A) (defining of the offense of participating in or assisting a criminal street gang to require proof the person "[i]ntentionally organiz[ed], manag[ed], direct[ed], supervis[ed] or financ[ed] a criminal street gang with the intent to promote or further the criminal objectives of the criminal street gang"). We review the sufficiency of the evidence to support a conviction de novo. See Harm, 236 Ariz. at 406, ¶ 11 (citing State v. West, 226 Ariz. 559, 562, ¶ 15 (2011)). We will not reverse a conviction for insufficient evidence "unless there is a complete absence of probative facts or where the judgment is contrary to substantial evidence in the record." State v. West, 173 Ariz. 602, 610 (App. 1992) (citing State v. Sanders, 118 Ariz. 192, 196 (App. 1978)). "Evidence is sufficient if there is more than a scintilla of proof for a reasonable mind to support the conclusion." Id. (citing State v. Goswick, 142 Ariz. 582, 586 (1984)).
¶12 More than a scintilla of evidence supports Hernandez's convictions here. The State presented uncontroverted testimony from a certified gang expert that the Mexican Mafia is a criminal street gang as defined by A.R.S. § 13-105(8). Additionally, the jury could reasonably find Hernandez was both a member of the Mexican Mafia, and intentionally directed or supervised its operations, after considering the words and symbolism in Hernandez's tattoos and the nature and content of Hernandez's recorded conversations with Melanie and other documented members of the Mexican Mafia. We find no error.
III. Double Jeopardy
¶13 Hernandez argues the trial court erred when it denied his motion to merge the charges on the grounds that the underlying acts constitute a "continuing course of conduct" and therefore form the basis of a single offense. He thus argues the two convictions for participating in a criminal street gang violate the constitutional proscription against double jeopardy. See U.S. Const. amend. V ("No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb."); Ariz. Const. art. 2, § 10 ("No person shall . . . be twice put in jeopardy for the same offense."); see also State v. Jurden, 239 Ariz. 526, 529, ¶ 11 (2016) (explaining the Double Jeopardy Clause protects a person from multiple convictions for the same offense based on "the same conduct").
Hernandez argues for the first time in his reply brief that the charges at issue here should also have been merged with three other counts of participating in a criminal street gang charged in the 2014 Case. Because he did not raise this issue in his opening brief, we do not address it. See State v. Cohen, 191 Ariz. 471, 474, ¶ 13 (App. 1998) ("An appellate court can disregard substantive issues raised for the first time in the reply brief.") (internal quotation omitted).
¶14 An indictment that charges a single offense in multiple counts is multiplicitous and raises the potential that a defendant may be subject to double punishment. Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 12 (App. 2004) (citing State v. Barber, 133 Ariz. 572, 576 (App. 1982), and State v. Powers, 200 Ariz. 123, 125, ¶ 5 (App. 2001)). "Whether charges are multiplicitous is a matter of law, which we review de novo." State v. Burns, 237 Ariz. 1, 22, ¶ 83 (2015) (citing State v. Boggs, 218 Ariz. 325, 334, ¶ 38 (2008)).
¶15 "Offenses are not the same, and therefore not multiplicitous, if each requires proof of a fact that the other does not." Merlina, 208 Ariz. at 4, ¶ 12 (citing Barber, 133 Ariz. at 576). The record here reflects Hernandez was charged with two distinct acts. Indeed, the charged conduct, as presented to the jury, spanned discrete periods of time separated by more than two months — the first occurring on or between August 27, 2014 and March 30, 2015, and the second occurring on or between June 9 and June 19, 2015. Furthermore, in his closing argument, the prosecutor carefully differentiated between the conduct that supported the first count — related to Hernandez's efforts to direct gang activity outside the jail and manage the flow of money and drugs into the jail — and conduct that supported the second count — related to a few specific recorded phone calls establishing the gang hierarchy within the jail
¶16 These acts are sufficiently distinct in both time and substance to support separate convictions for participating in a criminal street gang. See State v. Scott, 243 Ariz. 183, 186-87, ¶ 12 (App. 2017) (holding the defendant's convictions for two counts of kidnapping were not multiplicitous because the defendant's physical restraint of the victim after she had briefly escaped constituted a separate act of kidnapping). Therefore, the indictment was not multiplicitous, and the convictions do not violate double jeopardy.
IV. Presentence Incarceration Credit
¶17 Hernandez contends the trial court erred by failing to give him credit for presentence incarceration, arguing he should have received at least as many days of credit as a codefendant who was "charged and indicted on the same date." Failure to grant a defendant full credit for any presentence incarceration time constitutes fundamental error. State v. Cofield, 210 Ariz. 84, 86, ¶ 10 (App. 2005) (quoting State v. Ritch, 160 Ariz. 495, 498 (App. 1989)). Hernandez fails to prove error here.
¶18 "All time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment." A.R.S. § 13-712(B). The qualifying phrase "pursuant to an offense" limits the credit a defendant may receive to the time served for the specific offense in question. State v. Bridgeforth, 156 Ariz. 58, 59 (App. 1986). Thus, a defendant receives no credit for time spent serving another sentence. Id. Nor is he entitled to credit against consecutive sentences "even if the defendant was in custody pursuant to all the underlying charges prior to trial." State v. Lambright, 243 Ariz. 244, 251 (App. 2017) (quoting State v. McClure, 189 Ariz. 55, 57 (App. 1997)).
¶19 The record here reflects Hernandez was incarcerated in December 2014 for charges filed in the 2014 Case. Hernandez was ultimately convicted of the crimes in the 2014 Case and then sentenced in May 2016 to seventeen years' imprisonment. At that time, he was given credit for his incarceration between December 2014 and May 2016, totaling 532 days. He then began serving the remainder of his seventeen-year sentence in May 2016. Therefore, Hernandez was already in custody pursuant to the offenses in the 2014 Case when he was charged with the present offenses in April 2015. He then remained in custody pursuant to the offenses in the 2014 Case when he was sentenced for the present offenses in March 2017. And because the trial court ordered Hernandez's sentences for the present offenses to run consecutive to those imposed in the 2014 Case, he is not entitled to the same presentence incarceration credit twice. See id. Accordingly, we find no error.
We take judicial notice of the trial court records documenting Hernandez's sentence in the 2014 Case. See In re Sabino R., 198 Ariz. 424, 425, ¶¶ 4-5 (App. 2000) (taking judicial notice, on appellate review, of records contained in a different trial court action); see also Ariz. R. Evid. 201 (authorizing the court to take judicial notice of a fact "not subject to reasonable dispute"). --------
CONCLUSION
¶20 Hernandez's convictions and sentences are affirmed.