State v. Morales-Loza

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ) JORGE MORALES-LOZA, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 08-05-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0121 Department B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-008770-006 DT The Honorable Joseph C. Welty, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Attorneys for Appellee Phoenix Theresa M. Armendarez PLC By Theresa M. Armendarez Attorneys for Appellant Phoenix Jorge Morales-Loza Appellant Kingman S W A N N, Judge ¶1 Jorge Morales-Loza appeals from the superior court s judgment of guilt and imposition of sentence for four counts of kidnapping, violations of A.R.S. § 13-1304 and class 2 felonies; and one count of human smuggling, a violation of A.R.S. § 132319 and a class 4 felony. ¶2 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Morales-Loza s appellate counsel has advised us that she has searched the record on appeal and finds no arguable question of law to raise on appeal. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Morales-Loza, however, has requested that counsel identify certain issues for review, and has filed a supplemental brief in propria persona. Loza contends: (1) the evidence presented at Morales- trial was insufficient to support his convictions; (2) the superior court erred by denying his motions for mistrial because the prosecutor engaged in misconduct that deprived him of a fair trial; (3) the court impermissibly shifted the burden of proof; and (4) the court imposed excessive sentences. ¶3 Our independent review fundamental error, and we affirm. 2 of the record reveals no FACTS AND PROCEDURAL HISTORY ¶4 Morales-Loza was indicted for six counts of kidnapping and one count of human smuggling. For each count, the State cited the accomplice liability statutes. The State alleged that the kidnappings were dangerous offenses, and alleged multiple aggravating factors. Morales-Loza was arraigned and entered a plea of not guilty, and the matter proceeded to a jury trial in which Morales-Loza and Cresenciano Torres-De La Rosa were codefendants. Before the jury was empanelled, the State dismissed two of the kidnapping counts. ¶5 19, At trial, the State presented evidence that on October 2007, members of the Maricopa County Sheriff s Office searched a Phoenix residence that they suspected was being used as a drop house by human smugglers. Upon entering the first floor of the residence, the officers observed many circumstances typical of drop houses: notebooks; multiple a strong foul odor; many bags of trash; cell phone chargers; a power drill and extension cord; and an absence of furniture, laundry machines, and groceries. In response to the officers commands, a total of 54 people exited the second floor of the residence. On the second and floor, the officers observed several bedrooms a bedroom closet that were fitted with locking mechanisms operable from the outside only. Plywood was secured over the bedroom 3 windows, and the closet contained a gallon jug of urine. In the unsecured areas of the house, the officers found piles of shoes and clothing, many Mexican identification cards and birth certificates, and many prepaid cell phones and phone chargers. The officers also found notebooks organized as payment ledgers and paperwork associated with wire transfers of money. ¶6 Among the 54 people removed J.G.D., G.L.F., R.C.S., and R.U.O. Morales-Loza one of the themselves identified as as pollos from the house were All four men identified smugglers, -- or coyotes, undocumented and immigrants under the coyotes control. ¶7 J.G.D. testified that he was taken from Mexico and illegally transported to the Phoenix house, which was run by approximately eight coyotes, against his will. Morales-Loza, J.G.D. s acting shoes, at Torres-De clothes, and La Rosa s wallet. At the house, direction, Torres-De wielding a firearm, forced J.G.D. to call a relative. La took Rosa, Torres-De La Rosa spoke to the relative and threatened to kill J.G.D. unless money was paid. After the phone call, J.G.D. was locked in a closet with a dozen other pollos for eight to ten days, and was required relative. the to participate in daily phone calls to his The pollos were forced to urinate in a water jug in closet, and were not allowed to bathe. Several times, Morales-Loza, who was clean and wore sandals, brought food and 4 water to the pollos. When he did so, he would make fun of the pollos and would tell them that if they did not pay the money, they would be next. J.G.D. saw that several of the coyotes had firearms, and feared that he was going to be killed. He was relieved when the sheriff s department officers removed him from the house. ¶8 G.L.F. testified that he had agreed to pay coyotes to illegally transport him from Mexico to the United States. The coyotes took him to the Phoenix house, where they confiscated his shoes, belt, and wallet, and locked him in a closet for one night. G.L.F. saw that several of the coyotes had firearms. The next day, Torres-De La Rosa made G.L.F. call a friend and ask for money -- more money than the coyotes had originally asked him to pay for their services. G.L.F. was locked in a approximately eight days. G.L.F. friend. was required to room with After the phone call, 15 to 18 pollos for During the period of confinement, make additional phone calls to his He ate food served by Morales-Loza, who would make fun of the pollos by laughing in a mocking manner. G.L.F. observed that Morales-Loza was clean and wore sandals. ¶9 R.C.S. testified that he had agreed to pay coyotes to illegally transport him from Mexico to the United States. walking became in the separated desert from during their the trip, guides 5 and R.C.S. group. and a They While friend later encountered a different group associated with the same coyote organization, and were transported to the Phoenix house. At the house, the coyotes took R.C.S. s shoes, shirt, and wallet, and locked him first in a closet, then in another room. The next day, several coyotes brought R.C.S. back to the closet, pushed him down, and hit him. Morales-Loza participated in the attack, and held a gun to R.C.S. s head. After the attack, R.C.S. was required to make a phone call to a relative, and the coyotes asked the relative for money -- more money originally agreed to pay for his transport. than R.C.S. had R.C.S. was then locked in a room with other pollos for over three weeks. During this time, he was required to participate in more phone calls to his relatives. Morales-Loza was involved in one of the calls. Morales-Loza also brought food to the pollos and would guard the room at night. ¶10 Like G.L.F. and R.C.S., R.U.O. testified that he had agreed to pay coyotes to illegally transport him from Mexico to the United States. When he arrived at the Phoenix house, the coyotes took his shoes, belt, and wallet. a closet with other pollos for two He was then locked in days. When R.U.O. was removed from the closet, the coyotes made him place a call to a relative, and told R.U.O. that he had to pay a sum of money. After the phone call, R.U.O. was returned to a room and locked up with other pollos. He was required to participate in daily 6 calls to his relatives, and the coyotes told him that he would be killed unless the money was paid. Morales-Loza brought food to the pollos, conversed with the other coyotes about securing the doors to prevent people from escaping, and served as a night guard. R.U.O. saw that Morales-Loza wore huarache-style sandals, and one time saw a gun in his waist. afraid in the house. R.U.O. felt When he tried to escape, a group of coyotes (of which Morales-Loza was not a member) put a plastic bag over his head and put a gun at his head. When the officers removed R.U.O. from the house, he assisted them by making onscene identifications of the coyotes, including Morales-Loza. ¶11 After hearing closing arguments and considering the evidence, the jury found Morales-Loza guilty of human smuggling, and guilty of kidnapping J.G.D., G.L.F., R.C.S., and R.U.O. The jury further found that the kidnappings of J.G.D., R.C.S., and R.U.O. were dangerous offenses. trial, the jury found that In the aggravation phase of the aggravating factors existed in connection with all four kidnapping offenses. ¶12 The court entered judgment on the jury s verdicts and sentenced Morales-Loza to concurrent presumptive terms of 10.5 years of imprisonment for each dangerous kidnapping offense, 5 years of imprisonment for the non-dangerous kidnapping offense, and 2.5 years of imprisonment for the human smuggling offense. Morales-Loza timely appeals. We have jurisdiction pursuant to 7 A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13- 4033(A)(1). DISCUSSION I. SUFFICIENCY OF THE EVIDENCE ¶13 Our review of the sufficiency of evidence is limited to whether Substantial substantial evidence is evidence such supports proof that the verdict. reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Sharma, 216 Ariz. 292, 294, ¶ 7, 165 P.3d 693, 695 (App. 2007) (internal citations omitted) (quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990)). Substantial evidence may be comprised of both circumstantial and direct evidence, as both types of evidence are of equal probative value. State Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App. 1981). we have no admissible difficulty evidence concluding supported the that substantial, jury s v. Here, properly conclusions that Morales-Loza was guilty of the charged offenses. A. Kidnapping ¶14 A.R.S. As a preliminary § 13-303(A)(3) matter, (2010),1 we [a] note that person is pursuant to criminally accountable for the conduct of another if . . . [t]he person is 1 We cite to the current version of statutes when no revisions material to our decision have since occurred. 8 an accomplice of offense . . . . such other person in the commission of an A person is an accomplice if he, with the intent to promote or facilitate the commission of the crime, aids the other person. ¶15 The crime A.R.S. § 13-301(2). of kidnapping is defined as knowingly restraining another person with the intent to . . . [h]old the victim for ransom . . . or . . . [p]lace the victim or a third person in reasonable apprehension of imminent physical injury to the victim . . . . A.R.S. § 13-1304(A)(1), (4). Here, all four victims testified that a group of coyotes held them in the Phoenix house against their will for ransom. Additionally, two of the victims testified that they feared that the coyotes, who had firearms, were going to kill them. The victims testimony was sufficient to show that Morales-Loza was a coyote. Unlike the victims, Morales-Loza was clean and wore footwear. He was not confined with the victims, and he worked as a food-server and a guard. Morales-Loza There was, therefore, substantial evidence that was, at the very least, an accomplice to the kidnappings of J.G.D., G.L.F., R.C.S., and R.U.O. ¶16 jury s Further, there was substantial evidence to support the finding of dangerousness in connection kidnappings of J.G.D., R.C.S., and R.U.O. with the Pursuant to A.R.S. § 13-105(13), an offense is dangerous when it involv[es] the discharge, use or threatening exhibition of a deadly weapon. 9 A firearm qualifies as a deadly weapon. A.R.S. § 13-105(15). J.G.D. testified that Torres-De La Rosa had a firearm when he ordered J.G.D. to call a relative, R.C.S. testified that Morales-Loza held a firearm to his head, and R.U.O. testified that different coyotes put a firearm to his head. B. Human Smuggling ¶17 A person commits the crime of human smuggling when he intentionally engage[s] in the smuggling of human beings for profit or commercial Smuggling of procurement of human purpose. beings A.R.S. means the transportation . . . by a § 13-2319(A). transportation person or an [or] entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state . . . . presented A.R.S. substantial § 13-2319(E)(3). evidence that Here, Morales-Loza the was, least, an accomplice to the crime of human smuggling. State at the There was substantial evidence that he worked at the drop house as part of a coyote organization that charged a fee to transport undocumented immigrants from Mexico to the United States. II. ¶18 MOTIONS FOR MISTRIAL At trial, counsel for Morales-Loza moved for mistrial several times, arguing that R.C.S. and R.U.O. testified to new and different facts concerning 10 Morales-Loza s actions at the drop house. Counsel contended that the prosecutor had told counsel about his pretrial interviews with the victims, and in those interviews (in contrast with their testimony at trial) R.C.S. and R.U.O. did not state that Morales-Loza did anything more than serve food. The court denied the motions for mistrial and found that the prosecutor did not in bad faith attempt to present false testimony. ¶19 We find no error in the court s denial of the motions for mistrial. Mistrial is warranted when a prosecutor engages in improper and prejudicial conduct that is not merely the result of legal impropriety, conduct error, but, which negligence, taken the as a mistake, whole, prosecutor or amounts knows to be insignificant to intentional improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal. Pool v. Superior Court (State), 139 Ariz. 98, 108- 09, 677 P.2d 261, 271-72 (1984). Here, the record supports the court s determination that the prosecutor did not intentionally present false evidence. There is no indication that the prosecutor solicited or failed to correct testimony that he knew was false. R.U.O. testified to facts that he had not previously commented on, but his testimony was not inconsistent with his earlier statements. was inconsistent And to the extent that R.C.S. s testimony with his earlier 11 statements concerning the identity of prosecutor the coyote presented who held evidence a of gun the to his head, inconsistency. the The prosecutor called Detective Carlos Rangel, who had attended the prosecutor-witness interviews, and Detective Rangel testified on direct examination that R.C.S. had previously identified the gun-wielding individual as Torres-De La Rosa, not Morales-Loza. ¶20 Morales-Loza had ample opportunity to address the inconsistencies and differences between the witnesses previous statements and their trial testimony. witnesses and Detective Rangel.2 He cross-examined the He also presented the testimony of the detective who had interviewed R.U.O. immediately after the October 2007 search of the house. ¶21 We conclude that the court did not err by denying Morales-Loza s motions for mistrial. court s finding that the The record supports the prosecutor did not engage in misconduct, and the inconsistencies in the witnesses statements merely presented a credibility issue that the defendant had a full and fair opportunity to address. III. ¶22 BURDEN OF PROOF Morales-Loza contends that because the State did not present fingerprint or DNA evidence in connection with the cell 2 In the State s case in chief, Detective Rangel testified after R.C.S. but before R.U.O. However, Morales-Loza had the opportunity to cross-examine Detective Rangel after the conclusion of R.U.O. s testimony because the detective was later called to testify by Torres-De La Rosa. 12 phones and handgun found at the drop house, the burden of proof was shifted to him to prove that he was not a coyote. disagree. We As discussed above, the State presented sufficient circumstantial evidence to meet its burden of proof regarding Morales-Loza s identity as a coyote, and fingerprint and DNA evidence was not necessary. IV. SENTENCING ¶23 The court imposed the appropriate presumptive sentence for each conviction, and properly credited the defendant with 474 days of presentence incarceration credit. Morales-Loza s contention that his punishment was excessive has no merit. V. REMAINING ISSUES ¶24 The trial. record reflects that Defendant received a fair Defendant was present and represented by counsel at all critical stages. The record of voir dire does not demonstrate the empanelment of any biased jurors, and the jury was properly comprised of twelve jurors. See A.R.S. § 21-102(A) (2002). The State s closing and rebuttal arguments were proper, and the jury was properly instructed. ¶25 Before imposing sentence, considered a presentence report. the court ordered and At the sentencing hearing, the defendant was given the opportunity to speak, and the court stated on the record the evidence and materials it considered and the factors it found in imposing sentence. 13 CONCLUSION ¶26 find We have reviewed the record for fundamental error and none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Accordingly, we affirm Morales-Loza s convictions and sentences. His counsel s obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform her client of the status of this appeal and his future options. Id. Morales-Loza has thirty days from the date of this decision to file a petition for review in propria persona. Ariz. R. Crim. P. 31.19(a). Upon the court s own motion, he has thirty days from the date of this decision in which to file a motion for reconsideration. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ____________________________________ DANIEL A. BARKER, Judge 14

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