State v. Celaya
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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. MICHAEL CELAYA, Appellant. DIVISION ONE FILED: 09/16/10 RUTH WILLINGHAM, ACTING CLERK BY: JT 1 CA-CR 09-0353 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-005600-002 DT The Honorable Rosa Mroz, Judge The Honorable Glenn M. Davis, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Melissa M. Swearingen, Assistant Attorney General Phoenix Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Phoenix Attorneys for Appellant K E S S L E R, Presiding Judge ¶1 Appellant Michael Celaya ( Celaya ) appeals his conviction and sentence for two counts of trafficking in stolen property in the first degree and one count of trafficking in stolen property in the second degree. For the reasons that follow, we affirm Celaya s convictions and sentences. FACTUAL AND PROCEDURAL HISTORY ¶2 We inferences view the therefrom sustaining the evidence in the conviction. and light State all most v. reasonable favorable Burdick, 211 to Ariz. 583, 584, ¶ 3, 125 P.3d 1039, 1040 (App. 2005). ¶3 Celaya was tried on four counts: one count of leading or participating in a criminal street gang, a class two felony; two counts of trafficking in stolen property in the first degree, trafficking in class stolen two felonies; property in and the one of degree, second count a class three felony. ¶4 From May to September of 2007, Officer E.F. was working undercover for the special projects unit of the Phoenix Police specifically and she comprised Department. responsible participated of ten vehicles. Celaya negotiated the for in separate was sale of During purchasing an 1998 time, on Ford two E.F. stolen investigation transactions present a this property, ultimately involving stolen occasions truck, was 2002 and Chevy Avalanche, and 2003 Mercury Mountaineer. E.F. s testimony 2 was corroborated by another detective who participated in the operation and video suveillence footage. ¶5 The State presented additional evidence to support its contention that Celaya was the leader of the Yuk 1 Faction of the East Side Ninth Street Gang, and the crimes were committed in furtherance of that organization. Evidence included Celaya s own statements to E.F., gang member identification criteria cards documented by Phoenix police officers, and expert testimony by Detective J.N. of the Phoenix Police Department s Night Gang Enforcement Unit. ¶6 Celaya testified on his own behalf, stating that although he was born into the East Side Ninth Street Gang, he was neither its leader nor a current member. He also admitted to felony convictions in 1991, 1998, and 2008. ¶7 for Celaya further testified that he was responsible setting up the sale of the Ford truck and Chevy Avalanche, but received no compensation for his role. He claimed the only transaction he profited from was the sale of the Mercury Mountaineer, and the car was not stolen but given to him as collateral for a debt. 1 The gang is named after Celaya, who also goes by the name Yuk. 3 ¶8 A jury convicted Celaya of two counts of trafficking in stolen property in the first degree and one count of degree. trafficking With respect participating unable to mistrial. in in reach The a a stolen to the criminal charge street verdict superior property and court in of gang, the second leading the court sentenced the or jury was declared Celaya to a an aggravated term of sixteen years on each count. The court ordered the sentences to run concurrent to each other but consecutive to the sentence imposed for CR2007-156245. ¶9 31.3. Celaya timely appealed. See Ariz. R. Crim. P. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, as well as Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13- 4031 (2010), -4033(A)(1) (2010). DISCUSSION ¶10 On appeal, Celaya contends that the superior court erred in denying his motion for a mistrial based on a misstatement that allegedly tainted the prospective jury panel. In addition, Celaya argues that the court erred in imposing an enhanced sentence using aggravators not found by a jury beyond a reasonable doubt. We address each issue in turn. 4 I. MOTION FOR MISTRIAL ¶11 Celaya argues that the trial court erred in failing to grant his motion for a mistrial after the court announced two criminal cause numbers to the prospective jury panel: THE COURT: This is the time set for trial in Criminal Cause Number CR 2007-156245-001 2 and CR 2008-005600-002. Actually, which of the cause numbers are we on? I m confused on which one. A bench conference was held wherein Celaya s attorney moved for a mistrial: Judge, you ve announced to the jury that there s multiple case numbers at this point. I d move for a mistrial. The jury may be tainted wondering why they re here on more than one case when there are multiple case numbers. The court decided it was unnecessary to start over and corrected the statement on the record in front of the jury pool: THE COURT: All right. Let me the correct Cause Number is CR 2008-005600-002. Celaya argues the initial statement was prejudicial, and the court erred in failing to make further inquiries or admonish the jury regarding the comment. The State claims 2 Celaya was also facing separate charges in CR2007-156245001 for misconduct involving weapons and possession of dangerous drugs, both class four felonies. 5 that the statement was unremarkable and any theoretical prejudice is pure speculation. ¶12 [T]he declaration of a mistrial is the most dramatic remedy for a trial error and should be granted only if the otherwise. interests of justice will be thwarted State v. Roque, 213 Ariz. 193, 224, ¶ 131, 141 P.3d 368, 399 (2006) (citing State v. Moody, 208 Ariz. 424, 456, ¶ 126, 94 P.3d 1119, 1151 (2004)). The responsibility for determining whether a juror can render a fair and impartial verdict lies with the trial court, and we will not disturb that exercise of discretion absent a clear showing of an abuse of discretion. State v. Tison, 129 Ariz. 526, 533, 633 P.2d 335, 342 (1981). ¶13 Cir. Relying on Mach v. Stewart, 137 F.3d 630 (9th 1998), amending and superseding 129 F.3d 495 (9th Cir. 1997), Celaya submits that the court erred in denying the motion without conducting additional voir dire of the jury panel. We find Mach, however, to be clearly distinguishable: Mach involved charges of sexual conduct with a minor. The prospective juror had worked many years with sexual assault victims and stated, in response to lengthy questioning, that she had never known a child to lie about sexual abuse. The court concluded that this individual s statements were expert-like, dealt with material issues of the defendant s guilt and the victim s 6 truthfulness, were delivered with certainty, and were repeated several times. State v. Doerr, 193 Ariz. 56, 62, ¶ 19, 969 P.2d 1168, 1174 (1998) (citations omitted). The Ninth Circuit held that [a]t a minimum, when Mach moved for a mistrial, the court should have whether the conducted panel had further in fact juror s] expert-like statements. ¶14 voir been dire to infected determine by [the Mach, 137 F.3d at 633. We find the court s statement here did not rise to the same level of error as in Mach. See id. The court s initial announcement of the two cause numbers was brief and in no way commented on the material issue of Celaya s guilt or innocence. ¶15 In addition, [u]nless there are objective indications of jurors prejudice, we will not presume its existence. There is Tison, 129 Ariz. at 535, 633 P.2d at 344. nothing in the record to suggest that the misstatement compromised the jury s ability to be fair and impartial. See State v. Reasoner, 154 Ariz. 377, 384, 742 P.2d 1363, 1370 (App. 1987) ( [W]hat appellant asks this court to do is indulge in an assumption that the panel was tainted by the isolated remark expressing appreciation by the excused juror. This we will not do. ). 7 ¶16 Furthermore, although the court did not admonish the jury to ignore the statement at different times during trial, it instructed the jury to consider only evidence produced in court when deliberating the assumed that juries follow instructions. facts. It is State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996); see State v. Duffy, 124 Ariz. 267, 274, 603 P.2d 538, 545 (App. 1979) ( In the context of the entire lengthy trial proceedings and in view of the court s instructions to the jury panel that Only [sic] evidence adduced in court could be considered by them in their deliberation, we are of the opinion remark that by a the possible venireman is prejudice too from remote and [a] singular speculative to support a finding of error. ); Doerr, 193 Ariz. at 62, ¶ 22, 969 P.2d specifically at 1174 admonish the ( Although jury to the court ignore did either not man s comments . . . he did instruct the jurors that they should determine the facts only from the evidence produced here in court. ). ¶17 panel Here, the superior court was confident that the would remain fair and impartial in rendering a verdict. Without a showing of unqualified partiality of the [jury], we will not upset a determination so clearly within the province of the court. 8 Tison, 129 Ariz. at 533, 633 P.2d at 342. abuse its Therefore, we find the court did not discretion in denying Celaya s motion for mistrial. II. SENTENCING ¶18 Celaya was convicted of two class two felonies and one class three felony. a 1998 court conviction sentenced for him felony. 3 historical based aggravating sentence: (1) accomplices; gain. sixteen aggravated In following on assault, his addition, factors criminal (3) Celaya having testified about history to history; 4 of the having the (2) violence; one court further superior prior used the enhance the involvement and (4) of pecuniary The court sentenced Celaya to concurrent terms of years for all three counts. Although defense counsel sought clarification regarding the court s use of aggravators, no formal objection was made. Celaya contends that the trial court erred in imposing enhanced sentences 3 Pursuant to the statutory scheme in place at the time of the underlying events, class two felonies had a presumptive term of 9.25 years, a maximum term of 18.5 years, and an aggravated term of 23.25 years. Class three felonies had a presumptive term of 6.5 years, a maximum term of 13 years, and an aggravated term of 16.25 years. A.R.S. §§ 13702.01(C) and -702.02(B)(4) (2006). 4 The court clarified that criminal history was in reference to Celaya s admitted 1991 conviction for solicitation to commit robbery. During the trial, the court concluded that the conviction constituted a historical prior as incarceration periods tolled the ten year limitation. 9 using aggravators not found by a jury beyond a reasonable doubt. We disagree. ¶19 The Sixth Amendment guarantees the right to a trial by jury in all criminal prosecutions. U.S. Const. amend. VI. This determination of right . guilt . . or is not confined innocence, throughout the sentencing process. but to the continues State v. Martinez, 210 Ariz. 578, 580, ¶ 7, 115 P.3d 618, 620 (2005). Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), with the exception of prior convictions or facts admitted by the defendant on the stand, 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. Martinez, 210 Ariz. at 581, ¶ 10, 115 P.3d at 621 (quoting Apprendi, 530 U.S. at 490). ¶20 Nothing, sentencing statutes however, in indicates Arizona s that the non-capital legislature intended to vest responsibility for finding all aggravating facts in a single factfinder. Id. at 585, ¶ 25, 115 P.3d at 625. [O]nce a jury finds or a defendant admits a single aggravating factor, the Sixth Amendment permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum 10 prescribed in that statute. Id. at 585, ¶ 26, 115 P.3d at 625. Accordingly, convictions the additional legal sentence. See id. once court Celaya was admitted permitted aggravating his prior consider any in factor to imposing the As a result, we find no error occurred. 5 CONCLUSION ¶21 court s For the judgment above and reasons, affirm we affirm Celaya s the superior convictions and sentences. /s/ DONN KESSLER, Presiding Judge CONCURRING: /s/ DANIEL A. BARKER, Judge /s/ JON W. THOMPSON, Judge 5 The State conceded that a super-aggravated sentence was erroneous for the class three felony on which Celaya was convicted. We are not bound by that concession. State v. Sanchez, 174 Ariz. 44, 45, 846 P.2d 857, 858 (App. 1993). As explained in n.3, supra, the sentences imposed were within the permissible statutory range. 11
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