State of Arizona v. Manuel Jesus Pesqueira , 235 Ariz. 470 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
MANUEL JESUS PESQUEIRA,
Appellant.
No. 2 CA-CR 2013-0134
Filed August 28, 2014
Appeal from the Superior Court in Pima County
No. CR20112669001
The Honorable Richard S. Fields, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Robert A. Walsh, Assistant Attorney General, Phoenix
Counsel for Appellee
DeConcini McDonald Yetwin & Lacy, P.C., Tucson
By Ronald Zack
Counsel for Appellant
STATE v. PESQUEIRA
Opinion of the Court
OPINION
Judge Howard authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Vásquez concurred.
H O W A R D, Judge:
¶1 Following a jury trial, appellant Manuel Pesqueira was
convicted of armed robbery, aggravated robbery, two counts of
kidnapping, two counts of aggravated assault with a deadly
weapon, and first-degree murder. On appeal, he argues the trial
court erred by allowing a medical expert witness to rely on an
autopsy report created by a non-testifying expert, there was
insufficient evidence to support the jury verdict for first-degree
murder, the court improperly enhanced some of his sentences, and
the court erred in imposing a Criminal Restitution Order (CRO). For
the following reasons, we affirm the convictions and sentences, but
vacate the CRO.
Factual and Procedural Background
¶2 L.C. and his roommate, R.G., were asleep in a bedroom
when they awoke to a “strange noise.” Shortly thereafter, Pesqueira
entered the bedroom, pointed a gun at the men, and said he wanted
their “money, belongings, [and] drugs.” Pesqueira took money from
R.G.’s wallet and a jar of change before leaving the bedroom. He
then returned with a machete and again demanded money and
drugs. He took L.C.’s and R.G.’s cellular telephones and left the
room. Another man, Stephen Williams, then entered the bedroom
with a gun, did not say anything, and shot L.C. in the head.
Pesqueira and Williams then left the apartment.
¶3 L.C. was taken to the University Medical Center (UMC)
where doctors performed surgery. But L.C. remained unconscious
for the week he stayed at UMC and his estimated chances of
recovery were “[v]ery slim,” approximately eight percent. L.C.’s
family chose to move him to Mexico and, during the ambulance ride
from UMC to Mexico, L.C. died.
2
STATE v. PESQUEIRA
Opinion of the Court
¶4 Pesqueira was charged with and convicted of various
offenses as described above. The trial court sentenced him to a
combination of consecutive and concurrent prison terms on counts
one through six, totaling thirty years. It also sentenced him to life in
prison without the possibility of release for twenty-five years for the
first-degree murder charge which was to run concurrently with the
sentences for the other six charges. We have jurisdiction over his
appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Dr. Hess’s Testimony
¶5 Pesqueira first argues the trial court erred in allowing
the state’s medical expert, Dr. Gregory Hess, to base his opinion as
to the cause of L.C.’s death on the autopsy report generated in
Mexico. He contends both that the testimony was inadmissible
under Rule 703, Ariz. R. Evid., because the Mexican autopsy report
was unreliable, and that it violated his Confrontation Clause rights.
Rule 703
¶6 Although Pesqueira objected below to the doctor’s
reliance on the autopsy report, he did not raise its noncompliance
with Rule 703. He has therefore forfeited review for all but
fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561,
¶¶ 19-20, 115 P.3d 601, 607 (2005); State v. Lopez, 217 Ariz. 433, ¶ 4,
175 P.3d 682, 683 (App. 2008) (“[A]n objection on one ground does
not preserve the issue on another ground.”). Fundamental error is
“‘error going to the foundation of the case, error that takes from the
defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a
fair trial.’” Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting
State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). “To prevail
on a claim of fundamental error, the [defendant] must first show
error and then show that the error is fundamental and prejudicial.”
State v. Edmisten, 220 Ariz. 517, ¶ 11, 207 P.3d 770, 775 (App. 2009).
Pesqueira has failed to argue the alleged error was fundamental, and
therefore has waived review of this issue. State v. Moreno-Medrano,
218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008).
¶7 Moreover, although we will not overlook fundamental
error when we see it, State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d
3
 STATE v. PESQUEIRA
Opinion of the Court
641, 650 (App. 2007), here we find no error, fundamental or
otherwise. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607 (to show
fundamental error, defendant must first demonstrate error).
Pesqueira contends the autopsy report was insufficiently reliable to
provide a basis for Hess’s testimony. Rule 703 provides that an
expert may rely on facts or data that are otherwise inadmissible “[i]f
experts in the particular field would reasonably rely on those kinds
of facts or data in forming an opinion on the subject.” Pesqueira
cites Pipher v. Loo for the proposition that “‘[t]he test for
admissibility of an expert’s opinion based on facts not in evidence is
whether the source relied upon by the expert is reliable.’” 221 Ariz.
399, ¶ 8, 212 P.3d 91, 94 (App. 2009), quoting Lynn v. Helitec Corp., 144
Ariz. 564, 568, 698 P.2d 1283, 1287 (App. 1984) (alteration in Pipher).
As the court in Pipher pointed out, Rule 703 is a “foundational
hurdle” to ensure the “data, facts, or methods upon which the
expert’s opinion is based exhibit sufficient indicia of reliability.” Id.
¶8 The expert in Pipher based his opinion on his own
laboratory research, clinical experience, and interviews he
conducted, all of which constituted the “legitimate branch of . . .
epidemiological research.” Id. ¶ 10. No evidence was presented that
the sources were “unreliable or untrustworthy” and the court
therefore did not err by admitting the testimony. Id.
¶9 Conversely, the accident reconstruction expert in Lynn
based his opinion solely on the “statements of an eyewitness
concerning the event giving rise to the lawsuit,” which had no
“external indicia of reliability, such as a routine and customary
business record or preparation of a report by a disinterested, expert
third party.” 144 Ariz. at 566, 568, 698 P.2d at 1285, 1287. The
testimony was therefore inadmissible under Rule 703. Id. at 567-69,
698 P.2d at 1286-88.
¶10 Pesqueira contends “there was no evidence presented
whatsoever that the autopsy report was reliable,” but similarly no
evidence established that it was unreliable, or that Hess’s reliance on
it was unreasonable. Hess testified that the autopsy report was
“incomplete” by Pima County standards because the examiner only
fully examined L.C.’s head and chest. But Hess also stated that type
of “limited” autopsy was similar to those done in other parts of the
4
STATE v. PESQUEIRA
Opinion of the Court
United States and that those examinations were in no way
“inaccurate.” He additionally testified that the findings in the report
were consistent with the UMC medical records, and it served its
purpose of “determin[ing] the cause and manner of death.” The
autopsy report thus has “sufficient indicia of reliability” to have
properly formed the basis for Hess’s opinion under Rule 703. See
Pipher, 221 Ariz. 399, ¶ 8, 212 P.3d at 94. Furthermore, by allowing
Hess’s testimony, the court implicitly found the autopsy report was
reliable. See id. ¶ 10.
¶11 Additionally, in considering a challenge to evidence
under Rule 703, our supreme court reviews whether the expert’s
reliance on the inadmissible data was reasonable, not whether the
data itself was reliable. See State v. Rogovich, 188 Ariz. 38, 41-42, 932
P.2d 794, 797-98 (1997). Thus, although the reliability of the data
may be an underlying consideration, we question whether Pipher
and Lynn set forth the proper test. The focus is more properly
placed on the expert’s reasonable reliance, which we analyze here.
See id.
¶12 Experts commonly rely on other expert’s opinions. See
State v. Lundstrom, 161 Ariz. 141, 146, 776 P.2d 1067, 1072 (1989) (“It
is hard to say . . . that it is not reasonable [for experts] to rely on . . .
shared opinions”), quoting Morris K. Udall & Joseph Livermore,
Arizona Practice: Law of Evidence § 23, at 12 (2d ed. Supp. 1989)
(alteration in Lundstrom). Rule 703 therefore “allows a testifying
expert to reach and express an opinion in the courtroom in the same
manner he or she would in the laboratory or other work place.”
Rogovich, 188 Ariz. at 42, 932 P.2d at 798. Nothing in the record
before us suggests that Hess’s reliance on the autopsy report was
unreasonable. See id. at 41-42, 932 P.2d at 797-98. Accordingly,
Pesqueira has failed to show that Hess’s reliance on the autopsy
report violated Rule 703. See id.
¶13 Furthermore, although Pesqueira contends that the
person who performed the autopsy may not have been qualified to
do so under Arizona statutory requirements, Rule 703 “does not
require that the facts or data used as a basis for an opinion be
generated by a qualified, testifying expert.” Id. at 41, 932 P.2d at 797.
Pesqueira has not cited any legal authority for the proposition that
5
STATE v. PESQUEIRA
Opinion of the Court
an expert may only base his opinion on documents entirely
consistent with the laws and regulations of the jurisdiction in which
the crime was committed. Under Rule 703, the primary issue is not
the qualifications of the non-testifying expert, but whether the
testifying expert reasonably relied on the report and opinions. See
id. at 41-42, 932 P.2d at 797-98. Accordingly, whether the expert is
qualified to conduct an autopsy in Arizona is irrelevant.
¶14 Finally, “‘[q]uestions about the accuracy and reliability
of a witness’ factual basis, data, and methods go to the weight and
credibility of the witness’ testimony and are questions of fact. . . . It
is the jury’s function to determine accuracy, weight, or credibility.’”
Pipher, 221 Ariz. 399, ¶ 17, 212 P.3d at 96, quoting Logerquist v. McVey,
196 Ariz. 470, ¶ 52, 1 P.3d 113, 131 (2000). Nearly all of the issues
Pesqueira now contends make the autopsy report unreliable were
raised in his cross-examination of Hess and his direct examination of
his own medical expert. The jury was free to weigh the credibility of
Hess’s opinion based on what it heard about the autopsy report. Id.;
see also Ariz. R. Evid. 702(a). Because Pesqueira can show no error,
fundamental or otherwise, we reject his argument. Edmisten, 220
Ariz. 517, ¶ 11, 207 P.3d at 775.
Confrontation Clause
¶15 Pesqueira also contends that Hess’s testimony
regarding the autopsy report violated the Confrontation Clause.
“We review de novo whether the admission of evidence violates the
Confrontation Clause.” State v. Joseph, 230 Ariz. 296, ¶ 7, 283 P.3d 27,
29 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 936 (2013).
¶16 Our supreme court has “held that a testifying medical
examiner may offer an opinion based on an autopsy performed by a
non-testifying expert without violating the Confrontation Clause.”
Id. ¶ 8; see also State v. Snelling, 225 Ariz. 182, ¶¶ 19-20, 236 P.3d 409,
414 (2010); State v. Tucker, 215 Ariz. 298, ¶ 62, 160 P.3d 177, 194
(2007); Rogovich, 188 Ariz. at 42, 932 P.2d at 798. “Because the facts
underlying an expert’s opinion are admissible only to show the basis
of that opinion and not to prove their truth, an expert does not
admit hearsay or violate the Confrontation Clause by revealing the
substance of a non-testifying expert’s opinion.” Tucker, 215 Ariz.
6
 STATE v. PESQUEIRA
Opinion of the Court
298, ¶ 62, 160 P.3d at 194. “Thus, the defendant’s confrontation right
extends to the testifying expert witness, not to those who do not
testify but whose findings or research merely form the basis for the
witness’s testimony.” Rogovich, 188 Ariz. at 42, 932 P.2d at 798.
¶17 Here, Hess testified that he formed his own opinion
after reviewing the autopsy report and photographs, UMC medical
records, and the death certificate. Although he discussed the
substance of the autopsy report, he explained that he had used that
information, along with the other documents, to reach his own
conclusions about the cause of L.C.’s death. Pesqueira also was able
to confront and cross-examine Hess about his opinions. The autopsy
report thus was not offered to prove the truth of its contents, but
only to show the basis for Hess’s opinion. Accordingly, the
testimony did not violate Pesqueira’s confrontation rights. 1 See
Tucker, 215 Ariz. 298, ¶ 62, 160 P.3d at 194.
¶18 Pesqueira argues, however, that the testimony was
more akin to the affidavit of the non-testifying witness in Melendez–
Diaz v. Massachusetts, 557 U.S. 305 (2009), because Hess ultimately
1 Pesqueira points out that in Arizona autopsies must be
performed by a forensic pathologist. A.R.S. § 11-592(B). He goes on
to state that “in Arizona if a testifying medical examiner testifies to
his opinion as to the cause of death based on an autopsy report
prepared by a non-testifying expert, that non-testifying expert is a
forensic pathologist.” He appears to reason that fact makes this case
distinguishable from the many cases finding this type of testimony
permissible. See, e.g., Joseph, 230 Ariz. 296, ¶ 8, 283 P.3d at 29;
Snelling, 225 Ariz. 182, ¶¶ 19-20, 236 P.3d at 414. Pesqueira fails to
explain or cite to any legal authority for his proposition that the
court assumed that all cause-of-death experts base their opinions on
autopsy reports generated under the statutory requirements of
Arizona. He therefore has waived review of this argument. See State
v. Hardy, 230 Ariz. 281, n.3, 283 P.3d 12, 16 n.3 (2012) (court limits
review to arguments supported by authority); Ariz. R. Crim. P.
31.13(c)(1)(vi) (appellant’s brief shall include argument stating
party’s contentions, “and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on”).
7
STATE v. PESQUEIRA
Opinion of the Court
agreed with the cause of death listed in the autopsy. In that case, the
affidavits reporting forensic analysis—which showed the material
seized by the police was cocaine—were admitted into evidence. Id.
at 307. The court concluded the affidavits were “testimonial”
because they were “a ‘solemn declaration or affirmation made for
the purpose of establishing or proving some fact.’” Id. at 310, quoting
Crawford v. Washington, 541 U.S. 36, 51 (2004). Thus, “[t]he
‘certificates’ are functionally identical to live, in-court testimony.”
Id. at 310-11.
¶19 Here, however, the autopsy report was not testimonial
because it was not offered to establish or prove some fact. See id.; see
also State v. Medina, 232 Ariz. 391, ¶¶ 62-63, 306 P.3d 48, 63-64 (2013)
(autopsy report not testimonial). That Hess came to the same
conclusion as the author of the autopsy report does not make the
report testimonial. Rather, the report, which was not admitted into
evidence, was one of three sources Hess relied upon in reaching that
conclusion. Additionally, the testifying witness, Hess, was subject to
cross-examination by Pesqueira. See Melendez-Diaz, 557 U.S. at 311.
Consequently, Pesqueira’s reliance on Melendez-Diaz fails.
Sufficiency of the Evidence
¶20 Pesqueira next argues that the trial court erred in
denying his motion for a judgment of acquittal made pursuant to
Rule 20, Ariz. R. Crim. P., because there was insufficient evidence to
support the jury’s verdict for first-degree murder. He thus claims
the state did not prove that the gunshot wound to L.C.’s head was
the cause of his death.
¶21 We review de novo whether sufficient evidence
supports a conviction. State v. Mwandishi, 229 Ariz. 570, ¶ 6, 278
P.3d 912, 913 (App. 2012). “‘[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” State v. Mathers, 165 Ariz.
64, 66, 796 P.2d 866, 868 (1990), quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979) (emphasis omitted).
8
STATE v. PESQUEIRA
Opinion of the Court
¶22 As relevant here, a person commits first-degree murder
when “[a]cting either alone or with one or more other persons the
person commits or attempts to commit . . . kidnapping under
§ 13-1304, . . . robbery under § 13-1902, 13-1903 or 13-1904, . . . and,
in the course of and in furtherance of the offense or immediate flight
from the offense, the person or another person causes the death of
any person.” A.R.S. § 13-1105(A)(2). “Conduct is the cause of a
result when . . . [b]ut for the conduct the result in question would
not have occurred . . . [and t]he relationship between the conduct
and result satisfies any additional causal requirements imposed by
the statute defining the offense.” A.R.S. § 13-203(A).
¶23 A defendant’s actions need not be the sole cause of the
death for the defendant to be held criminally liable. See State v.
Slover, 220 Ariz. 239, ¶ 11, 204 P.3d 1088, 1093 (App. 2009). Where
an intervening cause results in the victim’s death, the defendant is
still responsible if his action “‘creates the very risk of harm that
causes the injury.’” Id., quoting Young v. Envtl. Air Prods., Inc., 136
Ariz. 206, 212, 665 P.2d 88, 94 (App. 1982). Likewise, an intervening
cause will not relieve a defendant of responsibility “when the
defendant’s conduct ‘increases the foreseeable risk of a particular
harm occurring through . . . a second actor.’” Id., quoting Ontiveros v.
Borak, 136 Ariz. 500, 506, 667 P.2d 200, 206 (1983). But a defendant
can be relieved from criminal liability if an intervening act is the
superseding cause of the victim’s death. Id. In criminal cases, “an
event is superseding only if unforeseeable and, with benefit of
hindsight, abnormal or extraordinary.” State v. Bass, 198 Ariz. 571,
¶ 13, 12 P.3d 796, 801 (2000), citing Petolicchio v. Santa Cruz Cnty. Fair
and Rodeo Ass’n, Inc., 177 Ariz. 256, 263, 866 P.2d 1342, 1349 (1994).
¶24 For example, in State v. Fierro, the victim was put on life
support after being shot by the defendant several times in the chest
and head. 124 Ariz. 182, 184, 603 P.2d 74, 76 (1979). Although
doctors ultimately terminated life support, the court found the
gunshot wounds were the proximate cause of the victim’s death. Id.
at 185, 603 P.2d at 77. The court pointed out “‘[t]he fact that other
causes contribute to the death does not relieve the actor of
responsibility, provided such other causes are not the proximate
cause of the death.’” Id., quoting State v. Cheatham, 340 S.W.2d 16, 20
(Mo. 1960).
9
STATE v. PESQUEIRA
Opinion of the Court
¶25 Pesqueira contends no evidence proved that the
gunshot wound to the head caused L.C.’s death. He speculates L.C.
could have suffocated during his transport to Mexico. He further
contends L.C.’s family’s decision to transport him from UMC to
Mexico was a superseding cause that relieves him of criminal
liability.
¶26 After Williams and Pesqueira left the apartment, police
officers arrived and found L.C. motionless, unconscious and
breathing laboriously. At the hospital, doctors were unable to safely
remove the bullet fragments from L.C.’s brain and estimated his
chances of recovery at eight percent. Pesqueira’s own medical
expert concluded that L.C.’s cause of death was “complications of a
gunshot wound,” and that it was unlikely something “unrelated”
caused L.C.’s death. That same expert also agreed that although any
number of things could have caused L.C.’s death during the
ambulance ride, such as a drug overdose or suffocation, “[i]t’s the
gunshot wound that put[] him in the condition where any of these
things can happen to him.” The state’s expert, Hess, similarly
testified that L.C.’s cause of death was a “gunshot wound to the
head,” and that it was “a little unclear exactly what happened”
between his release from UMC and his death, but “the injury to the
brain is what set off the sequence of events.”
¶27 Under these circumstances, a jury reasonably could
conclude beyond a reasonable doubt that L.C.’s death was caused
directly by being shot in the head by Williams. Additionally, it
could have concluded L.C.’s death, although not immediate, was a
natural and foreseeable consequence of Williams’s act. But for that
act, neither L.C. nor his family would have been in a position to risk
the particular kinds of harm Pesqueira speculates could have caused
his death. See § 13-1105(A)(2); § 13-203(A); see also Slover, 220 Ariz.
239, ¶ 11, 204 P.3d at 1093; Fierro, 124 Ariz. at 185, 603 P.2d at 77.
And the jury could have found L.C.’s family’s decision to move L.C.
to Mexico, given the eight percent chance he would survive at the
hospital, was not so abnormal or extraordinary as to constitute a
supervening cause. See Fierro, 124 Ariz. at 185, 603 P.2d at 77 (“The
removal of the life support systems was not the proximate cause of
death, the gunshot wounds were, and it was not error to find that
the defendant was the cause of the victim’s death.”).
10
STATE v. PESQUEIRA
Opinion of the Court
¶28 Thus, viewing the evidence in the light most favorable
to the prosecution, Mathers, 165 Ariz. at 66, 796 P.2d at 868, the jury
reasonably could conclude that Williams’s act of shooting L.C. had
caused L.C.’s death. See A.R.S. § 13-1105(A)(2). Because sufficient
evidence supported the jury’s verdict, the trial court did not err in
denying Pesqueira’s Rule 20 motion. See Mwandishi, 229 Ariz. 570,
¶ 11, 278 P.3d at 914.
Sentencing
¶29 Pesqueira next argues the trial court improperly
enhanced his sentences based on the jury’s dangerousness findings
for the two kidnapping charges and the aggravated robbery charge
because the state did not properly allege they were of a dangerous
nature prior to trial. Because Pesqueira did not object below, he has
forfeited review for all but fundamental, prejudicial error. State v.
Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. An illegal sentence,
however, constitutes fundamental error. State v. Thues, 203 Ariz.
339, ¶ 4, 54 P.3d 368, 369 (App. 2002).
¶30 “The charges in an indictment and the allegations of
[dangerousness] are not procedural or substantive equivalents.” 2
State v. Cons, 208 Ariz. 409, ¶ 4, 94 P.3d 609, 611 (App. 2004). The
state may amend an indictment only to “correct mistakes of fact or
remedy formal or technical defects.” Ariz. R. Crim. P. 13.5(b).
Within the time limits of Rule 16.1(b), Ariz. R. Crim. P., allegations
of dangerousness may be filed at any time. Ariz. R. Crim. P. 13.5(a).
The superior court also may allow the state to add an allegation of
dangerousness at any time before trial as long as the defendant is
not prejudiced by the untimely filing. § 13-704(L). Thus, allegations
of dangerousness are not tied to the original indictment, and the
2 In Cons, the court was analyzing allegations of prior
convictions, not allegations of dangerousness. 208 Ariz. 409, ¶ 4, 94
P.3d 609, 611 (App. 2004). Prior convictions and dangerousness,
however, are treated equally for the purposes of making such
allegations under both the Rule 13.5(a), Ariz. R. Crim. P. and A.R.S.
§ 13-704(L). The court’s analysis in Cons therefore applies equally to
allegations of dangerousness.
11
STATE v. PESQUEIRA
Opinion of the Court
state has great flexibility in making those allegations any time before
trial. As this court has concluded, notice of allegations of
dangerousness is sufficient when the defendant is not “‘misled,
surprised, or deceived in any way by the allegations.’” State v.
Benak, 199 Ariz. 333, ¶ 16, 18 P.3d 127, 131 (App. 2001), quoting State
v. Bayliss, 146 Ariz. 218, 219, 704 P.2d 1363, 1364 (App. 1985).
¶31 Pesqueira received sufficient notice that the state was
seeking to enhance his sentences on these particular charges based
on their dangerous nature. When the state filed its initial “Direct
Indictment” against Pesqueira, it separately filed an allegation of
dangerousness as to all counts. Shortly thereafter, the state
voluntarily remanded Pesqueira’s case to the grand jury for a new
determination of probable cause. After doing so, it re-filed the
indictment, titled “Direct Indictment (Remand),” but did not re-file
the allegations of dangerousness. The second indictment did not
alter any of the charges that were in the first indictment and retained
the same case number. Additionally, at the hearing in which the
prosecutor stated she was voluntarily remanding the indictment to
the grand jury, the court informed the parties that if the grand jury
re-indicted Pesqueira, the previously scheduled case management
conference would still be in place and continue. 3 Pesqueira has not
cited, nor could this court find, any authority that the state is
required to re-file allegations of dangerousness when it re-files an
identical indictment under the same cause number in a continuing
criminal case. Accordingly, we reject Pesqueira’s argument.
¶32 Moreover, it was clear to all the parties that the criminal
case against Pesqueira would continue as it had up until that point if
the grand jury re-indicted him. The only change in the second
indictment was the addition of “(Remand),” none of the charges
changed, the indictment retained the same case number, and the
judge made clear that he would not regard the re-indictment as
3This hearing pertained to Pesqueira’s co-defendant, and thus
Pesqueira was not present when this exchange took place. The
minute entry, however, states that a copy would be sent to
Pesqueira’s counsel. Pesqueira does not dispute that he received the
minute entry.
12
STATE v. PESQUEIRA
Opinion of the Court
commencing an entirely new criminal proceeding. Pesqueira
therefore had notice that if the grand jury re-indicted him, the
criminal case would continue uninterrupted. Pesqueira has not
explained why, under these circumstances, he was in any way
misled, surprised, or deceived by the court’s enhancement of his
sentence based on the jury’s finding of dangerousness. See Benak,
199 Ariz. 333, ¶ 16, 18 P.3d at 131. Accordingly, the trial court did
not err by enhancing Pesqueira’s sentences for the two kidnapping
charges and the aggravated robbery charge based on their
dangerous nature.
Criminal Restitution Order
¶33 Pesqueira lastly contends that the trial court improperly
imposed a CRO, which the state does not dispute. The court, in its
sentencing minute entry, reduced the “fines, fees, assessments
and/or restitution” it had imposed “to a [CRO].” But as this court
has determined, based on A.R.S. § 13-805(C),4 “the imposition of a
CRO before the defendant’s probation or sentence has expired
‘constitutes an illegal sentence, which is necessarily fundamental,
reversible error.’” State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910
(App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207
P.3d 784, 789 (App. 2009).5 Therefore, because this portion of the
sentencing minute entry is not authorized by statute, the CRO must
be vacated.
Disposition
¶34 Based on the foregoing, we affirm Pesqueira’s
convictions and sentences, but vacate the CRO.
4Section 13-805(C) has since been renumbered to § 13-805(E).
See 2012 Ariz. Sess. Laws, ch. 269, § 1.
5Based on amendments to § 13-805, this court has determined
that Lopez does not apply in cases where the defendant is ordered to
pay restitution to a victim. State v. Cota, 234 Ariz. 180, ¶¶ 1, 16, 319
P.3d 242, 243, 247 (App. 2014). Those amendments went into effect
on April 1, 2013, after Pesqueira was sentenced. 2012 Ariz. Sess.
Laws, ch. 269, § 1. Accordingly, the amendment does not apply here
and the CRO was illegal in its entirety.
13