State v. Arevalo

249 Ariz. 370

470 P.3d 644

STATE of Arizona, Appellant,

v.Christopher AREVALO, Appellee.

No. CR-19-0156-PR

Supreme Court of Arizona.

Filed September 1, 2020

Allister R. Adel, Maricopa County Attorney, Daniel Strange (argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Mikel Steinfeld (argued), Deputy Public Defender, Phoenix, Attorneys for Christopher Arevalo

David J. Euchner, Pima County Public Defender's Office, Tucson; and John F. Sullivan, Chandler, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES GOULD and BEENE joined. JUSTICE BOLICK, joined by JUSTICE PELANDER (RETIRED),^* concurred.

JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether A.R.S. § 13-1202(B)(2), which enhances the sentence for threatening or intimidating if the defendant is a criminal street gang member, is constitutional. We hold that it is not because it increases a criminal sentence based solely upon gang status in violation of substantive due process.

BACKGROUND

¶2 The charges against defendant Christopher Arevalo arise from two distinct cases. First, as alleged, on March 4, 2017, Arevalo entered a convenience store, was asked to leave by an employee who recognized him from prior shoplifting incidents, and grabbed a bag of peanuts and a soda without paying. As he was leaving, Arevalo gestured towards the employee and the store manager, mimicked holding a firearm, and vocalized gunfire noises. Arevalo did not mention any gang affiliation during the encounter. The employee and manager later told the police they believed Arevalo was a criminal street gang member and felt threatened by his behavior. After his arrest, Arevalo told officers he stole the items and, when questioned about gang membership, admitted he was a gang member. He explained he was a member of a street gang in Los Angeles and that he began associating with a local gang after moving to Arizona. Arevalo was indicted for two counts of threatening or intimidating in violation of § 13-1202(B)(2).

¶3 Then, on April 14, 2017, Arevalo's father called 911 after Arevalo became aggressive during a family dispute. When police arrived, Arevalo was hiding in a bedroom and told police to leave. Arevalo threatened one officer, vowing to "bash his head" if the officer entered the room. Several officers eventually entered the room, wherein Arevalo threatened them with a tire iron. Arevalo was arrested and charged with two counts of threatening or intimidating in violation of § 13-1202(B)(2).

¶4 Under § 13-1202(B)(2), a defendant receives an enhanced sentence if convicted of threatening or intimidating—a class 6 felony rather than a class 1 misdemeanor—if he is a criminal street gang member. The State, however, did not allege a nexus between Arevalo's charged conduct and his gang membership.

¶5 Arevalo moved to dismiss all threatening or intimidating charges, or alternatively to reduce them to class 1 misdemeanors, arguing that § 13-1202(B)(2) ’s sentencing enhancement for mere gang membership is unconstitutional. The trial court dismissed all threatening or intimidating charges, ruling that § 13-1202(B)(2) is unconstitutional because it violates due process by punishing a defendant solely for gang membership or association.

¶6 The State appealed both cases and the court of appeals consolidated the appeals. The court analyzed Arevalo's claims under substantive due process, equal protection, and First Amendment free speech and associational rights. See State v. Arevalo , Nos. 1 CA-CR 18-0298, 1 CA-CR 18-0299, 2019 WL 1509879 (Ariz. App. Apr. 4, 2019) (mem. decision). The court rejected each argument, reversing the trial court's order and remanding the case. Id. at *3 ¶ 11.

¶7 We granted review to determine the constitutionality of § 13-1202(B)(2) ’s sentencing enhancement for membership in a criminal street gang—a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

DISCUSSION

¶8 Arevalo argues that § 13-1202(B)(2) violates the Due Process Clause by punishing mere association in a gang. We agree. The court of appeals addressed the constitutionality of § 13-1202(B)(2) under the Due Process and Equal Protection Clauses, and the First Amendment. But, because we conclude the statute violates substantive due process, we do not address Arevalo's equal protection and First Amendment claims, which he has not urged in this Court.

A.

¶9 We review the constitutionality of statutes de novo. State v. Holle , 240 Ariz. 300, 302 ¶ 8, 379 P.3d 197, 199 (2016). "An act of the legislature is presumed constitutional, and where there is a reasonable, even though debatable, basis for enactment of the statute, the act will be upheld unless it is clearly unconstitutional." State v. Ramos , 133 Ariz. 4, 6, 648 P.2d 119, 121 (1982) ; see Gomez v. United States , 490 U.S. 858, 864, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) ("It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question."); cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 247–51 (2012) (the "constitutional-doubt" canon rests "upon a judicial policy of not interpreting ambiguous statutes to flirt with constitutionality, thereby minimizing judicial conflicts with the legislature"). Because there is a strong presumption in favor of a statute's constitutionality, the challenging party bears the burden of proving its unconstitutionality. See Eastin v. Broomfield , 116 Ariz. 576, 580, 570 P.2d 744, 748 (1977). The presumption of constitutionality may require us to interpret a statute to give it a constitutional construction if possible, but we will not rewrite a statute to save it. See, e.g. , Holle , 240 Ariz. at 310 ¶ 47, 379 P.3d at 207 (reiterating that courts may not rewrite a statute to avoid an alleged constitutional flaw).

¶10 A party raising a facial challenge to a statute "must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ; see also City of Los Angeles v. Patel , 576 U.S. 409, 418, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015) ("Under the most exacting standard the Court has prescribed for facial challenges, a plaintiff must establish that a ‘law is unconstitutional in all of its applications.’ " (quoting Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) )); Stanwitz v. Reagan , 245 Ariz. 344, 349 ¶ 19, 429 P.3d 1138, 1143 (2018) (to same effect).

B.

¶11 The Fourteenth Amendment to the United States Constitution, and article 2, section 4 of the Arizona Constitution, protect a citizen's right to "due process of law." U.S. Const. amend. XIV, § 1 ("[N]or shall any state deprive any person of life, liberty, or property, without due process of law."); Ariz. Const. art. 2, § 4 ("No person shall be deprived of life, liberty, or property without due process of law."). "Substantive due process protects an individual from government interference with rights implicit in the concept of ordered liberty ...." Samiuddin v. Nothwehr , 243 Ariz. 204, 209 ¶ 13, 404 P.3d 232, 237 (2017) (quoting Simpson v. Owens , 207 Ariz. 261, 267 ¶ 17, 85 P.3d 478, 484 (App. 2004) ). The United States Supreme Court has explained that the substantive due process standard for permissibly criminalizing associational status requires a substantial nexus between the status and underlying criminal charge:

[G]uilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ... that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause ....

Scales v. United States , 367 U.S. 203, 224–25, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961).

¶12 In Scales , the defendant was charged under the Smith Act, 18 U.S.C. § 2385, which criminalized "the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence." Id. at 205–06, 81 S.Ct. 1469. The indictment alleged that the defendant was a member of the Communist Party of the United States and had "knowledge of the Party's illegal purpose and a specific intent" to overthrow the government. Id. The defendant challenged the statute's constitutionality, in part, on due process grounds because "it impermissibly impute[d] guilt to an individual merely on the basis of his associations and sympathies, rather than because of some concrete personal involvement in criminal conduct." Id. at 220, 81 S.Ct. 1469.

¶13 The Court distilled the constitutional inquiry to "an analysis of the relationship between the fact of membership and the underlying substantive illegal conduct, in order to determine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability." Id. at 226, 81 S.Ct. 1469. In the context of the Smith Act's criminalization of Communist Party membership, the Court reasoned that due process is satisfied only if the statute was applied to " ‘active’ members" who have a "guilty knowledge and intent." Id. at 228, 81 S.Ct. 1469. The Court declined to recognize "[m]embership, without more, in an organization engaged in illegal advocacy," as a sufficient nexus between association and criminal activity to satisfy the concept of personal guilt under the due process clause. Id. at 225–27, 81 S.Ct. 1469.

¶14 We extract from Scales the principle that due process allows criminalization of membership in an...