State v. Gonzalez

The State of Arizona, Respondent, v. Raul Otto Gonzalez, Petitioner.

No. 2 CA-CR 2022-0168-PR

Court of Appeals of Arizona, Second Division

February 24, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Pima County No. CR20163549001 The Honorable Scott McDonald, Judge

Scott A. Martin, Tucson Counsel for Petitioner

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Sklar concurred.

MEMORANDUM DECISION

VÁSQUEZ, Chief Judge:

¶1Raul Gonzalez seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App 2011). For the reasons set forth below, we grant review, deny relief in part, grant relief in part, and remand for an evidentiary hearing.

Factual and Procedural Background

¶2After a jury trial, Gonzalez was convicted of three counts of molestation of a child twelve years of age or younger. The victim was Gonzalez's granddaughter, B.G., and his defense at trial was that his wife, I.G., had encouraged B.G to fabricate the claims against him in retaliation for his infidelity. The trial court sentenced Gonzalez to concurrent twenty-year prison terms. This court affirmed his convictions and sentences on appeal. State v. Gonzalez, No. 2 CA-CR 2018-0201 (Ariz. App. Apr. 13, 2020) (mem. decision).

¶3Thereafter, Gonzalez sought post-conviction relief. Before Gonzalez filed his petition, the parties entered a stipulation, which the trial court accepted, that any claim of ineffective assistance of counsel "that is not supported by an affidavit by an expert" regarding "the 'standard of care' in the legal community as to the prevailing legal standard of performance . . . shall not be considered deficient for failing to include said affidavit."

¶4In May 2022, Gonzalez filed his Rule 32 petition, asserting he had received ineffective assistance of counsel. First, he argued trial counsel had been ineffective by "not objecting to the prosecutor's improper closing arguments on the grounds of 'vouching' and 'facts not in evidence.'" Second, he maintained that, when the prosecutor read into evidence excerpts from a confrontation call between Gonzalez and his wife "implying that Gonzalez had admitted . . . B.G.'s accusations were true," trial counsel had been ineffective by failing to introduce Gonzalez's denials of the accusations during the call under the rule of completeness in Rule 106, Ariz. R. Evid. He further argued that trial counsel had rendered deficient performance by failing to object or move for a mistrial when the prosecutor used those same excerpts to argue in closing that Gonzalez had admitted the accusations. Third, Gonzalez asserted that appellate counsel had been ineffective in failing to file a motion for reconsideration or petition for review based on a "blatant" error in this court's memorandum decision from his direct appeal.^[1]

¶5In November 2022, the trial court summarily dismissed Gonzalez's petition. The court rejected each claim of ineffective assistance, finding neither deficient performance by counsel nor prejudice to Gonzalez. This petition for review followed.

Discussion

¶6On review, Gonzalez repeats his claims of ineffective assistance of trial and appellate counsel. He asks that we grant relief "as appropriate based on the specific arguments raised," including remanding the case for an evidentiary hearing. To obtain an evidentiary hearing, a defendant must establish a colorable claim for relief. State v. Donald, 198 Ariz. 406, ¶ 8 (App. 2000). And "[t]o make a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id.

Prosecutor's Closing Argument

¶7During closing arguments in Gonzalez's case, the following exchange occurred:

[Prosecutor]: Well, ladies and gentlemen, the defense in this case has no burden. That all rests with the State. But you can bet that if there was an expert witness out there that could describe the behavior that [B.G.] was exhibiting as her hiding something, they would have brought that person in here and you would have heard from them.

[Defense counsel]: Object to burden shifting.

The Court: Hang on a second. Counsel, come on up.

(Sidebar Conference.)

The Court: Your objection is burden shifting. And the response is?

[Prosecutor]: I led with the defense has no burden in this case, Judge. And there is specific case law that says that's appropriate where they challenge things. The Court: I'm going to overrule the objection, but I am going to ask you to tread very lightly here because there is a line that you are not permitted to cross. You haven't crossed it yet, but please be careful.

[Prosecutor]: I will, Judge. Thank you.

On appeal, Gonzalez argued that the prosecutor's statement "constituted prosecutorial misconduct because it involved burden shifting, reference to facts not in evidence and vouching." Gonzalez, No. 2 CA-CR 2018-0201, ¶ 12. This court concluded the "argument was improper both because it suggested facts not in evidence and constituted improper vouching." Id. ¶ 16. However, we determined that Gonzalez had not met his burden of establishing prejudice under the fundamental-error standard. Id. ¶¶ 12, 18. We explained:

[T]he jury had the opportunity to directly assess the victim's demeanor on the witness stand, subject to comprehensive cross-examination. And, the trial court's instructions substantially mitigated any prejudice arising from the improper argument. Those instructions alerted the jurors that they alone judged witness credibility and that the lawyers' statements in summation were not evidence.... Moreover, other evidence corroborated B.G.'s testimony. That evidence included a DNA sample taken from B.G.'s panties, which did not exclude the defendant as the source, as well as the defendant's failure to squarely deny he had committed the offenses when accused by his wife.

Id. ¶ 18.

¶8In his Rule 32 petition, Gonzalez argued trial counsel had been ineffective for not objecting to the prosecutor's closing argument based on "vouching" and "facts not in evidence." The trial court, however, determined that "Gonzalez's counsel did not fall below an objective standard of reasonableness." The court relied on State v. Valdez (Valdez II), 167 Ariz. 328 (1991), and pointed out that counsel had objected to the prosecutor's argument on the grounds of "burden shifting." The court explained, "Even if trial counsel was unaware of the proper objection, he nevertheless objected to the argument on a reasonable ground," which "was more proficient than trial counsel in Valdez, who did not object." The court further concluded that Gonzalez had failed to establish the second Strickland prong, noting that on appeal this court determined Gonzalez had failed to establish the prosecutor's improper argument affected the outcome of his case.

¶9Gonzalez now contends the trial court "misapplied" Valdez II. He maintains the court should have instead relied on State v. Valdez (Valdez I), 160 Ariz. 9 (1989).

¶10 Valdez I was a direct appeal from the defendant's conviction and sentence. 160 Ariz. at 10. Valdez argued that defense counsel's failure to object to the prosecutor's "improper and prejudicial comments" during closing arguments amounted to ineffective assistance. Id. at 10, 14. Our supreme court observed:

As a general matter, we recommend that when a defendant wishes to raise the question of ineffective assistance during the pendency of his appeal, he should file the proper petition under Rule 32 . . . in the trial court and seek an order from the appellate court suspending the appeal. The trial court should then hold an evidentiary hearing and make its ruling. Afterward, a defendant should seek to consolidate the post-conviction proceedings with the direct appeal.

Id. at 15. The court did not address Valdez's claim of ineffective assistance but nonetheless reviewed the record for fundamental error, finding none. Id.

¶11 Valdez then sought post-conviction relief, raising the same claim of ineffective assistance of counsel. Valdez II, 167 Ariz. at 328-29. After an evidentiary hearing, the trial court denied relief. Id. at 329, 331. On review, our supreme court concluded that defense counsel was "unaware of . . . the proper objection to make" and that counsel's "failure to object was not a strategic decision." Id. at 331. The supreme court continued, "Even though defense counsel should have made the proper objection, this single mistake, in and by itself, does not bring the defendant's representation within the purview of the first prong of Strickland." Id. at 332. It thus affirmed the denial of post-conviction relief. Id.

¶12 Gonzalez contends his case "is functionally equivalent to Valdez I, not Valdez II," because the trial court denied his claim without holding an evidentiary hearing. He further maintains he is entitled to "an evidentiary hearing to determine trial counsel's reasons for failing to object to the prosecutor's improper arguments before evaluating whether Gonzalez has established the first Strickland prong." We disagree.

¶13Defendants are entitled to an evidentiary hearing only if they present a colorable claim. State v. D'Ambrosio, 156 Ariz 71, 73 (19...