State v. Hernandez

246 Ariz. 407

439 P.3d 1188

STATE of Arizona, Appellee,

v.Victor Ted HERNANDEZ, Appellant.

No. 1 CA-CR 16-0336

Court of Appeals of Arizona, Division 1.

FILED April 4, 2019

Arizona Attorney General’s Office, Phoenix, By Linley Wilson, Counsel for Appellee

Rick Poster, Phoenix, Counsel for Appellant

Judge Jennifer M. Perkins delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.

PERKINS, Judge:

¶1 Victor Ted Hernandez appeals his convictions and sentences for three counts of participating in a criminal street gang in violation of Arizona Revised Statutes ("A.R.S.") § 13-2321(A). The State charged Hernandez after law enforcement intercepted two letters he wrote from prison to members of a criminal street gang. The letters’ contents support his conviction under § 13-2321(A)(1). Because the letters never reached their intended recipients, however, Hernandez could be convicted only of attempted offenses under § 13-2321(A)(2) and (3). Accordingly, we affirm his conviction and sentence as to the first count, but vacate his other convictions, modify the judgment as to those convictions, and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the convictions. State v. Harm , 236 Ariz. 402, 404, ¶ 3 n.2, 340 P.3d 1110, 1112 (App. 2015). Evidence at trial established the following: While Hernandez was incarcerated in the Special Management Unit of the Fourth Avenue Jail, his incoming and outgoing mail was subject to an order that required a corrections officer to scan each piece of mail before it could be sent to the post office or delivered to Hernandez. Hernandez attempted to mail two envelopes labeled "legal mail," one addressed to "Villa" and the other to "Lopez," but a Sheriff’s Officer recognized the addressees as recipients of nonlegal mail Hernandez had previously sent. After receiving approval from his supervisor, the officer opened and inspected the envelopes.

¶3 The Villa envelope contained a handwritten letter and a copy of a disciplinary action report detailing an assault on an inmate suspected of cooperating with law enforcement against the Mexican Mafia street gang. The handwritten letter gave instructions to provide Hernandez’s contact information to other suspected gang members housed in Fourth Avenue Jail. It was signed "Gucci Boy," one of Hernandez’s known aliases.

¶4 The Lopez envelope contained a filing from Hernandez’s other legal proceedings interlineated with detailed handwritten instructions to send a message to "Turtle" that the Mexican Mafia controls the drug trade. The letter was signed "Death row Lil Chico," another of Hernandez’s known aliases. The writing further gave instructions to collect $5,000–$10,000 in back "taxes" from Turtle, and if Turtle refused to pay, to burn down a particular business, and then if Turtle still refused to pay, to burn down another business at a second location. The letter also contained instructions to set up an outside address for money transfers, as well as detailed plans to commit robberies, setting forth the necessary weapons and other equipment, and advising it would be easier to "take out" the intended victims than to leave them alive.

¶5 Based on the two letters, the State charged Hernandez with three counts of participating in a criminal street gang, each a class 2 felony. During his five-day trial, the State presented testimony from multiple law enforcement officers showing Hernandez’s affiliation with the Mexican Mafia, testimony from Officer Verdin that Hernandez had written the letters, and the actual letters themselves. The jury found Hernandez guilty on each count and then found two aggravating factors—Hernandez committed the offenses as consideration for something of pecuniary value and that he committed the offenses with the intent to promote or assist criminal conduct by a criminal street gang. The court sentenced Hernandez to twelve years of imprisonment for each count, to be served concurrently, and an additional five years to be served consecutively to the twelve-year terms as a gang enhancement.

¶6 After searching the entire record, Hernandez’s defense counsel identified no arguable, non-frivolous questions of law. In accordance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon , 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel requested we search the record for fundamental error. Hernandez was given an opportunity to file a supplemental brief in propria persona , but did not do so. In the course of our Anders review, we identified an issue arguably constituting fundamental error and ordered the parties to submit supplemental briefs. See Penson v. Ohio , 488 U.S. 75, 83–84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (requiring representation when Anders review discloses an arguable issue). We asked the parties to address whether the fact that the mail at issue was intercepted requires modification of the judgment to reflect convictions for attempted participation in a criminal street gang rather than completed offenses. We also heard oral argument on the issue.

DISCUSSION

¶7 Hernandez argues that the interception of the letters before they reached their recipients precludes his convictions for participating in a criminal street gang. Specifically, Hernandez argues the language of § 13-2321(A) requires completed communication between a defendant and the intended recipient of the communication. We agree, and reverse two of Hernandez’s convictions but conclude that sufficient evidence showed completed communications as to his conviction under § 13-2321(A)(1).

¶8 We review issues of statutory interpretation de novo . State v. Estrada , 201 Ariz. 247, 250, ¶ 15, 34 P.3d 356, 359 (2001). In doing so, we first look to the statute’s plain language, which determines the statute’s construction when the language is clear and unequivocal. Glazer v. State , 244 Ariz. 612, 614, ¶ 9, 423 P.3d 993, 995 (2018). As relevant here, § 13-2321(A) states:

A person commits participating in a criminal street gang by any of the following:

1. Intentionally organizing, managing, directing, supervising or financing a criminal street gang with the intent to promote or further the criminal objectives of the criminal street gang.

2. Knowingly inciting or inducing others to engage in violence or intimidation to promote or further the criminal objectives of a criminal street gang.

3. Furnishing advice or direction in the conduct, financing or management of a criminal street gang’s affairs with the intent to promote or further the criminal objectives of a criminal street gang.

A.R.S. § 13-2321(A). The jury convicted Hernandez on one count of participating in a criminal street gang under each of these three subsections.

¶9 Each verb in § 13-2321(A)(1) implies an interaction between the person doing the organizing, managing, directing, financing, or supervising, and a criminal street gang. Here, the letters evidence that Hernandez had managed, directed, and supervised other gang members before he sent the letters. One of the letters states, "Yourself, Monche, Demon, Trigger, and Thumper’s name have all come up within the familia, that not only are you getting money in state, but out of state as well." Hernandez also noted that "big jay from SS Chula Vista wanted to help out," and that "Myself, along with the other aguilas [gang members] send our regards." Thus, even though the letters did not reach their intended recipients, they contained evidence from which the jurors could conclude that Hernandez organized, managed, directed, or supervised gang activity.

¶10 The evidence was insufficient to establish the two other charges, however. Under § 13-2321(A)(2), "inciting" or "inducing" individuals to engage in violence on behalf of a criminal street gang contemplates, at a minimum, some means of communication between the defendant and intended recipient. This is not to say the State is required to prove a specific result of a defendant’s conduct but, at a minimum, the State must show the defendant interacted in some way with the criminal street gang. We note that this Court has previously held that the term "induce" (used in a statute proscribing witness tampering, see A.R.S. § 13-2804 (2011)), "requires proof that a defendant knowingly caused a witness ... to unlawfully withhold testimony, testify falsely, or fail to appear at an official proceeding when summoned." State v. Gray , 227 Ariz. 424, 429, ¶ 18, 258 P.3d 242, 247 (App. 2011). The version of A.R.S. § 13-2804 at issue in that case was later amended to replace "knowingly induces a witness" with "knowingly communicates, directly or indirectly, with a witness...." Ariz. Sess. Laws 2014, Ch. 144, § 2. But we need not decide whether the State must show a defendant actually caused a third party to engage in...