State v. Trujillo

248 Ariz. 473

462 P.3d 550

STATE of Arizona, Appellee,

v.Oscar Pena TRUJILLO, Appellant.

No. CR-18-0531-PR

Supreme Court of Arizona.

Filed May 4, 2020

Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Amy Pignatella Cain (argued), Assistant Attorney General, Tucson, Attorneys for State of Arizona

Joel Feinman, Pima County Public Defender, David J. Euchner (argued), Michael J. Miller, Deputy Public Defenders, Tucson, Attorneys for Oscar Pena Trujillo

Daniel C. Barr, Randal B. McDonald, Lindsey M. Huang, Perkins Coie, LLP, Phoenix, and Martin Lieberman, Jared G. Keenan, American Civil Liberties Union Foundation of Arizona, Phoenix, Attorneys for Amicus Curiae American Civil Liberties Union of Arizona

JUSTICE GOULD authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES LOPEZ, BEENE, and MONTGOMERY joined. JUSTICE BOLICK dissented.

JUSTICE GOULD, opinion of the Court:

¶1 We hold that a judge has the authority, for the purposes of imposing mandatory sex offender registration under A.R.S. § 13-3821(A)(3), to make the necessary factual finding that the victim is under eighteen. In reaching this holding, we conclude that Arizona's sex offender registration statutes are civil regulatory statutes, not criminal penalties. As a result, Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) does not apply.

¶2 These laws, which include registration as a sex offender, community notification, and public access to an offender internet registry, serve the important civil regulatory purpose of making offender information "accessible" to the public so that they "can take the precautions they deem necessary" for their own safety.

Smith v. Doe , 538 U.S. 84, 101, 102–03, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). In contrast, the rule of Apprendi , which is premised on the Sixth Amendment right to a jury trial in a criminal case, only applies to criminal penalties.

I.

¶3 In April 2015, M.A.C., a fifteen-year-old from Honduras, crossed the border into the United States at McAllen, Texas. Immigration officials eventually transferred him to a shelter for immigrant children in Tucson.

¶4 Trujillo was employed as a youth care worker at the Tucson shelter. One morning, while M.A.C. was staying at the shelter, Trujillo entered his room and touched M.A.C.’s penis over his clothing. Trujillo was subsequently convicted of one count of sexual abuse, a class five felony, in violation of A.R.S. § 13-1404(A).

¶5 In reaching its verdict, the jury determined, as an element of the offense, that M.A.C. was "fifteen or more years of age." See § 13-1404(A) (defining sexual abuse as "intentionally or knowingly engaging in sexual contact with any person who is fifteen or more years of age without consent"). It made no other findings about M.A.C.’s age.

¶6 At sentencing, the trial court ordered Trujillo to register as a sex offender pursuant to § 13-3821(A)(3). Under that statute, a defendant convicted of sexual abuse must register as a sex offender "if the victim is under eighteen years of age." Id. Trujillo objected, arguing that pursuant to Apprendi , a jury was required to find whether M.A.C. was under eighteen. The trial court denied Trujillo's objection.

¶7 The court of appeals affirmed, holding that Apprendi does not apply to § 13-3821(A)(3) because sex offender registration is a civil regulatory requirement, not a criminal penalty. State v. Trujillo , 245 Ariz. 414, 421 ¶ 19, 430 P.3d 379 (App. 2018). We granted review because this case involves constitutional and statutory issues of statewide importance.

II.

¶8 Trujillo asserts that Apprendi required the jury to determine whether M.A.C. was under eighteen because this fact increased the range of his punishment from the possibility of no registration under § 13-3821(C) to mandatory registration under § 13-3821(A)(3). As a result, he claims that the judge had no authority to determine the victim's age, and that in doing so, the court violated his right to a jury trial guaranteed by the Sixth Amendment to the United States Constitution, and article 2, section 24 of the Arizona Constitution.¹

¶9 We review constitutional questions and questions of law de novo. State v. Moody , 208 Ariz. 424, 445 ¶ 62, 94 P.3d 1119 (2004).

A.

¶10 Arizona's sex offender registration requirements are contained in §§ 13-3821 through -3829. Registration is triggered by a conviction for certain specified crimes, as well as crimes where there has been a "finding of sexual motivation pursuant to § 13-118." See § 13-3821(A), (C). Convictions for some crimes mandate registration, while others allow for discretion in ordering registration. See § 13-3821(A)(1)–(22) (mandatory registration offenses); -3821(C) (discretionary registration offenses).

¶11 Sex offender registration is, with some exceptions, a life-long requirement. See Fushek v. State , 218 Ariz. 285, 291 ¶ 23, 183 P.3d 536 (2008) ; Fisher v. Kaufman , 201 Ariz. 500, 502–03 ¶¶ 8–13, 38 P.3d 38 (App. 2001) ; infra ¶ 59 (listing exceptions to lifetime requirement). When a person registers, he or she must provide the local county sheriff with his or her name and any aliases, address/physical location, fingerprints, photograph, "online identifier" (such as email address, instant message, or other internet communication name), and the name of any website or internet communication service where he or she is using the identifier. § 13-3821(I), (J), (S)(2). An offender must also advise the sheriff of any postsecondary institution where he or she is a student or an employee. § 13-3821(N). If an offender's information changes, he must provide the sheriff with updated information within seventy-two hours. §§ 13-3822(A); -3821(N) (requiring updates and changes in enrollment or employment status at a postsecondary institution). Violating a registration requirement is punishable as a class four felony. § 13-3824(A); see also § 13-3824(B) (stating that violations regarding registration requirements for an online identifier or identification/driver's license are punishable as a class six felony).

¶12 In 1995, Arizona added a community notification requirement for certain high-risk offenders. Ariz. Dep't of Pub. Safety v. Superior Court (Falcone ), 190 Ariz. 490, 493 & n.3, 949 P.2d 983 (1997). Under the community notification provisions, law enforcement is required to disseminate "the offender's photograph and exact address and a summary of the offender's status and criminal background" to the offender's neighbors, "area schools, appropriate community groups and prospective employers." § 13-3825(C)(1). Further, "[a] press release and the notification containing all required offender information must be given to the local electronic and print media to enable information to be placed in a local publication." Id.

¶13 Community notification does not apply to Level One (low-risk) Offenders (§ 13-3825(C)(2)), but is required for Level Two and Three (high-risk) Offenders (§ 13-3825(C)(1)). The agency having "custody or responsibility for supervision of an offender" is tasked with performing a risk assessment to determine an offender's risk level. § 13-3825(M).

¶14 Finally, the Department of Public Safety must "maintain an internet sex offender website for the purpose of providing sex offender information to the public." § 13-3827(A). The registry contains the offender's name, address, age, current photograph, offense committed, risk assessment/notification level, and a copy of the offender's nonoperating identification license or driver's license. § 13-3827(B), (F).

¶15 The public does not have access to registry information for Level One Offenders. § 13-3823; -3825(C)(2). However, the public may access information about Level Two and Three Offenders, as well as offenders convicted of certain completed offenses. § 13-3827(A)(1)–(2) (listing offenses requiring public access to internet registry).

B.

¶16 In Apprendi , the United States Supreme Court held that a jury must determine any fact, apart from a prior conviction, that increases a defendant's prison sentence above the statutory maximum sentence. 530 U.S. at 476, 120 S.Ct. 2348 (quoting Jones v. United States , 526 U.S. 227, 243 n.6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) ). The Supreme Court has subsequently expanded the scope of Apprendi to encompass any fact that increases the minimum or maximum range of a prison sentence or a criminal penalty. See United States v. Haymond , ––– U.S. ––––, 139 S. Ct. 2369, 2378–79, 2382, 204 L.Ed.2d 897 (2019) (applying Apprendi to a statute increasing the maximum range of a defendant's original prison sentence based on a determination that the defendant violated his supervised release); Alleyne v. United States , 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (applying Apprendi to "any fact that increases the mandatory minimum" prison sentence); S. Union Co. v. United States , 567 U.S. 343, 348, 350, 360, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012) (applying Apprendi to facts necessary to increase the amount of a criminal fine); see also State v. Brown , 209 Ariz. 200, 203 ¶ 12, 99 P.3d 15 (2004) (holding that Apprendi applies to aggravating factors necessary to increase the range of prison sentence above the statutory "presumptive" prison sentence).

¶17 Apprendi is based on a defendant's Sixth Amendment right to a jury trial in a criminal case. 530 U.S. at 476, 120 S.Ct. 2348 ; id. at 500, 518, 120 S.Ct. 2348 (Thomas, J., concurring); see also Blakely v. Washington , 542 U.S. 296, 298, 305, 308–09, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ; S. Union , 567 U.S. at 346, 132 S.Ct. 2344 (stating that Apprendi is based on the "[t]he Sixth Amendment"); c.f. U.S. Const. amend. VI (stating that, "In all criminal prosecutions, the accused shall" have the right to a jury trial); Ariz. Const. art. 2, § 24 (same). Thus, in "consider[ing] the scope of the Sixth...