State v. Quijada

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

FRANCISCO QUIJADA, Appellant.

No. 1 CA-CR 22-0293
FILED 05-23-2024

Appeal from the Superior Court in Yuma County
No. S1400CR202100040
The Honorable David M. Haws, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Robert J. Trebilcock, Kaitlin Marie Amos
Counsel for Appellant
 STATE v. QUIJADA
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.

C A T L E T T, Judge:

¶1 Francisco Quijada (“Quijada”) appeals his convictions and
sentences for kidnapping with sexual motivation, sexual conduct with a
minor under fifteen years of age, and sexual assault. Quijada argues his
convictions and sentences violate double jeopardy and A.R.S. § 13-116,
which prohibits consecutive sentences for convictions arising out of a single
act. He also argues the superior court erred in admitting other act evidence
under Arizona Rule of Evidence (“Rule”) 404(c). We affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 Anna2 knew Quijada through her older sister, who had two
children with him. In 2018, Anna saw Quijada as she was getting off her
school bus. He asked if she wanted a ride home and she reluctantly got into
his vehicle. Quijada drove Anna to a secluded area and touched her leg.
Anna told Quijada to leave her alone and he drove her home.

¶3 In February 2019, when Anna was fourteen years old, she got
off her school bus and walked home. After Anna arrived, Quijada knocked
on the door and asked for her brother. Anna told Quijada that the only
other person in the home, her father, was asleep in his bedroom. Quijada
then tried to pull her outside and asked her to have sexual intercourse with
him. She told him “no,” but he continued “begging and asking.” Anna felt
pressured to comply and allowed Quijada in. Once inside, Quijada forced
Anna to a couch and sexually assaulted her. Quijada then left. Anna did
not immediately disclose to anyone what happened, fearing it would cause
pain and conflict in her family.

¶4 In the ensuing days, Anna began cutting herself. When a
family friend noticed and asked why, Anna disclosed that Quijada had

1 We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013).
2 We use a pseudonym to protect the victim’s privacy.

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“forcibly raped her.” The friend reported the assault to Anna’s mother.
Anna’s mother and older sister told Anna to call Quijada, in their presence,
and pretend that the friend had witnessed the assault. During the phone
call, Quijada did not deny assaulting Anna, instead demanding that Anna
“not say anything” and “make up something” because “it was impossible
that she could have seen us.” Anna’s mother and older sister did not
contact law enforcement.

¶5 By the end of February 2019, Anna disclosed the assault to her
father, telling him that Quijada had “raped her.” The family contacted law
enforcement. Anna disclosed the assault to an investigator, providing
statements consistent with those she made to her family members and
family friend.

¶6 After investigating, the State of Arizona (“State”) charged
Quijada with two counts of kidnapping with sexual motivation, class 2
felonies (counts 1 and 5); one count of aggravated assault, a class 6 felony
(count 2); one count of sexual conduct with a minor under fifteen years of
age, a class 2 felony (count 3); and one count of sexual assault, a class 2
felony (count 4). Counts 1 and 2 involved Quijada’s conduct in 2018 and
counts 3 through 5 involved his conduct in 2019. All counts, except count
2, qualified as dangerous crimes against children. See A.R.S. § 13-705.

¶7 Before trial, the State notified Quijada that it intended to
present sexual propensity evidence under Rule 404(c), including evidence
of a prior felony conviction. The State alleged that, in 2011, Quijada
solicited sexual intercourse from his thirteen-year-old niece and “went to
her house to complete the act.” The State said it intended to present
certified court documents showing that Quijada pled guilty to burglary in
the second degree with sexual motivation and admitted to entering the
victim’s home to engage in sexual intercourse. The State noted that
Quijada’s probation term for that offense, which restricted his access to
minors, ended shortly before the conduct involving Anna. Quijada
objected and requested a hearing.

¶8 At that hearing, the State presented the sentencing
documents, presentence report, signed plea agreement and factual basis for
the guilty plea, and the victim’s statements to law enforcement. The factual
basis for the guilty plea stated as follows: “On March 15, 2011, I, Francisco
Quijada, entered the residence of [the victim] . . . with the intent to commit
a sexual offense against her. [The victim] left the residence before I engaged
in sexual acts with her, but I remained unlawfully at the residence awaiting
her return. This residence is located in Yuma County. The victim . . . was

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13 years old at the time.” Quijada objected to the admission of the prior
offense based on remoteness, adding that any reference to the evidence
should be limited.

¶9 In a detailed ruling, the superior court found that (1) the State
presented sufficient evidence of Quijada’s prior offense through “the
certified conviction, the plea agreement, and the presentence report”; (2)
the prior offense provided “a reasonable basis to infer that [he] has a
character trait giving rise to an aberrant sexual propensity to commit the
crime charged”; (3) “the evidentiary value of the proof of the prior incident
is not substantially outweighed by the danger of unfair prejudice”; and (4)
the remoteness in time, surrounding circumstances, and intervening events
did not “dilute” or “undercut the probative value of the evidence.” The
court added that “while remote in time, the conduct is similar to the
conduct alleged in this case. The strength of the proof is . . . high. Its
probative value is high.” The court restricted the State’s use of the prior
offense under Rule 404(c) to “the case number, date of conviction, nature of
the offense, classification of offense, factual basis in the plea agreement, the
identity of the person, and the relationship, if any, of that person to the
defendant.”

¶10 At trial, the State complied with the court’s Rule 404(c) ruling,
presenting only certified copies of the signed factual basis and plea
agreement, sentencing documents, and testimony that Anna and her family
were aware of the prior offense. When Quijada testified, he admitted to
pleading guilty to the prior offense and receiving probation. He claimed
that his conditions of probation had been restrictive, and he never wanted
to put himself in a similar situation. Quijada also testified that law
enforcement had “tricked” him in the prior offense. The State argued that
statement opened the door to additional evidence about the prior offense,
but the court affirmed its previous ruling.

¶11 The superior court provided standard limiting instructions
for Rule 404(c) evidence and the use of a defendant’s prior felony
conviction. Quijada did not object or propose different instructions and, in
his closing remarks, asked the jury to pay specific attention to the
instructions. He also argued that the prior offense did not support the
contention that he had an aberrant sexual propensity to commit the current
offenses, it occurred long before the current offenses, it deterred him from
reoffending, and it made him an easy target for false allegations. The State
briefly referred to the evidence in closing remarks, noting only that the jury
could consider the prior offense as sexual propensity evidence.

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¶12 After the State’s case-in-chief, Quijada argued that the
evidence presented for counts 3 and 4 involved a single act of sexual
intercourse, so the offenses violated double jeopardy and could not be
submitted to the jury. The court disagreed, finding that counts 3 and 4 had
different elements because sexual conduct with a minor has an age
requirement and sexual assault does not.

¶13 The jury found Quijada guilty of counts 3 through 5 and
found the existence of aggravating factors. Before sentencing, Quijada
again contended that counts 3 and 4 involved the same conduct and would
result in “double sentencing.” But the court imposed the presumptive term
of 20 years’ imprisonment for count 3, the minimum term of 13 years’
imprisonment for count 4, and the minimum term of 10 years’
imprisonment for count 5. The State argued that A.R.S. § 13-705 required
consecutive sentences. The superior court agreed and imposed consecutive
sentences for each count.

¶14 Quijada timely appealed. We have jurisdiction. See A.R.S.
§ 12-120.21(A)(1).

DISCUSSION

I. Double Jeopardy

¶15 Quijada first contends his convictions and sentences for
counts 3 and 4 violate double jeopardy because they arise out of the same
offense. We review de novo double jeopardy and statutory interpretation
issues. State v. Powers, 200 Ariz. 123, 125–26 ¶¶ 5, 8 (App. 2001).

¶16 “The Double Jeopardy Clauses of the United States and
Arizona Constitutions protect criminal defendants from multiple
convictions and punishments for the same offense.” State v. Ortega, 220
Ariz. 320, 323 ¶ 9 (App. 2008); see also U.S. Const. amend. V; Ariz. Const.
art. 2, § 10. Where the same act “constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires proof of a fact
which the other does not.” Blockburger v. United States, 284 U.S. 299, 304
(1932). Under the “Blockburger test,” we inquire “whether each offense
contains an element not contained in the other; if not, they are the ‘same
offence’ and double jeopardy bars additional punishment.” United States v.
Dixon, 509 U.S. 688, 696 (1993).

¶17 To commit sexual conduct with a minor (count 3), one must
“intentionally or knowingly engage in sexual intercourse” with any person

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“who is under fifteen years of age.” A.R.S. § 13-1405(A)–(B). To commit
sexual assault (count 4), one must “intentionally or knowingly engage in
sexual intercourse . . . with any person without consent of such person.”
A.R.S. § 13-1406(A). For sexual assault, the victim’s age is relevant only for
sentencing. A.R.S. § 13-1406(B); see also State v. Eagle, 196 Ariz. 188, 192–93
¶¶ 17–18 (2000) (concluding that sentencing factors do not constitute an
element of an offense).

¶18 Applying Blockburger, sexual conduct with a minor requires
proof of a fact (age) that sexual assault does not. See Blockburger, 284 U.S. at
304. And sexual assault requires proof of a fact (lack-of-consent) that sexual
conduct with a minor does not. See id. Because sexual conduct with a minor
requires proof of age but sexual assault does not, and sexual assault
requires proof of lack-of-consent but sexual conduct with a minor does not,
we conclude each offense contains elements not present in the other. See
Merlina v. Jejna, 208 Ariz. 1, 4 ¶ 12 (App. 2004).

¶19 Not only does statutory language demand that result, but
prior precedent supports it. This court has held, in the context of lesser-
included offenses, that “[l]ack of consent is an element of sexual assault,
while the age of the victim is an element of sexual conduct. Neither element
is common to both offenses.” State v. Villegas, 132 Ariz. 433, 434 (App. 1982).
Thus, Quijada’s convictions and sentences for counts 3 and 4 do not violate
double jeopardy.

¶20 We also reject Quijada’s request to consider the language in
the indictment and the underlying factual nature of his offenses. When one
act violates two statutes, the Blockburger test is “the only permissible
interpretation of the double jeopardy clause.” State v. Carter, 249 Ariz. 312,
316 ¶ 9 (2020) (citation and quotation marks omitted). When a defendant’s
convictions survive the Blockburger test—as they do here—the double
jeopardy analysis is complete, and the underlying conduct the State alleged
is irrelevant. See Dixon, 509 U.S. at 707–12 (declining to adopt a “same-
conduct” test and expand the scope of review established in Blockburger).

II. Consecutive Sentences

¶21 Quijada next argues that the court violated A.R.S. § 13-116 by
imposing consecutive sentences for convictions arising out of a single act.
We review de novo whether consecutive sentences violate § 13-116. State v.
Siddle, 202 Ariz. 512, 517 ¶ 16 (App. 2002).

¶22 Under A.R.S. § 13-116, “[a]n act or omission which is made
punishable in different ways by different sections of the laws may be

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punished under both, but in no event may sentences be other than
concurrent.” The statute, therefore, prohibits consecutive sentences for a
“single act” punished under different statutes. State v. Gordon, 161 Ariz.
308, 315 (1989).

¶23 The superior court, applying A.R.S. § 13-705, imposed
consecutive sentences for kidnapping, sexual conduct with a minor, and
sexual assault. Section 13-705 requires “that sentences imposed on a
defendant convicted of certain dangerous crimes against children run
consecutively even when the underlying convictions arise from a single
act.” State v. Jones, 235 Ariz. 501, 502 ¶¶ 1, 7 (2014); see also A.R.S. § 13-
705(P) (then-numbered A.R.S. § 13-705(M)). In Jones, our supreme court
held that, where § 13-705 applies, it controls, and the superior court must
impose consecutive sentences, even when doing so violates § 13-116. 235
Ariz. at 502–03 ¶¶ 1, 8, 11.

¶24 Here, the jury convicted Quijada of three offenses involving a
minor under fifteen years of age and each qualified as a dangerous crime
against children. See A.R.S. § 13-705(E)–(F). Thus, the mandatory language
in § 13-705 applies, and the court properly imposed consecutive sentences.
See Jones, 235 Ariz. at 502–03 ¶¶ 1, 11. Though Quijada argues that Jones
was wrongly decided, we are bound by it. See State v. Long, 207 Ariz. 140,
145 ¶ 23 (App. 2004).

III. Other Act Evidence

¶25 Quijada contends that the superior court abused its discretion
by permitting the State to present evidence of a prior offense to show sexual
propensity. Quijada also argues that the court did not sufficiently instruct
the jury on using that evidence. We review the court’s admission of Rule
404(c) evidence for an abuse of discretion. State v. Yonkman, 233 Ariz. 369,
373 ¶ 10 (App. 2013). Quijada did not object to the jury instructions, so we
review them for fundamental error. State v. Escalante, 245 Ariz. 135, 140, 142
¶¶ 12, 21 (2018).

¶26 Rule 404(b) prohibits evidence of other acts or crimes if
offered only “to prove the character of a person in order to show action in
conformity therewith.” Ariz. R. Evid. 404(b)(1). But Rule 404(c) allows such
evidence “if relevant to show that the defendant had a character trait giving
rise to an aberrant sexual propensity to commit the offense charged.” Ariz.
R. Evid. 404(c). Rule 404(c) requires the superior court to make specific
findings that (1) the evidence is sufficient to permit a jury to find that the
defendant committed the other act; (2) “commission of the other act

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provides a reasonable basis to infer that the defendant had a character trait
giving rise to an aberrant sexual propensity to commit the crime charged”;
and (3) the probative “value of proof of the other act is not substantially
outweighed by danger of unfair prejudice, confusion of issues, or other
factors mentioned in Rule 403.” Ariz. R. Evid. 404(c)(1)(A)–(C); see also Ariz.
R. Evid. 403; State v. Terrazas, 189 Ariz. 580, 582 (1997). If the court admits
other act evidence, it must instruct the jury “as to the proper use of such
evidence.” Ariz. R. Evid. 404(c)(2).

¶27 In weighing the probative value of other act evidence, the
court must consider the remoteness of the other act, the similarity or
dissimilarity of the other act, and relevant intervening events. Ariz. R. Evid.
404(c)(1)(C)(i)–(ii), (vi)–(vii). This court has noted that other act evidence
can overcome a significant gap in time if the other act shares a similar
“setting, age of victim, and mode of operation.” State v. Salazar, 181 Ariz.
87, 92 n.5 (App. 1994).

¶28 The superior court made all three required findings and did
not abuse its discretion in so doing. First, the court found that the State
presented sufficient evidence of Quijada’s prior offense through certified
court documents. See Ariz. R. Evid. 404(c)(1)(A). Those documents showed
that Quijada pled guilty to entering the home of his thirteen-year-old niece,
intending to engage in sexual acts with her.

¶29 Second, the court found that Quijada’s prior offense provided
a reasonable basis to infer that he had a “character trait” that gave “rise to
an aberrant sexual propensity” to commit the current offenses. Ariz. R.
Evid. 404(c)(1)(B). The prior and current offenses involved minor female
victims of similar ages. Quijada had familial relationships with both, and
he targeted them in their homes. The prior offense shared significant
similarities to the current offense and could be admitted as sexual
propensity evidence. See State v. Aguilar, 209 Ariz. 40, 48 ¶ 27 (2004) (noting
that the admissibility of Rule 404(c) evidence may turn on the similarities
of the prior and current offenses).

¶30 Third, the superior court found that the probative value of the
prior offense was not substantially outweighed by the danger of unfair
prejudice. See Ariz. R. Evid. 404(c)(1)(C). The court found that the
remoteness in time between the prior and current offenses did not undercut
the prior crime’s evidentiary value. Although the prior offense occurred in
2011, Quijada’s probation term restricted his access to minors and ended
shortly before he committed the current offenses. See State v. Super. Ct., 129
Ariz. 360, 362 (App. 1981) (concluding that the defendant cannot argue

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remoteness when he “was isolated from contact with children” during that
gap in time). Thus, the gap in time when Quijada was subject to probation
did not eliminate the probative value of Quijada’s prior offense, which
shared a nearly identical “setting, age of victim, and mode of operation”
with the current offenses. See Salazar, 181 Ariz. at 92 n.5.

¶31 As to prejudice, the court narrowed and limited the State’s use
of the prior offense, “minimizing its potential for unfair prejudice while
preserving its probative value.” State v. Rix, 256 Ariz. 125, 261 ¶ 22 (App.
2023) (citation and quotation marks omitted). The court allowed the State
to admit only the basic facts of Quijada’s prior offense, his probation status,
and the nature of his relationship to the victim. The State complied and did
not engage in lengthy closing remarks regarding the prior offense. The
court did not abuse its discretion by admitting, yet narrowing, evidence of
Quijada’s prior offense.

¶32 The superior court also instructed the jury on Rule 404(c)
evidence and the proper use of a defendant’s prior felony conviction. The
court took both instructions from the Revised Arizona Jury Instructions. See
Revised Arizona Jury Instructions (“RAJI”) Standard Criminal 21, 25 (6th
ed. 2022). Those instructions “closely tracked the language” of the
applicable rules and “did not misstate the law.” State v. Morales, 198 Ariz.
372, 374 ¶ 4 (App. 2000); see also Ariz. R. Evid. 404(c), 609(a). Quijada argues
that the instructions did not inform “the jury as to what quantum of proof
was necessary in order for the jury to properly infer the sexual propensity.”
Not so. The court instructed the jury that it could consider the other act
evidence “only if you decide that the State has proved by clear and
convincing evidence that . . . the acts show the defendant’s character
predisposed him to abnormal or unnatural sex acts.” Tellingly, the jury
acquitted Quijada on two of the five counts with which he was charged.
We find no error, fundamental or otherwise, in the court’s instructions.

¶33 Finally, Quijada challenges the constitutionality of Rule
404(c). Because he did not raise this issue below, we review for
fundamental error. See Escalante, 245 Ariz. at 140, 142 ¶¶ 12, 21; State v.
Lowery, 230 Ariz. 536, 540 ¶ 11 (App. 2012) (reviewing a constitutional issue
not raised in the trial court for fundamental error). Quijada argues that Rule
404(c) does not provide “explicit standards” for the admission of character
trait evidence and violates due process. We disagree.

¶34 The admission of sexual propensity evidence under Rule
404(c), which is a longstanding exception to the rule precluding other act
evidence, requires the superior court to make specific findings as to each

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prerequisite for admissibility. See Aguilar, 209 Ariz. at 49 ¶ 31; State v.
Williams, 209 Ariz. 228, 236 ¶ 33 (App. 2004); Ariz. R. Evid. 404(c)(1)(D).
“Rather than being an empty formality, this process is designed to be a
meaningful exercise.” State v. James, 242 Ariz. 126, 131 ¶ 16 (App. 2017).
The finding requirement helps ensure “that only truly relevant other acts
are admitted” and enables appellate review. Aguilar, 209 Ariz. at 49 ¶ 31.
Moreover, the balancing test in Rule 404(c)(1)(C), which lists factors the
court must take into consideration, minimizes the risk of unfair prejudice
and protects defendants from wholesale admission of other act evidence.
See Rix, 256 Ariz. at 260–61 ¶¶ 19–22. Finally, Rule 404(c) requires the court
to “instruct the jury as to the proper use of such evidence.” Ariz R. Evid.
404(c)(2). Rule 404(c) contains sufficient standards and protections to
ensure that other act evidence is admitted only “to show that the defendant
had a character trait giving rise to an aberrant sexual propensity to commit
the offense charged.”

¶35 Quijada also has not shown that Rule 404(c) otherwise
violates due process. “[D]ue process requires notice and an opportunity to
be heard at a meaningful time and in a meaningful manner.” State v. Stocks, 227 Ariz. 390, 394 ¶ 7 (App. 2011). As to notice, Rule 404(c) requires the
State to make disclosure of other act evidence it intends to have admitted
“no later than 45 days prior to the final trial setting or at such later time as
the court may allow for good cause.” Ariz. R. Evid. 404(c)(3). The State
complied with that requirement here.

¶36 As to an opportunity to be heard, after the State notified
Quijada that it intended to introduce other act evidence, the court held a
hearing, during which Quijada had a meaningful opportunity to respond
to the State’s evidence and arguments, including by arguing that the State’s
other act evidence was irrelevant. Once admitted, “the defendant has the
right, as a matter of due process, to present relevant evidence challenging
its validity and reliability,” and the court allowed Quijada to do so during
trial. State v. Speers, 209 Ariz. 125, 130 ¶ 16 (App. 2004). In fact, during
closing arguments, Quijada acknowledged and emphasized the clear and
convincing evidence standard and argued to the jury that it needed “to
determine if the defendant had a character trait that predisposed him to
commit the crimes charged.” He also argued that the other act evidence was
“not proof in this case.” The court did not violate Quijada’s due process
rights in its application of Rule 404(c).

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CONCLUSION

¶37 We affirm Quijada’s convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

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