State v. Tejeda

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

RAUL TEJEDA, Appellant.

No. 1 CA-CR 19-0396
FILED 6-8-2021

Appeal from the Superior Court in Yuma County
No. S1400CR201800891
The Honorable David M. Haws, Judge

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Robert J. Trebilcock
Counsel for Appellant
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 Raul Tejeda appeals from his convictions and sentences for
aggravated assault against a peace officer, kidnapping, criminal trespass in
the first degree, aggravated assault, unlawful flight from a pursuing law
enforcement vehicle, and criminal damage. We affirm as modified.

BACKGROUND

¶2 We view the evidence in the light most favorable to sustaining
the jury’s verdicts, resolving all reasonable inferences against Tejeda. State
v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015).

¶3 Tejeda knocked on the door of M.C.’s trailer one evening and
asked to see his son, a child he shares with M.C.’s daughter. Tejeda forced
his way inside, refused to leave, and prevented M.C. from leaving. Tejeda
became increasingly hostile, charged at M.C., grabbed her neck until she
could not breathe, and threatened her with a pair of scissors. In defense,
M.C. scratched Tejeda’s forehead, causing it to bleed. While Tejeda was
washing off the blood, M.C. ran to a neighbor’s trailer and the neighbor
called 911.

¶4 Two sheriff’s deputies arrived a few minutes later. Deputy
Garcia parked his patrol car by an entrance to the trailer park, then stood
by the car. The deputy saw a Jeep sport utility vehicle move towards him
and accelerate, forcing him to jump into his police car to avoid being hit.
The Jeep hit the patrol car’s open door when it passed.

¶5 Deputies pursued the Jeep at speeds exceeding 100 miles per
hour before ultimately abandoning the chase, fearing it endangered
themselves and others in the surrounding area. Neither deputy identified
the Jeep’s driver before they ended their pursuit, but Tejeda had left M.C.’s
trailer in his Jeep after he attacked her.

¶6 A few days later, M.C. saw Tejeda as she drove to the grocery
store. She called the police, and deputies found him hiding in a restroom.

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The State charged Tejeda with aggravated assault against a peace officer
(Count 1), kidnapping (Count 2), burglary in the first degree (Count 3),
aggravated assault (Count 4), unlawful flight (Count 5), and criminal
damage of property in an amount of $1,000 or more but less than $2,000
(Count 6).

¶7 Before trial, Tejeda filed a written request for jury instructions
that included “Preliminary Criminal 21 (Long Version): Jury to Be Guided
By Official English Translation/Interpretation (Spanish).” Rev. Ariz. Jury
Instr. (“RAJI”) Prelim. Crim. 21 (Long Version) (5th ed. 2019). In relevant
part, Preliminary Criminal 21 instructs jurors that (1) “[t]he evidence you
are to consider is only that provided through the official court interpreters”;
(2) “you must accept the English interpretation”; (3) “you must consider
only the English interpretation”; (4) “[y]ou may not comment to fellow
jurors on what you heard in [Spanish]”; and (5) “you may not retranslate
for other jurors[.]” Id.

¶8 During the settling of preliminary jury instructions, however,
Preliminary Criminal 21 was not discussed. When the superior court later
asked the parties to review the final version of its proposed preliminary
jury instructions, defense counsel did not object to the court’s omission of
Preliminary Criminal 21. Defense counsel again failed to object to the
absence of the instruction when the court read the preliminary instructions
to the jurors. A court interpreter ultimately translated the testimony of
M.C., Tejeda’s mother, and Tejeda’s employer.

¶9 Tejeda testified at trial, admitting he argued with M.C. at her
trailer but denying he assaulted her. According to Tejeda, M.C. attacked
him after he told her he planned to reveal personal information about her
to her daughter. He also testified that once M.C. had left her trailer, he
drove his Jeep to his friend Mario’s trailer nearby. Tejeda explained that
Mario then took the Jeep back to Tejeda’s trailer, which was next to M.C.’s,
to retrieve contraband so the police would not discover it.

¶10 The jurors convicted Tejeda as charged on Counts 1, 2, 4, and
5. On Count 3, the jurors found him guilty of the lesser-included offense of
first-degree criminal trespass, a class 6 felony. On Count 6, Tejeda was
convicted of the lesser-included offense of criminal damage, a class 2
misdemeanor. Following the verdicts, Tejeda filed a motion for new trial
under Arizona Rule of Criminal Procedure (“Rule”) 24.1(c)(3)(A), asserting
the jurors committed misconduct by re-translating testimony given in
Spanish. In the motion, Tejeda acknowledged that Preliminary Criminal 21

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“was not requested.” The State responded that Tejeda provided no
evidence of juror misconduct.

¶11 At a hearing on Tejeda’s motion, before it allowed defense
counsel to call two jurors to testify, the court required counsel to make an
offer of proof on their anticipated testimony. Defense counsel explained
that the jurors, S.C. and M.D., had informed him in a post-verdict
discussion that “bilingual jurors did an independent translation of Spanish
language testimony.”

¶12 Contrary to the offer of proof, Juror S.C. testified that no jurors
had retranslated testimony during deliberations. Juror S.C. said he
remembered his post-verdict conversation with defense counsel but did not
remember saying that any jurors had retranslated testimony. Juror M.D.
likewise testified that no jurors had retranslated testimony. He also denied
telling defense counsel that retranslating had occurred.

¶13 After the jurors testified, defense counsel told the superior
court he was “shocked” by the testimony because it was “at odds as to what
those two gentlemen told [him] right after the trial.” In ruling on the
motion, the court admitted it erred in not giving Preliminary Criminal 21
even though it was not requested. Nonetheless, the court denied the motion
for new trial.

¶14 The superior court later granted defense counsel’s motion to
withdraw from representing Tejeda because he, Attorney Parks, was a
potential witness in any additional proceedings on the matter. Tejeda was
then appointed new counsel, Attorney McDonald, who asked for a 60-day
continuance to interview the remaining jurors. The court instead gave
Tejeda 30 days to investigate the juror misconduct allegations and
appointed an investigator to assist him.

¶15 Tejeda, through Attorney McDonald, moved to reconsider the
superior court’s refusal to grant a new trial, and the court held a hearing at
which Attorney Parks testified. According to Attorney Parks, Juror S.C.
told him that bilingual jurors had “retranslated and reemphasized certain
portions of [M.C.’s] testimony during their deliberations.” Parks said Juror
M.D. nodded in agreement with that statement. The court denied the
motion and later sentenced Tejeda as a category 2 repetitive offender to a
combination of concurrent presumptive terms totaling 10.5 years’

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imprisonment, awarding him 352 days of presentence incarceration credit
on all counts.1 Tejeda timely appealed.

DISCUSSION

A. Failure to Give Preliminary Criminal 21

¶16 Tejeda first argues the superior court erred by failing to give
jurors Preliminary Criminal 21. Addressing the standard of review, Tejeda
asserts he sufficiently preserved his claim of error because he requested the
instruction in a pretrial filing. But the State contends we should review only
for fundamental error.

¶17 Although Tejeda listed the instruction in his written request
filed a few months before trial, at trial he repeatedly failed to object to the
omission of Preliminary Criminal 21 in a manner that would allow the court
to correct the error. Ariz. R. Crim. P. 21.3(b); State v. Valenzuela, 194 Ariz.
404, 405, ¶ 2 (1999). Likewise, Tejeda’s failure to obtain a ruling on his
pretrial request for the instruction bolsters the conclusion he did not
preserve his claim of error. Cf. State v. Lujan, 136 Ariz. 326, 328 (1983)
(failing to secure a ruling on a motion in limine, then failing to object at trial,
waived error). Moreover, his motion for new trial conceded he had not
requested the instruction. Thus, we review only for fundamental error
resulting in prejudice. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

¶18 To establish reversible error under this standard, a defendant
must first show the superior court erred. Id. If error occurred, the
defendant must establish, under the totality of the circumstances, that such
error (1) went to the foundation of the case, (2) took away a right essential
to the defense, or (3) was so egregious that the defendant could not possibly
have received a fair trial. Id. “If the defendant establishes fundamental
error under prongs one or two, he must make a separate showing of
prejudice[.]” Id. To establish prejudice, a defendant must show “a
reasonable jury could have plausibly and intelligently returned a different
verdict” absent the error. Id. at 144, ¶ 31. In applying the “could have”
standard, we examine the entire record, including the parties’ theories and
arguments, as well as the evidence. Id. The State concedes trial error
occurred in that Preliminary Criminal 21 should have been given to the

1 On Count 6, the court imposed the maximum sentence of four
months in jail. See A.R.S. § 13-707(A)(2). Tejeda’s sentence on Count 6 is
discussed below, infra ¶¶ 31–33.

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jury; therefore, we next decide whether such error was fundamental and
prejudicial.

¶19 “Preliminary instructions prepare a jury for trial and
constitute an orientation by which the jury is made to understand its duties
and responsibilities.” State v. Johnson, 173 Ariz. 274, 276 (1992). “Where the
law is adequately covered by instructions as a whole, no reversible error
has occurred.” State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998). “We will reverse
only if the instructions, taken together, would have misled the jurors.” Id.

¶20 Despite the superior court’s failure to give Preliminary
Criminal 21, the court properly instructed the jurors on how they should
assess the credibility of witnesses and directed them to determine the facts
only from the evidence produced in court. The court also admonished the
jurors that they could not (1) receive evidence not properly admitted at trial,
(2) independently research or investigate the case, and (3) consult any
outside sources. We presume the jurors followed the court’s instructions.
State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006).

¶21 Based on the totality of the circumstances, we are not
persuaded the omission of Preliminary Criminal 21 implicitly conveyed to
the jurors that, despite the court’s other instructions, they were free to
retranslate the official interpretation of testimony, let alone that such
omission rose to the level of fundamental error. Compare State v. Gendron, 168 Ariz. 153, 155 (1991) (“The United States Supreme Court has held that
even the failure to give a presumption of innocence instruction is not per se
fundamental error[.]”) with State v. Hunter, 142 Ariz. 88, 89–90 (1984)
(finding fundamental error when the superior court gave jury instructions
improperly shifting the burden of proof to the defense). This is particularly
so here, given Tejeda’s testimony (without interpreter assistance) that he
was involved in an altercation with M.C. at her trailer, and the jurors
rejected his alternative account of the incident.

¶22 Preliminary Criminal 21 informs jurors that its purpose is to
ensure all jurors reach a decision based on the same set of facts, supported
by properly admitted evidence. RAJI Prelim. Crim. 21 (Long Version).
Under different circumstances, if a court’s failure to give the instruction
results in jurors considering a retranslation that does not reflect the
evidence, it could constitute an error going to the foundation of the case or
depriving the defendant of an essential right. See Escalante, 245 Ariz. at 142,
¶ 21. But in this case Tejeda has failed to satisfy his burden to establish a
violation of either of those first two Escalante prongs because the superior

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court accepted the jurors’ testimony that no improper retranslating took
place. Accordingly, Tejeda has not shown that fundamental error occurred.

¶23 Even assuming fundamental error occurred, Tejeda fails to
prove prejudice. When assessing juror misconduct, we afford great
deference to the superior court’s findings because it is in the best position
to resolve conflicts in the testimony presented at the evidentiary hearing
and to determine the effect, if any, of extrinsic evidence on the deliberations.
State v. Hall, 204 Ariz. 442, 449, ¶ 23 (2003); Pima Cnty. Juv. Action No. 63212-
2, 129 Ariz. 371, 375 (1981) (“The deference which appellate courts accord
the trier of fact, whether judge or jury, to make determinations based on
assessment of the credibility of witnesses is elementary.”). Nothing in this
record overcomes our deference to the superior court’s finding that the
testimony of the two jurors was credible.

¶24 Nonetheless, to support his argument that retranslating may
have occurred during deliberations, Tejeda cites instances of purported
confusion by witnesses whose testimony was translated. But he challenges
neither the adequacy of the official interpretation nor the presumption that
court interpreters properly fulfill their duties. State v. Mendoza, 181 Ariz.
472, 475 (App. 1995). Rather, he merely speculates that the alleged
translation issues caused bilingual jurors to retranslate the testimony. See
State v. Munninger, 213 Ariz. 393, 397, ¶ 14 (App. 2006) (explaining
speculation alone is insufficient to establish prejudice).

¶25 When jurors found Tejeda guilty of lesser-included offenses
on Counts 3 and 6, they necessarily acquitted him of the charged offenses,
which weighs against a finding of prejudice because it “demonstrate[s] the
jury’s careful and proper consideration of the evidence.” State v. Stuard, 176
Ariz. 589, 600 (1993). To that end, the burglary charged in Count 3 relied
heavily on M.C.’s testimony, which jurors rejected at least in part. Tejeda
has failed to establish the necessary prejudice for reversal.

B. Denial of Motions for New Trial and Reconsideration

¶26 Tejeda next argues the superior court erred by denying his
motion for new trial under Rule 24.1(c)(3)(A) and his motion for
reconsideration of that ruling. We review a superior court’s refusal to grant
a new trial based on alleged juror misconduct for abuse of discretion. Hall,
204 Ariz. at 447, ¶ 16.

¶27 A defendant requesting a new trial under Rule 24.1(c)(3)(A)
“bears the initial burden of proving that jurors received and considered
extrinsic evidence.” State v. Olague, 240 Ariz. 475, 481, ¶ 21 (App. 2016).

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“[J]uror misconduct warrants a new trial if the defense shows actual
prejudice or if prejudice may be fairly presumed from the facts.” State v.
Miller, 178 Ariz. 555, 558 (1994). “Once the defendant shows that the jury
has received and considered extrinsic evidence, prejudice must be
presumed and a new trial granted unless the prosecutor proves beyond a
reasonable doubt that the extrinsic evidence did not taint the verdict.” Hall,
204 Ariz. at 447, ¶ 16.

¶28 Jurors S.C. and M.D. both unequivocally denied that any
retranslating occurred during deliberations and disputed Attorney Parks’
characterization of their post-verdict conversation. The superior court
acted within its discretion by accepting their testimony. It is also significant
that the court did not receive any juror questions concerning the court
interpreter’s translation, and when the court polled the jurors, each
affirmed that he or she had given true verdicts. Tejeda thus failed to carry
his initial burden to prove the jurors received and considered extrinsic
evidence,2 and prejudice cannot be presumed. Nor has Tejeda shown actual
prejudice. See supra ¶¶ 23–25.

¶29 Tejeda further contends the superior court improperly
prohibited him from more exhaustively investigating the alleged juror
misconduct. The record indicates otherwise. The court held two
evidentiary hearings on his allegations, appointed him new counsel to
pursue a motion for reconsideration, assigned him an investigator, and
granted Attorney McDonald an extension to investigate the matter.

¶30 Moreover, Attorney Parks spoke only with Jurors S.C. and
M.D. The superior court had no obligation to investigate Tejeda’s
unsupported assertion that other jurors might testify differently. See State
v. Davolt, 207 Ariz. 191, 208, ¶ 57 (2004) (“[B]are allegations of juror
misconduct are insufficient to trigger the trial court’s duty to investigate the
matter further.”). The court did not abuse its discretion in denying Tejeda’s
motions.

C. Sentencing Error

¶31 Although not raised by either party, the record indicates the
superior court fundamentally erred by sentencing Tejeda to concurrent jail
and prison terms. A.R.S. § 13-707(A); State v. Harris, 134 Ariz. 287, 287, n.1

2 We assume without deciding that retranslated testimony constitutes
extrinsic evidence.

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(App. 1982). We will not ignore fundamental error when we encounter it,
State v. Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007), and we must correct
an “illegal sentence . . . imposed upon a lawful verdict,” A.R.S. § 13-4037(A).
An illegal sentence is fundamental error. State v. Cox, 201 Ariz. 464, 468,
¶ 13 (App. 2002).

¶32 Because § 13-707(A) prohibits a court from ordering a
misdemeanor sentence to be served in the department of corrections,
Tejeda’s concurrent misdemeanor sentence on Count 6 constitutes
fundamental error. The error is prejudicial because Tejeda’s jail sentence
could remain, at least technically, unserved at the end of his prison
sentence, and the uncertainty of the illegal concurrent sentence raises due
process concerns. See Escalante, 245 Ariz. at 142, ¶ 21; see also State v. Thomas, 142 Ariz. 201, 204 (App. 1984) (“An illegal sentence is no sentence at all.”).

¶33 We need not remand for resentencing, however, because the
record reveals the superior court intended to sentence Tejeda to a total of
10.5 years in custody on the felony convictions and to terminally dispose of
Count 6 based on time Tejeda had already served in custody, which
exceeded his four-month sentence on that count. See State v. Lopez, 230 Ariz.
15, 18, ¶ 9 n.2 (App. 2012) (“When we can ascertain the trial court’s intent
from the record, we need not remand for clarification.”). Therefore, we
modify Tejeda’s sentence to reflect credit for four months of presentence
incarceration and give effect to the court’s intent to terminally dispose of
Tejeda’s misdemeanor conviction. Nothing in this decision changes the
court’s order awarding Tejeda 352 days of credit for the sentences imposed
on the felony convictions.

CONCLUSION

¶34 We affirm Tejeda’s convictions and the resulting sentences on
Counts 1 through 5. On Count 6, we affirm Tejeda’s conviction and
sentence as modified above.

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

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