State v. Juarez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LUIS GERMAN JUAREZ, Appellant.

No. 1 CA-CR 21-0522
FILED 9-20-2022

Appeal from the Superior Court in Yuma County
No. S1400CR201800936
The Honorable Roger A. Nelson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Deborah Celeste Kinney
Counsel for Appellee

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

Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.

W I L L I A M S, Judge:

¶1 Luis German Juarez appeals his convictions and sentences for
aggravated assault and assisting a criminal street gang. For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Three officers with the Yuma Police Department were
dispatched to a site of reported graffiti in “Okie Town” gang territory.
There, the officers found graffiti signifying the “Southside Y Town”
gang—an Okie Town rival—that was crossed out with fresh Okie Town
graffiti placed beside it. As they were processing the scene, the officers
heard “whistling” and spotted two men—Kane Perez and defendant
Juarez—approaching them from about 50 yards away. The men were
shouting “Okie Town” and making gang signs with their hands. Two of the
officers began walking toward the men when Perez pulled out a handgun
and began shooting. The officers returned fire, and Perez and Juarez ran
down an alleyway where an officer saw Juarez boosting Perez over a
residential wall. Juarez was apprehended after he emerged from the yard
of the residence. Perez was later located in the same yard with a gunshot
wound.

¶3 The State tried Juarez on three counts each of attempted
first-degree murder, assisting a criminal street gang by attempting
first-degree murder, aggravated assault, and assisting a criminal street
gang by committing aggravated assault. A jury found him guilty of two
counts of aggravated assault and two counts of assisting a criminal street
gang by committing aggravated assault. The jury also found Juarez was on
release in another case when he committed the crimes, the gang offenses
were dangerous, and he committed the assaults with the intent to promote,
further, or assist a criminal street gang. The jury found him not guilty of the
other eight charges.

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¶4 The trial court sentenced Juarez under A.R.S. § 13-704 to
concurrent prison terms of 17.5 years for each aggravated assault and 14.5
years for each conviction of assisting a criminal street gang. Each sentence
reflected an increase over the presumptive term by seven years—two for
committing the offenses while on release, A.R.S. § 13-708(D), plus five for
intending to promote, further, or assist a criminal street gang, A.R.S.
§ 13-714.

¶5 Juarez appealed. We have jurisdiction under Article 6, Section
9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A).

DISCUSSION

I. Admission of Facebook Evidence

¶6 The State’s case against Juarez required proof that he was
Perez’s accomplice and that they were associated with Okie Town. To that
end, the State offered evidence from Perez’s Facebook account that
included messages he purportedly exchanged with Juarez. The
correspondence included references to their affiliation with Okie Town,
discussions about going after Okie Town rivals, and photographs
indicating gang membership. The State did not obtain evidence directly
from Juarez’s Facebook account, which was deleted before trial.

¶7 Juarez sought to preclude the Facebook evidence, arguing the
State could not adequately show he authored the correspondence. The trial
court admitted the messages over his objection. Juarez argues on appeal
that the messages were not sufficiently authenticated and therefore violated
the rule against hearsay. We review the trial court’s admission of evidence
for an abuse of discretion. State v. Fell, 242 Ariz. 134, 136, ¶ 5 (App. 2017).

¶8 A Facebook message made by and offered against a
defendant at the defendant’s trial must be authenticated to be admissible
under the hearsay rule. State v. Griffith, 247 Ariz. 361, 365, ¶ 14 (App. 2019)
(citing Ariz. R. Evid. 801(d)(2)). Authentication requires the proponent to
“produce evidence sufficient to support a [jury] finding that the item is
what the proponent claims it is”—as applicable here, messages sent by
Juarez. Ariz. R. Evid. 901(a); Griffith, 247 Ariz. at 365, ¶ 14. “If that standard
is met, any uncertainty goes to the weight rather than the admissibility of
the evidence.” Fell, 242 Ariz. at 136, ¶ 6.

¶9 The trial court did not abuse its discretion by admitting the
Facebook messages because the record contains “reasonable extrinsic

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evidence tend[ing] to show” Juarez made and received them. Griffith, 247
Ariz. at 365, ¶ 15. Whether authentication is sufficient turns on the
particular facts of the case. Fell, 242 Ariz. at 136, ¶ 7. The record here
contains facts similar to other cases in which sufficient authentication was
found. An officer testified he obtained the messages by executing a search
warrant through a Facebook portal specifically designed for law
enforcement use. See Griffith, 247 Ariz. at 365–66, ¶ 16. The Facebook
account that sent and received the messages was in Juarez’s name and
showed his image as the profile photo. Id. at 365, ¶ 16. No evidence
suggested another person made or used the account. See Fell, 242 Ariz. at
137, ¶ 11. In addition, the messages themselves contained indicia they came
from Juarez. See id. at 138, ¶ 13. In one, Juarez sends a photo that includes
his own image. Id. In another, Juarez apparently identifies himself in an
image Perez sends him. Furthermore, the messages show a consistency of
tone, content, and style throughout that reflect an exchange between the
same two people. Id. This record shows sufficient evidence of
authentication. Any dispute over authorship went to weight, not
admissibility. Id. at ¶ 15.

II. Double Jeopardy

¶10 Juarez argues his sentences placed him in double jeopardy.
He contends that applying the gang sentencing enhancement to his
conviction of assisting a criminal street gang punished him twice for the
same offense. And he contends that his convictions for aggravated assault
and assisting a criminal street gang amounted to convictions of both greater
and lesser-included offenses.

¶11 The double jeopardy clause of the federal and Arizona
constitutions protects against a second prosecution for the same offense
after a conviction or acquittal and against multiple punishments for the
same offense. U.S. Const. amend. V; Ariz. Const. art. 2, § 10. Juarez’s claims
all allege multiple punishments for the same offense.

¶12 “A double jeopardy violation is fundamental error.” State v.
Cope, 241 Ariz. 323, 325, ¶ 5. (App. 2016). We review such claims de novo.
State v. Carter, 249 Ariz. 312, 315, ¶ 7 (2020).

a. Gang Enhancement Applied to Substantive Gang Offense

¶13 The jury found Juarez guilty of two counts of assisting a
criminal street gang, which required finding he “committ[ed] any felony
offense, whether completed or preparatory for the benefit of, at the
direction of or in association with any criminal street gang.” A.R.S.

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§ 13-2321(B). The trial court increased each of Juarez’s sentences for those
convictions by five years under A.R.S. § 13-714, which applies to “[a] person
who is convicted of committing any felony offense with the intent to
promote, further or assist any criminal conduct by a criminal street gang.”

¶14 A claim that the defendant received multiple punishments for
the same offense is analyzed under Blockburger’s same-elements test, which
considers “whether each provision requires proof of a fact which the other
does not.” Carter, 249 Ariz. at 315, ¶ 9 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)); see also Cope, 241 Ariz. at 325, ¶ 8 (“[I]n order to
avoid double jeopardy, it must be possible to violate one statute without
violating the other.”).

¶15 Juarez contends that applying the § 13-714 gang enhancement
to his convictions of assisting a gang under § 13-2321(B) placed him in
double jeopardy because both statutes contain the same elements. As he
recognizes, his argument conflicts with our decision in State v. Harm, 236
Ariz. 402 (App. 2015). There, the defendant was acquitted of assisting a
criminal street gang under § 13-2321(B) but found to have committed a
felony with the intent to promote a street gang under § 13-714. Id. at 404,
¶ 1. The defendant argued that applying the § 13-714 enhancement given
his acquittal of the substantive gang offense led to double jeopardy. Id. at
¶ 2. We rejected his double jeopardy claim after determining that “neither
the words contained in [§ 13-714 and § 13-2321(B)], nor their application, is
identical.” Id. at 407, ¶ 18. In other words, a person could satisfy the
elements of the § 13-714 enhancement without necessarily assisting a
criminal street gang under § 13-2321(B). Id. We also noted that, independent
of the same-elements analysis, an established line of authority holds that
sentence enhancements generally do not implicate double jeopardy. Id. at
408–09, ¶ 23; see also State v. Lee, 189 Ariz. 608, 620 (1997) (“The legislature
may establish a sentencing scheme in which an element of a crime could
also be used for enhancement and aggravation purposes.”).

¶16 We continue to adhere to Harm and conclude that applying
the § 13-714 gang enhancement to Juarez’s sentence for assisting a gang
under § 13-2321(B) does not violate double jeopardy.

b. Assisting a Criminal Street Gang as Lesser-included Offense of
Aggravated Assault with Intent to Promote Gang

¶17 The constitutional protection against multiple punishments
for the same offense also applies to punishments for both a lesser-included
and greater offense. Cope, 241 Ariz. at 324–25, ¶ 5; see also Carter, 249 Ariz.

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at 314, ¶ 1. “An offense is ‘lesser included’ when the ‘greater offense cannot
be committed without necessarily committing the lesser offense.’” Carter,
249 Ariz. at 316, ¶ 10 (citation and internal quotation marks omitted). To
determine whether double jeopardy is offended by conviction of greater
and lesser-included crimes, we compare the elements of each statute. Id. at
315–16, ¶ 9.

¶18 Juarez contends that his conviction of aggravated assault, as
enhanced by the jury’s § 13-714 gang finding, necessarily encompassed his
conviction of assisting a criminal street gang under § 13-2321(B). This claim
is substantively identical to the previously addressed claim and likewise
fails under Harm. Because one can commit aggravated assault with the
“intent to promote, further or assist any criminal conduct by a criminal
street gang” without necessarily committing a felony offense “at the
direction of or in association with any criminal street gang,” Juarez’s guilt
of the former offense did not necessarily encompass guilt of the latter. Harm,
236 Ariz. at 407, ¶ 18.

c. Aggravated Assault as Lesser-included Offense of Assisting a
Criminal Street Gang

¶19 The crime of assisting a criminal street gang requires the
commission of a predicate felony. A.R.S. § 13-2321(B) (“A person commits
assisting a criminal street gang by committing any felony offense . . . at the
direction of or in association with any criminal street gang.”). Juarez
contends that his separate convictions for assisting a gang by committing
aggravated assault and the underlying aggravated assault placed him in
double jeopardy because one cannot commit the former without necessarily
committing the latter.

¶20 While convictions of an offense requiring a predicate felony
and the underlying felony can implicate double jeopardy in successive trials,
see Harris v. Oklahoma, 433 U.S. 682 (1977), the same principle does not apply
to convictions obtained in the same trial, see State v. Girdler, 138 Ariz. 482,
489 (1983) (emphasis added). This distinction reflects the diverse interests
served by different applications of the double jeopardy clause. “In contrast
to the double jeopardy protection against multiple trials, the final
component of double jeopardy—protection against cumulative
punishments—is designed to ensure that the sentencing discretion of courts
is confined to the limits established by the legislature.” Ohio v. Johnson, 467
U.S. 493, 499 (1984). Thus, the question “whether punishments are
‘multiple’” for double jeopardy purposes, “is essentially one of legislative
intent.” Id. Here, the legislature’s express incorporation of a predicate

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felony requirement in § 13-2321(B) shows an intent to permit multiple
punishments. See State v. Siddle, 202 Ariz. 512, 517, ¶ 14 (App. 2002). That
expression of intent disposes of Juarez’s double jeopardy claim. See Johnson,
467 U.S. at 499 n.8 (“Even if the crimes are the same under Blockburger, if it
is evident that a state legislature intended to authorize cumulative
punishments, a court’s inquiry is at an end.”).

CONCLUSION

¶21 We affirm Juarez’s convictions and sentences.

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

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