State v. Bouhdida

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

TRENT XAVIER BOUHDIDA, SR., Appellant.

STATE OF ARIZONA, Appellee,

v.

JOSEPH LOCKETT, III, Appellant.

No. 1 CA-CR 23-0311, 1 CA-CR 23-0434
(Consolidated)

FILED 10-31-2024

Appeal from the Superior Court in Maricopa County
Nos. CR2016-000961-001, CR2017-001517-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore
The Honorable Joseph Shayne Kiefer, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Faith C. Klepper
Counsel for Appellee
Sandra Day O’Connor College of Law, Post Conviction Clinic, Phoenix
By Randal McDonald, Robert J. Dormady, Andi Humphreys,
Jawana Baxter and Jill Logan (Certified Limited Practice Students)
Counsel for Appellant Trent Xavier Bouhdida, Sr.

Maricopa County Legal Defender’s Office, Phoenix
By John Champagne
Counsel for Appellant Joseph Lockett, III

OPINION

Judge D. Steven Williams delivered the Court’s opinion, in which Presiding
Judge Daniel J. Kiley and Judge Kent E. Cattani joined.

W I L L I A M S, Judge:

¶1 In 2020, Arizona voters adopted Proposition 207, the Smart
and Safe Arizona Act (“the Act”), A.R.S. §§ 36-2850 to -2865,
decriminalizing certain marijuana-related offenses and authorizing the
expungement of related records. A.R.S. §§ 36-2852, -2862(A). In this
consolidated appeal,1 Trent Xavier Bouhdida, Sr. and Joseph Lockett, III,
( “the Defendants”), each convicted of multiple counts of sale of marijuana,
challenge the denial of their petitions to expunge all records relating to
those convictions. Because a conviction for the sale of marijuana is not
expungement eligible under the Act, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2016, the State charged Bouhdida with four counts of sale
or transportation of marijuana. At trial, the State presented evidence that
Bouhdida sold about a quarter ounce of marijuana to an undercover police
officer four times, each a violation of A.R.S. § 13-3405(A)(4). A jury
convicted Bouhdida as charged, with the signed verdict forms expressly
identifying each offense as “Sale of Marijuana.” Given his prior criminal
history, Bouhdida was sentenced to concurrent terms of 11.25 years
imprisonment on each count.

1 Because both appeals raise the same legal issue, we have
consolidated the Maricopa County Superior Court cases: State v. Bouhdida,
No. CR2016-000961-001, and State v. Lockett, No. CR2017-001517-001 DT.

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Opinion of the Court

¶3 In 2017, the State charged Lockett with four felonies,
including three counts of sale or transportation of marijuana. At trial, the
State presented evidence that Lockett sold less than an ounce of
marijuana—“$20 worth”—to an undercover police officer three times, each
a violation of A.R.S. § 13-3405(A)(4). At the close of evidence, the superior
court instructed the jurors that each charge required proof that: (1) the
defendant “knowingly sold marijuana” and (2) the “substance was in fact
marijuana.” (Emphasis added.) The court did not instruct the jurors on the
elements of transportation of marijuana. The jury convicted Lockett on two
of the three marijuana counts but could not reach a unanimous verdict on
the third marijuana count. Given his prior criminal history, the court
sentenced Lockett to concurrent terms of 12 years imprisonment for each
conviction. In his appellate briefing, Lockett concedes that the jurors
convicted him of sale (not transportation) of marijuana.

¶4 After the Act’s effective date, Bouhdida and Lockett
independently petitioned to expunge all records related to their marijuana
convictions. In separate but consistent rulings, the superior court concluded
that convictions for sale of marijuana do not qualify for expungement and
denied both petitions.

¶5 The Defendants timely appealed. We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution, and A.R.S.
§§ 12-120.21(A)(1), 13-4031, -4033(A)(3), and 36-2862(F).

DISCUSSION

¶6 The Defendants argue that convictions for the sale of
marijuana, if involving quantities below the statutory threshold, are eligible
for expungement under A.R.S. § 36-2862.

¶7 We review the denial of a petition to expunge for an abuse of
discretion, but review questions of statutory interpretation de novo. State v.
Cisneros, 255 Ariz. 564, 566, ¶ 8 (App. 2023). “When interpreting statutes
adopted by initiative, our primary objective is ‘to give effect to the intent of
the electorate.’” Id. at ¶ 9 (quoting State v. Gomez, 212 Ariz. 55, 57, ¶ 11
(2006)). “The most reliable indicator of that intent is the language of the
statute[.]” Id. (quoting State v. Jones, 246 Ariz. 452, 454, ¶ 5 (2019)). We do
not interpret statutory provisions in a vacuum, but “in view of the entire
text, considering the context and related statutes on the same subject.”
Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019). If the language of the
statute “is clear and unambiguous, we apply its plain meaning and the

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inquiry ends.” Cisneros, 255 Ariz. at 566, ¶ 9 (quoting Jones, 246 Ariz. at 454,
¶ 5).

¶8 We begin with the language of the statute. Section 36-2862,
governing the expungement of marijuana-related convictions, states, in
pertinent part:

A. . . . [A]n individual who was arrested for, charged with,
adjudicated or convicted by trial or plea of, or sentenced for,
any of the following offenses based on or arising out of conduct
occurring before the effective date of this section may petition
the court to have the record of that arrest, charge,
adjudication, conviction or sentenced expunged:

1. Possessing, consuming or transporting two and one-half
ounces or less of marijuana, of which not more than twelve
and one-half grams was in the form of marijuana concentrate.

2. Possessing, transporting, cultivating or processing not
more than six marijuana plants at the individual’s primary
residence for personal use.

3. Possessing, using or transporting paraphernalia relating to
the cultivation, manufacture, processing or consumption of
marijuana.

(Emphasis added.)

¶9 In plain and precise terms, A.R.S. § 36-2862 identifies the
expungement eligible offenses: the possession, consumption, and
transportation of two and one-half ounces or less of marijuana; the
possession, transportation, cultivation, and processing of no more than six
marijuana plants; and the possession, use, and transportation of marijuana
paraphernalia. This list is not illustrative, but exhaustive. See State v.
Santillanes, 256 Ariz. 480, 486, ¶ 21 (2024) (“[W]hen the legislature (or
voters) expressly prescribes a list in a statute (or initiative), we assume the
exclusion of items not listed.”) (internal quotation and citation omitted).
Simply put, “the electorate authorized the expungement of only certain
marijuana offenses-those expressly specified in [A.R.S.] § 36-2862(A)(1)
-(3).” Id. at 487, ¶ 29.

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¶10 The Defendants acknowledge that the express terms of A.R.S.
§ 36-2862 do not provide for the expungement of records related to
convictions for the sale of marijuana. They contend, however, that the
statute impliedly “incorporates sales” by authorizing the expungement of
transportation-based offenses.

¶11 As support for their argument, the Defendants primarily rely
on State v. Sorensen, 255 Ariz. 316 (App. 2023). In that case, Sorensen pled
guilty to one count of solicitation to commit possession of marijuana for sale
(involving about two-thirds of an ounce of marijuana). Id. at 318, ¶ 2. After
passage of the Act, the State petitioned to expunge all records related to
Sorensen’s arrest and conviction, which the superior court denied. Id. at
¶ 4. On appeal, Sorensen argued that A.R.S. § 36-2862’s “plain language
includes sale-related marijuana offenses.” Id. at ¶ 6.

¶12 To determine whether the Act includes such offenses, this
court ascribed the term “possess” its ordinary meaning, concluding that
this “natural meaning . . . weigh[ed] against the notion [that] voters
intended to impose an intent-based limitation in the application of [A.R.S.]
§ 36-2862(A)(1).” Id. at 319, ¶ 9. The court found this interpretation of
“possess” consistent with the Act’s full text, noting that “subsection (A)(2)
expressly limits its applicability to ‘the personal use’ of marijuana” whereas
“subsections (A)(1) and (A)(3) omit that restrictive language,” reflecting an
intent to impose “a personal-use constraint only where . . . specifically
designated.” Id. at ¶ 10. Applying the in pari materia principle of statutory
construction, the court further reasoned that an examination of the related
criminal statutes yielded “the same result.” Id. at ¶ 11. The court found that,
A.R.S. § 13-3405(A)(4) criminalizes the transportation of marijuana and
necessarily “require[s] proof of a for-sale element” because “transporting
marijuana for personal use is not a cognizable crime in Arizona.” Id. at 320,
¶ 11 (citing State v. Chabolla-Hinojosa, 192 Ariz. 360, 364, ¶ 16 n.2 (App. 1998)
(explaining “[t]he crime of transportation of marijuana no longer exists in
Arizona”)). Accordingly, the court concluded that A.R.S. § 36-2862’s
inclusion of transportation as an eligible expungement offense
demonstrates the voters’ intent to authorize the “expungement of sale-
related marijuana offenses when they otherwise satisfy the statute’s
eligibility requirements.” Id. at 320, ¶ 12.

¶13 Contrary to the Defendants’ contention, Sorensen does not
stand for the proposition that all offenses involving quantities of marijuana
below the statutory threshold are eligible for expungement under A.R.S.
§ 36-2862. To be sure, Sorensen holds that the offenses expressly enumerated
within the statute—specifically, possessing and transporting marijuana—

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are not ineligible for expungement based on a defendant’s intent to sell. But
Sorensen did not expand the scope of expungement eligible offenses beyond
those clearly listed in the statute, nor could it have done so.

¶14 Apart from their reliance on Sorensen, the Defendants contend
that A.R.S. § 13-3405(A)(4)—criminalizing the transportation of marijuana
for sale, the importation of marijuana into the State, and the sale, transfer
or offer to sell or transfer marijuana—constitutes a unified offense
proscribing a specific crime that can be committed in different ways.
Working from this proposition, the Defendants argue that A.R.S. § 36-2862
“does not target the means of committing an offense, . . . only the offense
itself.” The Defendants reason that because A.R.S. § 36-2862 clearly
authorizes the expungement of records pertaining to transportation-based
offenses, the other means of violating A.R.S. § 13-3405(A)(4), including the
actual sale of marijuana, are likewise expungement eligible.

¶15 The Defendants did not raise a unified offense argument in
superior court. State v. Lefevre, 193 Ariz. 385, 389, ¶ 15 (App. 1998)
(explaining the failure to raise a claim in the superior court generally
“waives appellate review of that claim, even if the alleged error is of
constitutional dimension”). But waiver aside, we need not decide whether
A.R.S. § 13-3405(A)(4) constitutes a unified offense to determine whether
the Defendants’ convictions for sale of marijuana are expungement eligible
under A.R.S. § 36-2862.

¶16 The Act clearly distinguishes between the transportation of
marijuana and the sale of marijuana. Section 36-2852, legalizing the adult
possession and use of marijuana, states, in pertinent part:

A. . . . [T]he following acts by an individual who is at least
twenty-one years of age are lawful . . . [:]

1. Possessing, consuming, purchasing, processing,
manufacturing . . ., or transporting one ounce or less of
marijuana[.]

2. Possessing, transporting, cultivating or processing not more
than six marijuana plants for personal use [.]

3. Transferring one ounce or less of marijuana . . . to an
individual who is at least twenty-one years of age if the
transfer is without remuneration [.]

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4. Transferring up to six marijuana plants to an individual . . .
without remuneration [.]

5. Acquiring, possessing, manufacturing, using, purchasing,
selling or transporting paraphernalia relating to the
cultivation, manufacture, processing or consumption of
marijuana or marijuana products.

(Emphasis added.) Section 36-2853 sets forth civil and criminal penalties for
possession and use of marijuana not exempted under A.R.S. § 36-2852:

B. Notwithstanding any other law, a person who is under
twenty-one years of age and who possesses, consumes,
transports or transfers without remuneration one ounce or less of
marijuana . . . [:]

1. For a first violation, shall pay a civil penalty of not more
than $100 to the smart and safe Arizona fund established by §
36-2856 and in the court’s discretion may be ordered to attend
up to four hours of drug education or counseling.

2. For a second violation, is guilty of a petty offense, and in
the court’s discretion may be ordered to attend up to eight
hours of drug education or counseling.

3. For a third or subsequent violation, is guilty of a class 1
misdemeanor.

(Emphasis added.) Viewed in context, these statutes make clear that unlike
A.R.S. § 13-3405(A)(4), transportation of marijuana under the Act does not
encompass a “for-sale element.” See Sorensen, 255 Ariz. at 320, ¶ 11. Instead,
A.R.S. §§ 36-2852 and -2853, in plain and unambiguous terms, expressly
distinguish between the transportation of small amounts of marijuana,
which the Act renders lawful, and the transfer of marijuana of any quantity
for remuneration, which remains illegal.

¶17 In sum, A.R.S. § 36-2862 does not include the sale of marijuana
among the enumerated offenses eligible for expungement. And Sorensen
did not expand the scope of expungement-eligible offenses beyond those
listed in the statute. As such, the superior court did not err by denying the
Defendants’ petitions to expunge.

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CONCLUSION

¶18 For the foregoing reasons, we affirm.

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

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