State v. Tapia Munoz

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

FRANCISCO SANTIAGO TAPIA MUNOZ, Appellant.

No. 1 CA-CR 24-0559
FILED 01-27-2026

Appeal from the Superior Court in Yuma County
No. S1400CR202201349
The Honorable David M. Haws, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph Newberg
Counsel for Appellee

Zachary Law Group PLC, Mesa
By Jessica Zachary
Counsel for Appellant
 STATE v. TAPIA MUNOZ
Opinion

OPINION

Judge Veronika Fabian delivered the opinion of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Anni Hill Foster joined.

F A B I A N, Judge:

¶1 Defendant Francisco Santiago Tapia Munoz appeals a jury
verdict finding him guilty of misconduct involving weapons, arguing he
was entitled to a 12-person jury in the trial of his severed charge.1 Because
that trial concerned only one charge, which did not subject him to a
potential sentence of 30 years or more, he was not entitled to a 12-person
jury. Thus, this Court affirms the guilty verdict and sentence.

FACTS AND PROCEDURAL HISTORY

¶2 Two deaths by gunshot occurred on November 12, 2022, in
Somerton, Arizona. Police arrested Tapia Munoz as a suspect. During a
search of Tapia Munoz’s car, police found a gun.

¶3 A grand jury indicted Tapia Munoz on two counts of first-
degree murder and one count each of attempted first-degree murder,
aggravated assault, misconduct involving weapons (“prohibited
possession”), and unlawful flight from a pursuing law enforcement vehicle.
Tapia Munoz was indicted for prohibited possession because, given a prior
felony conviction, he was prohibited from possessing a firearm. See A.R.S.
§§ 13-3101(7), 3102(4). At Tapia Munoz’s request, the court severed trial of
the prohibited possession charge from the other charges (“the non-severed
charges”). See Ariz. R. Crim. P. 13.4. As a result, two separate jury trials
occurred with two different juries.

¶4 The trial for the non-severed charges occurred first. A
12-person jury deliberated and found Tapia Munoz guilty as charged. The
judge sentenced Tapia Munoz on the convictions for the non-severed
charges. Tapia Munoz appealed those convictions and resulting sentences

1 Tapia Munoz also argues on appeal that testimony in violation of an order

in limine prejudiced the jury. This Court addresses, and rejects, that
argument in a separate memorandum decision. See Ariz. R. Civ. App. P.
28(c); Ariz. R. Sup. Ct. 111(h).

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 STATE v. TAPIA MUNOZ
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and a different panel of this Court affirmed. See State v. Tapia-Munoz, ___
Ariz. ___, 580 P.3d 1159 (App. 2025).

¶5 After entry of judgment and sentencing for the non-severed
charges, the court and the parties discussed the prohibited possession case:

THE COURT: -- So that’s all as to that case. We
do have another case and we do – I think we do
have a remaining count that was severed.

…

THE COURT: -- in case number 20221349, we
have a remaining -- I think I’m just going to
have that renumbered as a -- I don’t remember
how to do that for clarity on appeal if we have
another trial. It’s under the same case number.
It was original count 5. We’ll deal with that at
the next hearing on how -- whether that should
be redesignated a different count number.

The severed charge for prohibited possession, however, retained the same
case number as the non-severed charges.

¶6 During jury selection for the trial on the prohibited possession
charge, when the number of potential jurors dwindled, the court asked the
parties how many jurors they believed were necessary. The State argued an
eight-person jury was sufficient because:

This is a separate jury . . . its own charge has
been severed from the case. We even use the
term severy, which is supposed to mean that it’s
a new trial. It’s new juries, it’s new everything.
. . . the maximum sentence is less than 30 years.
. . . We have to take the first case into account at
sentencing regarding whether it’s concurrent or
consecutive to it. But otherwise, it wouldn’t
play a factor at all. And we would have to do
that for any other case, whether it was a second
case or a severed count.

Tapia Munoz disagreed, arguing “[i]t’s the same case number. Same cause
number. I get that four or five of the charges have already been resolved.
But I would advocate for a 12-person jury.”

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 STATE v. TAPIA MUNOZ
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¶7 Over Tapia Munoz’s objection, the court found an eight-
person jury appropriate, stating the severed charge for prohibited
possession was a separate case with a maximum sentence of 15 years in
prison, less than the 30 years that would trigger the right to a 12-person
jury. See Ariz. Const. art. II, § 23; A.R.S. § 21-102(A). The court explained its
“rationale” was “that it was severed, it’s a separate case. This charge does
not have a penalty of 30 years or greater.” The court then impaneled eight
jurors and five alternates.

¶8 The eight-person jury found Tapia Munoz guilty of
prohibited possession. The court then sentenced him to 12 years to run
concurrently with the sentences for the non-severed charges. This Court has
jurisdiction over Tapia Munoz’s timely appeal of the prohibited possession
conviction and resulting sentence pursuant to Article VI, Section 9 of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and
13-4033(A)(1).

DISCUSSION

¶9 The parties disagree regarding the standard of review. Tapia
Munoz advocates for structural error while the State argues for de novo.
Error, however, is a prerequisite to any standard of review and without
error, “dispute over what category of error should be applied is irrelevant.”
State v. Soliz, 223 Ariz. 116, 119 ¶ 12 (2009). Here, there was no error.

¶10 Citing to the Arizona Constitution and A.R.S. § 21-102, Tapia
Munoz argues he was entitled to a 12-person jury for the severed trial for
prohibited possession because the non-severed charges and the severed
charge were the “same case,” subjecting him to a maximum penalty of 30
years or more. Under Article II, Section 23 of the Arizona Constitution:

The right of trial by jury shall remain inviolate.
Juries in criminal cases in which a sentence of
death or imprisonment for thirty years or more
is authorized by law shall consist of twelve
persons. . . . In all other cases, the number of
jurors, not less than six, and the number
required to render a verdict, shall be specified
by law.

This provision is implemented by statute, as follows:

A. A jury for a trial of a criminal case in which a
sentence of death or imprisonment for thirty

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 STATE v. TAPIA MUNOZ
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years or more is authorized by law shall consist
of twelve persons, and the concurrence of all
shall be necessary to render a verdict.

B. A jury for trial in any court of record of any
other criminal case shall consist of eight
persons, and the concurrence of all shall be
necessary to render a verdict.

A.R.S. § 21-102.

¶11 Neither the Arizona Constitution nor A.R.S. § 21-102 define
“criminal case.” Tapia Munoz argues the plain meaning of “criminal case”
means all charges falling within the same criminal case number. Because
the non-severed charges and prohibited possession charge had the same
criminal case number, Tapia Munoz maintains he was entitled to a
12-person jury for the severed charge. Tapia Munoz’s argument elevates
form over substance.

¶12 The Arizona Supreme Court has held that jury size
requirements apply “to cases and not counts or charges.” State v. Buffum, 125 Ariz. 488, 489 (1980). But Buffum addressed charges heard by the same
jury where there had been no severance. Id. at 488-89. Here, in contrast, the
charges were severed so that separate juries considered separate charges
with no knowledge or consideration of the other charges. The question then
becomes whether severance of a criminal charge makes it a separate
criminal case under the Arizona Constitution and A.R.S. § 21-102.

¶13 Statutes should be interpreted “according to the plain
meaning of the words in their broader statutory context, unless the
legislature directs . . . otherwise.” S. Ariz. Home Builders Ass’n v. Town of
Marana, 254 Ariz. 281, 286 ¶ 31 (2023). The word “sever” can be defined as
“divide.” Sever, Merriam-Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/sever (last visited Sept. 9, 2025). Consistent with
the plain meaning of the word sever, the effect of severance is to create
separate cases for the purposes of trial and appellate procedure.

¶14 It is generally understood that the effect of severance is to
create separate trials with separate appeals. See State v. Flythe, 219 Ariz. 117,
119 ¶ 5 (App. 2008) (“A court must order separate trials on motion of a party
if fairness so requires.”); see also State v. Guillen, 151 Ariz. 115, 118 (App.
1986) (party seeking severance of counts must show prejudice “if the trial
court refused to grant separate trials”).

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¶15 Here, Tapia Munoz requested the severance, which the
superior court properly granted. See State v. Burns, 237 Ariz. 1, 14 ¶ 34
(2015). Because of that severance, there were two separate trials, two
separate judgments and sentences, and two separate appeals. Upon Tapia
Munoz’s conviction in the trial on the non-severed charges, the court
entered judgment and sentence. Tapia Munoz appealed the first judgment
in April of 2024 and this Court affirmed in October 2025. Tapia-Munoz, ___
Ariz. ___, 580 P.3d 1159. The judgment and sentence for the severed trial for
prohibited possession were entered in writing in September 2024. Tapia
Munoz appealed them in January 2025. Thus, the severance operated to
divide the case into two separate cases in these important and substantive
aspects.

¶16 The case number is not the determinative factor. The case
number in this case, as in all superior court cases in Arizona, is assigned by
the Clerk of Court, a separate constitutional officer from the court itself.
Ariz. Const. art. VI, § 23. The number assigned by the Clerk of Court turns
on a convention used by that officer based on when the case is filed. As
noted in California, “[t]he assignment of case numbers is a clerical
administrative matter that reflects only the manner in which the
prosecution presents the initiating pleadings to the court.” People v. Barros, 209 Cal. App. 4th 1581, 1595 (2012).

¶17 Tapia Munoz argues that because the non-severed charges
were considered during the sentencing of the severed charge for prohibited
possession, all the charges were the same case for jury size purposes.
However, the court properly considered the non-severed charges to ensure
the sentences for the severed charge, which stemmed from the same acts,
be imposed concurrently as required by statute. A.R.S. § 13-116 (“An act or
omission which is made punishable in different ways by different laws may
be punished under both, but in no event may sentences be other than
concurrent.”). That does not mean the non-severed charges and the severed
charge for prohibited possession, resolved in two different trials with two
different juries, were the same case. Thus, consideration of the convictions
from the non-severed trial during sentencing for the severed conviction
does not, somehow, require the prohibited possession trial be treated as if
it were the same “criminal case” as Tapia Munoz’s other convictions.

¶18 The only charge in the severed trial was the prohibited
possession charge, which carried a maximum penalty of 15 years in prison.
A.R.S. §§ 13-703(C), (J), 13-3102(A)(4), (M). Because severance created a
separate criminal case, where the potential sentence was not 30 years or
more in prison, the court did not err by permitting an eight-person jury.

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 STATE v. TAPIA MUNOZ
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CONCLUSION

¶19 Because Tapia Munoz has shown no error, the prohibited
possession conviction and resulting sentence are affirmed.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JT

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