State v. Guerrero

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL HUERTA GUERRERO, Appellant.

No. 1 CA-CR 26-0004
FILED 09-24-2026

Appeal from the Superior Court in Yavapai County
No. S1300CR202301000
The Honorable Debra R. Phelan, Judge

AFFIRMED IN PART, VACATED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Anne Carmack
Counsel for Appellee

Law Office of Carissa A. Jakobe, Mankato, Minnesota
By Carissa A. Jakobe
Counsel for Appellant

STATE v. GUERRERO
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge D. Andrew Gaona joined.

P E R K I N S, Judge:

¶1 Michael Huerta Guerrero appeals his conviction and sentence
for one of three counts of luring a minor for sexual exploitation, a Class 3
felony, under Arizona Revised Statutes (“A.R.S.”) Section 13-3554. Because
the jury found that the third count was multiplicitous, it functionally
acquitted Guerrero and we vacate his conviction on that count. We
otherwise affirm his convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Guerrero’s convictions arose from a series of sexually explicit
messages Guerrero sent during a conversation with an undercover police
officer posing as an underage girl named “Karla.” The two messaged
frequently between April 13 and April 30, 2023.

¶3 The grand jury indicted Guerrero on three counts of luring a
minor for sexual exploitation, one count each for the dates of April 14, 21,
and 23. At the start of trial, the State moved to amend Guerrero’s indictment
to add language specifying the charged conduct for each count. Over
Guerrero’s objection, the court granted the request. The final indictment, as
amended, contained three counts. Count 1 was for the solicitation of “oral
sex” on or about April 14. Count 2 was for the solicitation of “penile
vaginal” and “penile anal” sex on or about April 21. And Count 3 was for
the solicitation of “oral sex and anal sex” on or about April 23. At trial, the
State introduced evidence of Guerrero’s messages to “Karla” establishing
the factual basis for each charged solicitation.

¶4 On the verdict form, the court asked the jury to make special
findings as to whether the conduct for each count was “committed as a
separate and distinct act” from the others. The jury submitted two related
questions to the court, the second of which read: “We are settling on #1
being a separate count. We think #2 and #3 should [possibly] be combined.
How do we reflect that on the forms?” The court responded that the jury

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STATE v. GUERRERO
Decision of the Court

should “indicate one count is separate and distinct and one is not” if it
wished to combine counts 2 and 3.

¶5 Ultimately, the jury found Guerrero guilty on all counts. But
it checked the “not proven” box for the question asking whether Count 3
was a separate and distinct act from Counts 1 and 2. Because of this finding,
the superior court imposed a concurrent sentence for Count 3 rather than
running it consecutive as required under Section 13-705(P).

¶6 Guerrero timely appealed, and we have jurisdiction. A.R.S. §
12-120.21(A)(1).

DISCUSSION

¶7 Guerrero challenges his conviction under Count 3 as a double
jeopardy violation. The State agrees that we should vacate the third count.
But the State’s concession does not bind us, State v. Solis, 236 Ariz. 242, 249
¶ 23 (App. 2014), and we review Guerrero’s argument de novo. State v.
Jurden, 239 Ariz. 526, 528 ¶ 7 (2016). We view the facts in the light most
favorable to upholding the jury’s verdicts. State v. Duncan, 257 Ariz. 360,
366 ¶ 2 (App. 2024).

¶8 Double jeopardy rights arise from both the United States and
Arizona constitutions. U.S. Const. amend. V (“No person shall . . . be subject
for the same offence to be twice put in jeopardy of life or limb.”); Ariz.
Const. art. 2, § 10 (“No person shall . . . be twice put in jeopardy for the same
offense.”). These clauses prohibit multiple punishments for a single
criminal offense. State v. Moninger, 258 Ariz. 18, 22 ¶ 12 (2024). This is true
even if a defendant receives a concurrent sentence for the convictions. State
v. Brown, 217 Ariz. 617, 621 ¶ 13 (App. 2008). We generally treat the federal
and state double jeopardy clauses as coextensive, see Lemke v. Rayes, 213
Ariz. 232, 237 ¶ 10 n.2 (App. 2006), and thus can look to federal precedent
for guidance.

¶9 When a jury makes a “factual finding that necessarily
establishes the criminal defendant’s lack of criminal culpability,” it has
acquitted the defendant. Evans v. Michigan, 568 U.S. 313, 319 (2013) (cleaned
up).

¶10 To convict Guerrero of multiple counts of luring under
Section 13-3554, the State needed to demonstrate that the conduct
underlying each count constituted a separate and distinct offense.
Moninger, 258 Ariz. at 22 ¶ 12.

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STATE v. GUERRERO
Decision of the Court

¶11 Count 3 as charged and proven at trial was not separate and
distinguishable from Counts 1 and 2. See id. Count 3 charged Guerrero for
solicitation of “oral and anal sexual intercourse” which overlapped with
both Count 2’s charge for penile anal sex and Count 1’s charge for oral sex.
The jury’s conclusion that the State proved the conduct underlying Count
3—by finding him guilty—combined with its subsequent special finding
that the State failed to prove Count 3 was distinct, operate as an acquittal of
Count 3. The jury’s question posed during deliberations demonstrated it
intended that outcome.

¶12 The superior court erred when it sentenced Guerrero for
Count 3 even though it ran the sentence for that count concurrently. Brown,
217 Ariz. 621 ¶ 13. The jury functionally acquitted Guerrero of Count 3 and
we cannot reverse an acquittal. Bravo-Fernandez v. United States, 580 U.S. 5,
10 (2016). Accordingly, we must vacate Count 3. Because there is nothing
remaining for the superior court to resolve, we do not remand. State v.
Emery, 141 Ariz. 549, 553 (1984).

CONCLUSION

¶13 We vacate Guerrero’s conviction for Count 3.

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

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