Angulo-Murrieta v. Yuma

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JESUS ANGULO-MURRIETA, Plaintiff/Appellant,

v.

CITY OF YUMA, et al., Defendants/Appellees.

No. 1 CA-CV 20-0259
FILED 3-30-2021

Appeal from the Superior Court in Maricopa County
No. CV2019-010607
The Honorable James D. Smith, Judge

AFFIRMED

COUNSEL

Southwest Center for Equal Justice, Flagstaff
By Wendy F. White
Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli, P.L.C., Phoenix
By Michele Molinario, Lori L. Voepel, Jonathan P. Barnes, Jr.
Co-Counsel for Defendants/Appellees City of Yuma and John Lekan

Yuma City Attorney’s Office, Yuma
By Rodney C. Short
Co-Counsel for Defendants/Appellees City of Yuma and John Lekan

Yuma County Attorney’s Office, Yuma
By Edward P. Feheley
Counsel for Defendants/Appellees Yuma County and Yuma County Attorney
 ANGULO-MURRIETA v. YUMA, et al.
Opinion of the Court

OPINION

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

G A S S, Judge:

¶1 Jesus Angulo-Murrieta appeals from a superior court order
dismissing his 42 U.S.C. § 1983 claim against the City of Yuma, Yuma
County, and various individuals in their official capacity (collectively, the
Yuma defendants). Angulo-Murrieta contends the superior court erred
when it ruled his conduct was subject to Arizona’s civil asset forfeiture
statutes. Because the superior court correctly applied the plain language of
the statutes, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Yuma police officers arrested Angulo-Murrieta and another
person after the two allegedly entered a victim’s fenced backyard, stole
property worth $500, and caused about $100 in damage. As Angulo-
Murrieta left the scene, officers stopped his car, found the stolen property,
and seized the car for evidence. The State charged Angulo-Murrieta with
misdemeanor theft, misdemeanor criminal damage, and third-degree
felony burglary.

¶3 Yuma police and the Yuma County Attorney’s Office moved
to seize Angulo-Murrieta’s car for forfeiture, with the proceeds to go to the
County’s anti-racketeering revolving fund. Angulo-Murrieta did not file a
claim in the forfeiture action, and the superior court granted the forfeiture
application. Angulo-Murrieta later pled no contest to solicitation to commit
third-degree burglary, a class 6 felony, with intent to “commit theft of scrap
wire.”

¶4 Angulo-Murrieta filed a § 1983 claim, alleging the Yuma
defendants violated his constitutional rights by unlawfully seizing his car
for forfeiture. The Yuma defendants moved to dismiss Angulo-Murrieta’s
amended complaint for failure to state a claim, arguing Arizona law
authorized the car’s seizure because his conduct met the definition of
“racketeering.” The superior court granted the motion to dismiss.

2
 ANGULO-MURRIETA v. YUMA, et al.
Opinion of the Court

¶5 Angulo-Murrieta timely appealed. This court has jurisdiction
under article VI, section 9, of the Arizona Constitution, and A.R.S. § 12-
2101.A.1.

ANALYSIS

¶6 The State may file a forfeiture action against “property used
or intended to be used in any manner or part to facilitate the commission
of” racketeering as defined in A.R.S. § 12-2301.D.4. See A.R.S. § 13-2314.G.3.
Angulo-Murrieta argues his car was not subject to forfeiture because police
lacked probable cause to believe he committed racketeering as § 13-2301.D.4
defines that term. He concedes his § 1983 claim would fail if the statute’s
definition of racketeering encompasses his conduct.

¶7 This court reviews de novo the dismissal of a complaint for
failure to state a claim. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012).
For this analysis, this court considers the facts alleged in his complaint. See
id. at 356, ¶ 9. Dismissal of Angulo-Murrieta’s complaint was proper if as a
matter of law he would “not be entitled to relief under any interpretation
of the facts susceptible of proof.” Id. at ¶ 8 (quoting Fid. Sec. Life Ins. Co. v.
State Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998)).

¶8 This court further reviews de novo issues of statutory
interpretation and application. State ex rel. Brnovich v. Miller, 245 Ariz. 323,
325, ¶ 6 (App. 2018). When interpreting a statute, this court begins with the
statute’s text, as its text is the most reliable indicator of its meaning. State v.
Christian, 205 Ariz. 64, 66, ¶ 6 (2003). If a statute’s text is unambiguous, this
court need not resort to other methods of statutory interpretation. Id.

¶9 “Seizure and attempted forfeiture of one’s property
implicates protections under the Fourth, Fifth, and Fourteenth
Amendments against unreasonable seizures and property deprivations
without due process of law.” In re U.S. Currency in the Amount of $315,900.00,
183 Ariz. 208, 213 (App. 1995). Law enforcement may lawfully seize
property when they have probable cause to believe the property is subject
to forfeiture. A.R.S. § 13-4305.A.3.(c); United States v. $191,910.00 in U.S.
Currency, 16 F.3d 1051, 1071 (9th Cir. 1994) (“The standard of probable cause
to support a forfeiture is similar to that required for a search warrant.”).

¶10 As we explain below, we read A.R.S. § 13-2301.D.4 as defining
“racketeering” to include Angulo-Murrieta’s conduct because the alleged
burglary was chargeable or indictable and punishable by more than one
year in prison and it involved theft, an enumerated act. Angulo-Murrieta
reads the statute differently. He concedes officers had probable cause to

3
 ANGULO-MURRIETA v. YUMA, et al.
Opinion of the Court

believe he used his car in committing misdemeanor theft and third-degree
felony burglary. He contends probable cause could not give rise to a
forfeiture because third-degree felony burglary is not one of the
enumerated acts under § 13-2301.D.4.(b), and misdemeanor theft, though
an enumerated act, is not punishable by imprisonment for more than one
year. See A.R.S. § 13-1802.G (“Theft of any property or services valued at
less than one thousand dollars is a class 1 misdemeanor . . . .”); -707.A.1
(maximum six-month term of imprisonment for class 1 misdemeanors).

¶11 Angulo-Murrieta’s argument relies on dicta in State ex rel.
Corbin v. Pickrell, which described racketeering as “[an] act . . . performed
for financial gain, [that is] one of the illegal acts enumerated in statute, and
[is] chargeable and punishable in accordance with the requirements of the
statute.” 136 Ariz. 589, 596–97 (1983). But Angulo-Murrieta’s reliance on the
statement in Pickrell is misplaced for two reasons. First, the facts in Pickrell
established racketeering occurred; the only issue was whether a private
right of action for racketeering required proof of a resulting “special
‘racketeering injury.’” See id. at 594–95.

¶12 Second, and more significant, the racketeering statute applied
in Pickrell was substantially amended in 2002. See 2002 Ariz. Sess. Laws, ch.
219, § 9 (2d Reg. Sess.) (S.B. 1427). When Pickrell was issued, the statute
defined racketeering as:

[A]ny act, including any preparatory or completed offense, [1]
committed for financial gain, [2] which is chargeable or
indictable . . . and [3] punishable by imprisonment for more
than one year, regardless of whether such act is charged or
indicted, [4] involving:

....

(e) Theft.

A.R.S. § 13-2301.D.4 (1978).

¶13 The legislature broadened the racketeering definition in 2002
to read:

[1] any act, including any preparatory or completed offense,
[a] that is chargeable or indictable . . ., and [b] that would be
punishable by imprisonment for more than one year under
the laws of this state . . ., regardless of whether the act is
charged or indicted, and [2] the act involves []:

4
 ANGULO-MURRIETA v. YUMA, et al.
Opinion of the Court

....

(b) Any of the following acts if committed for financial gain:

....

(v) Theft.

A.R.S. § 13-2301.D.4 (emphasis added).

¶14 As amended, the definition of racketeering now begins by
requiring (1) “any act, including any preparatory or completed offense,”
satisfying two conditions: (a) the act must be “chargeable or indictable”
under the applicable laws; and (b) the act must be punishable by
imprisonment for more than one year under Arizona law. See A.R.S. § 13-
2301.D.4. Next, (2), the act must “involve[]” another act. Id. Absent
terrorism under § 13-2301.D.4.(a), the other act must be both “committed
for financial gain” and be one of the enumerated “acts.” A.R.S. § 13-
2301.D.4.(b). By arguing the enumerated act must be punishable by more
than one year in prison, Angulo-Murrieta incorrectly collapses the statute’s
two-part definition and disregards the legislature’s choice in 2002 to
separate the one-year punishment condition from the list of enumerated
offenses.

¶15 Properly construing the current version of the statute requires
analysis of the 2002 amendment. First, when the legislature changed
“involving” to “the act involves . . . any of the following acts,” it separated
the first part of the definition—an act punishable by imprisonment of a year
or more—from the second—the list of enumerated acts. “An act
involv[ing]” other “following acts” specifies two distinct acts, the first of
which must be punishable by a term of imprisonment greater than one year,
and the second, which qualifies if it is enumerated and committed for
financial gain, without regard to its seriousness or potential punishment.
The added words render theft for which the punishment is less than one
year—misdemeanor theft, as is the case here—an enumerated offense
under the statute. See Washburn v. Pima County, 206 Ariz. 571, 576, ¶ 11
(App. 2003) (appellate court presumes the legislature intends to change the
law when it substantively changes the language of a statute); see also Nicaise
v. Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019) (“A cardinal principle of
statutory interpretation is to give meaning, if possible, to every word and
provision so that no word or provision is rendered superfluous.”).

¶16 Additionally, the only condition the legislature placed on the
enumerated acts listed in § 13-2301.D.4.(b) is they be “committed for

5
 ANGULO-MURRIETA v. YUMA, et al.
Opinion of the Court

financial gain.” Two canons of statutory construction apply to this
provision. First, the nearest-reasonable-referent canon suggests a list like
the one under § 13-2301.D.4.(b) should apply to the most proximate
relevant reference. Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 152 (1st ed. 2012). Here, the most proximate
relevant reference is in subdivision (b), which prefaces which acts are
enumerated acts “if committed for financial gain”—not “[the] act”
punishable by more than a year in prison earlier in § 13-2301.D.4. Second,
the scope-of-subparts canon teaches “[m]aterial within an indented subpart
relates only to that subpart.” Id. at 156. Though the list of enumerated acts
is not physically indented, the statute’s use of lower-case letters and roman
numerals indicates the enumerated items are clearly subparts of § 13-
2301.D.4.(b), implicating this canon because the enumerated acts are listed
only under subdivision (b)—the acts qualifying as “the following acts if
committed for financial gain.” Together, these canons of statutory
interpretation divorce the requirements for what constitutes “any act”
punishable by more than a year in prison from what qualifies as “any of the
following acts if committed for financial gain.”

¶17 In ruling Angulo-Murrieta’s conduct fell within the
racketeering definition, the superior court relied on In re 1996 Nissan Sentra,
201 Ariz. 114 (App. 2001). Nissan Sentra was decided under the pre-2002
statutory language and focused on a different issue. See id. at 117–18, ¶¶ 10–
11 (analyzing the statute’s financial gain component). The discussion in
Nissan Sentra, nonetheless, is instructive because the court implicitly
recognized misdemeanor possession of marijuana could trigger forfeiture
under the pre-2002 statute. See id. at 117, ¶ 9 n.2 (“There is no threshold
amount of drugs required to trigger the racketeering statute.”). In relying
on Nissan Sentra, the superior court noted possession of marijuana is not the
only potential misdemeanor on the list of enumerated offences in § 13-
2301.D.4.(b). Theft can be a misdemeanor or a felony. See A.R.S. § 13-1802.G.
Even further, usury is a class 1 misdemeanor and cannot become a felony.
A.R.S. § 13-2208; -2301.D.4.(b)(viii) (listing usury as an enumerated act for
racketeering purposes). Because the statute does not give a felony qualifier
on the enumerated crime of theft in § 13-2301.D.4.(b)(v), we decline to do
so by judicial fiat.

¶18 We recognize some prior decisions overlooked the 2002
amendment when characterizing the elements of racketeering. See, e.g.,
Hannosh v. Segal, 235 Ariz. 108, 111, ¶ 7 (App. 2014) (defining racketeering
as “any act or preparatory act committed for financial gain, chargeable or
indictable under the law where the act occurred and punishable by more
than a year’s imprisonment”). Whether acts must be both enumerated and

6
 ANGULO-MURRIETA v. YUMA, et al.
Opinion of the Court

punishable by more than one year in prison, however, was not the issue in
those cases. See id. at 111–14, ¶¶ 5–21 (analyzing what qualifies as a
cognizable injury under the racketeering statutes). As a result, the
descriptions are dicta. Accordingly, they are not instructive, and we decline
to follow them here.

¶19 Looking at the plain language of the statute, we conclude the
definition of racketeering in A.R.S. § 13-2301.D.4 unambiguously includes
Angulo-Murrieta’s conduct. The racketeering statute applies if the act is
punishable by more than a year in prison and involves one of the
enumerated acts committed for financial gain. The enumerated act itself
need not be punishable by more than a year in prison, and the act
punishable by more than a year in prison need not be enumerated. Here,
officers had probable cause to believe Angulo-Murrieta engaged in conduct
meeting both prongs of A.R.S. § 13-2301.D.4’s definition of racketeering: (1)
felony burglary, which carries a possible term of imprisonment exceeding
one year, and (2) misdemeanor theft, which is an enumerated offense
committed for financial gain. The seizure and forfeiture of Angulo-
Murrieta’s car was authorized by law. See A.R.S. § 13-
4305.A.3.(c); -2314.G.3. The superior court, therefore, did not err in
dismissing Angulo-Murrieta’s claim.

CONCLUSION

¶20 We affirm the superior court’s dismissal of Angulo-
Murrieta’s § 1983 claim.

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

7