State of Arizona v. Elifonso Anthony Cruz

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellant,

v.

ELIFONSO ANTHONY CRUZ,
Appellee.

No. 2 CA-CR 2021-0035
Filed January 26, 2022

Appeal from the Superior Court in Pima County
No. CR20102664001
The Honorable D. Douglas Metcalf, Judge

VACATED AND REMANDED

COUNSEL

Laura Conover, Pima County Attorney
By Myles A. Braccio, Section Chief of Criminal Appeals, Tucson
Counsel for Appellant

Snell & Wilmer LLP, Tucson
By Rory J. Bennett

and

Civil Rights Restoration Clinic, Rogers College of Law, University of
Arizona, Tucson
By Andrew Silverman
Counsel for Appellee
 STATE v. CRUZ
Opinion of the Court

OPINION

Presiding Judge Eckerstrom authored the opinion of the Court, in which
Chief Judge Vásquez and Judge Espinosa concurred.

E C K E R S T R O M, Presiding Judge:

¶1 The State of Arizona appeals from the trial court’s order
setting aside Elifonso Anthony Cruz’s conviction for aggravated assault.
Because Cruz’s plea agreement included an express admission of sexual
motivation, rendering his conviction ineligible to be set aside under A.R.S.
§ 13-905(N), 1 we vacate the court’s order and remand for further
proceedings consistent with this opinion.

Factual and Procedural Background

¶2 In 2010, the state indicted Cruz on charges of sexual assault
and kidnapping. After a jury could not agree on the verdict, prompting a
mistrial, the state again indicted Cruz, this time on charges of sexual assault,
kidnapping, and sexual conduct with a minor. The second trial also ended
in a mistrial due to a deadlocked jury.

¶3 Before his third trial, Cruz entered into a plea agreement in
which he admitted to one count of aggravated assault committed in
violation of, inter alia, A.R.S. §§ 13-118 and 13-1204. In the plea agreement,
Cruz admitted he had committed the aggravated assault for the purpose of
sexual gratification pursuant to § 13-118.2 He further agreed to admit he
had engaged in “non-consensual sexual contact with the victim,” he was

1The legislature amended § 13-905 in 2021, after the trial court had
set aside Cruz’s conviction. See 2021 Ariz. Sess. Laws, ch. 159, § 1. This
amendment resulted in a renumbering of the subsection relevant to Cruz’s
appeal but did not substantively modify the text of the subsection. See id.
2 As the trial court noted, the agreement mistakenly cited A.R.S.
§ 13-811, which addresses disposition of fines, rather than § 13-118, which
provides for a special allegation of sexual motivation. However, § 13-118 is
correctly cited earlier in the document.

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Opinion of the Court

“pleading to committing an offense with sexual motivation,”3 and he could
be required later to register as a sex offender. He further “agree[d] to all
the attached conditions,” which set forth special conditions of probation for
sex offenders.

¶4 At the change of plea hearing, Cruz stated he had touched the
victim’s breasts even though “she didn’t have the capacity to consent”
because she was intoxicated. The sentencing court accepted the plea
agreement but deferred deciding whether to require Cruz to register as a
sex offender. In accepting the plea, the court also incorporated the grand
jury transcript, which included testimony supporting the sexual offense
charges brought against Cruz. The court later sentenced Cruz to .5 years’
incarceration. It did not require Cruz to register as a sex offender.

¶5 In March 2021, the trial court granted Cruz’s motion to set
aside his conviction over the state’s objection. The court reasoned that
§ 13-118 requires a sentencing court to “find sexual motivation by special
verdict,” similar to the now-outdated process by which judges found an
aggravating circumstance in the capital punishment sentencing context.4
After reviewing portions of the transcripts from the change of plea and
sentencing hearings, the court concluded that Cruz’s “mere recitation of the
facts” was insufficient to “constitute a finding of sexual motivation by the
sentencing judge,” and no other such finding existed on the record. It
therefore granted Cruz’s motion to set aside his conviction under § 13-905.

¶6 The state appealed, arguing that “Cruz admitted in his plea
agreement to the sexual motivation for the crime and the underlying nature
of the crime clearly showed sexual motivation.” We have jurisdiction under
A.R.S. § 12-120.21(A)(1).

Discussion

¶7 The state contends the trial court erred in setting aside Cruz’s
conviction, arguing “he pleaded guilty to a sexually motivated crime”

3Here, again, the plea agreement mistakenly cited § 13-811 instead of
§ 13-118.
4As the trial court correctly noted, this has not been the process since
before the United States Supreme Court held in Ring v. Arizona, 536 U.S.
584, 588-89, 609 (2002), that capital defendants are entitled to a jury
determination on aggravating factors necessary for imposition of the death
penalty.

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Opinion of the Court

under § 13-118, rendering the conviction ineligible for set-aside under
§ 13-905. We review a trial court’s decision whether to set aside a conviction
for abuse of discretion, and we review de novo issues of statutory
construction. See State v. Hall, 234 Ariz. 374, ¶ 3 (App. 2014). “An error of
law committed in reaching a discretionary conclusion may . . . constitute an
abuse of discretion.” Id. (alteration in Hall) (quoting State v. Wall, 212 Ariz.
1, ¶ 12 (2006)).

¶8 In setting aside Cruz’s conviction, the trial court reasoned
“when accepting a guilty plea that includes an allegation of sexual
motivation, the Court must make a finding of sexual motivation” and that
finding “must be made just like an element of the offense.” Cruz similarly
argues the state did not meet § 13-118’s procedural requirements because it
filed no special allegation of sexual motivation, nor was there a “special
verdict” of sexual motivation other than that “implied” by the record.

¶9 We disagree. Cruz’s plea agreement constituted more than a
mere allegation of sexual motivation. Rather, it was an admission of sexual
motivation, and the sentencing court’s acceptance of the plea agreement’s
terms thus constituted a finding of sexual motivation under § 13-118. See
Fushek v. State, 218 Ariz. 285, ¶ 28 (2008) (Section 13-118’s requirement that
state prove sexual motivation beyond reasonable doubt “akin to an element
of an aggravated offense”); State v. Ring, 204 Ariz. 534, ¶ 93 (2003) (when
“defendant stipulates, confesses or admits to facts sufficient to establish an
aggravating circumstance, we will regard that factor as established”). Cruz
expressly admitted in the plea agreement that he had acted in furtherance
of sexual gratification and in violation of § 13-118. He also agreed that he
could be required to register as a sex offender. And, he agreed to admit to
non-consensual sexual contact with the victim, which he did during the
change of plea hearing. The court’s acceptance of these admissions
therefore satisfied § 13-118’s requirement that the trier of fact find the crime
was committed with sexual motivation.

¶10 We are not persuaded by Cruz’s argument that the state was
required to file a special allegation under § 13-118 for the sentencing court
to find that the assault was committed with sexual motivation. The
indictment that formed the basis for the plea agreement charged Cruz with
sexual assault and sexual conduct with a minor under eighteen. Both
crimes are expressly listed as sexual offenses in our state’s criminal code,
and a conviction of either would have required Cruz to register as a sex
offender, making him ineligible for a set-aside under § 13-905(N)(2). See
A.R.S. §§ 13-1405, 13-1406, 13-3821(A)(4), (5). Thus, the state was not
required to file a special allegation of sexual motivation under § 13-118 to

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Opinion of the Court

pursue these consequences. See § 13-118(A) (“In each criminal case
involving an offense other than a sexual offense, the prosecutor may file a
special allegation of sexual motivation . . . .”) (emphasis added). It would
be unreasonable to adopt Cruz’s position that the prosecutor had somehow
“avoid[ed] the requirement of filing a special allegation” of sexual
motivation, when that aspect of the crime was inherent in the charging
documents.5 Rather, by requiring Cruz to admit to sexual motivation in the
plea agreement, the state included as part of its bargain the indictment’s
intent to render Cruz ineligible for a set-aside and to have him considered
for registration as a sex offender.

¶11 Finally, both parties cite our recent opinion in State v. Tyau, 250 Ariz. 659 (App. 2021), as supporting their position. In affirming a trial
court’s denial of a motion to set aside convictions for criminal trespass, we
concluded that § 13-118 does not require a court to make the finding of
sexual motivation formalistically. Tyau, 250 Ariz. 659, ¶¶ 5-12. Rather, we
reasoned that the finding of sexual motivation has been made if it is clear
from the record, in its totality. See id. ¶¶ 10-12. Here, we similarly conclude
that an express admission of sexual motivation in a plea agreement
supports a court’s finding of sexual motivation under § 13-118 in accepting
the agreement.

Disposition

¶12 Because Cruz’s conviction included a finding of sexual
motivation pursuant to § 13-118, it is ineligible for set-aside under
§ 13-905(N). We therefore vacate the trial court’s order setting aside Cruz’s
conviction, and we remand for further proceedings consistent with this
opinion.

5The parties do not argue, and we do not address, whether one count
in an indictment charging a sexual offense can serve as an allegation of
sexual motivation under § 13-118 for a different, non-sexual count in the
same indictment.

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