State of Arizona v. Maria Chavez Cisneros

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

MARIA CHAVEZ CISNEROS,
Appellant.

No. 2 CA-CR 2022-0125
Filed August 14, 2023

Appeal from the Superior Court in Pinal County
No. S1100CR201500853
The Honorable Daniel A. Washburn, Judge

AFFIRMED

COUNSEL

Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Florence
Counsel for Appellee

Southern Arizona Legal Aid, Tucson
By Joseph Falcon-Freeman
Counsel for Appellant
 STATE v. CISNEROS
Opinion of the Court

OPINION

Judge Kelly authored the opinion of the Court, in which Presiding Judge
Brearcliffe concurred and Judge Eckerstrom specially concurred.

K E L L Y, Judge:

¶1 Maria Cisneros appeals from the trial court’s order denying
her petition to expunge records related to her conviction for possession of
drug paraphernalia. Cisneros contends the court erred by finding her
records ineligible for expungement under A.R.S. § 36-2862. For the
following reasons, we affirm.

Factual and Procedural Background

¶2 In 2014, Cisneros was arrested for theft and searched incident
to her arrest. According to the release questionnaire prepared by the
arresting officer, three small baggies containing methamphetamine were
found in the right front pocket of her pants, and a marijuana cigarette was
found inside a plastic container in her left front pocket.1 She was charged
with possession of methamphetamine, possession of marijuana, and
possession of “drug paraphernalia, to wit: baggies and container used to
store methamphetamine and/or marijuana.”

¶3 Cisneros pled guilty to the drug paraphernalia charge in
exchange for the state’s dismissal of the remaining charges. Pursuant to a
written agreement, she pled guilty to an amended count of “[p]ossession of
drug paraphernalia (to wit: baggies and/or container used to store
methamphetamine or marijuana) . . . .” (Emphasis added.) At her change
of plea hearing, Cisneros agreed with the following factual basis for the
offense: “Ms. Cisneros possessed a baggie whose purpose was to hold
illegal drugs, mainly methamphetamine. She was aware of the purpose and
held it voluntarily.” The trial court accepted the plea, suspended the

1Neither party below or on appeal discussed the location of the drugs

when found. However, the release questionnaire was in the record before
the change of plea hearing and the expungement proceedings.

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Opinion of the Court

imposition of sentence, and placed Cisneros on a three-year term of
supervised probation.

¶4 In 2022, following the enactment of Proposition 207, which
provides for expungement of records relating to certain marijuana-related
offenses, see A.R.S. §§ 36-2850 to 36-2865, Cisneros filed a petition to
expunge the records of her drug paraphernalia conviction. The state
opposed the petition, asserting she pled guilty to a drug paraphernalia
charge “related to methamphetamine and marijuana” and therefore did not
qualify for expungement.

¶5 At a hearing on the petition, Cisneros argued that possession
of drug paraphernalia is a unitary offense and the paraphernalia at issue
related to both methamphetamine and marijuana. Accordingly, she
reasoned that her records should be expunged because her paraphernalia
“related to marijuana.”

¶6 In response, the state cited both the language of the written
plea agreement and the factual basis Cisneros provided at her change of
plea hearing—the latter of which included no mention of marijuana—to
contend the paraphernalia was not governed by the marijuana
expungement statute.2 Citing both the plea agreement and the change of
plea transcript, the trial court denied the petition. The court explained,
“[Cisneros] acknowledges that that baggie was mainly used for
methamphetamine. As a result, I don’t believe that it would be appropriate
for this court to allow for this conviction to be set aside based on the
marijuana expungement statutes.”

¶7 This appeal followed. We have jurisdiction pursuant to
article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-
4031, 13-4033(A)(3), and 36-2862(F).

Discussion

¶8 Cisneros argues on appeal that her paraphernalia conviction
was a unitary offense, was “related to” marijuana, and should have been
expunged pursuant to § 36-2862. She also argues the trial court
impermissibly shifted the burden of proof under § 36-2862(B)(3) by denying
her petition even after the state had “acknowledged that the conviction did

2The state argued that “the plea . . . does mention marijuana and/or

methamphetamine,” but the plea agreement in fact reads, “marijuana or
methamphetamine.”

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Opinion of the Court

relate to both marijuana and methamphetamine.” We review de novo
questions of statutory interpretation, see State v. Estrada, 201 Ariz. 247, ¶ 15
(2001), but we review the court’s denial of the petition for an abuse of
discretion, see State v. Hall, 234 Ariz. 374, ¶ 3 (App. 2014).

¶9 “Proposition 207, a voter-passed initiative, legalized certain
conduct related to the recreational use, cultivation, and sale of marijuana
and provided for expungement of records for specific marijuana-related
offenses.” State v. Ibarra, 254 Ariz. 320, ¶ 6 (App. 2022); see also §§ 36-2850
to 36-2865. When interpreting statutes adopted by initiative, our primary
objective is “to give effect to the intent of the electorate.” State v. Gomez, 212
Ariz. 55, ¶ 11 (2006). “The most reliable indicator of that intent is the
language of the statute, and if it is clear and unambiguous, we apply its
plain meaning and the inquiry ends.” State v. Jones, 246 Ariz. 452, ¶ 5 (2019).
However, ambiguity exists when a term “is open to multiple reasonable
interpretations.” Glazer v. State, 244 Ariz. 612, ¶ 12 (2018). We must
therefore first look to the initiative’s plain language. See Jones, 246 Ariz. 452,
¶ 5.

¶10 Section 36-2862 provides 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 . . . may petition the court to have the
record of that arrest, charge, adjudication,
conviction or sentence 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.

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 STATE v. CISNEROS
Opinion of the Court

The phrase “relating to” used in subsection (A)(3) is neither clear nor
unambiguous. Cisneros urges those words should be interpreted to mean
that a conviction for possession of paraphernalia involving multiple drugs
is expungable under this statute so long as one of those drugs is marijuana.
We disagree.

¶11 When interpreting statutory provisions, we give words “their
ordinary meaning unless it appears from the context or otherwise that a
different meaning is intended.” Arizona ex rel. Brnovich v. Maricopa Cnty.
Cmty. Coll. Dist. Bd., 243 Ariz. 539, ¶ 7 (2018) (quoting State v. Miller, 100
Ariz. 288, 296 (1966)). Accordingly, “[w]e interpret statutory language in
view of the entire text, considering the context.” Nicaise v. Sundaram, 245
Ariz. 566, ¶ 11 (2019); see also Adams v. Comm’n on App. Ct. Appts., 227 Ariz.
128, ¶ 34 (2011) (“[I]t is a ‘fundamental principle of statutory construction
(and, indeed, of language itself) that the meaning of a word cannot be
determined in isolation, but must be drawn from the context in which it is
used.’” (quoting Deal v. United States, 508 U.S. 129, 132 (1993), overruled on
other grounds by United States v. Davis, ___ U.S. ___, ___, 139 S. Ct. 2319
(2019))). We therefore determine the meaning of the words “relating to” as
used in § 36-2862(A)(3) in context, and “we interpret and apply statutory
language in a way that will avoid an untenable or irrational result.” State
v. Estrada, 201 Ariz. 247, ¶ 16 (2001).

¶12 “Relating” can mean, among other things, “to show or
establish logical or causal connection between.” Relating, Merriam-
Webster.com Dictionary (last visited August 7, 2023). However, when read
in the broader context of Proposition 207 and its stated purpose, as well as
our existing law, the phrase “relating to” cannot carry a meaning as broad
as Cisneros suggests. The purposes stated for Proposition 207 include
“[f]acilitating the expungement and sealing of records . . . predicated on
conduct made lawful by this act.” See Text of Proposed Amendment § 7(7),
Proposition 207 (“Smart and Safe Arizona Act”), 2019 Ballot Propositions.
The conduct made lawful by Proposition 207 was strictly limited to one
drug—marijuana.

¶13 Further, as amended after the approval of Proposition 207,
§ 13-3415(B) proscribes the possession of drug paraphernalia, “[e]xcept as
provided in § 36-2852 and § 36-2853, subsection C,” and designates the
offense as a class six felony. See 2021 Ariz. Sess. Laws, ch. 222, § 5. Section
36-2852 allows individuals to lawfully possess paraphernalia “relating to
the . . . consumption of marijuana,” and § 36-2853(C) reduces the public
smoking of marijuana to a petty offense. Thus, possession of drug
paraphernalia outside of these exceptions is still a felony.

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Opinion of the Court

¶14 As Cisneros correctly points out, this court has determined
that possession of drug paraphernalia is a unitary offense and that the
allowable “unit of prosecution” under § 13-3415 is “the act of possessing
drug paraphernalia.” State v. Soza, 249 Ariz. 13, ¶ 23 (App. 2020). Cisneros
argues from this that the words “relating to” in § 36-2862 must be read
expansively—to allow expungement of a paraphernalia conviction if it
involves any marijuana paraphernalia.

¶15 However, our supreme court recently construed the words
“relating to” in resolving a challenge to a voter initiative adopting
surcharges on rental cars, and it declined to adopt an interpretation that
would “encompass revenues that voters clearly did not intend to be
covered.” Saban Rent-a-Car LLC v. Ariz. Dep’t of Revenue, 246 Ariz. 89, ¶ 22
(2019). The court agreed with the plaintiffs that the words “‘related to’
could have an almost unlimited reach if construed too broadly” and
concluded that the language must be read in conjunction with the
provision’s history and purpose. Id.

¶16 Nothing in Proposition 207 or its stated purposes suggests the
voters intended it to encompass crimes relating to drugs other than
marijuana, even though a paraphernalia offense could relate to more than
one drug. Given the voters’ limited intent to legalize possession and use of
marijuana and related paraphernalia, and to provide for expungement of
such offenses only, we reject Cisneros’s argument that the absence of the
word “only” from the phrase “relating to” requires us to read it more
expansively. Cf. Roberts v. State, 253 Ariz. 259, ¶ 20 (2022) (“court will not
inflate, expand, stretch or extend a statute to matters not falling within its
expressed provisions” (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133
(1965))).

¶17 Accordingly, the words “relating to” as used in § 36-
2862(A)(3) allow for the expungement of a drug paraphernalia conviction
involving marijuana provided the same conviction did not also involve
illegal drugs unaffected by Proposition 207. To conclude otherwise would
essentially legalize the possession of drug paraphernalia for uses related to
illegal drugs so long as a defendant also used that paraphernalia for
marijuana-related purposes. And we will not read Proposition 207 in a way
that would nullify other portions of the criminal code. Cf. State v. Thompson, 204 Ariz. 471, ¶ 10 (2003) (in construing statutes, we “avoid constructions
that would render statutes invalid or parts of them meaningless”).
Therefore, even assuming that the baggie Cisneros pled guilty to possessing
did in fact hold both methamphetamine and marijuana, her conviction is
not eligible for expungement under § 36-2862.

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 STATE v. CISNEROS
Opinion of the Court

¶18 Cisneros’s argument that the trial court shifted the burden of
proof fails as well. A court must grant a petition for expungement “unless
the prosecuting agency establishes by clear and convincing evidence that
the petitioner is not eligible for expungement.” § 36-2862(B)(3). However,
the court may set a hearing on the petition if it “concludes there are genuine
issues of fact regarding whether the petition should be granted,” Ariz. R.
Crim. P. 36(c)(1), and may independently deny the petition if it finds “the
offense identified in the petition is not eligible for expungement,” Ariz. R.
Crim. P. 36(d)(3). The court makes both “findings of fact and conclusions
of law” in its determination. § 36-2862(B)(4). These provisions do not alter
the burden of proof but instead permit the court to act as gatekeeper to
ensure that only offenses falling within the parameters of § 36-2862(A)(1)-
(3) are expunged. See § 36-2862; Ariz. R. Crim. P. 36(d)(3); see also Ibarra, 254
Ariz. 320, ¶ 11 (trial court may deny petition to expunge offense that is
facially ineligible under § 36-2862(A)).

¶19 Cisneros contends the state failed to meet its burden of
rebutting her request for expungement with clear and convincing evidence
when it acknowledged the paraphernalia at issue was “related to
methamphetamine and marijuana.” Given the limitation attached to the
words “relating to” as used in § 36-2862(A)(3), Cisneros’s conviction for
drug paraphernalia is not expungable because it unequivocally involved
methamphetamine. The state therefore met its burden of proof, and we
need not address this argument further. The trial court correctly
determined that Cisneros’s paraphernalia conviction did not qualify for
expungement under this statute and, therefore, did not abuse its discretion
in denying her petition to expunge. See Hall, 234 Ariz. 374, ¶ 3.

Disposition

¶20 We affirm the trial court’s denial of Cisneros’s petition to
expunge her criminal records.

E C K E R S T R O M, Judge, specially concurring:

¶21 Our challenge here is to apply broad, insufficiently
determinate, statutory language to resolve a specific legal problem. By the
express terms of the statute, an individual who was convicted of possessing
paraphernalia “relating to” the consumption of marijuana is entitled to
have that charge expunged. A.R.S. § 36-2862(A)(3); see also Text of
Proposed Amendment § 4, Proposition 207 (“Smart and Safe Arizona Act”),
2019 Ballot Propositions (reflecting “official title” presented to voters in
2019 ballot initiative). Observing that possession of paraphernalia is a

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Opinion of the Court

unitary offense, Cisneros correctly maintains that, at the time of her
conviction, defendants could be lawfully convicted based on a showing,
beyond a reasonable doubt, that the paraphernalia was used for either
methamphetamine, marijuana, or both. She contends, contrary to the trial
court’s ultimate finding, that her conviction “related to” both and because
it therefore related in part to marijuana, it must be expunged by the letter
of the statute.

¶22 Cisneros implicitly maintains that the plain meaning of the
language “relating to” would require expungement even when a
paraphernalia conviction was, at most, tangentially related to a now-lawful
use or possession of marijuana. But her reasoning overlooks that we
understand statutory language in the context of the statute in which it
resides. Indeed, our supreme court has similarly looked to context when
addressing the scope of broad “relating to” language in interpreting the
Arizona Constitution. Saban Rent-a-Car LLC v. Ariz. Dep’t of Revenue, 246
Ariz. 89, ¶ 22 (2019) (accepting appellant’s concession that “‘related to’
could have an almost unlimited reach if construed too broadly” and
concluding such language must be read in conjunction with purpose of
provision).

¶23 Here, as my colleagues correctly observe, Section 7 of the
Proposition squarely and more specifically addresses the intended scope of
the expungement provisions found in § 36-2862: it invites further
legislation facilitating the expungement of convictions “predicated on
conduct made lawful” by the Act. Text of Prop. 207 § 7(7). Thus, the
Proposition itself provides a standard by which to assess “mixed-use”
paraphernalia cases: the conviction should be expunged when it is
“predicated on” now-lawful behavior. As here, when used as a transitive
verb, “predicated on” denotes an outcome that is dependent or based on
the specified pre-condition. Predicate, Merriam-Webster.com Dictionary
(last visited July 20, 2023) (describing “predicate” as transitive verb).

¶24 In faithfully applying the statutory guidance provided by the
language of the Proposition itself, then, our courts must expunge those
paraphernalia convictions that depended on, or were based on, now-lawful
use or possession of marijuana. As a practical matter, all paraphernalia
convictions will arise from either a defendant’s guilty plea or a guilty
verdict after trial. The basis for those convictions will thus be found in the
factual basis provided by the defendants during their guilty pleas or in the
evidence provided by the state to secure a trial conviction.

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Opinion of the Court

¶25 In those “mixed-use” cases, where some facts have been
presented that the paraphernalia possession may have related to more than
one drug, the conviction should only be expunged when the record
demonstrates that the conviction would not have occurred but for the
evidence of the defendant’s now-lawful marijuana related behavior. Only
under that circumstance would the conviction depend on, or be based on,
the behavior rendered lawful by Proposition 207. If, however, when setting
aside the admission or evidence of lawful use, the remaining record
demonstrates beyond a reasonable doubt that the defendant possessed the
paraphernalia to contain, transport, or use illegal drugs, the conviction
should not be expunged. Under the latter circumstance, the conviction
would not depend on any concurrent, now-lawful use or possession of the
paraphernalia. The approach therefore eliminates any risk that courts
would expunge convictions based on behavior that remains illegal.

¶26 Applying this standard, I join my colleagues in rejecting
Cisneros’s claim. Our record is clear that her conviction was predicated on
possessing paraphernalia used to contain methamphetamine. Although
both the charging documents and plea agreement suggest that Cisneros
possessed multiple items of paraphernalia that collectively were used for
both methamphetamine and marijuana, she ultimately pled guilty to
possessing only one item of paraphernalia: a plastic baggie. In the factual
basis she provided for that count, she expressly admitted that she had used
the baggie to store methamphetamine. She referred only obliquely to
occasional use of that baggie for another unnamed drug, presumably
marijuana. Therefore, her conviction, as distinguished from her charges
and plea agreement, did not depend on any evidence that the baggie might
also have been used for marijuana. Rather, it demonstrated beyond a
reasonable doubt that she used the paraphernalia to contain a drug that
remains illegal.

¶27 I write separately to observe that the language included in the
Proposition itself provides a workable standard by which the statute’s
stated purposes can be achieved even in “mixed-use” cases. Fidelity to the
language of the Proposition compels us to adopt it. I cannot agree,
therefore, with the majority’s application of a new standard not found in
the Proposition: that our courts must decline to expunge any paraphernalia
conviction “related to” a still-illegal drug. In essence, my colleagues seek
to remedy the overly-broad “related to” statutory language requiring
expungement by adopting the identical “related to” language to prohibit
expungement in all “mixed-use” cases. Albeit conversely, the majority’s
use of the same imprecise language yields the same counterintuitive results.

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Opinion of the Court

¶28 The majority’s test would deny expungement even in those
cases where the record’s reference to illegal use of the paraphernalia was
tangential, irrelevant to conviction, or itself insufficient to support guilt
beyond a reasonable doubt. That standard would deny expungement even
when the conviction’s clear gravamen was the now-lawful use of the
paraphernalia—so long as some part of the pertinent factual record “related
to” suspected illegal uses. No language in the statutory scheme suggests
any intention to require such debatable results.

¶29 As discussed above, we are provided two separate portions
of the Proposition that expressly address the scope of expungement. In one
section, that language directs expungement of those paraphernalia
convictions “relating to” the now-lawful use of the marijuana. Text of Prop.
207 § 4. In the other, it more specifically contemplates expungement when
a paraphernalia conviction was “predicated on” now-lawful behavior. Id.
§ 7(7). In both, the drafters chose phrasing designed to affirmatively
identify what offenses must be expunged. In neither section did the
drafters choose to set forth a test structured around what may not be
expunged. Nor did the voters consider such broad restrictive language
crafted by the majority in adopting the Proposition. See Text of Prop. 207.

¶30 My colleagues correctly observe that the context of the statute
implicitly articulates the limited nature of the “personal use” possession it
renders lawful. Indeed, the Proposition both expressly and implicitly
conveys an intent to leave the illegality of other drug offenses undisturbed.
But, in Section 7, the voters also approved provisions exhorting the
legislature to pass further laws (1) reducing criminal punishment for
marijuana possession, (2) increasing the quantity of marijuana a person
might lawfully possess, (3) assuring that our state’s marijuana laws are not
more restrictive than evolving federal laws, and, most important here,
(4) mitigating any continuing effects of past criminal convictions for
now-lawful possession or use of marijuana. See id. § 7(2)-(7). Nothing in
the Proposition clarifies precisely which of the stated purposes should
prevail when, as here, we face a potential tension in emphasis between
those goals.

¶31 In short, neither the statutory language we must faithfully
apply nor the broader purposes conveyed by the Proposition provide a
basis for the heightened standard the majority has applied. In so doing, the
majority adds a restrictive condition to expungement that was neither
included in the Proposition’s language nor considered by the voters.

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Opinion of the Court

¶32 My colleagues’ formulation may indeed be more easily
applied and, in most “mixed-use” expungement cases, may lead to the
same common-sense result. But our court is not at liberty to substitute its
own version of a workable standard for the express guidance provided by
the Proposition and legislation before us.

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