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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             JOSE EMMANUEL LOPEZ ZAMORA, Appellant.

                             No. 1 CA-CR 17-0065
                               FILED 2-27-2018


           Appeal from the Superior Court in Maricopa County
                      No. CR2015-157563-001 DT
                  The Honorable Jose S. Padilla, Judge

               AFFIRMED IN PART; VACATED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
                           STATE v. ZAMORA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.


W I N T H R O P, Presiding Judge:

¶1             Jose Emmanuel Lopez Zamora (“Zamora”) appeals his
convictions and dispositions for aggravated assault and assault. He argues
the trial court improperly admitted hearsay testimony in violation of his
confrontation rights. Zamora also contends the court’s restitution order
should be vacated. For the following reasons, we vacate the restitution
order, but affirm in all other respects.

                FACTS AND PROCEDURAL HISTORY1

¶2            Zamora initiated sexual relations with his wife (the “Victim”),
but she rebuffed his advances. Zamora then physically forced the Victim
to have sexual intercourse with him. A neighbor overheard the commotion
and called police, who subsequently transported the Victim to the Family
Advocacy Center for a physical examination by a forensic nurse. Because
of the Victim’s limited English proficiency, the nurse utilized interpreters
to communicate with the Victim in her native language, Spanish.2

¶3           The Victim did not testify at trial, but, over Zamora’s
objections on hearsay and 6th Amendment grounds, the nurse testified
about the results of the Victim’s examination and statements the Victim
made regarding the assault. The jury found Zamora guilty of aggravated
assault and assault, domestic violence offenses. The court imposed
concurrent three-year terms of probation, and Zamora timely appealed. We




1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Zamora. See State v.
Harm, 236 Ariz. 402, 404 n.2 (App. 2015) (citing State v. Valencia, 186 Ariz.
493, 495 (App. 1996)).

2      At some point during the Victim’s physical examination a second
interpreter replaced the first one.


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                            STATE v. ZAMORA
                            Decision of the Court

have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1) (2016), 13-4031 (2010), and 13-4033(A)(1) (2010).

                                  ANALYSIS

       I.     Hearsay; Confrontation Rights

¶4            Zamora makes two arguments challenging the admissibility
of the nurse’s testimony. He first argues the nurse’s testimony regarding
the Victim’s statements constituted hearsay and violated his 6th
Amendment right to confront and cross-examine the Victim. Similarly,
Zamora contends the nurse’s testimony about the interpretations of the
Victim’s statements amounted to hearsay and violated his right to confront
the interpreters. We reject both arguments.

¶5            We affirm a trial court’s admission of evidence over a party’s
hearsay objection unless the court has abused its discretion. State v. Chavez,
225 Ariz. 442, 443, ¶ 5 (App. 2010). We, however, review de novo challenges
to the admissibility of evidence based on the Confrontation Clause. State v.
Bronson, 204 Ariz. 321, 324, ¶ 14 (App. 2003).

¶6             The Arizona Rules of Evidence generally prohibit a court
from admitting into evidence a declarant’s out-of-court statement if offered
“to prove the truth of the matter asserted” as hearsay. Ariz. R. Evid. 801(c).
Statements, however, which are made for or related to a medical diagnosis
or treatment and which describe the medical history, the symptoms, or the
cause of the injury may be admissible as an exception to the general rule
against hearsay. Ariz. R. Evid. 803(4). To determine whether statements
fall into this exception courts must determine whether the declarant’s
motive was, at least in part, to receive medical treatment and whether it was
reasonable to rely on the declarant’s statements for diagnosis or treatment.
State v. Robinson, 153 Ariz. 191, 199 (1987) (quoting State v. Jeffers, 135 Ariz.
404, 420-21 (1983)). See also State v. Rushton, 172 Ariz. 454, 457 (App. 1992)
(finding a declarant does not need to make her statements to a physician for
them to be admissible under the medical treatment exception to the rule
against hearsay).

¶7            Additionally, the Confrontation Clause prohibits the
admission of out-of-court testimonial evidence unless the defendant has
cross-examined the declarant. State v. Parker, 231 Ariz. 391, 402, ¶ 38 (2013)
(citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). Although the United
States Supreme Court did not specifically define what constitutes
“testimonial evidence,” it did provide that such evidence includes “ex parte
in-court testimony or its functional equivalent—that is, material such as


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                            STATE v. ZAMORA
                            Decision of the Court

affidavits, custodial examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially.” Id. at 402-03 (quoting
Crawford, 541 U.S. at 51). See also State v. King, 212 Ariz. 372, 376, ¶ 20 (App.
2006) (broadening the category of testimonial evidence to include any
statement that a declarant reasonably expects to be used at trial (citation
omitted)).

¶8           Here, the Victim’s statements to the forensic nurse were
consistent with her desire to obtain medical treatment for the physical
assault committed against her. And the nurse reasonably relied on the
information the Victim relayed to determine what, if any, treatment was
medically indicated. As the nurse explained, the Victim’s comments during
the examination were important for the nurse to triage the Victim’s injuries
and recommend the Victim seek emergency care. Thus, the medical
treatment exception applied to render admissible the Victim’s hearsay
statements she made to the nurse.

¶9           Further, the nurse’s testimony regarding the Victim’s
statements did not implicate Zamora’s confrontation rights. The Victim’s
statements were non-testimonial because she made them primarily to
obtain medical care. See State v. Hill, 236 Ariz. 162, 167-68, ¶ 22 (App. 2014)
(“If the primary purpose of the encounter is the provision and receipt of
medical care, the statement is non-testimonial, regardless of whether the
care sought is for an emergent condition.”). As the nurse testified at a
preliminary hearing:

       Q. And when you conduct these examinations . . . what’s your
       primary purpose? Are you trying to gather evidence?

       A. The primary purpose of the exam is to provide a medical
       examination and evaluation of the patient. A secondary
       purpose is for the collection of evidence. So the first
       components are present in that exam, but the medical needs
       of my patient always take precedence over anything that I
       would select for evidentiary value.

       Q. So is it fair to say you’re a medical professional conducting
       a medical examination of a patient?

       A. Yes, that’s correct.

                                       ...



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                           STATE v. ZAMORA
                           Decision of the Court

      Q. [Y]ou referred to your purpose as two-fold; correct, you
      said your primary purpose was medical examination and
      evaluation, and secondary purpose was collection of
      evidence; correct?

      A. Yes, that’s correct.

      Q. I was taken aback by your choice of words, because you
      make it sound as if one is more important than the other.
      Would you agree that they are both equally important to your
      job as a forensic nurse?

      A. I would say that they are both components of a medical
      forensic examination, but I would never compromise the
      health of my patient in order to obtain something for
      evidence.

¶10            Additionally, the nurse initiated the examination by
assessing the Victim’s general health and then asking, “[c]an you tell me
about what happened to bring you here?” No law enforcement officer was
present during the examination, and after the examination, the nurse
prescribed medication to the Victim for on-going treatment and
recommended the Victim visit an emergency room to address potential
injuries. See id. at 168-69, ¶ 24 (concluding similar circumstances,
“objectively viewed together, demonstrate that the primary purpose of the
exchange that produced the statement at issue was to provide medical
treatment”).3 Thus, the trial court did not err in permitting the nurse to



3       Zamora argues Hill is distinguishable because (1) the examination in
this case did not take place at an emergency room; (2) there was no apparent
emergency; (3) the nurse initiated the interview by asking for a history of
the assault; and (4) the Victim was not kept for observation. As noted,
however, Hill expressly declined to hold that treatment for an emergent
condition was required to find the primary purpose of a physical
examination is medical treatment and not a criminal investigation. Id. at
167-68, ¶ 22. Moreover, as also noted, the nurse testified that she advised
the Victim to seek emergency care, and she testified that she commenced
the examination by asking the Victim about her general medical history
followed by “open-ended questions to obtain the narrative history of what
occurred.” Alternatively, Zamora invites us to find Hill was wrongly
decided. We decline to do so. Finally, Zamora argues that the nurse failed



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                            STATE v. ZAMORA
                            Decision of the Court

testify about the Victim’s statements made during the physical
examination.

¶11           Contrary to Zamora’s argument, the court also did not err in
concluding the Victim’s interpreted statements were reliable and therefore
admissible.4 The record establishes that the interpreters, employed by
LanguageLine Solutions (“LanguageLine”), passed an oral language skills
proficiency test, received advanced training in medical interpretation, and
were periodically monitored to assure the quality of their interpretations.
Further, the court took judicial notice that “virtually every court” uses
LanguageLine’s “certified interpreters” to provide interpretation services.
Most importantly, the Victim answered the nurse’s questions responsively,
and the Victim’s statements were consistent with the nurse’s physical
findings, thus indicating the interpretation was accurate and reliable.

       II.    Restitution Order

¶12            At sentencing, the court ordered Zamora to pay $550 for the
forensic nurse examination fee. Zamora contends the order amounted to
an abuse of discretion. Zamora, however, failed to object to the restitution
order in the trial court; accordingly, we review for fundamental error. State
v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). An order of restitution is a
sentence, State v. Hawkins, 134 Ariz. 403, 406 (App. 1982), and generally, an
illegal sentence constitutes fundamental error. State v. Soria, 217 Ariz. 101,
102, ¶ 4 (App. 2007) (citation omitted).

¶13            Crime victims in Arizona are entitled “[t]o receive prompt
restitution from the person or persons convicted of the criminal conduct
that caused the victim’s loss or injury.” Ariz. Const. art. II, § 2.1(A)(8). A


to obtain the Victim’s consent to perform the examination. The nurse’s
testimony, however, is to the contrary.

4       Zamora argues his inability to cross-examine the interpreters
violated his confrontation rights. Zamora bases this argument, however,
on his assertion that the nurse’s testimony regarding the Victim’s
statements during the physical examination were inadmissible hearsay
because the primary purpose of the exam was to collect evidence. Zamora
also relies on State v. Terrazas, 162 Ariz. 357 (App. 1989), for the proposition
that cross-examination of the interpreters was necessary to determine their
reliability. We have already concluded the nurse’s examination was
primarily to provide medical treatment and the interpretations were
reliable. Thus, we need not further address this argument.


                                       6
                              STATE v. ZAMORA
                              Decision of the Court

defendant who has been convicted of a crime shall be ordered “to make
restitution to the person who is the victim of the crime . . . in the full amount
of the economic loss as determined by the court.” A.R.S. § 13-603(C).
“Restitution is recoverable for a loss which (1) is economic; (2) would not
have occurred but for the criminal conduct; and (3) is directly caused by the
criminal conduct.” State v. Linares, 241 Ariz. 416, 418, ¶ 7 (App. 2017)
(citation omitted). Further, an award of restitution must bear a reasonable
relationship to the victim’s loss. State v. Madrid, 207 Ariz. 296, 298, ¶ 5 (App.
2004). The State must prove the amount of restitution by a preponderance
of the evidence. In re Stephanie B., 204 Ariz. 466, 470, ¶ 15 (App. 2003).

¶14           Here, nothing in the record indicates what relationship, if any,
the $550 ordered as restitution has to the Victim’s economic loss, and it is
not clear who is entitled to restitution. See, e.g., Linares, 241 Ariz. at 418, ¶ 3
(noting the Maricopa County Attorney’s Office contracts with the Phoenix
Children’s Hospital to conduct forensic evaluations of children suspected
of being subjected to physical abuse and pays the Advocacy Center “a
standard fee of $550 for use in criminal prosecutions”). Indeed, in her
presentence investigation, the probation officer noted “[r]estitution has not
been established in the present offense.” On this record, we cannot affirm
an award of restitution. Accordingly, the trial court fundamentally erred,
and we vacate the restitution order of $550.

                                 CONCLUSION

¶15           Zamora’s convictions and dispositions are affirmed.             The
restitution order is vacated.




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




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