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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 HAMZA BENDERRA, Plaintiff/Appellant,

                                        v.

                 STATE OF ARIZONA, Defendant/Appellee.

                             No. 1 CA-CV 17-0134
                               FILED 3-15-2018


           Appeal from the Superior Court in Yavapai County
                       No. P1300CV201500866
               The Honorable David L. Mackey, Judge

                                  AFFIRMED


                                   COUNSEL

Attorneys for Freedom Law Firm, Chandler
By Marc J. Victor, Andrew C. Marcantel
Counsel for Plaintiff/Appellant

Yavapai County Attorney’s Office, Yavapai
By Steven John Sisneros, Benjamin D. Kreutzberg
Counsel for Defendant/Appellee
                          BENDERRA v. STATE
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.


J O N E S, Judge:

¶1             Hamza Benderra appeals the superior court’s order denying
his petition to clear his arrest record pursuant to Arizona Revised Statutes
(A.R.S.) § 13-4051.1 For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            On July 30, 2015, a Yavapai County Sheriff’s Office deputy
performed a traffic stop on a vehicle that did not have a license plate. The
deputy noticed a paper hanging in the back window, but could not see its
contents because of the window’s heavy tint. When asked to provide his
driver’s license and the vehicle’s registration, the driver, Benderra,
presented a New Mexico driver’s license and a bill of sale for the vehicle
indicating he had purchased it one day earlier. The deputy asked Benderra
about his travel plans, and Benderra explained he was traveling to
California to purchase candy and gum for his grocery store. When asked if
he was traveling with a large amount of money, Benderra stated he had
$5,000 in cash.

¶3             Benderra consented to a search of his vehicle, and the deputy,
trained as a drug interdiction officer, found: two glass pipes containing a
burnt residue; ten vials containing small quantities of what the deputy
suspected was synthetic marijuana commonly referred to as spice; and
approximately $30,000 in cash. The cash was divided into two stacks — one
containing approximately $5,000 and one containing approximately $25,000
— and bound by rubber bands. A trained drug-detection dog alerted to the
area where the money had been in the vehicle, and, in a separate test,
alerted to the money itself.

¶4           After the search, Benderra explained he intended to use the
additional $25,000 to purchase a box truck for his store, which, after more


1     Absent material changes from the relevant date, we cite a statute’s
current version.


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                           Decision of the Court

questioning, Benderra admitted was not a grocery store, but rather a smoke
shop that sold pipes, hookahs, and smoking accessories. Benderra also
admitted the burnt residue in the pipes was spice for his personal use. The
deputy arrested Benderra on suspicion of money laundering, possession of
drug paraphernalia, and possession of illegal drugs.

¶5            The State sent one of the ten vials retrieved from Benderra’s
vehicle to be tested, but the sample was too small to produce a conclusive
result. The police also confiscated Benderra’s cell phone, which contained
hundreds of text messages that could not be immediately read because they
were in Arabic.

¶6            Three months after his arrest, Benderra petitioned the
superior court to clear his arrest record. The State objected, arguing it had
not yet completed its investigation and still needed to translate the text
messages on his cell phone. The court denied Benderra’s petition but
advised he could file a new petition after July 29, 2016. An interpreter
subsequently reviewed the text messages but found nothing relevant to the
investigation. The State never formally charged Benderra, and he
ultimately recovered all the property confiscated during the arrest.

¶7           Benderra again petitioned the superior court for a clearance
notation. At a hearing on his petition, Benderra stipulated to the facts
presented by the State but did not present any evidence of his own. He then
argued his record should be cleared because the State never filed formal
charges against him and failed to prove he committed a crime at the
hearing.

¶8            The superior court denied Benderra’s second petition to clear
his arrest record after finding the failure to charge him after an arrest did
not make the arrest wrongful and that justice would not be served by
granting his petition. Benderra timely appealed, and we have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶9             Pursuant to A.R.S. § 13-4051(A), “[a]ny person who is
wrongfully arrested . . . for any crime may petition the superior court for
entry on all court records, police records and any other records of any other
agency relating to such arrest . . . a notation that the person has been
cleared.” “After a hearing on the petition, if the judge believes that justice
will be served by such entry, the judge shall issue the order requiring the
entry that the person has been cleared on such records.” A.R.S. § 13-
4051(B). We review a ruling on a petition for entry of clearance for an abuse


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                            Decision of the Court

of discretion and defer to the trial court regarding any factual findings. See
State v. Mohajerin, 226 Ariz. 103, 108, ¶ 18 (App. 2010).

¶10            As used in A.R.S. § 13-4051, the term “wrongfully”
encompasses not only unlawful and illegal arrests, but also arrests
“characterized by unfairness or injustice.” Mohajerin, 226 Ariz. at 107-08,
¶¶ 11-17. To determine whether an arrest is “wrongful,” the trial court
must consider not only whether probable cause existed at the time of the
arrest, but also whether the petitioner was factually innocent of the crimes
for which he was arrested. Id. at 109, ¶ 19.

¶11           Benderra argues he was indeed innocent of money
laundering, possession of drug paraphernalia, and possession of spice.
However, he provided no evidence to support this assertion at the hearing.
Instead, he argued only that relief was warranted because the State failed
to indict him. Benderra renews this argument on appeal and asserts the
State could defeat his petition for a clearance notation only through
presentation of “a prima facie case in violation of any specific criminal
statute.” We find no support for this contention.

¶12           First, nothing in A.R.S. § 13-4051 requires the State to put on
a criminal trial in defense of a person’s petition to clear his record. To the
contrary, the petitioner bears the burden of proof and must present
“sufficient evidence for the trial court to conclude his arrest [was]
wrongful.” Mohajerin, 226 Ariz. at 110, ¶ 23; see also State v. Franco, 153 Ariz.
424, 425-26 (1987) (finding the petitioner who presented no evidence at the
hearing failed to demonstrate a legally sufficient ground for relief under
A.R.S. § 13-4051).

¶13            Second, Benderra did not present any evidence suggesting his
arrest was wrongful, choosing to rely instead on the State’s failure to pursue
formal charges. But the prosecutor has broad discretion in deciding
whether to charge a defendant, State v. Peltz, 242 Ariz. 23, 27, ¶ 8 (App. 2017)
(citing State v. Hankins, 141 Ariz. 217, 221 (1984)), and “[t]he mere fact that
charges were dismissed, of course, does not itself prove the alleged crimes
did not occur, just as an acquittal does not establish a defendant’s
innocence,” Mohajerin, 226 Ariz. at 110 n.6, ¶ 23 (citing United States v. One
Assortment of 89 Firearms, 465 U.S. 354, 361 (1984), and Pfeil v. Smith, 183
Ariz. 63, 65 (App. 1995)). Thus, the State’s decision to not indict Benderra
cannot, by itself, prove the arrest was wrongful or unjust.

¶14          Benderra did not submit any evidence upon which the
superior court could conclude that justice would be served by a clearance



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                           Decision of the Court

notation. See State v. West, 226 Ariz. 559, 562, ¶ 15 (2011) (noting that
sufficiency of the evidence presents a question of law reviewed de novo)
(citing State v. Bible, 175 Ariz. 549, 595 (1993)). Accordingly, the court did
not err when it denied Benderra’s petition.

                              CONCLUSION

¶15           The superior court’s order is affirmed.




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