                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                       JESUS BUSSO-ESTOPELLAN
                              Petitioner,

                                    v.

THE HONORABLE ROSA MROZ, JUDGE OF SUPERIOR COURT OF THE STATE OF
         ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                       Respondent Judge,

                          STATE OF ARIZONA,
                          Real Party in Interest.

                          No. CV-15-0102-PR
                        Filed December 31, 2015

       Special Action from the Superior Court in Maricopa County
                    The Honorable Rosa Mroz, Judge
                          No. CR2011-133622
                               VACATED

              Order of the Court of Appeals, Division One
                          Filed March 17, 2015

COUNSEL:

Tonya J. Peterson (argued), The Law Office of Tonya J. Peterson, Phoenix;
Stacy L. Hyder, The Law Office of Stacy L. Hyder, P.L.C., Phoenix; and
Richard L. Lougee, Mexican Capital Legal Assistance Program, Tucson,
Attorneys for Jesus Busso-Estopellan

William G. Montgomery, Maricopa County Attorney, Gerald R. Grant
(argued), Deputy County Attorney, Attorneys for State of Arizona

David J. Euchner (argued), Tucson, Attorney for Amicus Curiae Arizona
Attorneys for Criminal Justice


JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and BERCH (RETIRED) joined.
                 BUSSO-ESTOPELLAN V. MROZ (STATE)
                         Opinion of the Court


JUSTICE TIMMER, opinion of the Court:

¶1            During the penalty phase of a capital trial, “the defendant and
the state may present any evidence that is relevant to the determination of
whether there is mitigation that is sufficiently substantial to call for
leniency,” A.R.S. § 13-752(G), including any aspect of the defendant’s
character, A.R.S. § 13-751(G). Today we hold that a capital defendant’s
pretrial offer to plead guilty in exchange for a natural life sentence is
admissible to demonstrate the defendant’s acceptance of responsibility for
the murder, a non-statutory mitigating circumstance.

                            I.     BACKGROUND

¶2             The State indicted Jesus Busso-Estopellan in 2011 on two
counts of first degree murder and filed a notice of intent to seek the death
penalty. Less than a year later, Busso-Estopellan’s attorneys sent a letter to
the trial court judge stating that “Mr. Busso-Estopellan has indicated that
he would accept a plea offer to natural life if it were offered to him.” The
State did not extend a plea offer.

¶3             In 2014, Busso-Estopellan filed a motion in limine seeking
permission to introduce evidence of his willingness to accept a natural life
plea offer at the penalty phase of his trial if he is convicted and becomes
eligible for the death penalty. The trial court denied the motion and Busso-
Estopellan’s subsequent motion for reconsideration. The court reasoned
that Busso-Estopellan’s proposition did not relate to any aspect of his
character, evidenced only a “desire to avoid the consequences of the death
penalty rather than a true acceptance of responsibility for his actions, or
remorse,” and improperly asked the jury to speculate about why the State
had rejected the offer.

¶4             Busso-Estopellan sought special action relief from the court of
appeals, but that court summarily declined jurisdiction. We granted Busso-
Estopellan’s petition for review because it presents a recurring legal
question of statewide importance. We have jurisdiction pursuant to article
6, section 5 of the Arizona Constitution.

                             II.    DISCUSSION


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                 BUSSO-ESTOPELLAN V. MROZ (STATE)
                         Opinion of the Court

¶5             Busso-Estopellan argues that the trial court usurped the jury’s
role by ruling that his plea offer could not evidence an acceptance of
responsibility. The State responds that a conditional plea offer can never
evidence an acceptance of responsibility because the condition renders the
offer meaningless. We review evidentiary rulings for an abuse of
discretion. State v. Chappell, 225 Ariz. 229, 238 ¶ 28, 236 P.3d 1176, 1185
(2010). “An error of law committed in reaching a discretionary conclusion
may, however, constitute an abuse of discretion.” State v. Wall, 212 Ariz. 1,
3 ¶ 12, 126 P.3d 148, 150 (2006).

¶6             Acceptance of responsibility is a non-statutory mitigating
circumstance, see A.R.S. §§ 13-751(G), -752(G); State v. Sansing, 206 Ariz. 232,
241 ¶ 35, 77 P.3d 30, 39 (2003), and the trial court is constitutionally required
in capital cases to admit proffered evidence of this aspect of a defendant’s
character, see Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality) (“[T]he
Eighth and Fourteenth Amendments require that the sentencer, in all but
the rarest kind of capital case, not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or record and any of
the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.”); see also Eddings v. Oklahoma, 455 U.S. 104, 112
(1982). But any evidence offered to show acceptance of responsibility still
must be relevant. See Chappell, 225 Ariz. at 238 ¶ 29, 236 P.3d at 1185
(quoting Lockett and concluding that its holding “does not limit the
traditional authority of a court to exclude, as irrelevant, evidence not
bearing on the defendant’s character, prior record, or the circumstances of
his offense”); see also A.R.S. § 13-751(C). Although the Arizona Rules of
Evidence do not apply in the penalty phase, we are “guided by
fundamentally the same considerations as . . . a relevancy determination
under Arizona Rule of Evidence 401 or 403.” State v. Guarino, ___ Ariz. ___,
¶ 6, ___ P.3d ___ (Dec. 3, 2015).

¶7             We agree with Busso-Estopellan that his pretrial offer to plead
guilty is relevant because it tends to make his acceptance of responsibility
for the murders more probable. See Ariz. R. Evid. 401(a); see also State v.
Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077 (1988) (noting that the relevance
standard “is not particularly high”). Other courts have differed on whether
a capital defendant’s willingness to plead guilty if sentenced to natural life
reflects an acceptance of responsibility. Compare Johnson v. United States, 860
F. Supp. 2d 663, 903 (N.D. Iowa 2012) (concluding that such an offer has
“some bearing on the defendant’s character and, more specifically, on the

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                 BUSSO-ESTOPELLAN V. MROZ (STATE)
                         Opinion of the Court

defendant’s acceptance of responsibility for the charged offense”), with
Owens v. Guida, 549 F.3d 399, 420 (6th Cir. 2008) (reaching the opposite
conclusion). We are persuaded that the condition (the imposition of a life
sentence) on Busso-Estopellan’s offer to plead guilty affects the weight of
the evidence rather than its admissibility. Cf. Eddings, 455 U.S. at 114–15
(holding that the sentencer may determine the weight to be given to
relevant mitigating evidence, but the trial court cannot give it no weight by
excluding its consideration). Each juror must individually assess whether
Busso-Estopellan’s offer evidences some degree of acceptance of
responsibility and, if so, decide the weight to give it. Cf. State ex rel. Thomas
v. Granville (Baldwin), 211 Ariz. 468, 473 ¶ 18, 123 P.3d 662, 667 (2005) (“A
mitigating factor that motivates one juror to vote for a sentence of life in
prison may be evaluated by another juror as not having been proved or, if
proved, as not significant to the assessment of the appropriate penalty.”).

¶8             This Court’s decision in State v. Dann, 220 Ariz. 351, 207 P.3d
604 (2009), relied on by the trial court, does not direct a different result. The
defendant in Dann unsuccessfully argued that the trial court erred by
refusing to admit evidence in the penalty phase showing he had offered
before that phase to stipulate to a life sentence and waive his right to parole
if the jury did not impose a death sentence. Id. at 372–73 ¶¶ 122–23, 207
P.3d at 625–26. We held that the defendant could not “presentence”
himself, reasoning both that Arizona law granted the trial court discretion
to decide the sentence if the jury did not impose the death penalty, and that
it was speculative whether the defendant’s waiver of a right to parole could
affect a future decision of the Arizona Board of Executive Clemency. Id. at
373 ¶ 124, 207 P.3d at 626.

¶9            The situation here is different. The defendant in Dann never
offered to plead guilty, which might have evidenced an acceptance of
responsibility, and he did not argue that his offer constituted mitigating
evidence. Id. at 374–75 ¶ 135, 207 P.3d at 627–28. In contrast, Busso-
Estopellan expressed a pretrial willingness to plead guilty to the charges,
which is relevant to his acceptance of responsibility. He does not seek to
effectively negotiate a sentence with the jury or constrain the trial court’s
authority if he is convicted and becomes eligible for a death sentence but
instead asks to introduce mitigating evidence. Consequently, Dann does
not apply.



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                 BUSSO-ESTOPELLAN V. MROZ (STATE)
                         Opinion of the Court

¶10            We also reject the trial court’s apparent concern that evidence
of Busso-Estopellan’s willingness to plead guilty if given a natural life
sentence necessarily would confuse the jury by inviting it to speculate about
the State’s response. The trial court may avert such confusion, for example,
by instructing the jury that the State was not required to extend a plea offer.

¶11            In sum, the trial court erred by ruling that Busso-Estopellan’s
pretrial expression of willingness to plead guilty to the charges is not
relevant mitigation evidence merely because the offer was conditioned on
a natural life sentence. If Busso-Estopellan is convicted, becomes eligible
for the death penalty, and wants to offer this evidence, the trial court must
permit the jury to know of his offer. Of course, the court may exercise its
discretion to determine how best to admit the evidence. For example, the
court may permit introduction of part of the offer letter.

                             III.   CONCLUSION

¶12            A defendant’s pretrial offer to plead guilty in a capital case,
even with a sentencing condition, is relevant to whether he accepts
responsibility for his actions, a non-statutory mitigating circumstance.
Because the trial court ruled otherwise, we vacate its order denying Busso-
Estopellan’s motion to permit introduction of this evidence in the penalty
phase if he is convicted and becomes eligible for the death penalty.




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