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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                         RICHARD BACA, Appellee.

                             No. 1 CA-CR 14-0691
                               FILED 7-9-2015


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201200484
                The Honorable Robert J. Higgins, Judge

                                  AFFIRMED


                                   COUNSEL

Navajo County Attorney, Holbrook
By Neill Perry
Counsel for Appellant

Emery K. La Barge, Attorney at Law, Snowflake
By Emery K. La Barge
Counsel for Appellee
                              STATE v. BACA
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.


B R O W N, Judge:

¶1              On behalf of the victim, the State challenges the portion of the
trial court’s sentencing order determining that defendant Richard Baca was
not required to register as a sex offender. The State argues the court
violated the victim’s constitutional right to be heard at sentencing by
declining to consider a statement made to the presentence report writer by
the victim’s representatives. Because the court acted within its discretion
when it determined that the “victim’s statement” was not relevant to the
issue of sex offender registration, we affirm.

                              BACKGROUND

¶2              In June 2012, Baca was indicted on one count of sexual assault,
one count of attempted sexual assault, and one count of kidnapping arising
out of his sexual assault and physical abuse of the victim. The case first
went to trial before a jury in October 2013, but ended in a mistrial. A second
jury trial, held in December 2013, ended in a hung jury. The victim testified
at both trials.

¶3            In April 2014, Baca entered a plea agreement, under which he
pled guilty to kidnapping, with a stipulated ten-year term of incarceration.
The plea agreement also provided that the trial court would have discretion
to order Baca to register as a sex offender under Arizona Revised Statutes
(“A.R.S.”) section 13-118, which permits a prosecutor to file, in a criminal
case involving an offense other than a sexual offense, a special allegation of
sexual motivation.

¶4           At the sentencing hearing in May, 2014, discussion occurred
regarding a two-page “victim’s statement” attached to the presentence
report, which was prepared by the presentence report writer, apparently
based on a discussion with the victim’s mother (“Mother”). In the
statement, Mother indicated at the outset “she would like to make sure
[Baca] is registered as a sex offender” because the victim “suffered
severely.” A significant portion of the statement is devoted to Mother’s



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                             STATE v. BACA
                           Decision of the Court

expressions of extreme animosity and threats of litigation towards the judge
in a previous case who, according to Mother, quashed a warrant, allowing
Baca to avoid arrest for a probation violation. Mother went on to explain
that her family continues to feel threatened by Baca and reiterated that “we
just want to make sure [Baca] is labeled as a sex offender for the rest of his
life[.]” Defense counsel objected to the inclusion of the statement, asking
the trial court “to determine whether or not that statement is appropriate
from a victim representative” and “to determine as a matter of law whether
that statement can be considered by the Court in sentencing.” In response,
the prosecutor stated that although Mother “may not meet the definition of
victim representative . . . you have wide discretion at the time of sentencing
to take other facts into consideration.” The court then indicated it would
rule on the objection later, and reset the sentencing until September 2014, to
allow for a psychosexual evaluation of Baca, pursuant to Arizona Rules of
Criminal Procedure (“Rule”) 26.5.

¶5           Shortly thereafter, the State filed a motion indicating that “the
victim has designated” her parents to speak and act on her behalf pursuant
to A.R.S. § 13-4403(A), which allows a victim who is “physically or
emotionally unable to exercise any right” to designate a lawful
representative to exercise “the same rights that the victim is entitled to
exercise.”

¶6             At the September sentencing hearing, defense counsel again
raised the issue of whether Mother was properly designated as victim’s
lawful representative. Defense counsel argued “[t]here is nothing about the
victim that has been demonstrated in any way, given the fact that she’s
testified twice here without any indication of disability” or infirmity. The
trial judge responded: “[T]hat’s not going to be part of my deliberation on
this sentence.” When asked to clarify whether the court was referring to
the statement made by Mother, the judge affirmed that he read it but
explained he did not “think those statements are that relevant or helpful”
to decide whether Baca should register as a sex offender. After considering
the psychosexual report and hearing arguments from counsel, the trial
court determined it would not order Baca to register as a sex offender
because Baca’s “sexually assaultive behavior is contained within this
relationship [with victim]” and his criminal history did not include any




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                             Decision of the Court

other instances of sexual offenses. The State timely appealed and we have
jurisdiction pursuant to A.R.S. § 13-4032(4).1

                                DISCUSSION

¶7             A crime victim in Arizona has the constitutional right to “be
heard at any proceeding involving a post-arrest release decision, a
negotiated plea, and sentencing.” Ariz. Const. art. 2, § 2.1(A)(4). A victim
also has the statutory right to “present evidence, information and opinions”
concerning the sentence at a sentencing proceeding, A.R.S. § 13-4426(A),
and to submit oral or written impact statements to a defendant’s probation
officer for the officer’s use in preparing a presentence report. A.R.S. § 13-
4424(A). If the victim is “physically or emotionally unable to exercise” his
or her rights, he or she may designate a “lawful representative” to exercise
the same rights the victim is entitled to exercise. A.R.S. § 13-4403. 2



1      Arizona law provides that upon “the request of the victim, the
prosecutor may assert any right to which the victim is entitled.” A.R.S.
§ 13-4437(C). However, the State may take an appeal from a post-judgment
order affecting the substantial rights of the victim only if the victim so
requests. A.R.S. § 13-4032(4). Rule 31.2(d) states that “[i]f the appeal or
cross-appeal is taken by the state, in whole or in part, based upon violation
of a substantial right of the victim, the attorney for the state shall so state in
the notice of appeal or opening brief or memorandum and shall certify that
the victim has requested the appeal or cross-appeal, in whole or in part, on
that basis.” In its notice of appeal, the State certified that the victim had
requested the appeal, but the State’s briefing indicates the victim’s lawful
representative requested the State to appeal the sentencing. Nothing in the
record before us shows that the trial court resolved Baca’s objection that
there was no lawful representative for the victim. Cf. P.M. v. Gould, 212
Ariz. 541, 545 (2006) (finding that mother had standing to raise an appeal
on behalf of the victim, her minor daughter, because “trial court found and
entered into the record” that petitioner had standing to invoke the victim’s
rights under the victim’s bill of rights, A.R.S. § 13-4437(A) and Rule
39(C)(4)). Nonetheless, because the State has expressly certified that the
victim requested the appeal, we have jurisdiction to consider it.

2      Baca argues on appeal that Mother was not properly designated as
the victim’s representative and therefore had no “right” to be heard on
behalf of the victim. Because we conclude that the trial court did consider
Mother’s presentence statement and acted within its discretion in weighing



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                             STATE v. BACA
                           Decision of the Court

¶8             The State argues the trial court refused to consider the
victim’s statement, made through her representative, and thus violated the
victim’s constitutional right to be heard at sentencing. The State further
contends the court “rewrote the law” by declining to consider the statement
because neither A.R.S. § 13-4424(A), § 13-4426(A), nor Article 2, Section
2.1(A), of the Arizona Constitution require a victim’s statement admitted at
sentencing to be relevant or helpful.

¶9              The State does not argue, and the record does not indicate,
that either the victim or Mother sought to appear or be heard in person at
either of the sentencing hearings. The State’s only argument on appeal is
that the trial court denied the victim her right to be heard, through a lawful
representative, in the form of a presentence victim impact statement
pursuant to A.R.S § 13-4426(A). However, the record indicates that Mother
was given the opportunity to make a statement on behalf of victim, and that
her statement was included in the presentence report. The record further
reflects that the trial judge received and read the portion of the presentence
report containing Mother’s statement, but ultimately concluded he would
not consider it any further because he decided it was not “relevant or
helpful.”

¶10            A sentencing judge may “exercise wide discretion in the
sources and types of evidence used to assist him in determining the kind
and extent of punishment to be imposed within the limits fixed by law.”
State v. Schlarp, 25 Ariz. App. 85, 87 (1975). Neither A.R.S. § 13-4426(A) nor
Article 2, Section 2.1(A), of the Arizona Constitution guarantee a crime
victim any particular result at trial or sentencing; instead, they ensure the
victim will be given an opportunity to be heard. The trial court received
Mother’s statement and considered it, but the court acted within its
discretion in declining to attach significance to Mother’s statement on the
basis of relevance and did not violate A.R.S. § 13-4426(A) or Article 2,
Section 2.1(A) of the Arizona Constitution by doing so.3



the relevance and helpfulness of the content of Mother’s statement, we need
not decide whether Mother was properly designated as the victim’s lawful
representative under A.R.S. § 13-4403(A).

3      As provided in A.R.S. § 13-701(G): “The court in imposing a sentence
shall consider the evidence and opinions presented by the victim or the
victim’s immediate family at any aggravation or mitigation proceeding or
in the presentence report.” The State did not argue in the trial court, nor



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                             STATE v. BACA
                           Decision of the Court

¶11          The State further argues that even if a victim’s statement
includes a relevancy requirement, the court abused its discretion in
determining that Mother’s statement was not relevant because the
statement expressly recommended that Baca be required to register.

¶12           As the trial court noted, it reviewed the information presented
at sentencing “looking for any deviant kind of behavior, pedophile
behavior, or tendency to commit sex crimes.” Mother’s statement, although
it did ask the court to order Baca to register as a sex offender, largely
focused on Mother’s grievances with the justice system in Navajo County.
Mother asserted that the victim and the victim’s family were fearful of Baca,
based on his violent behavior, and that his family had been taunting or
threating the victim throughout the trial process. Mother’s statement did
not include any information addressing Baca’s tendency to commit sex
crimes. Based on the content of Mother’s statement and the record, the
court did not abuse its discretion in determining that the statement was not
relevant or helpful to the precise issue before the court at the sentencing
hearing – whether to require Baca to register as a sex offender.

                              CONCLUSION

¶13          The trial court’s sentencing order is affirmed.




                                :ama




has it argued on appeal, that this statute applies to Mother’s statement.
Waiver aside, we conclude the court complied with A.R.S. § 13-701(G)
because it considered Mother’s statement before determining that the
statement was not relevant or helpful to the question of sex offender
registration.


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