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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   CHRISTOPHER AREVALO, Appellee.

                  Nos. 1 CA-CR 18-0298; 1 CA-CR 18-0299
                             (Consolidated)



           Appeal from the Superior Court in Maricopa County
             Nos. CR2017-117321-001; CR2017-002116-001
               The Honorable Michael D. Gordon, Judge

                                  REVERSED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Amanda M. Parker
Counsel for Appellant

Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellee
                           STATE v. AREVALO
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.


M O R S E, Judge:

¶1           The State appeals an order of the superior court holding that
Arizona Revised Statutes ("A.R.S.") section 13-1202(B)(2), a statute
enhancing the penalty for threatening or intimidating committed by a
member of a criminal street gang, is unconstitutional. For the following
reasons, we reverse.

                FACTS AND PROCEDURAL HISTORY

¶2            In two separate cases, Defendant Christopher Arevalo was
charged with four counts of threatening or intimidating. Under A.R.S. § 13-
1202, threatening or intimidating is ordinarily a class 1 misdemeanor;
however, it is a class 6 felony if the defendant is a member of a criminal
street gang. Pursuant to this statute, the State alleged that Arevalo is a
member of a criminal street gang and charged the four counts as felonies.
The State does not allege that Arevalo committed any of these crimes in
connection with a criminal street gang.

¶3            Arevalo moved to dismiss all counts for threatening or
intimidating or reduce them to misdemeanors, arguing that the added
punishment for members of a criminal street gang is unconstitutional. The
superior court agreed and dismissed the charges, holding that "the
undeniable guilt-by-association character of the statute violates the due-
process clause and is therefore unconstitutional." The State appealed in
both cases, and we have consolidated those appeals. We have jurisdiction
pursuant to A.R.S. § 13-4032(1).

                              DISCUSSION

¶4            The constitutionality of a statute is question of law we review
de novo. State v. Russo, 219 Ariz. 223, 225, ¶ 4 (App. 2008). Because we
presume the constitutionality of our statutes, the party challenging the
statute bears the burden of proving otherwise. Id.




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                            Decision of the Court

¶5            Arevalo's principal argument—and the law relied on by the
superior court—is that A.R.S. § 13-1202(B)(2) impermissibly imposes guilt
by association by punishing mere membership in a group. Under
substantive due process rights of the United States Constitution, "guilt is
personal." Scales v. United States, 367 U.S. 203, 224 (1961). With that
principle in mind, the Supreme Court explained that

      [W]hen the imposition of punishment on a status or on
      conduct can only be justified by reference to the relationship
      of that status or conduct to other concededly criminal activity
      . . . , that relationship must be sufficiently substantial to satisfy
      the concept of personal guilt in order to withstand attack
      under the Due Process Clause of the Fifth Amendment.

Id. at 224-25. In the context of a statute criminalizing membership in an
organization, the Supreme Court held that due process is satisfied if the
statute is only applied to "active" members who have "a guilty knowledge
and intent." Id. at 228.

¶6           Section 13-1202 states, in relevant part:

      A. A person commits threatening or intimidating if the person
      threatens or intimidates by word or conduct:

             1. To cause physical injury to another person or serious
             damage to the property of another;

             ....

      B. Threatening or intimidating pursuant to subsection A,
      paragraph 1 or 2 is a class 1 misdemeanor, except that it is a
      class 6 felony if:

             ....

             2. The person is a criminal street gang member.

A.R.S. § 13-1202.

¶7            Thus, the law only criminalizes conduct and enhances the
punishment for that criminal conduct if the defendant is a member of a
criminal street gang, as defined in A.R.S. § 13-105(9). As we stated in State
v. Meeds, 244 Ariz. 454 (App. 2018), "Section 13-1202(B)(2) does not penalize
mere membership in a criminal street gang—it penalizes the added menace
inflicted when a criminal street gang member is engaged in criminal


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                            Decision of the Court

conduct." Id. at 465, ¶ 32. For this reason, the statute does not implicate the
constitutional considerations in Scales and properly relies on personal guilt.
See State v. Cooper, 1 CA-CR 16-0869, 1 CA-CR 17-0502, 2018 WL 6217090, at
*2-3, ¶¶ 7, 11 (Ariz. App. Nov. 29, 2018) (mem. decision) (rejecting
substantive due process and other constitutional challenges to A.R.S. § 13-
1202(B)).

¶8             Arevalo also argues that the statute violates the equal
protection guarantees of the Arizona and United States Constitutions
because most gang members are racial minorities and the statute therefore
has a disparate impact on a suspect class. Even taking this assertion as true,
however, "[r]acial imbalance . . . does not, without more, establish a prima
facie case of disparate impact." Texas Dep't. of Hous. & Cmty. Affairs v.
Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2523 (2015) (alterations in
original) (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 653 (1989)).
Therefore, we review whether there is a rational basis for the enhancement
for members of criminal street gangs. See Governale v. Lieberman, 226 Ariz.
443, 448, ¶ 13 (App. 2011) ("If the statute does not affect a suspect class or
limit a fundamental right, we apply the 'rational basis' test and uphold the
law if it serves a legitimate state interest and the classification rationally
advances that interest."). As stated in Meeds, the State has a "compelling"
interest "to protect the public from threats and intimidation by members of
criminal street gangs, who presumably have a much greater ability than
non-gang members to make good on those threats." Meeds, 244 Ariz. at 465,
¶ 32. Section 13-1202(B)(2) is rationally related to that purpose.

¶9             Arevalo argues that the statute violates the rights of
association and free speech, but this Court has already decided that A.R.S.
§ 13-1202(B) does not violate First Amendment rights. Meeds, 244 Ariz. at
462-65, ¶¶ 21-32. We decline to revisit Meeds. Arevalo asserts that the
Arizona Constitution provides greater protection for the right of association
than the First Amendment. However, he cites to no authority to explain
how application of the Arizona Constitution would lead to a different result
than an application under the United States Constitution. For this reason,
we reject this argument.

¶10           Finally, Arevalo argues that his due process rights will be
violated if the admission of gang membership evidence is used in trial,
prejudicing the jury in its deliberations on the threatening or intimidating
charge. This issue is not relevant to the constitutionality of the statute. In
addition, Arevalo submitted a motion in limine to exclude such evidence
from the "guilt phase" of trial, and only allow it at the "enhancement" phase.
It appears the superior court did not rule on this issue, presumably because


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                           STATE v. AREVALO
                           Decision of the Court

it held the enhancement to be unconstitutional. On remand, the superior
court will have an opportunity to respond to these concerns.

                             CONCLUSION

¶11          For the foregoing reasons, we reverse the order of the superior
court dismissing the four counts of threatening or intimidating.




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