                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                  STATE OF ARIZONA, Appellant/Appellee,

                                          v.

                  RUBEN MURRIETTA, Appellee/Appellant.

                              Nos. 1 CA-CR 12-0460
                                   1 CA-CR 12-0665
                                   (Consolidated)
                                   FILED 3-6-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-106250-001
          The Honorable Carolyn K. Passamonte, Judge Pro Tem

                       AFFIRMED AND REMANDED


                                    COUNSEL

Maricopa County Attorney’s Office
By Karen Kemper
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellee/Cross-Appellant
Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee on cross-appeal



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
joined.


J O N E S, Judge:

¶1             These consolidated appeals arise from Ruben Murrietta’s
trial on two counts of aggravated assault and one count of resisting arrest.
The State appeals the trial court’s ruling declaring a mistrial on one of the
aggravated assault counts. Murrietta appeals from his conviction and
sentencing for resisting arrest. For reasons that follow, we affirm in both
appeals and remand the aggravated assault count that was the subject of
the mistrial to the trial court for further proceedings.

                FACTS AND PROCEDURAL HISTORY

¶2             Based upon information received from a citizen, a police
officer entered a restaurant to contact Murrietta. Murrietta was not in the
dining area, so the officer checked the men’s restroom. After finding that
restroom empty and hearing noises coming from the women’s restroom,
the officer knocked on the door to the women’s restroom. In response to
the knock, the door opened partway and the officer saw Murrietta
peeking out. Upon recognizing the officer, Murrietta slammed the door
closed, striking the officer in the right shoulder and face.

¶3            The officer forced his way into the restroom and grabbed
Murrietta’s left arm in order to handcuff him. Murrietta hit the officer in
the mouth with his right elbow while struggling to avoid being
handcuffed. The officer thereafter employed pepper spray in an attempt
to control Murrietta, but it was only after back-up officers arrived and
used a stun gun on Murrietta that the officers were able to take him into
custody.

¶4            Murrietta was indicted on two counts of aggravated assault,
each a class 5 felony (Counts 1 and 2), and one count of resisting arrest, a


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                            Decision of the Court

class 6 felony (Count 3). 1 During jury selection, Murrietta challenged the
State’s use of a peremptory strike to remove a Black prospective juror
from the venire panel. The trial court denied the challenge based upon a
finding that Murrietta failed to make a prima facie showing of racial
discrimination.

¶5             At the conclusion of trial, the court submitted the two counts
of aggravated assault and one count of resisting arrest to the jury.
During deliberations, the jury sent a note to the trial court that stated:
“We have voted a guilty verdict by a 7 to 1 count on [Count 2].” After
discussing the note with counsel off the record, the trial court announced
that it was declaring a mistrial on Count 2. With counsels’ agreement, the
trial court prepared an impasse instruction for the jury, which initially
directed the jury to continue their deliberations on Counts 1 and 3. After
further discussion, however, the trial court and counsel agreed to give the
instruction without reference to specific counts to avoid confusing the jury
with the understanding that if the jury returned verdicts on all three
counts, the trial court would accept verdicts only on Counts 1 and 3.

¶6            The trial court gave the impasse instruction as agreed upon
by the parties and directed the jury to continue their deliberations. The
jury thereafter returned guilty verdicts on Counts 2 and 3 and a not guilty
verdict on Count 1. The trial court accepted the verdicts on Counts 1 and
3 and, in accordance with its previous ruling, declared a mistrial on Count
2. When the State asked why it was necessary to declare a mistrial on
Count 2, the trial court stated: “I believe that the law is such that if they do
tell us what their vote is on a particular count, and their vote was easily
identified to this count, because it was so specific about the actions that
were alleged in that count, that the Court could not consider then a second
verdict from them.” The State filed a motion for reconsideration on the
declaration of mistrial, arguing that because the jury was able to reach a
verdict on Count 2, there was no requirement that a mistrial be declared.
Following the denial of the motion, the State timely appealed.

¶7            At the sentencing hearing for the conviction on Count 3, the
parties agreed that in return for Murrietta admitting to four prior
convictions the State would withdraw the allegation that the offense was
committed while on release and stipulate to a presumptive 3.75-year

1 Murrietta was also indicted on one count of shoplifting, a class 1
misdemeanor; however, on the first day of trial, the trial court granted the
State’s motion to dismiss this count.



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                          STATE v. MURRIETTA
                           Decision of the Court

prison term to run concurrent with a sentence to be imposed in another
pending matter. The trial court sentenced Murrietta in accordance with
the parties’ agreement, and Murrietta timely appealed. On this Court’s
own motion, the two appeals were consolidated.

                               DISCUSSION

I.     State’s Appeal

¶8            Relying primarily upon State v. Cruz, 218 Ariz. 149, 181 P.3d
196 (2008), the State argues the trial court erred in sua sponte declaring a
mistrial on Count 2 and requests that the guilty verdict returned by the
jury on that count be reinstated. We review a trial court’s decision to
grant a mistrial for abuse of discretion. State v. Givens, 161 Ariz. 278, 279,
778 P.2d 643, 644 (App. 1989); see Arizona v. Washington, 434 U.S. 497, 510
(1978) (“The trial judge’s decision to declare a mistrial when he considers
the jury deadlocked is [ ] accorded great deference by a reviewing court.”).

¶9            In Cruz, the defendant claimed the jury’s verdict was
coerced by the trial court directing the jury to continue their deliberations
in response to a note from the jury that asked: “If one person’s decision
remains unchanged against the other 11 jurors [i]s this a hung jury? If so,
what happens next?” 218 Ariz. at 166-67, ¶¶ 107-08, 181 P.3d at 213-14. In
affirming the defendant’s conviction and sentence, our supreme court
determined that the trial court’s instruction to continue deliberating did
not improperly coerce or influence the jury. Id. at 167, ¶ 115, 181 P.3d at
214. The State contends this Court should likewise find that no coercion
occurred in the present case and hold that there was no necessity for the
declaration of mistrial.

¶10            The State’s reliance on Cruz is misplaced. There is no issue
of jury coercion in the present case. The issue is whether the trial court
abused its discretion in declaring a mistrial on Count 2 after the jury
reported it had “voted a guilty verdict by a 7 to 1 count.” Based upon the
jury’s note, the trial court could reasonably conclude the jury was at an
impasse on that count. Arizona Rule of Criminal Procedure 22.4 grants
the trial court discretion to assist jurors at an impasse by way of additional
instructions, as occurred in Cruz, but there is nothing in Cruz or elsewhere
in the law that precludes the trial court from declaring a mistrial when the
trial court reasonably believes the jury is deadlocked. See Renico v. Lett,
559 U.S. 766, 774 (2010) (noting “[a] mistrial premised upon the trial
judge's belief that the jury is unable to reach a verdict [has been] long
considered the classic basis for a proper mistrial”) (quoting Washington,



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                             STATE v. MURRIETTA
                              Decision of the Court

434 U.S. at 509); Givens, 161 Ariz. at 281, 778 P.2d at 646 (explaining “the
mere availability of another alternative does not render a mistrial order an
abuse of discretion”).

¶11            The trial court’s decision appears even more reasonable
given the jury had reported its numerical division when it informed the
trial court that it had reached a non-unanimous verdict. In Cruz, our
supreme court specifically warned about further instructions to a jury in
such a situation due to the heightened risk of jury coercion. 218 Ariz. at
167, ¶ 114, 181 P.3d at 214. Here, the trial court was cognizant of that risk
and, as the trial court explained in its order denying the State’s motion for
reconsideration, believed that under the circumstances any additional
instructions with respect to Count 2 would have “great potential” to
influence the lone holdout juror. We defer to the trial court’s decision that
further instructions would create a risk of coercion because the trial court
is in the best position to determine whether a mistrial is required. Givens,
161 Ariz. at 279, 778 P.2d at 644.

II.      Murrietta’s Appeal

¶12          Murreitta argues the trial court erred by denying his Batson 2
challenge to the State's peremptory strike of the only Black prospective
juror. Murrietta contends the trial court should have required the State to
provide a race-neutral reason to justify the strike. When reviewing a
ruling on a Batson challenge, we defer to the trial court’s factual findings,
but we review de novo the trial court’s application of the law. State v.
Lucas, 199 Ariz. 366, 368, ¶ 6, 18 P.3d 160, 162 (App. 2001). We will not
reverse a trial court's denial of a Batson challenge unless it is clearly
erroneous. State v. Newell, 212 Ariz. 389, 400, ¶ 52, 132 P.3d 833, 844
(2006).

¶13            Racially discriminatory use of a peremptory strike violates
the Equal Protection Clause of the Fourteenth Amendment of the United
State Constitution. Batson, 476 U.S. at 89. A Batson challenge is used to
determine if a prohibited strike has been made and involves a three-step
process: first, the opponent of the strike must make a prima facie showing
of racial discrimination; second, if a prima facie showing is made, the
striking party must articulate a facially race-neutral explanation for the
strike; and third, if such an explanation is articulated, the opponent must
show the facially-neutral explanation is merely a pretext for purposeful


2   Batson v. Kentucky, 476 U.S. 79 (1986)



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                          STATE v. MURRIETTA
                           Decision of the Court

discrimination. Id. at 93–94, 97-98; State v. Murray, 184 Ariz. 9, 24, 906 P.2d
542, 557 (1995) (citing Purkett v. Elem, 514 U.S. 765, 767 (1995)).

¶14            Here, the trial court denied Murrietta’s Batson challenge at
the first step based upon a finding that Murrietta failed to establish a
prima facie case of discrimination. To establish a prima facie case, a
defendant must show facts and other relevant circumstances sufficient to
raise an inference of purposeful discrimination. Batson, 476 U.S. at 96.

¶15            As argued below and re-urged on appeal, the sole basis for
Murrietta’s claim is that the prosecutor used a peremptory challenge to
remove the only Black prospective juror from the venire panel. In State v.
Johnson, 183 Ariz. 623, 633, 905 P.2d 1002, 1012 (App. 1995), this Court
recognized that “a prima facie case can be established by showing that the
prosecutor used a peremptory challenge to remove the only person of the
same ethnicity as the defendant.” Murrietta, however, is Hispanic, not
Black. Under these circumstances, the fact that the prosecutor struck the
only Black prospective juror on the venire panel does not, in and of itself,
establish a prima facie case of racial discrimination. See Crittenden v. Ayers,
624 F.3d 943, 955-56 (9th Cir. 2010) (noting “’[t]he fact that the juror was
the one Black member of the venire does not, in itself, raise an inference of
discrimination’ because ‘it is not per se unconstitutional, without more, to
strike one or more Blacks from the jury’”) (quoting United States v.
Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)). Furthermore, though we
are unable to discern the racial makeup of the entire jury from the record,
we note that other persons with Hispanic surnames remained on the jury.
“The presence of minority group members on the jury undermines an
inference that the State exercised its strikes in a racially-discriminatory
fashion.” State v. Thompson, 190 Ariz. 555, 557, 950 P.2d 1176, 1178 (App.
1997).

¶16            Murrietta contends a comparative examination of
similarities in voir dire answers by the Black juror and other jurors who
were seated supports his claim that the State’s peremptory strike was
exercised with discriminatory intent. We decline to engage in such a
comparative analysis because the alleged similarities were never
presented to the trial court. State v. Medina, 232 Ariz. 391, 405, ¶ 48, 306
P.3d 48, 62 (2013). On this record, we cannot say the trial court clearly
erred in ruling Murrietta failed to make the requisite prima facie showing
of discriminatory intent to warrant an inquiry into the prosecutor's
reasons for striking the Black prospective juror.




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                        STATE v. MURRIETTA
                         Decision of the Court

                            CONCLUSION

¶17          For the foregoing reasons, we affirm Murrietta’s conviction
and sentence on Count 3 for resisting arrest. We further remand the
matter of the aggravated assault charge in Count 2 to the trial court for
further proceedings consistent with this decision.




                                 :mjt




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