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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                      JOSE VALENZUELA, Appellant.

                             No. 1 CA-CR 16-0909
                               FILED 3-8-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-001562-001
                 The Honorable Pamela S. Gates, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
                         STATE v. VALENZUELA
                           Decision of the Court



                      MEMORANDUM DECISION

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


H O W E, Judge:

¶1            Jose Valenzuela appeals his convictions and sentences for
multiple counts of sexual abuse, child molestation, and attempted child
molestation. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            One night in February 2013, Valenzuela committed sexual
offenses against B.V., his 11-year-old daughter. The next morning,
Valenzuela continued the sexual offenses. B.V. told her mother two weeks
later what had occurred, and B.V.’s mother called the police. While the
police were investigating Valenzuela, B.V.’s older sister, R.V., disclosed that
Valenzuela had also committed sexual offenses against her on multiple
occasions beginning when she was 7 and continuing until she was 11.

¶3            Both daughters testified at trial to Valenzuela’s sexual
offenses. After trial, the jury found Valenzuela guilty of five counts of
sexual abuse under A.R.S. § 13–1404; two counts of attempted child
molestation under A.R.S. § 13–1410; one count of child molestation under
A.R.S. § 13–1410; and one count of sexual conduct with a minor under
A.R.S. § 13–1405, all dangerous crimes against children. The jury also found
Valenzuela guilty of one count of furnishing obscene or harmful items to a
minor under A.R.S. § 13–3506.

¶4           The trial court sentenced Valenzuela to prison terms for each
of these counts with the longest being life without the possibility of
“parole”1 until after 35 calendar years for the sexual conduct with a minor
count. Valenzuela timely appealed.


1      Although the court’s oral pronouncement of this count’s sentence
imposed life without suspension of sentence, probation, pardon, or release
for 35 years, the sentencing minute entry imposed life without the
possibility of “parole” for 35 years. The Arizona Legislature, however,



                                      2
                         STATE v. VALENZUELA
                           Decision of the Court

                               DISCUSSION

¶5              Valenzuela argues that his convictions and sentences under
the sexual abuse and child molestation statutes, A.R.S. §§ 13–1404 and
–1410, should be vacated because the statutes are unconstitutional.
Valenzuela argues specifically that the statutes unconstitutionally shift the
burden of proving lack of sexual motivation to a defendant and presume a
defendant’s culpability and guilt. Although Valenzuela failed to challenge
the statutes’ constitutionality below, we have discretion to consider
constitutional arguments raised for the first time on appeal. See Marquette
Venture Partners II, L.P. v. Leonesio, 227 Ariz. 179, 185 ¶ 24 (App. 2011) (“We
are not . . . prohibited from considering constitutional arguments raised for
the first time on appeal.”).

¶6            Notwithstanding our decision to consider Valenzuela’s
arguments, each of his arguments were considered and rejected by the
Arizona Supreme Court in State v. Holle, 240 Ariz. 300, 308–09 ¶¶ 38–44
(2016). Because our supreme court has expressly upheld both statutes’
constitutionality, we reject Valenzuela’s arguments. To the extent that
Valenzuela suggests we should follow May v. Ryan, 245 F. Supp. 3d 1145
(D. Ariz. 2017) (holding that Arizona’s child molestation statute violates a
defendant’s due process right), we decline his invitation. See State v. Cooney,
233 Ariz. 335, 341 ¶ 18 (App. 2013) (“Arizona’s courts are bound by the
decisions of our supreme court and we have no authority to modify or
disregard its rulings.”). As such, Valenzuela’s arguments are meritless and
no error occurred.




abolished parole in 1993 when it amended A.R.S. § 41–1604.06. See 1993
Ariz. Sess. Laws, ch. 255 § 86 (1st Reg. Sess.). As such, Valenzuela’s sentence
on this count is for life without the possibility of release on any basis until
35 years’ imprisonment. The sentence and minute entry are therefore
modified to reflect this change. See State v. Nelson, 131 Ariz. 150, 151 (App.
1981).


                                      3
                        STATE v. VALENZUELA
                          Decision of the Court

                             CONCLUSION

¶7           For the foregoing reasons, we affirm Valenzuela’s convictions
and sentences as modified.




                          AMY M. WOOD • Clerk of the Court
                          FILED:    JT

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