                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                  VERONICA SANCHEZ-EQUIHUA,
                          Appellant.

                      No. 2 CA-CR 2013-0003
                       Filed May 19, 2014


         Appeal from the Superior Court in Pima County
                      No. CR20113283002
           The Honorable Howard Hantman, Judge

                 VACATED AND REMANDED


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee

Law Offices of Cornelia Wallis Honchar, P.C., Tucson
By Cornelia Wallis Honchar
Counsel for Appellant
                 STATE v. SANCHEZ-EQUIHUA
                     Opinion of the Court


                              OPINION

Presiding Judge Kelly authored the opinion of the Court, in which
Judge Eckerstrom concurred and Judge Espinosa dissented in part
and specially concurred in part.


K E L L Y, Presiding Judge:

¶1           Veronica   Sanchez-Equihua      appeals    from    her
convictions and sentences for two counts of possession of a narcotic
drug for sale and one count of possession of drug paraphernalia.
She argues her constitutional right to compulsory process was
violated because a term in her codefendants’ plea agreements
prevented them from testifying on her behalf and the trial court
erred by failing to compel the witnesses to testify.1 We vacate her
convictions and sentences and remand for a new trial.

               Factual and Procedural Background

¶2           We view the facts in the light most favorable to
upholding Sanchez-Equihua’s convictions and sentences. See State v.
Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App. 2013). In
September 2011, police discovered powder cocaine and cocaine base
in a car driven by Jahziel Gutierrez. Suspecting the drugs had been
supplied from an apartment shared by Sanchez-Equihua and her
husband Ivan Orantes-Lerma, police searched the apartment the
same day. In the kitchen they found cocaine and cocaine base in a
lunch bag and a small bag on the counter. They also discovered two
drug-ledger notebooks in the apartment. Police did not see
Sanchez-Equihua during their surveillance of the apartment, and no
residents were home when the apartment was searched.



      1 Sanchez-Equihuaalso argues, and the state concedes, the
imposition of a criminal restitution order constituted an illegal
sentence. Because we vacate her convictions and sentences, we do
not reach this issue.


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                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

¶3           Sanchez-Equihua, Orantes-Lerma, and Gutierrez were
charged with multiple offenses based on the drugs seized that day.
Orantes-Lerma and Gutierrez each pled guilty to one count of
attempted possession of a narcotic drug for sale and were sentenced
accordingly. Both plea agreements included the following “special
term”:     “Defendant agrees that he/she has no exculpatory
information as to any codefendant(s).” 2 Each agreement also
provided that the defendant waived all double jeopardy and statute
of limitations claims, so that “[i]f the defendant fail[ed] to comply
with any of the provisions or conditions of th[e] plea agreement at
any time before or after sentencing,” the agreement would “become
void,” and the state would be “free to prosecute the defendant for all
charges.”

¶4            Sanchez-Equihua proceeded to a jury trial. The trial
court asked the parties to address an issue that had been raised
“concerning the codefendant[s’] Fifth Amendment rights,”
explaining “both [had] signed pleas indicating they had no
exculpatory evidence,” but that “[t]hey now want to exculpate
[Sanchez-Equihua].” Counsel for the state did not take a definitive
position on whether exculpatory testimony by Orantes-Lerma or
Gutierrez would constitute a breach of their agreements, but stated
she thought the clauses were material and enforceable. She told the
court it was “a legal possibility” the state would seek to withdraw
the pleas if they testified, and acknowledged she had conveyed that
possibility to codefendants’ counsel. Sanchez-Equihua argued the
codefendants no longer could validly invoke their Fifth Amendment
privilege because their convictions and sentences were final and
they had waived their right against self-incrimination in this case.

¶5          Orantes-Lerma and Gutierrez appeared before the trial
court on the second day of trial. Orantes-Lerma had stated in a
presentence report that Sanchez-Equihua “did not know about the
drugs.” But his counsel told the court she believed “if [Orantes-
Lerma] were to testify on the stand at this point it would be a
violation of his plea bargain and the State would be able to

      2Theterms of Orantes-Lerma’s agreement also provided the
agreement was contingent upon Sanchez-Equihua accepting a plea.


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                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

withdraw from the plea,” placing him in jeopardy. Orantes-Lerma
ultimately invoked his Fifth Amendment privilege “so as not to have
to start once again and be tried again.” Gutierrez similarly stated he
had decided “[n]ot to testify because [he did not] want to break [his]
plea.” The court stated the plea agreement clause was “a legitimate
prosecutorial tool . . . when anticipating a problem with the
codefendant exonerating [an]other defendant post plea and post
sentence.” It concluded it could not compel Orantes-Lerma or
Gutierrez to testify.

¶6           After the jury found her guilty, Sanchez-Equihua was
sentenced to concurrent terms of imprisonment totaling three years.
This appeal followed.

                        Plea Agreement Term

¶7           Sanchez-Equihua      argues       the    no-exculpatory-
information term in her codefendants’ plea agreements violated her
Sixth Amendment right to compulsory process to call witnesses in
her favor. See U.S. Const. amend. VI; see also Ariz. Const. art. II, § 24
(“In criminal prosecutions, the accused shall have the right . . . to
have compulsory process to compel the attendance of witnesses in
his own behalf.”). We review constitutional issues and purely legal
questions de novo. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790
(App. 2007).

¶8            A criminal defendant has a Sixth Amendment right to
“present his own witnesses to establish a defense.” Washington v.
Texas, 388 U.S. 14, 18-19 (1967). The United States Supreme Court
has recognized that the right to offer witness testimony and to
compel witnesses’ attendance when necessary is so fundamental
that it is incorporated into the Fourteenth Amendment’s Due
Process Clause and therefore applies to the states. Id. at 17-19. “It is
well established that ‘substantial government interference with a
defense witness’s free and unhampered choice to testify amounts to
a violation of due process.’” Earp v. Ornoski, 431 F.3d 1158, 1170 (9th
Cir. 2005), quoting United States v. Vavages, 151 F.3d 1185, 1188 (9th
Cir. 1998); see also Webb v. Texas, 409 U.S. 95, 97-98 (1972).




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                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

¶9          The state emphasizes that a witness’s Fifth Amendment
right to refuse to testify can “trump” a defendant’s Sixth
Amendment right to compel the witness’s testimony. State v. Carlos,
199 Ariz. 273, ¶ 18, 17 P.3d 118, 123 (App. 2001). We agree, and
Sanchez-Equihua concedes that this is an accurate statement of law.
However, it does not answer the issue presented in this case.
Sanchez-Equihua does not, as the state suggests, argue she should
have been able to compel the codefendants to waive their Fifth
Amendment privilege.         Instead, she contends the state
impermissibly used its power to substantially interfere with their
decision whether to testify.

¶10          Arizona case law has not addressed directly whether
the specific plea agreement term challenged in this case violates a
defendant’s Sixth Amendment rights. However, in State v. Fisher,
176 Ariz. 69, 859 P.2d 179 (1993), our supreme court addressed the
validity of a similar plea agreement condition that compelled a
witness to testify consistently with a previous statement.

¶11          In that case, defendant James Fisher and his wife, Ann,
both had been charged with murder. Id. at 71, 859 P.2d at 181. Ann
signed an agreement allowing her to plead guilty to a reduced
charge if her testimony at James’s trial did “not vary substantially in
relevant areas [from] statements previously given investigative
officers.” Id. At James’s trial, Ann invoked her Fifth Amendment
rights and refused to testify. Id. At a later hearing on James’s
motion for a new trial, Ann testified about conflicting statements she
had made about whether she or James had killed the victim. Id. at
72, 859 P.2d at 182. She stated she had invoked her Fifth
Amendment right at his trial based equally on her counsel’s advice
and on her desire to preserve her agreement with the state. Id.

¶12           The Fisher court concluded that, although a plea
agreement may properly be conditioned upon truthful and complete
testimony, “consistency provisions,” including the one contained in
the wife’s agreement, were unenforceable. Id. at 73, 859 P.2d at 183.
It first noted the state’s “ethical responsibility to ‘scrupulously avoid
any suggestion calculated to induce the witness to suppress or
deviate from the truth, or in any degree to affect his free and
untrammeled conduct when appearing at the trial or on the witness

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                   STATE v. SANCHEZ-EQUIHUA
                       Opinion of the Court

stand.’” Id., citing State v. Fisher, 141 Ariz. 227, 244 n.5, 686 P.2d 750,
767 n.5 (1984) and ABA Canons of Prof’l Ethics 39. And it pointed
out that consistency provisions “taint the truth-seeking function of
the courts by placing undue pressure on witnesses to stick with one
version of the facts regardless of its truthfulness” and “frustrate the
jury’s duty to determine the credibility of the witness.” Id. at 74, 859
P.2d at 184. The court acknowledged that, although Ann had not
testified at James’s trial, she arguably “was prevented from
supplying evidence helpful to the defendant by reason of the
improper . . . provision.” Id. It cited with approval cases from other
jurisdictions holding that “due process prohibits a plea agreement
from conditioning leniency upon anything other than truthful and
complete testimony,” and ultimately concluded “the prosecution
should have bargained with Ann only for truthful and accurate
testimony.” Id. at 73, 74, 859 P.2d at 183, 184.

¶13           In State v. Rivera, 210 Ariz. 188, ¶ 1, 109 P.3d 83, 84
(2005), our supreme court clarified that a plea-agreement term
avowing that a previous statement was true did not violate due
process when the agreement also required truthful testimony. The
court determined Rivera’s rights were adequately protected because
the witnesses’ plea agreements in his case “neither compel[led] the
witnesses to disregard their oaths of truthfulness nor b[ound] them
to a particular script or result.” Id. ¶ 18. It found that, under the
terms of the agreement, the witness had a “paramount obligation to
testify truthfully” and encouraged the state to ensure that witnesses
signing such agreements in the future understood that obligation.
Id. ¶¶ 26, 29.

¶14          Other jurisdictions have analyzed plea-agreement terms
more similar to the ones at issue in this case; most of those cases
involve “no-testimony” clauses, in which the pleading defendant
agrees not to testify in regard to another defendant. All of the cases
we have found that address this issue have concluded such
agreements violate due process. E.g., Maples v. Stegall, 427 F.3d 1020,
1033-34 (6th Cir. 2005) (plea requirement to not testify on
codefendant’s behalf impaired defense and may have violated right
to compulsory process); United States v. Henricksen, 564 F.2d 197, 198
(5th Cir. 1977) (agreement not to testify in any manner regarding


                                    6
                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

codefendant constituted substantial interference with witness’s
choice to testify and violated due process); State v. Asher, 861 P.2d
847, 850-51 (Kan. Ct. App. 1993) (threatening witness with denial of
plea agreement if he testified violated due process rights and
hindered jury “in its search for truth”); Bhagwat v. State, 658 A.2d
244, 249 (Md. 2002) (plea agreement term inducing or encouraging
witness’s silence denies right to compulsory process); State v. Fort,
501 A.2d 140, 144 (N.J. 1985) (“no testimony” agreement violated
rights to due process and to present favorable witnesses). The basic
principles of due process relied upon in these cases are consistent
with those articulated in Fisher. As the court noted in Fort,
“although inevitably an adversarial proceeding, [a trial] is above all
else a search for truth[; t]hat quest is better served when the State
does not suppress the truth by sealing the lips of witnesses.” 501
A.2d at 144.

¶15          We conclude the no-exculpatory-information clauses in
the codefendants’ plea agreements, as they were applied in this case,
substantially interfered with their “free and unhampered choice to
testify,” thereby violating Sanchez-Equihua’s right to compulsory
process. See Earp, 431 F.3d at 1170. In contrast to the agreement
upheld in Rivera, the agreements signed by Orantes-Lerma and
Gutierrez did not include a term establishing or clarifying a
“paramount obligation to testify truthfully.” 210 Ariz. 188, ¶ 26, 109
P.3d at 88-89.

¶16          Although the clauses in this case did not explicitly
preclude the pleading defendants from testifying, the state
acknowledged their purpose was to prevent codefendants from
taking a plea and then “tak[ing] the fall” for another codefendant.
Consistent with that purpose, the prosecutor notified the potential
witnesses their testimony could lead to reinstated charges,3 and both
witnesses indicated their decision not to testify was motivated by a
desire to avoid that risk. In this way, the clauses, like the improper

      3We  find no support for the state’s suggestion that in order for
Sanchez-Equihua to establish a violation of her constitutional rights,
she was required to show the prosecutor was “acting in a[]
vindictive or intimidating manner.”


                                  7
                   STATE v. SANCHEZ-EQUIHUA
                       Opinion of the Court

“consistency clauses” discussed in Fisher, “taint[ed] the truth-
seeking function of the court[] by placing undue pressure on [the]
witnesses to stick with one version of the facts regardless of its
truthfulness.” 176 Ariz. at 74, 859 P.2d at 184. And, by preempting
Sanchez-Equihua’s ability to present her witnesses, the agreements
undermined the jury’s ability to make its own determination of the
witnesses’ credibility. See id.; see also Rivera, 210 Ariz. 188, ¶ 11, 109
P.3d at 85 (cross-examination “appropriate tool” for probing
witness’s truthfulness; should expose any motivation to lie).
Therefore, Sanchez-Equihua is entitled to a new trial. See Carlos, 199
Ariz. 273, ¶ 27, 17 P.3d at 125.

¶17          In a related argument, Sanchez-Equihua contends the
trial court abused its discretion by failing to compel her
codefendants to testify. Although we need not resolve this issue
separately because we already have determined Sanchez-Equihua is
entitled to a new trial, we address the subject briefly because it is
likely to recur on remand. See State v. May, 210 Ariz. 452, ¶ 1, 112
P.3d 39, 40 (App. 2005).

¶18           If a witness validly invokes his Fifth Amendment right
against self-incrimination, the defendant’s right to compulsory
process must yield to the witness’s privilege to remain silent. State
v. Rosas-Hernandez, 202 Ariz. 212, ¶ 10, 42 P.3d 1177, 1181 (App.
2002). However, “to validly invoke Fifth Amendment rights, a
witness must demonstrate a reasonable ground to apprehend
danger from being compelled to testify.” Id. ¶ 11. Generally, when
“there can be no further incrimination,” such as when a judgment
and sentence have become final, “there is no basis for the assertion
of the privilege.” Mitchell v. United States, 526 U.S. 314, 326 (1999).

¶19         It appears the trial court’s decision whether to compel
Orantes-Lerma and Gutierrez to testify was based on its belief that
their charges could be reinstated as a result of any testimony on
Sanchez-Equihua’s behalf. For the reasons stated above, however, it
would be error to allow the state to revoke the codefendants’ plea
agreements based on their decision to testify truthfully at Sanchez-
Equihua’s trial. Therefore, to the extent the codefendants on remand
seek to invoke their privilege to remain silent, we conclude they
cannot do so based on the no-exculpatory-information clauses

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                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

because the clauses do not constitute a “reasonable ground to
apprehend danger” of further incrimination. Rosas-Hernandez, 202
Ariz. 212, ¶ 11, 42 P.3d at 1181.

               The Dissent and Special Concurrence

¶20          Our dissenting and specially concurring colleague
focuses on the plea agreement term and how it should have been
interpreted. However, the issue we are asked to decide in this
appeal is not whether the term on its face necessarily results in a
constitutional violation but whether Sanchez-Equihua’s rights were
violated by its interpretation and application in this case. Our
resolution depends on the record, including the state’s
representation that the term was inserted for the purpose of
hindering particular testimony (precisely the type of testimony
suggested by Orantes-Lerma’s presentence report—“tak[ing] the
fall” for the defendant by accepting full responsibility), the state’s
opinion that the term was material and enforceable, its
communication to the defendants that there was a risk of reinstated
charges if they testified, and the codefendants’ statements on the
record that this was the reason for their invocations.

¶21          The dissent suggests the exculpatory evidence term in
the codefendants’ plea agreements was included to ensure the state’s
compliance with its obligations under Brady v. Maryland, 373 U.S. 83
(1963). But, as discussed above, the state’s actual use of the term
belies the suggestion that its purpose was to disclose all exculpatory
evidence to Sanchez-Equihua. Given that the facts underlying the
prosecution here would likely generate a motive for one
codefendant to exculpate another—including that Sanchez-Equihua
was the spouse of one of the codefendants—and given the state’s
actual use of the exculpatory evidence clause when Sanchez-
Equihua sought to secure the testimony of the codefendants—we
think it more likely the term was placed in the agreement to address
the predictable risk that the pleading codefendants might exonerate




                                  9
                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

any non-pleading codefendants after securing their own sentence
reductions.4

¶22           Our view differs from that of our dissenting colleague
in that we believe the assessments of the trial court, the state, and
the codefendants with the aid of their counsel—who all concluded
the terms presented sufficient risk of material breach to affect the
codefendants’ decision to testify—were reasonable and could recur.
Contrary to our colleague’s contention that the agreements did not
“set forth any consequences for any potential or perceived violation
of the codefendants’ representations,” they explicitly provided that
“[i]f the defendant fail[ed] to comply with any of the provisions or
conditions of th[e] plea agreement at any time before or after
sentencing,” the agreement would “become void,” and the state
would be “free to prosecute the defendant for all charges.” The
threat is not an empty one: even after sentencing, when a defendant
violates a plea agreement, the court may set aside the judgment and
plea and reinstate the original information. See Ricketts v. Adamson,
483 U.S. 1, 7-8 (1987) (affirming Arizona court’s conviction of
defendant for first-degree murder after he had been sentenced for
lesser offense pursuant to plea agreement but refused to testify at
codefendants’ retrial); Adamson v. Superior Court, 125 Ariz. 579, 583-
84, 611 P.2d 932, 936-37 (1980).

¶23          We agree with our colleague that the trial court’s
interpretation of the agreement ultimately was incorrect; as this
opinion now clarifies, the terms are unenforceable to the extent they
prohibit truthful testimony. But we cannot conclude that, because
the terms should not have been interpreted as they were, and the
constitutional violation should not have happened, that there was
no violation. Instead, we answer the question Sanchez-Equihua has
presented on appeal, which requires us to consider how the term
was used in this case and what ultimate effect it had on

      4 Of   course, as Rivera makes clear, there are other ways,
including redrafting the provision in question, by which the state
may achieve this legitimate goal without “frustrat[ing] the jury’s
duty to determine the credibility of the witness[es].” Fisher, 176
Ariz. at 74, 859 P.2d at 184.


                                 10
                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

Sanchez-Equihua’s ability to present her defense. It is up to the state
to decide whether and how it uses such terms in the future. This
opinion merely clarifies that, if the terms ultimately are used to
hinder testimony, as they were in this case, a constitutional violation
has occurred.

¶24          Our colleague contends we have taken Fisher “too far”
by applying it in this case because the agreement here did not
require consistent testimony. This narrow approach discounts
significant aspects of Fisher and the overall body of case law upon
which we have relied, which reflects well-settled principles of due
process prohibiting interference with witness testimony regardless
of form. See Fisher, 176 Ariz. at 74, 859 P.2d at 184 (witness
prevented from supplying testimony by reason of improper plea
agreement provision; agreement may be conditioned only on
truthful and accurate testimony); see also, e.g., Washington, 388 U.S. at
22-23 (rule disqualifying accomplice testimony violates right to
compulsory process); Earp, 431 F.3d at 1170 (test for violation of due
process is whether government has interfered with free and
unhampered choice to testify); Henricksen, 564 F.2d at 198
(agreement not to testify interfered with witness’s choice to testify
and violated due process); Bhagwat, 658 A.2d at 249 (plea agreement
term inducing or encouraging witness’s silence denies right to
compulsory process); Fort, 501 A.2d at 144 (“no testimony”
agreement violated defendant’s due process rights). Rather than
“broadly invalidat[ing] any provision conceivably construed as
influencing a witness’s decision to testify,” as our colleague
suggests, we have simply applied the established rule that prohibits
the government from substantially interfering with a witness’s
unhampered choice to testify. See Earp, 431 F.3d at 1170.

                       Harmless Error Review

¶25         The state argues any error was harmless because even
absent the no-exculpatory-information clause, the codefendants
would have invoked their Fifth Amendment privilege against self-
incrimination and refused to testify and because the evidence of
Sanchez-Equihua’s guilt was overwhelming.




                                   11
                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

¶26           “We must reverse a conviction unless we are ‘confident
beyond a reasonable doubt that the error had no influence on the
jury’s judgment.’” Carlos, 199 Ariz. 273, ¶ 24, 17 P.3d at 124, quoting
State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). The
determination must be made on a case-by-case basis. Id. The state
has the burden to prove any error was harmless. State v. Henderson,
210 Ariz. 561, ¶ 18, 115 P.3d 601, 607 (2005).

¶27           The record contradicts the state’s assertion that “even in
the absence of the plea agreements, the codefendants still would
have asserted their Fifth Amendment privilege against self-
incrimination.” First, both codefendants stated on the record that
they were invoking their Fifth Amendment right in order to avoid
breaching their plea agreements. Second, it is apparent the trial
court’s decision not to compel the witnesses’ testimony was based,
at least in part, on its erroneous belief that the codefendants faced a
risk of reinstated charges because the exculpatory-information
clauses could be enforceable to prohibit testimony.

¶28          Nor has the state carried its burden to establish any
error was harmless by presenting overwhelming evidence of
Sanchez-Equihua’s guilt. Without further discussion or any citation
to evidence in the record, it makes a single, conclusory statement
that “the evidence against Sanchez-Equihua was overwhelming,
such that the testimony of the codefendants would not have offered
her much help.” Based on our review of the record, we conclude the
evidence, although sufficient, was not overwhelming.5 And we will
not speculate about the weight the jury may have given any
exculpatory testimony by Orantes-Lerma or Gutierrez. Therefore,
we cannot conclude beyond a reasonable doubt that the violation of


      5The  evidence consisted of the cocaine and cocaine base found
in a lunch bag and small plastic baggie while Sanchez-Equihua was
not at home, and her handwriting on a few pages of two notebooks
used as drug ledgers, which were found in the apartment. Sanchez-
Equihua testified she did not know the notebooks were drug ledgers
and her husband had gotten upset and nervous when he saw her
writing in one.


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                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

Sanchez-Equihua’s compulsory process rights had no influence on
the convictions. See Carlos, 199 Ariz. 273, ¶ 24, 17 P.3d at 124.

                             Disposition

¶29          For the foregoing reasons, we vacate Sanchez-Equihua’s
convictions and sentences and remand the case for a new trial.


E S P I N O S A, Judge, dissenting in part, specially concurring in
part:

¶30          I respectfully disagree with a significant portion of the
majority’s reasoning because, in my view, State v. Fisher, 176 Ariz.
69, 859 P.2d 179 (1993), is too far removed from the situation at hand
to be embraced as controlling authority. The majority also implicitly
creates a broad rule for the narrow issue involved in this case and
unnecessarily invalidates a legitimate and reasonable term of the
plea agreements here. I concur in the result to the extent that I agree
the codefendants may not invoke their privilege to remain silent
based on the no-exculpatory-information clauses, but not because
the clause, or its use here, is unconstitutional, and I too would
remand this case. In my view, however, we should do so for the
trial court to determine whether the state intended to withdraw
from the plea agreements if either or both codefendants were to
testify on the defendant’s behalf, whether such withdrawal could be
legally accomplished under the terms of these agreements, and if
not, as I believe to be the case for the reasons outlined below,
whether one or both codefendants would testify at a new trial. If
they would decline, a potential eventuality the majority does not
address, no new trial would be warranted and Sanchez-Equihua’s
convictions should stand.

¶31          In Fisher, the agreement with the cooperating
codefendant specifically contemplated her testimony at trial and
included an express “condition” that if “called as a witness in the
trial of James Fisher . . . her testimony w[ould] not vary substantially
in relevant areas to statements previously given investigative
officers.” 176 Ariz. at 71, 859 P.2d at 181 (alteration in Fisher). This
clause was held to be an unenforceable “consistency provision” that


                                  13
                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

tended to coercively script the cooperating witness’s testimony in
violation of due process. Id. at 74-75, 859 P.2d at 184-85. As the
majority points out, other courts have come to similar conclusions
on comparable facts to Fisher, involving express strictures on trial
testimony in every case cited. But in sharp contrast to such
“testimonial” plea agreements, the form of agreement used here
merely provided: “Defendant agrees that he/she has no exculpatory
information as to any co-defendant.” It is clear that no testimony by
either codefendant in this case was required or sought. The
majority’s decision today, however, could broadly invalidate any
provision conceivably construed as influencing a witness’s decision
to testify. Given the realities of plea bargaining and the sometimes
complex issues involved, this takes Fisher too far.

¶32          Significantly, there is nothing in the codefendants’ plea
agreements conditioning their plea bargains on any testimony, let
alone consistent testimony at the defendant’s trial. Cf. Fisher, 176
Ariz. at 72-73, 859 P.2d at 182-83 (“avowal” by cooperating witness
that testimony “will not vary substantially” from previous
statements to law enforcement). Nor do the agreements set forth
any consequences for any potential or perceived violation of the
codefendants’ representations that they “ha[d] no exculpatory
information.”     Although the majority insists that language
pertaining to a “fail[ure] to comply with any of the [agreement’s]
provisions or conditions” would permit the state to withdraw from
the agreement if a codefendant later provided such information, on
closer examination, this interpretation is inconsistent with our
precedents and difficult to justify.

¶33          It is well-established that once a plea agreement has
been accepted by the parties and court, the state generally may not
rescind the agreement and reinstate the prosecution because
jeopardy has attached. See Aragon v. Wilkinson, 209 Ariz. 61, ¶ 7, 97
P.3d 886, 889 (App. 2004); Coy v. Fields, 200 Ariz. 442, ¶ 5, 27 P.3d
799, 801 (App. 2001); Dominguez v. Meehan, 140 Ariz. 329, 331, 681
P.2d 912, 914 (App. 1983). But when a defendant breaches a material
term of the agreement, he waives double jeopardy, and the state
may be permitted to withdraw from the plea. See Coy, 200 Ariz. 442,
¶ 5, 27 P.3d at 801. This waiver is strictly limited, however, to the


                                 14
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                      Opinion of the Court

specific circumstances identified in the agreement as permitting
withdrawal. Thus, “the pivotal question . . . is whether [defendant]
breached the agreement.” Id. ¶ 6; see also Aragon, 209 Ariz. 61, ¶ 11,
97 P.3d at 890 (reversing grant of state’s motion to withdraw after
change in sentencing law because defendant did not actually breach
any term of the plea agreement). Here, because no testimony was
required or, for that matter, prohibited by the plea agreements as in
Bhagwat v. State, 658 A.2d 244, 249 (Md. 1995), cited by the majority,
it is difficult to see how either codefendant’s testifying in the
defendant’s trial could constitute a “fail[ure] to comply” and, more
importantly, be deemed a material breach of their plea agreements.

¶34          It should be emphasized that the provision at issue
here—presented in the agreement as a “special term”—merely
described the codefendants’ asserted lack of exculpatory
information. Nowhere is this claim made a condition of the plea,
unlike the term directly following it in Orantes-Lerma’s agreement,
which specifically states: “Plea is contingent on co-defendant,
Veronica Sanchez-Equihua, accepting plea.” 6           Absent any
requirement or compulsion for the codefendants to testify, it appears
the special term primarily served a strategic purpose of
documenting and preserving the codefendants’ statements in a
significant manner as part of their pleas, and helped ensure
compliance with the state’s obligations under Brady v. Maryland, 373
U.S. 83 (1963).

¶35           I do not merely “suggest” the latter purpose as posited
by my colleagues. Indeed, contrary to the majority’s speculation, the
prosecutor expressly stated in clear and certain terms, on the record,
that this clause was “put in so that it alerts defense counsel . . . [and
the pleading] defendant that if they have exculpatory information[,]
that’s something they need to provide to us.” The prosecutor
continued,


      6 It is notable the state could have successfully sought to
withdraw from the plea agreements on this clear basis had it wished
to, which had nothing to do with the no-exculpatory-information
term at issue here.


                                   15
                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

            what typically happens is a defense
            attorney is presented with one of these
            agreements, and talks to their client and
            finds out they do have exculpatory
            information. They contact our office. . . .
            Then . . . that information is investigated.
            Sometimes it results in a dismissal of
            charges against [a] codefendant[.]

Neither the trial court nor any of the three defense counsel present
questioned or refuted that legitimate motive. And it was in this
context that, rather than ”represent[ing] that the term was inserted
for the purpose of hindering particular testimony,” the prosecutor
further added

            [B]ut it’s also designed to protect us in
            situations where . . . there’s no exculpatory
            information, but you have one codefendant
            who takes a plea and then decides to take
            the fall for another codefendant. . . . I don’t
            believe [this type of clause] induces
            anybody to testify in a particular way or to
            not testify, and . . . as the Court’s heard, a
            couple times now, honestly, it makes no
            difference to me whether or not these
            people testify.

Indeed, the record reflects that the prosecutor stressed, on no fewer
than three occasions, that she had no objection to the codefendants
testifying, noting there was “plenty of information . . . to impeach
them,” and stating, “If they testify, I cross-examine them. That’s
fine.”    Such “information” included the codefendants’ prior
statements and was the fair and permissible “actual use” in this case
of the special term in the plea agreements. See State v. Campoy, 220
Ariz. 539, ¶ 24, 207 P.3d 792, 801 (App. 2009) (rule barring admission
of statements made in connection with plea bargain designed to
promote candor during process; “it is not intended to provide
defendants with a shield from the consequences of providing law
enforcement officials with untruthful information in order to obtain
a favorable plea agreement”).

                                  16
                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

¶36          As the majority observes, the prosecutor also stated
there was a “possibility that should they testify and should [her]
office review this and feel a material portion of the plea was
violated, there’s a chance” her office could seek to withdraw the plea
agreements. But that compounded conjecture should carry little
weight. As explained above, construing the special term in question
as a material condition of a plea agreement that neither requires nor
prohibits testimony is problematic. And case law would strongly
suggest that a merely arguable breach of an ambiguous provision7
would not subject a defendant to any danger of rescission and
double jeopardy. See Aragon, 209 Ariz. 61, ¶ 12, 97 P.3d at 890
(alleged violation of plea bargain’s purpose would not be inferred to
constitute a breach absent defendant’s express agreement); Coy, 200
Ariz. 442, ¶¶ 9-10, 27 P.3d at 802 (no withdrawal permitted where
alleged breach did not materially alter plea bargain).

¶37          Furthermore, notwithstanding comments by counsel
and an unsworn statement by codefendant Orantes-Lerma, the
substance of what either codefendant might actually testify to under
oath on the witness stand is a matter of additional conjecture. But
even if Orantes-Lerma were to provide exculpatory testimony on
behalf of Sanchez-Equihua, his spouse, consistent with a post-plea
statement he apparently made during his presentence interview,8 he
could not be found in violation of the special term of his plea
agreement unless the state could establish that he clearly had
misrepresented his knowledge at the time he entered into the
agreement, rather than later on the witness stand. In my view, that
scenario is too speculative and this issue too far afield from Fisher to
conclude that the special term in question is unconstitutionally

      7At one point, counsel for codefendant Gutierrez noted that if
the codefendants were to testify, and if they “provide[d] information
[the prosecutor]’s supervisor would believe is exculpatory . . . and
attempts to set the plea aside, then I guess the next phase for us
would be . . . an argument [to] the Court about what’s exculpatory”?
      8During  a discussion with counsel, the trial court informed the
parties that the codefendant’s “presentence report . . . says that he
exonerates her, she had nothing to do with it, she was just there.”


                                  17
                  STATE v. SANCHEZ-EQUIHUA
                      Opinion of the Court

coercive and improper. Cf. State v. Rivera, 210 Ariz. 188, ¶ 17, 109
P.3d 83, 86 (2005) (“All accomplice plea agreements put some
pressure on a cooperating witness.”); Coy, 200 Ariz. 442, n.4, 27 P.3d
at 801 n.4 (waiver of double jeopardy strictly limited to reasons
outlined in plea agreement); Dominguez v. Meehan, 140 Ariz. 329, 681
P.2d 912 (App. 1983) (same), approved, 140 Ariz. 328, 681 P.2d 911
(1984).

¶38           Finally, my colleagues imply that I have “focused” too
narrowly and “facially” on the plea agreement term at issue instead
of Sanchez-Equihua’s constitutional rights. But it is only through
the majority’s broad and speculative interpretation of that
ambiguous provision that it concludes there has been a
“constitutional violation” by the state. Contrary to the majority’s
suggestion, I do not ignore the record here, which includes the
codefendants’ voluntary representations in written plea agreements
and in court that they lacked exculpatory information, the absence of
any express condition in the plea agreements that could be
“violated” by either codefendant testifying at Sanchez-Equihua’s
trial, and, how exactly her Sixth Amendment rights are abrogated by
the codefendants’ arguably superficial invocation of double
jeopardy here. This is not a case like Earp v. Ornoski, 431 F.3d 1158,
1168 (9th Cir. 2005), cited by the majority for the principle that the
government may not “substantially interfere” with a defense
witness’s choice to testify, in which the prosecutor threatened and
verbally abused a cooperating inmate witness, forced him to recant a
previous statement, and caused him to be transferred to a less
desirable jail facility. Though in a different context, the Supreme
Court has observed:           “[A] trial court may not ignore the
fundamental character of the defendant’s right to offer the testimony
of witnesses in his favor. But the mere invocation of that right
cannot automatically and invariably outweigh countervailing public
interests.” Taylor v. Illinois, 484 U.S. 400, 414 (1988).

¶39         Accordingly, although the parties generally presumed,
and the trial court found, that Sanchez-Equihua’s codefendants
could be placed in jeopardy as a result of the no-exculpatory-
information clause, thus depriving her of potential witnesses, a
closer examination of the plea agreements and our case law strongly


                                 18
                 STATE v. SANCHEZ-EQUIHUA
                     Opinion of the Court

suggests otherwise. I would therefore remand this case for the trial
court to reconsider its finding that jeopardy would attach if the
codefendants were to testify, taking specific offers of proof and
additional evidence if need be. 9 Although it is possible either or
both codefendants could potentially face additional consequences,
for example as a result of perjury charges if such were warranted,10
it would not be due to the special term in their agreements. If the
codefendants would nevertheless decline to testify, I would affirm
Sanchez-Equihua’s conviction.




      9When  this issue was discussed during a trial break, counsel
for Sanchez-Equihua noted “[r]ight now we’re dealing with
speculation. We have no idea if the state intends to pull these [plea
agreements].”
      10Atone point in the discussions, the prosecutor noted that the
codefendants had been placed under oath when they changed their
pleas, and might face “some sort of perjury charge if they said
something under oath and now they’re saying they didn’t.”


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