Court of Appeals of Arizona, First Division, Department E
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-006436-001 The Honorable Michael D. Jones, Retired Judge.
Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals/Capital Litigation Section and Michael T. O’Toole, Assistant Attorney General Attorneys for Appellee.
The Hopkins Law Office, P.C. Tucson by Cedric Martin Hopkins Attorney for Appellant.
SAMUEL A. THUMMA, Presiding Judge.
¶1 Defendant Jose Luis Carrillo appeals from his convictions and sentences for one count of second degree murder, a Class 1 dangerous felony, and three counts of aggravated assault, Class 3 dangerous felonies. Carrillo argues the superior court erred in denying his motion to dismiss a second indictment based on prosecutorial vindictiveness. Finding no error in that denial, his convictions and sentences are affirmed as modified.
FACTS AND PROCEDURAL HISTORY
¶2 The charges arise out of a May 2008 fatal brawl in a parking lot across from The Sky Lounge in Phoenix. The State initially charged Carrillo with one count of first degree murder of G.G. and one count of aggravated assault of J.C., and charged three co-defendants, Christian Molina, Oscar Morales-Carrillo and Walter Villaescusa, with one count of aggravated assault of G.G. The first trial, at which Carrillo, Molina, and Morales-Carrillo were tried together,  ended in a mistrial for Carrillo alone on June 27, 2011 after juror misconduct reduced the number of jurors from 12 to 11. At that time, the court set August 26, 2011 as the new "last day" without objection. On June 11, 2011, the court set a retrial to start August 15, 2011.
¶3 On July 8, 2011, a new indictment issued charging Carrillo with one count of first degree murder and three counts of aggravated assault. As with the original indictment, the new indictment alleged Carrillo committed aggravated assault by the use of a gun, a Class 3 dangerous felony, against J.C. (Count 3), but changed the theory of the offense from an allegation that he "caused a serious physical injury" to an allegation that he "caused a physical injury." The new indictment included two new counts of aggravated assault with the use of a handgun, each a Class 3 dangerous felony, alleging (in Count 1) that Carrillo placed J.C. "in reasonable apprehension of imminent physical injury" and (in Count 2) that Carrillo had "caused a physical injury" to G.G.
¶4 On July 25, 2011, Carrillo filed a motion to dismiss, claiming the new indictment was (1) "presumptively vindictive" by containing new, changed charges that increased the penalties that the State had not pursued previously and (2) intended to avoid Ariz. R. Crim. P. 8.2(c) speedy trial requirements and the August 15, 2011 new trial. Carrillo asked that the new indictment be dismissed with prejudice or, in the alternative, that the new indictment be consolidated for trial with the original indictment "with Counts 1, 2, and 3 [of the new indictment] dismissed." The State argued Carrillo had not made a prima facie showing of presumptive vindictiveness because the State was still prepared to go to trial on August 15 and because the mistrial was caused by juror misconduct. The State also provided what it described as objective, non-vindictive reasons for the new charges and the change in theory on the aggravated assault in Count 3.
¶5 After hearing argument, the superior court denied Carrillo's motion, finding that, "even though it may appear at first glance that a presumption of vindictiveness should be imposed, " considering "the totality of the circumstances, " the presumption "dissipates, evaporates."
¶6 The case went to trial on the new indictment starting August 15, 2011. After considering the evidence, instructions and argument, the jury rendered a verdict on October 24, 2011. Although finding Carrillo guilty of the three aggravated assaults as charged, for the murder charge, the jury found him guilty of the lesser included offense of second degree murder. After sentencing, Carrillo filed this timely appeal. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1)(1992), 13-4031 and 13-4033 (2010).
¶7 A ruling on a motion to dismiss for vindictive prosecution is reviewed for an abuse of discretion. State v. Mieg, 225 Ariz. 445, 447, ¶ 9, 239 P.3d 1258, 1260 (App. 2010). An abuse of discretion occurs when the reasons given by the court are legally incorrect, clearly untenable or otherwise constitute a denial of justice. See State ...