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State v. Quijada

Court of Appeals of Arizona, First Division

March 28, 2019


          Petition for Review from the Superior Court in Yuma County No. S1400CR201201250 The Honorable Lawrence C. Kenworthy, Judge

          Yuma County Attorney's Office, Yuma By Charles Platt Counsel for Respondent

          Elizabeth Brown Attorney at Law, Goodyear By Elizabeth M. Brown Counsel for Petitioner

          Arizona Voice for Crime Victims By Colleen Clase Counsel for Amicus Curiae

          National Crime Victim Law Institute By Margaret Garvin Counsel for Amicus Curiae

          Arizona Attorneys for Criminal Justice By David J. Euchner Counsel for Amicus Curiae

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen joined. Judge David D. Weinzweig specially concurred.



         ¶1 Petitioner Kandice Denise Quijada seeks review from the superior court's dismissal of her petition for post-conviction relief under Arizona Rule of Criminal Procedure 32.1. We grant review, grant relief in part, and hold: (1) the superior court deprived Quijada of due process by imposing restitution without first allowing her an opportunity to question the victim at a restitution hearing; (2) when appropriate, parties may subpoena a victim to appear and testify at a restitution hearing without violating the Victims' Bill of Rights, Ariz. Const. art. 2, § 2.1, and its related statutes and rules; (3) if the victim fails to comply with a subpoena to appear and testify at a restitution hearing, the court may not hold the victim in contempt, but must consider the victim's refusal to testify as it relates to both the defendant's ability to contest restitution and the State's ability to meet its burden of proof; (4) a theft victim whose equanimity is damaged by the crime may recover as restitution the costs incurred by installing a home security system that is necessary to restore the victim's equanimity; and (5) the victim may recover the costs of maintaining a home security system as restitution only for a reasonable period necessary to restore equanimity.


         ¶2 The victim and her then-husband hired a house-sitter to watch their home and feed their pets during a two-week vacation in late 2012. The house-sitter twice invited her brother (the "co-defendant") and Quijada to visit her at the victim's home. While Quijada distracted the house-sitter, the co-defendant stole assorted items from the house. Quijada later pawned at least three of the stolen items and split the proceeds with the co-defendant.

         ¶3 After the victim returned from her vacation, she received a text message from the house-sitter that the co-defendant and Quijada had stolen items from the home. Within two hours of receiving the text, the victim called the police. A deputy responded and recorded an interview with the victim. In the recorded conversation, the victim reported that all the jewelry the thieves took were "studs." The victim described studs as fakes that "you can wear . . . where ever and feel safe." For example, the victim said a missing ring with stones of about a carat in weight "that look like diamonds" was "probably only worth maybe 200, 300 dollars." Also missing was a ring the victim said contained a "replica of a pink sapphire" about four carats in weight in a white gold setting. The victim said the thieves also took a white gold bracelet about three inches wide with blue and white simulated gems and a "stud" "tennis bracelet" with faux diamonds. The officer asked her, "Real diamonds?" and she replied, "No, this is another stud. All the things that they took, thank God, are the studs of my mom's jewelry." Finally, the victim specifically denied that she owned a Rolex watch. The resulting police report stated that the "victim lost many items of jewelry, some of which were items that she had not seen in quite some time" and the victim "provide[d] descriptions of several jewelry items." However, the report cautioned that the victim "believed many more items are missing" and that "[t]he property loss description is incomplete." Police subsequently found several stolen items in the co-defendant's car and local pawn shops and returned the items to the victim.

         ¶4 In December 2012, the State charged Quijada with one count of burglary in the second degree and one count of trafficking in stolen property in the first degree. The next day, the victim wrote a letter to the superior court explaining that after her interview with the police she had discovered additional missing items, and warning the list could grow. She also expressed fear that the co-defendant and Quijada might exact revenge against her, which made her feel unsafe in her home because her "husband was working in Afghanistan" for an extended, open-ended period.

         ¶5 Quijada pled guilty to one count of facilitation to commit trafficking in stolen property in the first degree and stipulated to pay restitution "on all original counts not to exceed one hundred thousand dollars." At sentencing, the court suspended the imposition of Quijada's sentence and placed her on two years of supervised probation. As a condition of her probation, Quijada was required to pay all restitution imposed by the court. Because the victim had not submitted a specific request for restitution by sentencing, the court retained jurisdiction to impose restitution.

         ¶6 In May 2014, the victim provided an unsworn restitution statement to the State reporting total financial losses of $5530.75, almost one-third of which was the cost of installing and maintaining a home security system for the victim's home. The personal items listed in the statement were: (1) $500 in cash; (2) "Manolo Blahnik Size 38 [Pink] Boot"; (3) "Manolo Blahnik Size 38 Blue"; (4) an "iPad2"; and (5) an "Ostrich iPhone case [and] other leather cases" valued in total around $3800. No jewelry was on the victim's list of missing items. Between May 28 and July 15, the victim submitted an unsworn "second update," which totaled $13, 252.25, including a tennis bracelet worth "about $6, 000." The updated statement referenced additional items, including several other jewelry pieces (gold necklace, amethyst and garnet beads, gold bracelet, diamond ring, Rolex watch), clothes, and electronics.

         ¶7 Because the victim provided no supporting documentation for either restitution statement, the State asked the victim to provide documentation of her economic loss. On July 15, six weeks after signing the May statement, the victim presented a third unsworn restitution statement to the State, seeking a total of $45, 320.18. The July statement included (in addition to the Manolo Blahnik footwear): (1) a tennis bracelet valued at $10, 800; (2) a gold "goddess bangle" worth $4500; (3) a diamond ring valued at $2098; (4) a Tiffany & Co. necklace with a cross pendant valued at $2850; (5) a diamond "flower bracelet" valued at $1579; (6) a Movado men's watch valued at $450; (7) a "Bianca ring" with a sapphire and diamonds worth $8005; and (8) 16 bracelets with "14k gold clasps, beads, garnets, fresh water pearls [and] amethysts," worth $4400. The victim also submitted invoices for a portable scanner, phone and tablet cases, an iPad, and certain clothing. To account for the value of the jewelry listed in the statement, the victim relied on printouts from internet catalogs depicting pieces she believed were similar or the "closest [she] could get" to the jewelry she claimed had been stolen. Many of the printouts also contained her handwritten annotations describing the differences, in her opinion, between the nature and value of her pieces of jewelry and the jewelry listed in the printout. In the July 15 statement, the victim did not claim the missing fake jewelry she identified in the police interview.

         ¶8 The superior court initially scheduled a restitution hearing for May 2014. The State subpoenaed the victim to appear and testify. The victim appeared, but the court continued the hearing because Quijada and her counsel had not received notice of the hearing. The court rescheduled the restitution hearing for July 2014, and the State again subpoenaed the victim to attend. But the hearing was again continued because the prosecutor could not be present on that date. The court continued the hearing until August 2014, and the State again subpoenaed the victim to appear and testify. The victim appeared for the hearing but left the courthouse before she could be called to testify because she fell ill. Although the victim had left the courthouse, the court ordered the State to submit her restitution statements. Quijada sought a continuance of the hearing to allow her attorney to review the restitution documents possessed by the State and to question the victim at the rescheduled hearing. The State filed the first and third restitution statements on the same day as the hearing but failed to present the second statement until November 2014.

         ¶9 The next scheduled restitution hearing was in October 2014. The State requested the victim's presence but did not subpoena her to attend. At the scheduled time for the hearing, the State informed the court that after leaving the August 2014 hearing due to illness, the victim was either unwilling or unable to participate further. The State argued the court should order restitution based on the victim's written restitution statements alone. Quijada objected on due-process grounds, emphasizing that the victim's "paperwork" was insufficient to support a $45, 320.18 restitution award absent a hearing at which she could challenge the victim about her claim. In response, the State acknowledged that the "whole purpose" of the scheduled restitution hearing was to elicit the victim's testimony, but argued the restitution statements were enough for the court to order restitution. After hearing the parties' arguments, the court expressed its inclination to take the matter of restitution under advisement but solicited additional briefing on Quijada's arguments.

         ¶10 Quijada filed a written objection to proceeding without a hearing. Quijada argued her due-process right to contest the information on which a restitution award is based required that she be given an opportunity to question the victim at a restitution hearing. Quijada contended that because "the proponent of the requested restitution has absented herself from the hearing process," it was impossible "to properly challenge or contest the amount requested." In response, the State cautioned that it was not vouching for the victim, but argued the information she submitted in her unsworn statements supported her claim for restitution, and that the victim had "appeared at prior court proceedings."

         ¶11 The court entered its restitution order in December 2014. The court characterized Quijada's objections as an argument that the State had failed to carry its "burden to show by a preponderance that the victim suffered the losses claimed in the restitution statements." The court also noted the victim had been unavailable due to illness and found, without citing any support, that this illness "prevents [the] victim from appearing at a future hearing." The court then found by a preponderance of the evidence that Quijada had caused the victim to suffer economic losses of $39, 969.37. The court cataloged the economic losses in 23 numbered paragraphs but acknowledged that the restitution order must be "reduced by whatever amount is later determined to have been returned to [the] victim."

         ¶12 The court ordered restitution for lost items of jewelry, clothes, and other consumer goods, and ordered Quijada to pay: (1) $1278.89 for the installation of a security system at the victim's home in May 2013; (2) $108.31 for the security system's activation fee; and (3) $719.89 for 16 months of the security system's monthly service. The court found that restitution for these expenses was appropriate because the victim felt vulnerable after she learned that the co-defendant had asked about a picture of her and because the victim's husband was overseas.

         ¶13 In March 2016, the court extended the term of Quijada's probation for five years because Quijada had not yet paid the restitution in full. In June 2016, Quijada petitioned for post-conviction relief.[1] She asked the superior court to modify the restitution order for four reasons. First, Quijada emphasized her limited role in the crime and argued the restitution award thus "exceed[ed] the maximum amount of restitution recoverable by law." Second, Quijada asserted the restitution award was not supported by sufficient evidence because the victim had not filed an affidavit, testified, submitted any proof of purchase for most of the allegedly stolen items, or demonstrated that her losses were not recoverable from insurance. Given the lack of substantiation, Quijada argued the restitution proceedings failed to provide her with a meaningful opportunity to contest the evidence submitted by the victim. Third, Quijada contended the victim could not recover expenses for ...

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