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.
OPINION
MCMURDIE, JUDGE
¶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.
FACTS
AND PROCEDURAL BACKGROUND
¶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
...