Arizona Cases December 12, 2022: State v. Santacruz

Case Description

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This Decision Does Not Create Legal Precedent And May Not Be Cited Except As Authorized By Applicable Rules. Not For Publication See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County No. CR20196052001 The Honorable Danelle B. Liwski, Judge

Laura Conover, Pima County Attorney By Rachelle Barr and Bradley Roach, Deputy County Attorneys, Tucson Counsel for Appellee

Megan Page, Pima County Public Defender By David J. Euchner and Sarah L. Mayhew, Assistant Public Defenders, Tucson Counsel for Appellant

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Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Eppich concurred and Judge Brearcliffe specially concurred.

MEMORANDUM DECISION

STARING, Vice Chief Judge

¶1 Daniel Santacruz appeals from the trial court's partial denial of the state's petition for expungement filed on his behalf, as well as the denial of its motion for reconsideration. For the reasons that follow, we reverse and remand.

Factual and Procedural Background

¶2 In December 2019, Santacruz was indicted for possession of cannabis, possession of marijuana for sale, attempted sale of marijuana, and possession of drug paraphernalia described in the indictment as a jar, a scale, baggies, and a vial. Santacruz later pled guilty to possession of marijuana for sale, and, pursuant to the plea agreement, the trial court dismissed the other charges.

¶3 After Proposition 207 passed in November 2020, the state filed a petition to expunge Santacruz's records related to his indictment for possession of cannabis and possession of drug paraphernalia. The trial court granted the petition as to possession of cannabis but denied the petition as to possession of paraphernalia, reasoning that it was "not clear from the petition filed that the items listed" in that count "relate[d] to possession of marijuana" and that A.R.S. § 36-2862(A)(3) "does not appear to allow the expungement of paraphernalia related to the sale of marijuana." (Emphasis added.)

¶4 The state filed a motion for reconsideration, arguing (1) the presence or absence of an intent to sell does not affect the eligibility of a

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marijuana-paraphernalia charge for expungement because Proposition 207 and the offense of possession of drug paraphernalia "cover objects related to the physical process of production, storage, and consumption of marijuana, but do not otherwise address what is done with that marijuana or the mental state of the individual"; (2) the expungement statute is remedial and should be construed broadly to have identical coverage to the statute criminalizing the possession of drug paraphernalia so that "any arrest, charge, adjudication, or conviction for a drug paraphernalia offense involving marijuana is expung[e]able"; (3) "[e]ven if paraphernalia related to sale was non-expungeable, there has been no such showing in this case," and the trial court was required to "grant the petition unless the prosecuting agency established] by clear and convincing evidence that the offense is not eligible for expungement"; and (4) the court's decision violated the doctrines of law of the case and collateral estoppel. The court denied the state's motion. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(3), and 36-2862(F).

Discussion

¶5 Both Santacruz and the state agree on appeal the trial court erred in denying the petition for expungement of records related to Santacruz's possession-of-drug-paraphernalia charge. Specifically, the parties contend § 36-2862(A)(3) applies broadly to possession of marijuana paraphernalia, regardless of whether the paraphernalia is related to the sale of marijuana. We review the court's denial of the petition for an abuse of discretion, but we review de novo questions of statutory interpretation. See State v. Hall, 234 Ariz. 374, ¶ 3 (App. 2014). "An error of law committed in reaching a discretionary conclusion may . . . constitute an abuse of discretion." Id. (alteration in Hall ) (quoting State v. Wall, 212 Ariz. 1, ¶ 12 (2006)).

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¶6 "Our primary objective in construing statutes adopted by initiative is to give effect to the intent of the electorate." State v. Gomez, 212 Ariz. 55, ¶ 11 (2006); see also A.R.S. § 1-211(B) ("Statutes shall be liberally construed to effect their objects and to promote justice."). "Because initiatives are no less an exercise of the legislative power when carried out by the people than are statutes enacted by the legislature, we apply the same interpretive standards to initiatives as we do to statutes." State v. Green, 248 Ariz. 133, ¶ 9 (2020). Namely, we first look to the initiative's plain language. State ex rel. Montgomery v. Harris, 237 Ariz. 98, ¶ 8 (2014); State v. Jones, 246 Ariz. 452, ¶ 5 (2019). And, our plain language analysis "does not focus on statutory words or phrases in isolation." Glazer v. State, 244 Ariz. 612, ¶ 10 (2018). Rather, "[w]ords in statutes should be read in context in determining their meaning." Id. (quoting Stambaugh v. Killian, 242 Ariz. 508, ¶ 7 (2017)). Further, "[i]n construing a specific provision, we look to the statute as a whole and we may also consider statutes that are in pari materia -of the same subject or general purpose-for guidance and to give effect to all of the provisions involved." Stambaugh, 242 Ariz. 508, ¶ 7.

¶7 The plain language of § 36-2862(A)(3) allows for expungement of records for offenses based on "[possessing, using or transporting paraphernalia relating to the cultivation, manufacture, processing or consumption of marijuana." In comparison, § 36-2862(A)(2) provides for expungement of records involving "possession], transportation], cultivation] or processing [of] not more than six marijuana plants at the individual's primary residence" if such marijuana was "for personal use." "When a statute uses a specific phrase in some sections but not in others, a court cannot read that phrase 'into the section from which it was excluded.'" Simpson v. Owens, 207 Ariz. 261, ¶ 39 (App. 2004) (quoting Bigelsen v. Ariz. State Bd. of Med. Exam'rs, 175 Ariz. 86, 91 (App. 1993)). Accordingly, we do not read a "personal use" limitation into § 36-2862(A)(3). But even without such a limitation, we recognize that § 36-2862(A)(3) does not expressly refer to paraphernalia related to "selling" marijuana.

¶8 In addition to the plain language of § 36-2862 itself, we look to the language of statutes in pari materia, including A.R.S. § 36-2852(A)(5) and A.R.S. § 13-3415. See Garcia v. Butler, 251 Ariz. 191, ¶¶ 16-17 (2021) (construing statute in Title 13 by looking to statutes in pari materia relating to civil commitment in Title 36). Section 36-2852(A)(5), effective November 2020, makes lawful "[acquiring, possessing, manufacturing, using, purchasing, selling or transporting paraphernalia relating to the cultivation, manufacture, processing or consumption of marijuana or

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marijuana products." Previously, such conduct was prohibited under § 13-3415(A), which made it "unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a drug." 1996 Ariz. Sess. Laws, ch. 217, § 5. And such conduct was also prohibited under § 13-3415(B), which made it "unlawful for any person to deliver, possess with intent to deliver or manufacture with intent to deliver drug paraphernalia knowing, or under circumstances where one reasonably should know, that it will be used" for any of the purposes set forth in subsection (A). Id.

¶9 As discussed, §§ 36-2852(A)(5) and 36-2862(A)(3) address possession of paraphernalia related to the "cultivation, manufacture, processing [and] consumption of marijuana." Although this list does not explicitly mention every purpose set forth in § 13-3415(A) - possessing or using paraphernalia to "plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a drug" - interpreting §§ 36-2852(A)(5) and 36-2862(A)(3) liberally, as we must, see § 1-211(B), we conclude the four broad categories set forth in these provisions of Proposition 207 are intended to encompass all of the conduct described in § 13-3415(A).

¶ 10 Notably, excluded from the conduct delineated in § 13-3415(A) and (B) is an express reference to possession of drug paraphernalia related to the sale of marijuana. In State v. Soza, 249 Ariz. 13, ¶ 19 (App. 2020), we concluded offenses under § 13-3415(A) do not "turn[] on the defendant's intent to commit a particular drug crime" but instead on "the act of possession." In reaching this conclusion, we explained the statute "does not refer to a specific type of drug crime, and the title of the statute refers simply to '[possession . . . of drug paraphernalia' without further distinction," and its language "makes it conceivable, even if unlikely under real-world circumstances, that a defendant could be found guilty of

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possessing drug paraphernalia without evidence linking the paraphernalia to a specific drug offense." Id. (alterations in Soza ) (quoting former § 13-3415(A)). Further, "our legislature's decision to classify every paraphernalia possession as a Class 6 felony-regardless of the paraphernalia's intended use-suggests it did not envision using A.R.S. § 13-3415(A) as a means to distinguish between different harms created by different drug conduct." Id. ¶ 21. Rather, based on its placement within the statutory scheme, "the paraphernalia statute is reasonably read as a complement to other drug laws, and defendants charged with possessing paraphernalia remain subject to the punishments imposed under those laws." Id. Thus, a defendant's intent in possessing drugs is irrelevant to the offense of possession of paraphernalia. We conclude such an intent is also irrelevant to expungement of records related to possession of marijuana paraphernalia under § 36-2862(A)(3).

¶11 This interpretation is supported by the principle that statutes are to "be construed sensibly to avoid reaching an absurd conclusion." Montgomery, 237 Ariz. 98, ¶ 13. A result is "absurd if it is so irrational, unnatural, or inconvenient that it cannot be supposed to have been within the intention of persons with ordinary intelligence and discretion." Green, 248 Ariz. 133, ¶ 8 (quoting State v. Estrada, 201 Ariz. 247, ¶ 17 (2001)). Narrowly interpreting § 36-2862(A)(3) to preclude expungement where the paraphernalia was related to the sale of marijuana would lead to an absurd result in that it would contravene one of the initiative's purposes: to "[f]acilitat[e] the expungement and sealing of records . . . predicated on conduct made lawful by this act." Text of Proposed Amendment § 7(7), Proposition 207 ("Smart and Safe Arizona Act"), 2019 Ballot Propositions (emphasis added); see Ruiz v. Hull, 191 Ariz. 441, ¶ 36 (1998) (courts may consider ballot materials to construe meaning of an initiative); see also Gomez, 212 Ariz. 55, ¶ 11.

¶12 Because possession of marijuana paraphernalia is not punishable under the current version of § 13-3415(A) regardless of its relationship to the sale of marijuana, see § 36-2852(A)(5); Soza, 249 Ariz. 13, ¶¶ 19, 21, 22, it would be absurd to construe § 36-2862(A)(3) as precluding expungement of possession of paraphernalia offenses because such paraphernalia was related to the sale of marijuana, see Text of Proposed Amendment § 7(7). Consequently, even if Santacruz's possession of the jar, scale, baggies, and vial was related to his conviction for possession of marijuana for sale, his paraphernalia charge and related records are

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nevertheless eligible for expungement under § 36-2862(A)(3). Thus, the trial court abused its discretion in denying the petition with respect to this charge.

Disposition

¶13 For the foregoing reasons, we reverse and remand for further proceedings consistent with this decision.

BREARCLIFFE, Judge, specially concurring:

¶14 Although this decision liberally interprets §§ 36-2852(A)(5) and 36-2862(A)(3) to conclude that "the four broad categories set forth in these provisions of Proposition 207 are intended to encompass all of the conduct described in § 13-3415(A)" as to what is illicit drug paraphernalia, I am not certain it is correct. Assuming that § 36-2862(A)(3) is faithful to Proposition 207, the voters elected to limit the universe of marijuana paraphernalia subject to expungement to paraphernalia in four categories: that related to cultivation, manufacture, processing and consumption of marijuana. The drafters of the proposition could have easily repeated the language of § 13-3415(A) and its twenty-two listed uses for paraphernalia. They were, after all, attempting to make convictions for criminal conduct under this very statute expungeable. Why they did not include within the expungeable categories paraphernalia used to "plant, propagate, . . . grow, harvest, . . . compound, convert, produce, . . . prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce [marijuana] into the human body," I am not sure, but we must assume they had a reason. See Arizona Free Enter. Club v. Hobbs, 253 Ariz. 478, ¶ 13 (2022) (omission of expected language is meaningful).

¶15 But the import of this selected language, if any, will await another case. Here, Santacruz was convicted of possession of "a jar, a scale, baggies, and a vial"-items that most certainly relate to the sale of marijuana, as the trial court concluded. Nonetheless, we can take judicial notice that marijuana is sold for ultimate consumption. I cannot envision, therefore, any paraphernalia employed in preparing marijuana for sale-

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including that possessed by Santacruz - that would not be expungeable under § 36-2862(A)(3) as "relat[ed] to the . . . consumption of marijuana."