The STATE of Arizona, Appellee, v. Luis Armando PERAZA, Appellant.
No. 2 CA-CR 2015-0022.
Court of Appeals of Arizona, Division 2.
Jan. 28, 2016.
366 P.3d 1030
HOWARD, Presiding Judge
that approximation.” Restatement § 356 cmt. b.
¶ 21 Both factors cut sharply against La Sonrisa. First, La Sonrisa has presented no evidence that the $1.4 million late fee reasonably approximated the anticipated losses that would have resulted from Dobson Bay‘s failure to make the balloon payment in a timely manner generally, much less the actual losses suffered by La Sonrisa. Second, the difficulty of proving loss is not great. As a result of Dobson Bay‘s breach, La Sonrisa is entitled to compensation for the losses it incurred, which, according to the promissory note and deed of trust, consist of default interest, attorneys’ fees and related costs, and trustee‘s fees. Dobson Bay has challenged whether, on legal grounds, La Sonrisa is entitled to recover all those losses, but that dispute does not alter that the losses are easy to calculate. Applying the factors set forth in Restatement § 356 to these specific circumstances, enforcement of the late-fee provision would serve only punitive purposes rather than compensatory. Therefore, the trial court erred in entering partial summary in favor of La Sonrisa and denying Dobson Bay‘s motion for partial summary judgment.
CONCLUSION
¶ 22 We hold, as a matter of law, that absent unusual circumstances the imposition of a flat 5% late-fee on a balloon payment for a conventional, fixed-interest rate loan is not enforceable as liquidated damages, and that Medigovich‘s declaration is insufficient to generate a triable issue of fact as to the reasonableness of the 5% late-fee. We therefore vacate the trial court‘s entry of partial summary judgment in favor of La Sonrisa, and remand for further proceedings, including entry of partial summary judgment in favor of Dobson Bay on its claim for declaratory relief on liquidated damages. Both parties request awards of attorneys’ fees pursuant to
Presiding Judge HOWARD authored the opinion of the Court, in which Judge ESPINOSA and Judge STARING concurred.
OPINION
Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee.
Steven R. Sonenberg, Pima County Public Defender, By Michael J. Miller and David J.
HOWARD, Presiding Judge:
¶ 1 After a jury trial, Luis Peraza was convicted of aggravated driving under the influence (DUI) while his license was suspended or revoked and aggravated driving with an alcohol concentration (AC) of 0.08 or more while his license was suspended or revoked. On appeal, Peraza argues that the trial court erred both by denying his motion to suppress the results of a breathalyzer test because he was deprived of his right to counsel and by improperly instructing the jury. Because the trial court committed no reversible error, we affirm.
Factual and Procedural Background
¶ 2 “We view the facts in the light most favorable to sustaining the verdicts.” State v. Nottingham, 231 Ariz. 21, ¶ 2, 289 P.3d 949, 951 (App. 2012). A Tucson Police Department (TPD) officer stopped Peraza after observing him use a private parking lot to avoid a traffic signal. After approaching Peraza, the officer observed signs that Peraza was under the influence of alcohol and saw an open container of alcohol underneath the driver‘s seat of the vehicle. Peraza admitted he had been drinking. He exhibited cues of impairment on field sobriety tests, and breathalyzer tests produced results of .153 and .152 AC.
¶ 3 The state charged Peraza and a jury found him guilty as noted above. The trial court sentenced him to presumptive, concurrent 4.5-year prison terms. We have jurisdiction over his appeal pursuant to
Adequacy of Access to Counsel
¶ 4 Peraza first argues the trial court erred by denying his motion to suppress the breathalyzer results, claiming the
¶ 5 The TPD officer stopped Peraza‘s car at 5:17 a.m., advised him of his Miranda1 rights at 5:35 a.m., and, at 5:45 a.m., formally arrested him for DUI. At 6:31 a.m., while at the station, Peraza invoked his right to counsel. The officer provided Peraza with a phone book and told him he could have ten minutes to choose an attorney. Within ten minutes,2 Peraza had twice attempted to reach the law firm he chose but was only able to leave messages for the attorney to call him back at the police station.
¶ 6 The officer waited until 6:52 a.m. for the attorney to return the calls, then at 6:56 a.m., conducted the first breathalyzer test. He conducted the second test at 7:02 a.m. The officer testified he had conducted the two AC tests before Peraza contacted an attorney because the statutory two-hour window for the collection of such evidence was expiring.
¶ 7
¶ 8 Despite the two-hour window, a defendant is entitled to the advice of counsel when in custody, “and the state may not unreasonably restrict that right.” Kunzler v. Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987); see
¶ 9 “It is the state‘s burden to demonstrate that allowing the suspect to consult with counsel when requested would have disrupted the police investigation.” Rumsey, 225 Ariz. 374, ¶ 8, 238 P.3d at 645. But the “defendant has no right to delay [an investigation] by demanding to consult with counsel.... If the lawyer cannot be reached by telephone ... the state may continue with its detention procedures.” McNutt v. Superior Court, 133 Ariz. 7, 10 n. 2, 648 P.2d 122, 125 n. 2 (1982).
¶ 10 Courts have found a deprivation of counsel when police either flatly prevented a defendant from speaking to an attorney or in some active way impeded access to counsel. See State v. Juarez, 161 Ariz. 76, 77-79, 81, 775 P.2d 1140, 1141-43, 1145 (1989) (police did not allow defendants to contact attorneys and read implied consent at end of twenty-minute waiting period); see also Kunzler, 154 Ariz. at 570, 744 P.2d at 671 (remanding for reasonableness determination where police prevented defendant from speaking to attorney during one-hour breathalyzer warm-up period); McNutt, 133 Ariz. at 9-10, 648 P.2d at 124-25 (police prevented defendant
¶ 11 As noted above, this court concluded there had been a deprivation of counsel in Rumsey, although on grounds different than those cited by the trial court. 225 Ariz. 374, ¶ 10, 238 P.3d at 646. Following a motor vehicle accident, responding police officers noticed that Rumsey appeared to be intoxicated and arrested her. Id. ¶¶ 2-3. While still at the scene of the accident, Rumsey spoke with her attorney by telephone for approximately six minutes. Id. ¶ 5. The officers waited twenty minutes for the attorney to arrive before taking Rumsey to the substation. Id. The attorney arrived at the accident scene fifteen minutes later and agreed to follow an officer to the substation. Id. But the attorney made a wrong turn and arrived at the station roughly fifty-two minutes after Rumsey. Id. By that time, Rumsey had already consented to a blood draw, and an officer had obtained a warrant for three more blood draws. Id. ¶¶ 5-6.
¶ 12 This court concluded the trial court had erred in determining Rumsey was deprived of counsel based on an officer‘s statement that she could “talk to [counsel] after the first blood draw.” Id. ¶ 7 (alteration in original). We noted that officers “had honored [the defendant‘s] request to speak with counsel at the accident scene” and that it had been proper to proceed with the investigation at the substation because the attorney did not follow the officers and none “of the officers at the substation knew where [the attorney] had gone [or] when ... he would arrive.” Id. ¶ 9. We instead determined officers had improperly deprived Rumsey of counsel later, once the attorney had arrived at the substation and had made contact with the police but was nevertheless prevented from speaking with the defendant before the blood draw. Id. ¶¶ 10-11.
¶ 13 In this case, however, Peraza‘s right to counsel was honored. The officer notified Peraza of his right to counsel, permitted him to call an attorney, and gave Peraza adequate time to contact one before continuing his investigation. The officer could not know when or if an attorney would call back. He then conducted two breathalyzer tests at approximately twenty-five minutes and fourteen minutes before the end of the statutory two-hour window. See
¶ 14 The officer reasonably delayed the tests while still avoiding the risk that they would occur after the two-hour window. Had any delays occurred, such as those due to a suspect burping or vomiting, the test results could have been inadmissible without extrapolation evidence. Stanley, 217 Ariz. 253, ¶ 24, 172 P.3d at 853 (“To avoid additional evidentiary hurdles, the police typically need to have the blood sample drawn within two hours of the arrest.“). Causing the tests to occur outside the two-hour window would have delayed or hindered the investigation. McNutt, 133 Ariz. at 10 n. 2, 648 P.2d at 125 n. 2. We conclude the officer did not interfere with Peraza‘s access to counsel.
¶ 15 Peraza contends, however, that the law firm he called might have opened at about the time the officer conducted the test. But Peraza had no right to hinder the investigation. See id. And no evidence supports the speculation that the law firm Peraza had chosen was open at the time of the test and no phone call was received during the test or thereafter when the officer was still present. In this instance, the state met its burden to show that the police investigation would have been impeded by a further delay to allow Peraza to speak to an attorney. See Rumsey, 225 Ariz. 374, ¶ 8, 238 P.3d at 645.
Refusal of Testing Instruction
¶ 16 Next, Peraza argues the trial court erred by instructing the jury on the
¶ 17 As a preliminary matter, the state argues Peraza failed to object below and has forfeited any review except fundamental, prejudicial error. See State v. Smith, 228 Ariz. 126, ¶ 10, 263 P.3d 675, 678 (App. 2011). When discussing this instruction, defense counsel stated “I don‘t really think we‘re dealing with this because it wasn‘t a refusal. He did perform the field sobriety tests. So I don‘t think it‘s really necessary. I think it could be deleted.” The prosecutor responded “I would just prefer it stay in. It‘s an accurate representation of what the law is and the procedure that was followed in this case.” The trial court gave the instruction.
¶ 18 Although Peraza‘s counsel failed to use the word “object,” the specific word is not required to make an objection or to preserve an issue for appeal. See State v. Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d 50, 56 (2003) (“‘The purpose of an objection is to permit the trial court to rectify possible error, and to enable the opposition to obviate the objection if possible.‘“), quoting State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 901 (1955). Here, Peraza‘s counsel explained why the instruction should not be given, and the state was given an opportunity to respond. Thus, Peraza effectively objected to the instruction below, and we will review the merits of his claim accordingly. See State v. Henderson, 210 Ariz. 561, ¶ 39, 115 P.3d 601, 611 (2005) (where defendant objected below, burden is on state to prove harmless error).
¶ 19 “A party is entitled to an instruction on any theory reasonably supported by the evidence.” Bolton, 182 Ariz. at 309, 896 P.2d at 849. However, “it is improper to give an instruction which is not clearly supported by the evidence.” State v. Smith, 113 Ariz. 298, 300, 552 P.2d 1192, 1194 (1976).
¶ 20 The jury instruction in question read:
Refusal to Perform Field Sobriety Tests
A person who operates a motor vehicle within this state gives consent to a test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining alcohol concentration or drug content if arrested for any offense arising out of acts alleged to have been committed by a person who was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.
A failure to expressly agree to the test or successfully complete the test is deemed a refusal.
Although this instruction‘s title refers to “field sobriety tests,” the instruction itself discusses blood, breath, and urine tests.
¶ 21 The undisputed evidence showed that Peraza successfully submitted to two breathalyzer tests. The state presented no evidence that he had refused the testing, and on the contrary, the officer testified that Peraza had consented to the breathalyzer. Thus, because no evidence supported the instruction, the trial court erred by giving it. See Smith, 113 Ariz. at 300, 552 P.2d at 1194.
¶ 22 When the trial court gives incorrect instructions, we apply a harmless error analysis. State v. Rodriguez, 192 Ariz. 58, ¶ 27, 961 P.2d 1006, 1011 (1998). “If the state can show beyond a reasonable doubt that the error did not affect the verdict, the error is harmless.” Nottingham, 231 Ariz. 21, ¶ 17, 289 P.3d at 956.
¶ 23 The jury here was instructed that, after determining the facts, it might find “that some instructions no longer apply.” And we presume the jury follows its instructions. See State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). The jury heard uncontested testimony that Peraza consented to and subsequently completed the tests. Neither attorney argued in closing that Peraza had refused the tests. Finally, the instruction did not describe any consequences for refusing the test. A reasonable jury would have disregarded the instruction.
¶ 24 Moreover, the instruction was not significantly related to an element of the offense and was unnecessary to convict Peraza. The state was required to prove that Peraza had
Breath-Testing Device Instruction
¶ 25 Finally, Peraza argues the trial court erred when it instructed the jury that records of periodic maintenance were prima facie evidence that the breathalyzer was working properly. Because Peraza failed to object to the instruction at trial, he has forfeited review for all but fundamental, prejudicial error. See Smith, 228 Ariz. 126, ¶ 10, 263 P.3d at 678; Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. To prevail on a fundamental error claim, Peraza must “prove error” and that the error was both fundamental and prejudicial. Henderson, 210 Ariz. 561, ¶¶ 20, 23, 26, 115 P.3d at 607-08. We review the decision to give a jury instruction for an abuse of discretion, but we review constitutional issues and whether the jurors were properly instructed de novo. State v. Dann, 220 Ariz. 351, ¶ 27, 51, 207 P.3d 604, 613, 616-17 (2009).
¶ 26 Peraza first argues the statute on which the jury instruction was based dealt with admissibility, not evidentiary presumptions. The instruction stated:
The State has introduced evidence of periodic maintenance through records which show that the quantitative breath testing device was in proper operating condition at a time before and after the test. Such records are prima facie evidence that the device was in the proper condition at the time of the test.
This jury instruction is based on
¶ 27 This court has already ruled that this instruction correctly states the law. State v. O‘Haire, 149 Ariz. 518, 521, 720 P.2d 119, 122 (App. 1986). Although
¶ 28 Peraza next contends the instruction created an evidentiary presumption for the jury, burdening the defense with proving the instrument was not working properly, which amounted to unconstitutional burden-shifting. “To determine the constitutionality of any given presumption, we must first determine whether the presumption is permissive or mandatory.” State v. Platt, 130 Ariz. 570, 574, 637 P.2d 1073, 1077 (1981). Mandatory presumptions represent an impermissible burden shift when “they relieve the State of the burden of persuasion on an element of an offense.” Francis v. Franklin, 471 U.S. 307, 314, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985). “A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts.” Id.
¶ 29 In contrast, “[a] permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” Id. The permissive inference “allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant.” Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979). In such cases “the basic fact may constitute prima facie evidence of the elemental fact.” Id. These permissive inferences do not rise to the level of unconstitutional burden shifting because they “leave[] the trier of fact free to credit or reject” them. Id. “A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” Francis, 471 U.S. at 314-15, 105 S. Ct. 1965.
¶ 30 Turner v. United States is instructive as an example. 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970). There, the jury was instructed “the absence of appropriate tax-paid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.” Id. at 402 n. 2, 90 S. Ct. 642, quoting
¶ 31 Peraza relies on Norton v. Superior Court, to support his claim that the instruction in this case is unconstitutional. 171 Ariz. 155, 829 P.2d 345 (App. 1992). In that case, this court considered former
¶ 32 Here, the state has argued the statute is constitutional and the issue is properly presented for decision. We agree the instruction in this case is permissive under Ulster and Turner and distinguishable from Norton. The presumption that records of periodic breathalyzer maintenance are in fact evidence that the breathalyzer was working properly did not relieve the state of the burden of persuasion on any element of the offense. See Francis, 471 U.S. at 314, 105 S. Ct. 1965; see also
¶ 33 We also note that other state courts have found statutory presumptions permissive where they only establish prima facie evidence and therefore do not shift the burden of proof or otherwise violate the constitution. See, e.g., People v. Goldsmith, 59 Cal. 4th 258, 172 Cal. Rptr. 3d 637, 326 P.3d 239, 245, 247 (2014) (statute establishing prima facie admissibility on certain evidentiary showing constituted only permissive presumption and did not shift burden of proof); State v. Rolle, 560 So. 2d 1154, 1154, 1157 (Fla. 1990) (In DUI AC context, court “interpreted the language ‘shall be prima facie evidence’ ... as creating a[ permissive] inference.“); State v. Kriss, 232 Kan. 301, 654 P.2d 942, 946 (1982) (“A prima facie evidence provision is nothing more or less than a rule of evidence which governs the suffi- ciency
¶ 34 The instruction at issue did not require the jury to reach any specific conclusions, and they were expressly charged that it is the purview of the jurors to “determine the importance to be given to the evidence.”4 Even after the state had presented evidence of periodic maintenance, the jury was still free, as defense counsel suggested at trial, to find that the state had not met its burden in proving that the machine was properly functioning. In sum, the instruction did not “shift[] the burden of persuasion to defendant on [a] crucial element” of the offense. Norton, 171 Ariz. at 158, 829 P.2d at 348.
¶ 35 Thus, the evidentiary presumption was permissive and constitutional so long as “there [was] a rational connection between the predicate and the presumed facts.” Platt, 130 Ariz. at 574, 637 P.2d at 1077. And, a rational jury could infer from records of periodic maintenance that the breathalyzer was operating properly, particularly without further evidence to the contrary. Therefore, this instruction did not violate Peraza‘s due process rights and consequently was not error.
¶ 36 Peraza additionally argues that the instruction was erroneous because it “required the jury to find that the breath analyzer was operating properly when the state introduced the evidence, preventing independent evaluation of argument that it was not.” This requirement would, according to Peraza, violate the Arizona Constitution, which prohibits judges from “commenting on the evidence.” State v. Roque, 213 Ariz. 193, ¶ 66, 141 P.3d 368, 388 (2006); see also
¶ 37 Further, even assuming arguendo that giving the instruction was fundamental error, Peraza would fail to establish any actual prejudice. See State v. Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d 263, 273 (App. 2007). Peraza bears the burden to show he
¶ 38 Even had the jury instruction not been given, a reasonable jury would still have found Peraza guilty on both counts. The officer testified Peraza exhibited four of eight cues of impairment during the field sobriety tests and admitted he had been drinking. The state presented two breathalyzer test results which showed Peraza was above the statutory AC limit. The state also presented evidence that the officer had conducted proper pre-test procedures to ensure accuracy, as well as evidence of successful calibration, and expert testimony that the machine was working properly at the time of Peraza‘s AC test. No evidence indicated that the breathalyzer results were inaccurate or that the machine was malfunctioning. Instead Peraza only cross-examined the officer and the state‘s expert, and speculated in closing arguments5 the machine could have been malfunctioning. Thus, in light of all the evidence, no reasonable jury could have found that the breathalyzer was malfunctioning, and Peraza has failed to show he was prejudiced by the instruction. See Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d at 273.
Disposition
¶ 39 For the foregoing reasons, we affirm Peraza‘s convictions and sentences.
JOSEPH W. HOWARD
PRESIDING JUDGE