State of Arizona v. Abel Daniel Hidalgo

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,

v.

ABEL DANIEL HIDALGO,
Appellant.

No. CR-15-0049-AP
Filed March 15, 2017

Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, III, Judge
No. CR2011-005473
AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section,
Andrew S. Reilly (argued), Assistant Attorney General, Phoenix, Attorneys
for State of Arizona

Bruce F. Peterson, Maricopa County Office of the Legal Advocate, Consuelo
M. Ohanesian (argued), Susan Corey (argued), Deputy Legal Advocates,
Phoenix, Attorneys for Abel Daniel Hidalgo

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER, and
BOLICK joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1 This automatic appeal concerns Abel Daniel Hidalgo’s 2015
death sentences for murdering Michael Cordova and Jose Rojas. We have
jurisdiction under article 6, section 5(3) of the Arizona Constitution and
A.R.S. §§ 13-4031 and -4033(A).
 STATE V. HIDALGO
Opinion of the Court

BACKGROUND

¶2 In late December 2000, Hidalgo agreed to kill Michael
Cordova in exchange for $1,000 from a gang member. He accepted the offer
without knowing Cordova or why the gang wanted him murdered. One
morning in January 2001, Hidalgo waited in his car near Cordova’s auto-
body shop. When Cordova began unlocking the shop, Hidalgo approached
and feigned interest in some repair work. They were joined by Jose Rojas,
who occasionally did upholstery work for Cordova and came that morning
to retrieve some equipment. After the three men entered the shop, Hidalgo
shot Rojas in the back of the head. Hidalgo then shot Cordova in the
forehead. Even though the shots were fatal, Hidalgo shot each victim five
more times to ensure he died.

¶3 After murdering Cordova and Rojas, Hidalgo went to the
home of his godparents, Frank and Barbara Valenzuela. Barbara overheard
Hidalgo tell others that he had just murdered two men and wanted to sell
his car to Frank because a woman had seen him leave the shop. Frank
purchased the car, and a few days later Hidalgo fled Arizona.

¶4 A year later, Barbara informed the Maricopa County
Attorney’s Office that Hidalgo murdered Cordova and Rojas. Phoenix
Police subsequently interviewed Hidalgo in Idaho, where he had murdered
two women in January 2002 and was under federal arrest. Hidalgo
confessed to murdering Cordova for $1,000 and to killing Rojas to eliminate
an eyewitness.

¶5 Hidalgo pleaded guilty in January 2015 to two counts of first
degree murder and one count of first degree burglary. The jury found four
aggravating circumstances with respect to the murder of Cordova and three
with respect to the murder of Rojas: Hidalgo committed another offense
eligible for a sentence of life imprisonment or death under Arizona law;
Hidalgo committed prior serious offenses; Hidalgo murdered for pecuniary
gain (only with respect to Cordova); and Hidalgo committed multiple
homicides. A.R.S. §§ 13-751(F)(1), (F)(2), (F)(5), and (F)(8). Considering
these factors and the mitigation evidence, the jury sentenced Hidalgo to
death for each murder. The trial court also sentenced Hidalgo to 10.5 years’
imprisonment for the burglary.

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Opinion of the Court

DISCUSSION

A. Facial Challenge to A.R.S. § 13-751

¶6 Before trial, Hidalgo filed a motion alleging that Arizona’s
death penalty statute is unconstitutional because the statutorily identified
aggravating factors do not adequately narrow the class of those eligible for
the death penalty and defendants are denied equal protection because
poorer counties cannot afford to pursue death sentences. His motion was
consolidated with similar motions filed by defendants in other cases. The
defendants sought an evidentiary hearing to establish that every first
degree murder case filed in Maricopa County in 2010 and 2011 could
support at least one aggravating factor and that rural counties cannot afford
to seek death sentences. The trial court denied the hearing request, ruling
that even if the defendants’ factual allegations are accepted as true, the
constitutional claims fail as a matter of law.

¶7 On appeal, Hidalgo argues: (1) he was denied due process
when the trial court refused to hold an evidentiary hearing; (2) A.R.S. § 13-
751 fails to adequately narrow the class of those eligible for a death
sentence; and (3) death sentences are arbitrarily imposed because poorer
counties cannot afford to pursue the death penalty. This Court reviews a
trial court’s decision whether to hold an evidentiary hearing for abuse of
discretion, State v. Spears, 184 Ariz. 277, 289, 908 P.2d 1062, 1074 (1996), and
reviews “constitutional issues and purely legal issues de novo.” State v.
Moody, 208 Ariz. 424, 445 ¶ 62, 94 P.3d 1119, 1140 (2004).

1. The Refusal to Grant an Evidentiary Hearing

¶8 Hidalgo argues that he was entitled to an evidentiary hearing
even though the trial court assumed his factual allegations were true in
reviewing his constitutional claims. In various contexts, courts have
recognized that evidentiary hearings are not required when courts need not
resolve factual disputes to decide constitutional issues. E.g., State v. Gomez,
231 Ariz. 219, 225–26 ¶ 29, 293 P.3d 495, 501–02 (2012) (finding that trial
courts need not hold an evidentiary hearing on motion for new counsel
where “there is no indication that a hearing would elicit additional facts
beyond those already before the court”); see also State v. Amaral, 239 Ariz.
217, 219 ¶ 9, 220 ¶ 11, 368 P.3d 925, 927, 928 (2016) (noting that a post-
conviction relief petitioner is entitled to a hearing “if he or she presents a

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Opinion of the Court

‘colorable claim[,]’” i.e., if the petitioner “has alleged facts which, if true,
would probably have changed the verdict or sentence”).

¶9 Although Hidalgo correctly notes that capital defendants are
accorded heightened procedural safeguards, see, e.g., Monge v. California,
524 U.S. 721, 732–33 (1998), he has not identified any opinions holding that
a capital defendant is entitled to an evidentiary hearing on a pretrial motion
even if the court’s ruling does not turn on disputed facts. Hidalgo also does
not convincingly explain how the denial of an evidentiary hearing or the
lack of findings of fact has hindered appellate review of his constitutional
claims. Notably, he has not identified any particular evidence that he
would have offered that would materially add to the factual record before
the trial court or this Court on appeal.

¶10 Hidalgo also correctly notes that due process entitles parties
to notice and a meaningful opportunity to be heard, citing Hamdi v.
Rumsfeld, 542 U.S. 507 (2004), and Mathews v. Eldridge, 424 U.S. 319 (1976).
But neither of these cases is apposite. Mathews, which concerned the denial
of disability benefits, outlined a balancing test for identifying what process
is due before persons may be deprived of liberty or property. 424 U.S. at
323, 334–35. Hamdi applied that test in holding that citizens detained by the
military are entitled to a hearing to challenge their designation as enemy
combatants. 542 U.S. at 529–35.

¶11 Citing Hamdi and Fuentes v. Shevin, 407 U.S. 67 (1972), Hidalgo
also argues that a defendant is entitled to be heard even if the court believes
his claim is invalid. See Hamdi, 542 U.S. at 530 (“‘[T]he right to procedural
due process is ‘absolute’ in the sense that it does not depend upon the
merits of a claimant’s substantive assertions.’”) (quoting Carey v. Piphus, 435
U.S. 247, 266 (1978)); Fuentes, 407 U.S. at 87 (“The right to be heard does not
depend upon an advance showing that one will surely prevail at the
hearing.”). Hamdi and Fuentes each considered whether any hearing was
required. See Hamdi, 542 U.S. at 509; Fuentes, 407 U.S. at 69–70. Hidalgo
also argues that parties must be permitted to develop both the law and the
facts, citing Kessen v. Stewart, 195 Ariz. 488, 492 ¶ 16, 990 P.2d 689, 693 (App.
1999). But “[p]rocedural due process . . . requires nothing more than an
adequate opportunity to fully present factual and legal claims.” Id.
Hidalgo was afforded an adequate opportunity to be heard. Procedural
due process does not require an evidentiary hearing on a motion when the
legal claims do not turn on disputed facts.

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 STATE V. HIDALGO
Opinion of the Court

¶12 Finally, citing People v. Ballard, 794 N.E.2d 788 (Ill. 2002),
Hidalgo contends that whether a statute adequately narrows the class of
those eligible for the death penalty is necessarily a factual question. Ballard
rejected an argument that Illinois’s capital sentencing scheme was
unconstitutional because it had so many aggravating factors that it was
“difficult to imagine a first degree murder defendant who does not qualify
under at least one, if not several factors.” Id. at 817. The majority in Ballard
rejected the argument because: (1) the sentencing scheme narrowed the
eligible defendants by means beyond the list of aggravating circumstances;
and (2) it is impossible to identify how many aggravating circumstances
would be too many for constitutional purposes. Id. at 819. The majority
also observed that the defendant had not demonstrated that his claims were
empirically accurate, id., a point also noted by a concurring opinion, which
stated, “whether the constitutional requirement of narrowing has occurred
is a factual one.” Id. at 826 (McMorrow, J., specially concurring). The
concurrence did not suggest an evidentiary hearing is invariably required,
but instead that the defendant’s claims failed for lack of substantiation
rather than as a matter of law. Id.

¶13 The trial court did not abuse its discretion here in denying an
evidentiary hearing and instead assuming the truth of Hidalgo’s factual
assertions for purposes of ruling on the pending motion.

2. The Claim that A.R.S. § 13-751 Does Not Sufficiently Narrow the
Class of Defendants Eligible for the Death Penalty

¶14 To be constitutionally sound, “a capital sentencing scheme
must ‘genuinely narrow the class of persons eligible for the death penalty
and must reasonably justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder.’” Lowenfield v.
Phelps, 484 U.S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877
(1983)). Hidalgo contends that A.R.S. § 13-751 does not satisfy this
requirement.

¶15 We rejected a similar challenge in State v. Greenway, 170 Ariz.
155, 823 P.2d 22 (1991). Since Greenway, the legislature has expanded the
list and the scope of individual aggravators. Compare A.R.S. § 13-703(F)
(1989 & Supp. 1991) (enumerating ten aggravators), with A.R.S. § 13-751(F)
(2010 & Supp. 2016) (enumerating fourteen aggravators). As a result,

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Opinion of the Court

Hidalgo argues, virtually every first degree murder case in Maricopa
County has facts that could support at least one aggravator.

¶16 In rejecting Hidalgo’s argument, the trial court stated that it
was bound by Greenway and State v. Hausner, 230 Ariz. 60, app. at 89, 280
P.3d 604, app. at 633 (2012) (noting similar argument in appendix listing
claims defendant sought to preserve for federal review). The trial court
acknowledged the legislature has expanded the scope of death penalty
aggravators and the defendants offered to establish a precedential fact in
Arizona - that the aggravators cover every first degree murder case filed
within a broad period of time. Nonetheless, the court concluded that jury
findings can supply the constitutionally required narrowing in a particular
case.

¶17 Hidalgo argues the legislature must statutorily narrow the
scope of death-eligible murders. With the State’s permission, he
supplemented the record on appeal with an expanded study of first degree
murder cases in several counties over an eleven-year period, which
concludes that one or more aggravating circumstances were present in 856
of 866 murders.

¶18 Hidalgo’s argument finds some support from isolated quotes
- as distinct from actual holdings - in opinions of the United States Supreme
Court and our Court. Academic commentators have made similar
arguments. See, e.g., Chelsea Sharon, Note, The “Most Deserving” of Death:
The Narrowing Requirement and the Proliferation of Aggravating Factors in
Capital Sentencing, 46 Harv. C.R.-C.L. L. Rev. 223, 244–50 (2011).
Nonetheless, “[d]espite the constitutional concerns these expansive statutes
[identifying aggravating factors] raise, the vast majority of courts have
rejected narrowing challenges to such statutes.” Id. at 238; see also Smith v.
Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998) (rejecting as “entirely otiose” the
claim that Arizona’s statute is unconstitutional because it “does not
properly narrow the class of death penalty recipients”); State v. Steckel, 711
A.2d 5, 12–13 (Del. 1998); State v. Wagner, 752 P.2d 1136, 1158 (Or. 1988).

¶19 Although the United States Supreme Court has not directly
addressed whether a death penalty statute may fail to provide sufficient
narrowing by including too many aggravating circumstances, its case law
undermines Hidalgo’s position. The narrowing requirement is rooted in
Furman v. Georgia, which struck down death penalty statutes that gave

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Opinion of the Court

juries unguided discretion to impose death sentences for various types of
murder and other crimes and resulted in “this unique penalty” being
“wantonly and so freakishly imposed.” 408 U.S. 238, 310 (1972) (Stewart, J.,
concurring).

¶20 After Furman, many states enacted new capital statutes. In
upholding several such statutes, the Court in Gregg v. Georgia noted that
“[t]he basic concern of Furman centered on those defendants who were
being condemned to death capriciously and arbitrarily.” 428 U.S. 153, 206
(1976) (opinion of Stewart, J.). Gregg held that a death sentence may not be
imposed unless the sentencing authority finds and identifies “at least one
statutory aggravating factor[.]” Id. The concerns underlying Furman were
obviated by the procedures reviewed in Gregg because the sentencing
procedures focused the jury’s attention “on the particularized nature of the
crime and the particularized characteristics of the individual defendant”
and permitted the jury to consider any aggravating or mitigating
circumstances before it could impose a sentence of death, and death
sentences were subject to appellate review. Id. at 206-07.

¶21 More recently, the United States Supreme Court has
identified “two different aspects of the capital decision-making process: the
eligibility decision and the selection decision.” Tuilaepa v. California, 512
U.S. 967, 971 (1994). With regard to eligibility, “a capital sentencing scheme
must ‘genuinely narrow the class of persons eligible for the death penalty
and must reasonably justify imposition of a more severe sentence on the
defendant compared to others found guilty of murder.’” Lowenfield, 484 U.S.
at 244 (quoting Zant, 462 U.S. at 877). The selection decision requires an
individualized determination based on the character of the individual and
the circumstances of the crime. Zant, 462 U.S. at 879. Accordingly, a statute
that “provides for categorical narrowing at the definition stage, and for
individualized determination and appellate review at the selection stage”
will ordinarily satisfy Eighth Amendment and due process concerns, id., so
long as the state ensures “that the process is neutral and principled so as to
guard against bias or caprice[.]” Tuilaepa, 512 U.S. at 973.

¶22 “To render a defendant eligible for the death penalty in a
homicide case . . . the trier of fact must convict the defendant of murder and
find one ‘aggravating circumstance’ (or its equivalent) at either the guilt or
penalty phase.” Id. at 971-72. “[T]he aggravating circumstance must meet
two requirements. First, the circumstance . . . must apply only to a subclass

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Opinion of the Court

of defendants convicted of murder. Second, the aggravating circumstance
may not be unconstitutionally vague.” Id. at 972 (internal citations
omitted).

¶23 Discussions of “narrowing” challenges to death penalty
statutes may involve two different questions: (1) whether a particular
aggravator applies to fewer than all murders; and (2) whether the scheme
overall “is neutral and principled so as to guard against bias or caprice[.]”
Id. at 972–73.

¶24 Hidalgo does not contend that any of Arizona’s statutorily
defined aggravators are insufficiently narrow in the first sense. Cf. Godfrey
v. Georgia, 446 U.S. 420, 433 (1980) (reversing death sentence where
aggravating circumstance could apply to any murder). An aggravating
circumstance satisfies this narrowing requirement so long as it applies only
to a subclass of murders. See Tuilaepa, 512 U.S. at 972; Arave v. Creech, 507
U.S. 463, 474 (1993); Hausner, 230 Ariz. at 82 ¶ 99, 280 P.3d at 626. Hidalgo
also has not alleged that any of the statutory aggravators are vague or that
the aggravators applied in his case were not supported by sufficient
evidence or failed to distinguish his murders from murders in general.

¶25 Hidalgo argues that Arizona’s capital scheme is
unconstitutional because it provides no narrowing - virtually every first
degree murder case presents facts that could support at least one
aggravating circumstance. He acknowledges that prosecutors sought the
death penalty in Maricopa County in about ten percent of first degree
murder cases in 2010 and 2011. But he contends that this situation is
impermissibly “arbitrary” and violates the Eighth Amendment and due
process because there is no principled basis for identifying which capital
defendants will be subject to the death penalty.

¶26 In requiring “narrowing” in the eligibility phase of capital
proceedings, the United States Supreme Court has focused on whether the
sentencer is required to find an aggravating fact beyond the murder itself.
Arave, 507 U.S. at 470 (stating that a capital sentencing scheme must
“suitably direc[t] and limi[t] the sentencer’s discretion so as to minimize the
risk of wholly arbitrary and capricious action”) (internal quotation marks
omitted) (emphasis added). The Court has not looked beyond the
particular case to consider whether, in aggregate, the statutory scheme
limits death-sentence eligibility to a small percentage of first degree

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Opinion of the Court

murders. Even if Hidalgo is right in his factual assertion that nearly every
charged first degree murder could support at least one aggravating
circumstance, no defendant will be subject to a death sentence merely by
virtue of being found guilty of first degree murder and, as Hidalgo
acknowledges, death sentences are in fact not sought in most first degree
murder cases. Observing that at least one of several aggravating
circumstances could apply to nearly every murder is not the same as saying
that a particular aggravating circumstance is present in every murder. Cf.
Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court
and Capital Punishment 160 (2016) (noting that the Court assesses “whether
individual aggravators” rather than “aggravating factors taken collectively”
narrow the class of offenders eligible for the death penalty) (emphasis in
original).

¶27 As Hidalgo notes, our Court has “repeatedly held” that “the
death penalty should not be imposed in every capital murder case but,
rather, it should be reserved for cases in which either the manner of the
commission of the offense or the background of the defendant places the
crime ‘above the norm of first-degree murders.’” State v. Carlson, 202 Ariz.
570, 582 ¶ 45, 48 P.3d 1180, 1192 (2002) (quoting State v. Hoskins, 199 Ariz.
127, 163 ¶ 169, 14 P.3d 997, 1033 (2000)). “The specified statutory
aggravators in Arizona’s death penalty scheme are designed to narrow, in
a constitutional manner, the class of first degree murderers who are death-
eligible.” State v. Soto-Fong, 187 Ariz. 186, 202, 928 P.2d 610, 626 (1996).

¶28 Hidalgo is mistaken, however, insofar as he focuses only on
the legislatively defined aggravating circumstances in arguing that
Arizona’s scheme does not constitutionally narrow the class of those
eligible for death sentences. “The use of ‘aggravating circumstances’ is not
an end in itself, but a means of genuinely narrowing the class of death-
eligible persons and thereby channeling the jury’s discretion.” Lowenfield,
484 U.S. at 244 (holding that narrowing function may be performed by jury
findings at guilt or sentencing phase). The legislature’s definition of
aggravating factors is not the only way in which Arizona’s sentencing
scheme narrows the class of persons eligible for death. See State v. Bible, 175
Ariz. 549, 603–04, 858 P.2d 1152, 1206–07 (1993). Arizona statutorily limits
the death penalty to a subclass of defendants convicted of first degree
murder. Greenway, 170 Ariz. at 164, 823 P.2d at 31. Arizona’s statutes
further limit death eligibility to the identified aggravating circumstances
(which, as noted above, Hidalgo does not challenge individually as either

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Opinion of the Court

overly broad or vague). Additionally, a defendant in a particular case only
becomes death-eligible if the state proves beyond a reasonable doubt that
one or more of the alleged aggravating circumstances exists. A.R.S. § 13-
751(B); Greenway, 170 Ariz. at 164, 823 P.2d at 31. Arizona’s statutory
scheme further provides for individualized sentencing determinations that
consider any mitigating circumstances along with the defendant’s
culpability, and for mandatory appellate review. See A.R.S. § 13-751(C), (E);
Greenway, 170 Ariz. at 164, 823 P.2d at 31. This statutory framework seeks
to “ensure that the process is neutral and principled so as to guard against
bias or caprice in the sentencing decision.” Tuilaepa, 512 U.S. at 973.

¶29 Finally, Hidalgo cannot successfully argue that Arizona’s
capital sentencing scheme is “arbitrary” and violates the Eighth
Amendment or due process because it leaves the decision whether to seek
death to the discretion of prosecutors. The United States Supreme Court
has rejected similar arguments in McCleskey v. Kemp, 481 U.S. 279, 311–12
(1987), and Gregg, 428 U.S. at 199, where the Court observed that
discretionary removal of defendants as candidates for death does not
render a death sentence imposed in a particular case arbitrary and
capricious. See also State v. Ovante, 231 Ariz. 180, 185–86 ¶¶ 18–22, 291 P.3d
974, 979–80 (2013) (rejecting argument that “unbridled charging discretion”
of prosecutors violates due process, equal protection, and the Eighth
Amendment).

3. The Equal Protection Challenges

¶30 Before the trial court, Hidalgo argued that A.R.S. § 13-751 is
not applied equally across the state because poor counties cannot afford to
seek the death penalty and the statute therefore violates the Equal
Protection Clause or the Arizona constitutional provisions regarding equal
privileges or immunities, Ariz. Const. art. 2, § 13, or barring the enactment
of local or special laws. Ariz. Const. art. 4, part 2, § 19(7). In rejecting these
arguments, the trial court noted that an equal protection claim could not
succeed absent purposeful discrimination, which the defendants had not
alleged. See McCleskey, 481 U.S. at 292; Ovante, 231 Ariz. at 186 ¶ 21, 291
P.3d at 980 (holding that showing defendants in Maricopa County are more
likely to receive the death penalty than defendants in other counties does
not establish an Equal Protection Clause violation).

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Opinion of the Court

¶31 On appeal, Hidalgo disclaims relying on the Equal Protection
Clause, but instead argues that the inter-county disparity violates the
“equal protection component implicit in the Eighth Amendment,” which
does not require a showing of purposeful discrimination. He again argues
that A.R.S. § 13-751 violates Arizona’s Equal Privileges and Immunities
Clause and prohibition on special laws. Without developing his
arguments, he also asserts that the capital sentencing scheme violates the
provisions in article 2, sections 4 and 15 of Arizona’s Constitution, requiring
due process and barring cruel and unusual punishment.

¶32 We reject Hidalgo’s arguments. Insofar as Hidalgo contends
that discretionary decisions by prosecutors not to seek the death penalty
create inter-county disparities and thereby violate the Eighth Amendment,
his argument is foreclosed by McCleskey and Ovante. The United States
Court of Appeals for the Fifth Circuit has rejected a similar claim that a
death penalty statute violated the Eighth Amendment because certain
counties disproportionately applied the death penalty. Allen v. Stephens,
805 F.3d 617, 629–30 (5th Cir. 2015) (“[N]o Supreme Court case has held that
the Constitution prohibits geographically disparate application of the death
penalty due to varying resources across jurisdictions. . . . [T]he Supreme
Court has specifically acknowledged that differing law enforcement
resources and prosecutorial discretion make uniform application of the
death penalty impossible.”), cert. denied, 136 S. Ct. 2382 (2016).

¶33 Hidalgo’s assertion that the death penalty violates Arizona’s
Equal Privileges and Immunities Clause also fails because he has not
alleged purposeful discrimination. Cf. Ovante, 231 Ariz. at 186 ¶ 21, 291
P.3d at 980 (rejecting equal protection claim on same grounds). Nor can he
succeed on his assertion that § 13-751 is an impermissible “local or special
law” in violation of article 4, part 2, section 19(7). The statute is a general
law as it applies to all death penalty cases statewide. See Eastin v. Broomfield,
116 Ariz. 576, 584, 570 P.2d 744, 752 (1977).

¶34 The Court need not address Hidalgo’s undeveloped
arguments that § 13-751 violates the due process or the cruel and unusual
punishment provisions in article 2, sections 4 and 15. See Ovante, 231 Ariz.
at 185 ¶ 18 n.1, 291 P.3d at 979 (noting the Court will not consider or address
unsupported constitutional claims). Moreover, the Court has previously
rejected arguments that the death penalty is imposed arbitrarily and
irrationally in Arizona in violation of article 2, section 4, see, e.g., State v.

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Opinion of the Court

Smith, 203 Ariz. 75, 82 ¶ 36, 50 P.3d 825, 832 (2002), and Hidalgo has not
explained how Arizona’s prohibition on cruel and usual punishment
should afford any protections different than the Eighth Amendment in this
context.

B. Prosecutorial Statements Diminishing Jury’s Responsibility

¶35 During closing argument at the penalty phase, the prosecutor
told the jurors, “[i]f you unanimously agree that there is no mitigation, or
the mitigation is not sufficiently substantial to call for leniency, then you
shall return a verdict of death. It’s not an option.” Hidalgo contends that
such remarks diminished the jury’s sense of responsibility for its verdict
and violated his rights under the Eighth and Fourteenth Amendments to
the United States Constitution and article 2, sections 4 and 15 of the Arizona
Constitution.

¶36 Because Hidalgo did not object to the prosecutor’s statements,
we review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567
¶ 19, 115 P.3d 601, 607 (2005). To establish fundamental error, Hidalgo
must show he was prejudiced by an error that went to the foundation of his
case and denied him a fair trial. Id. at 568 ¶¶ 23–24, 569 ¶ 26, 115 P.3d at
608–09. When determining whether error is fundamental, this Court
reviews the entire record and the totality of the circumstances. State v.
Hughes, 193 Ariz. 72, 86 ¶ 62, 969 P.2d 1184, 1198 (1998).

¶37 Hidalgo argues that the prosecutor’s statements diminished
the jury’s sense of responsibility for its verdict in violation of Caldwell v.
Mississippi, 472 U.S. 320 (1985). We reject this argument because: (1) the
prosecutor’s statements accurately stated the law; (2) Caldwell does not
apply; and (3) Hidalgo cannot show prejudice because the jurors are
presumed to have followed the trial court’s instructions about their role in
sentencing.

¶38 The prosecutor’s statements mirror Arizona law, which
provides that “[t]he trier of fact shall impose a sentence of death if the trier
of fact finds one or more . . . aggravating circumstances . . . and then
determines that there are no mitigating circumstances sufficiently
substantial to call for leniency.” A.R.S. § 13-751(E). This Court has held
that jury instructions restating this language do not violate the Eighth
Amendment by creating a “presumption of death,” so long as the jury is

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Opinion of the Court

allowed to consider any relevant mitigating evidence. See, e.g., State v.
Harrod, 218 Ariz. 268, 281 ¶ 49, 183 P.3d 519, 532 (2008). The trial court’s
instructions comported with Arizona’s statute and our case law, and
Hidalgo does not challenge the trial court’s instructions on appeal.

¶39 Hidalgo instead argues that the prosecutor’s statements
violated Caldwell by diminishing the jury’s sense of responsibility for its
verdict. Stating that the “law” may require a death sentence in certain
circumstances, Hidalgo contends, may confuse the jury and prevent it from
recognizing that jurors must individually make a moral determination,
which can be grounded on mercy, as to the appropriate sentence. In
Caldwell, the Court reversed a death sentence imposed after a prosecutor
incorrectly suggested to the jury that “the responsibility for the ultimate
determination of death will rest with others” thereby presenting “an
intolerable danger that the jury will in fact choose to minimize the
importance of its role.” 472 U.S. at 333. Hidalgo states that “[t]he rationale
underlying Caldwell applies equally well to these facts.”

¶40 “Caldwell, however, merely held that a death sentence could
not stand ‘when the sentencing jury is led to believe that responsibility for
determining the appropriateness of a death sentence rests not with the jury
but with the appellate court which later reviews the case.’” State v.
Anderson, 210 Ariz. 327, 337 ¶ 22, 111 P.3d 369, 379 (2005) (quoting Caldwell,
472 U.S. at 323) (emphasis removed); see also Romano v. Oklahoma, 512 U.S.
1, 9 (1994) (noting Caldwell applies only to statements that mislead the jury
into feeling less responsible than it should for the sentencing decision).

¶41 The prosecutor’s statements did not violate Caldwell by
suggesting that ultimate responsibility for imposing a death sentence rested
with others. To the contrary, the prosecutor noted the jury’s responsibility
by stating “each of you must decide the case for yourself[.]” Defense
counsel also noted the jury’s responsibility in various ways, including by
stating “you are the sole judges of the sentence in this case.” The jury
instructions also thoroughly discussed the jury’s responsibility in
determining the death sentence and noted: “Your decision is not a
recommendation. Your decision is binding.”

¶42 Hidalgo also speculates that the prosecutor’s comments may
have caused jurors to think they could not consider “mercy” in making the
sentencing decision. The jury instructions, however, explained that

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Opinion of the Court

mitigating circumstances “are not an excuse or justification for the offense
but are factors that in fairness or mercy may reduce the defendant’s moral
culpability.” Both the prosecutor and defense counsel referenced this
statement in their closing arguments.

¶43 Because the prosecutor’s statements accurately reflected the
law, and did not violate Caldwell when considered in light of the record,
they do not constitute error, much less fundamental error. See State v.
Benson, 232 Ariz. 452, 463 ¶ 44, 307 P.3d 19, 30 (2013) (finding no error in
trial court’s overruling objection to prosecutor’s closing argument that
accurately stated the law). In any event, Hidalgo could not establish
prejudice because the jury instructions accurately described the jury’s role
in sentencing, and the jury is presumed to have followed them. See, e.g.,
State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006); see also
Anderson, 210 Ariz. at 342 ¶ 50, 111 P.3d at 384 (noting that a misstatement
of the law can be cured by court’s instruction that attorney arguments are
not evidence).

C. Revocation of Self-Representation

¶44 Hidalgo contends the trial court abused its discretion when it
revoked his self-representation after Hidalgo refused to proceed with jury
selection on the long-scheduled trial date. “A trial court’s decision to
revoke a defendant’s self-representation is reviewed for an abuse of
discretion.” Gomez, 231 Ariz. at 222 ¶ 8, 293 P.3d at 498 (2012). Self-
representation may be revoked if a defendant fails to comply with court
rules or orders. Id. at 223 ¶ 15, 293 P.3d at 499.

¶45 Hidalgo contends that he was unable to proceed because a
disability limits his ability to write by hand and the trial court improperly
denied him access to a typewriter for use in preparing for trial. The record
does not show that Hidalgo’s physical condition prevented him from
preparing for trial or that the trial court erred in denying his request to be
allowed to use a typewriter in his cell. Instead, the trial court acted within
its discretion by revoking Hidalgo’s self-representation when, contrary to
the court’s repeated warnings and orders, Hidalgo was unwilling to
proceed on the scheduled trial date.

¶46 After Hidalgo was indicted in 2011, he was represented by
appointed counsel for several years. In August 2014, the trial court granted

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Opinion of the Court

a final motion to continue and set a firm trial date for December 8, 2014. At
a September 2014 hearing, Hidalgo asked to represent himself because he
disagreed with his counsel’s refusal to list and interview certain witnesses.
The trial court discussed with Hidalgo the disadvantages of proceeding pro
per and reminded him of the trial date and his responsibility to follow the
rules. The court then granted Hidalgo’s request to proceed pro per and
appointed his counsel as advisory counsel.

¶47 At the end of the hearing, Hidalgo filed a handwritten motion
to obtain and use a laptop computer in his cell. In the motion, Hidalgo
stated that he suffered from “trigger finger,” an arthritic complication that
causes his fingers to lock up if held in one place too long. After a hearing
on October 17, at which no representative appeared for the Maricopa
County Sheriff’s Office (“MCSO”), the trial court granted Hidalgo’s motion
with the understanding that it would permit a laptop or “other authorized
word processing instrument,” but noted that the MCSO would let the court
know “if that violates the rules.”

¶48 On October 30, MCSO filed a motion for reconsideration
asking the trial court to vacate its order and instead deny Hidalgo’s request.
MCSO said its policy prohibited providing inmates access to such devices
because of security risks and noted that Hidalgo had twenty-seven
disciplinary violations, including threatening and assaulting staff. MCSO
also observed that Hidalgo’s advisory counsel could provide Hidalgo
access to a laptop during legal visits to prepare any documents.

¶49 On November 19, the court heard argument on MCSO’s
motion. By this time, the case had been assigned to a different judge for
trial. The court granted MCSO’s motion to vacate the order allowing
Hidalgo access to an “authorized word processing instrument.”
Reminding Hidalgo he had to follow the rules, the trial court also said it
could revoke his self-representation if he was not prepared to go forward
with trial on December 8.

¶50 Hidalgo also filed a motion on November 19 to continue the
trial, asserting that he was having trouble contacting witnesses and it was
taking him longer to prepare without a typewriter. On December 1, the
trial court denied this motion and again reminded Hidalgo that he was
required to follow the rules. On December 3, the court held another hearing

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Opinion of the Court

and reaffirmed that trial would begin on December 8. When Hidalgo said
he could not prepare for trial without a typewriter, the judge responded:

[I]f you're not going to follow the rules, and you're going to
tell me you can't proceed on Monday the 8th because you're
physically incapable of doing it, then we'll have the hearing
that's set forth under State vs. Gomez, and I'll make a finding
that you're not capable of doing it, withdraw your pro per
status, and your advisory counsel will become assigned
counsel again, and we will proceed on the 8th with jury
selection.

¶51 On the morning of December 8, Hidalgo told the trial court
that he was asking for reconsideration of his request for a typewriter
because he could not prepare for trial without one and inmates who had
been helping him file handwritten motions were no longer available.
Hidalgo also asked the trial court to continue the trial until March 2015
because he was not prepared to proceed.

¶52 The trial court denied Hidalgo’s motions, noting that a
continuance would be futile because Hidalgo claimed he was physically
incapable of preparing for trial without a typewriter and the judge was not
going to provide him one. The court reminded Hidalgo that he had been
granted pro per status on the understanding that he would be prepared for
trial on the scheduled date. After Hidalgo reaffirmed he was not prepared
to proceed, the trial court stated, “in light of your refusal to proceed with
this matter, the court has no option but to withdraw your pro per status[.]”
The court then reassigned Hidalgo’s advisory counsel as his appointed
counsel and began jury selection.

¶53 On appeal, Hidalgo argues that the trial court abused its
discretion in revoking his self-representation because the trial court made
it impossible for him to abide by the court’s orders by not granting him
access to a typewriter. He distinguishes Gomez, in which this Court upheld
the revocation of self-representation, because the defendant there had
attempted to manipulate the court, engaged in willful violations of the
rules, and continuously interrupted or delayed court proceedings.

¶54 Contrary to Hidalgo’s arguments, the trial court did not abuse
its discretion in revoking his pro per status. Gomez recognizes that self-

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Opinion of the Court

representation may be revoked if a defendant fails to follow court orders.
231 Ariz. at 223 ¶ 15, 293 P.3d at 499. The trial court repeatedly ordered
Hidalgo to be ready to proceed with trial on December 8 and, when that
day arrived, Hidalgo informed the court that he could not proceed. The
trial court thus properly revoked Hidalgo’s pro per status based on his
refusal to proceed on the scheduled trial date.

¶55 Although Hidalgo asserts he could not prepare for trial
without a typewriter, his inability to access a typewriter in his cell did not
prevent him from preparing his case to begin trial on December 8. Hidalgo
began representing himself on September 30 only after he had been
represented by counsel for several years and a firm trial date had been set.
He continued to have advisory counsel, and during his period of self-
representation, he filed thirty-one handwritten motions. Although Hidalgo
told the trial court that he had been unable to file an interlocutory appeal
from the trial court’s denying him access to a typewriter, Hidalgo did not
identify to the trial court or to this Court how denying him access to a
typewriter prevented his filing any particular motion in the trial court or
otherwise preparing for trial.

¶56 We emphasize two points regarding our ruling that the trial
court did not abuse its discretion in revoking Hidalgo’s self-representation.
As the State conceded at oral argument, it would have been improper for
the trial court to revoke Hidalgo’s pro per status because Hidalgo had a
physical disability or because the trial court thought he was not
appropriately preparing his case. The right to self-representation respects
the defendant’s right to choose how to conduct his defense, see Faretta v.
California, 422 U.S. 806, 834 (1975), and a trial court cannot revoke self-
representation merely because it thinks a defendant is failing to prepare for
trial. See United States v. Flewitt, 874 F.2d 669, 676 (9th Cir. 1989) (holding
that district court erred in revoking self-representation based on the
defendants’ failure to “engage in meaningful discovery, . . . to make use of
the resources available to them, and their general failure to prepare for
trial[.]”). There is a difference, however, between revoking self-
representation because a defendant is not willing to proceed on the
scheduled trial date, which is permissible, and revoking self-representation
because a court believes a defendant is not properly preparing for trial,
which generally is not. In the latter situation, the defendant will bear the
consequences of his lack of preparation; in the former, the defendant’s

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Opinion of the Court

refusal to proceed disrupts the proceedings altogether, justifying the
revocation of self-representation.

¶57 It is likewise improper to revoke a defendant’s self-
representation based merely on a physical disability. This Court has
indicated that a defendant’s physical ability to conduct a defense is
generally irrelevant to determining whether a defendant is entitled to self-
representation. See State v. Doss, 116 Ariz. 156, 160, 568 P.2d 1054, 1058
(1977) (“There was evidence that the defendant was physically unable to
carry on his defense, and at various times the defendant has acknowledged
that stress affects his speech and presents a danger of seizure. Faretta,
however, makes clear that the lack of skill and experience is not the issue in
making the choice of self-representation.”) (footnote omitted).
Accordingly, a defendant’s disability can provide grounds for denying or
revoking self-representation only if it renders a defendant physically
incapable of presenting a case to the jury and abiding by court rules and
protocol. Cf. Savage v. Estelle, 924 F.2d 1459, 1464, 1466 (9th Cir. 1990)
(upholding revocation of self-representation in “rare case[s],” such as here,
where severe speech impediment prevented defendant from “abid[ing] by
[the] rules of procedure and courtroom protocol” but distinguishing a
denial of a right “to communicate to the jury with the assistance of a sign
language interpreter, or some other mechanical or non-mechanical means
of rapid communication”).

¶58 The record does not reflect that the trial court revoked
Hidalgo’s self-representation because of a physical disability or his failing
to prepare for trial. Instead, as the trial court expressly stated, it revoked
self-representation because Hidalgo refused to follow court orders to
proceed with trial on the scheduled date.

D. Failure to Hold Evidentiary Hearing on Motion for New Counsel

¶59 Hidalgo argues that the trial court erred on December 8 in
denying his request for new counsel without holding an evidentiary
hearing. We review that decision for an abuse of discretion. Gomez, 231
Ariz. at 226 ¶ 29, 293 P.3d at 502. An evidentiary hearing on a motion for
change of counsel is not required “if the motion fails to allege specific facts
suggesting an irreconcilable conflict or a complete breakdown in
communication, or if there is no indication that a hearing would elicit
additional facts beyond those already before the court.” Id. at 225–26 ¶ 29,

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Opinion of the Court

293 P.3d at 501–02. The defendant bears the burden of making sufficient
factual allegations in support of his request for an evidentiary hearing. State
v. Torres, 208 Ariz. 340, 343 ¶ 8, 93 P.3d 1056, 1059 (2004).

¶60 When Hidalgo requested a change of counsel, he informed
the trial court he had been unable to get along with his appointed lawyers
and could not “come to an agreement on this trial on my defense,
mitigation, and everything else that comes with the trial.” He said he and
his lawyers had not seen “eye to eye for some time,” and they had been
ineffective in preparing his case. Hidalgo then asked for an evidentiary
hearing on his motion, but the trial court denied it.

¶61 Hidalgo failed to identify specific facts sufficient to require an
evidentiary hearing. His statement that he disagreed with his lawyers on
“[his] defense, mitigation, and everything else that comes with trial”
reflects disagreements over trial strategy, and such disagreements do not
constitute an irreconcilable conflict. See State v. Cromwell, 211 Ariz. 181, 186
¶ 29, 119 P.3d 448, 453 (2005). Although Hidalgo said his lawyers had been
ineffective in preparing his case, “generalized complaints” about
differences in strategy do not necessitate a hearing. See Torres, 208 Ariz. at
343 ¶ 8, 93 P.3d at 1059. When Hidalgo earlier elected to represent himself,
his request likewise reflected disagreement over trial strategy - namely,
disagreement over his appointed counsel’s refusal to list and interview
certain witnesses - rather than specific allegations of irreconcilable
differences or a complete breakdown in communication. The trial court
therefore did not abuse its discretion when it denied Hidalgo’s request for
change of counsel without holding an evidentiary hearing.

E. Independent Review of Death Sentence

¶62 Because Hidalgo committed the murders before August 1,
2002, we independently review his death sentence. See A.R.S. § 13-755(A).

1. Aggravating Circumstances

¶63 The jury found four aggravators - (F)(1) (conviction of another
offense for which life or death sentence imposable), (F)(2) (prior conviction
of a serious offense), (F)(5) (pecuniary gain), and (F)(8) (multiple murders
during commission of offense) - with respect to the murder of Michael
Cordova and three aggravators - (F)(1), (F)(2), and (F)(8) - with respect to

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Opinion of the Court

the murder of Jose Rojas. Hidalgo does not contest the sufficiency of the
evidence, and our review of the record confirms that the State proved each
aggravator beyond a reasonable doubt.

¶64 Hidalgo’s federal convictions for murdering two women in
2002 were each punishable by a sentence of life imprisonment or death, and
thus, either conviction establishes the (F)(1) aggravator. The State proved
the (F)(5) aggravator because Hidalgo confessed to murdering Cordova for
$1,000. Hidalgo also pleaded guilty to murdering Cordova and Rojas
within minutes of one another inside Cordova’s auto-body shop. While
stating that he murdered Cordova because a gang member had hired him
to do so, he confessed to killing Rojas simply to eliminate a witness to
Cordova’s murder. Hidalgo’s confession consequently established that
Cordova and Rojas’s murders were temporally, spatially, and
motivationally related as required for the (F)(8) aggravator. See State v.
Djerf, 191 Ariz. 583, 597 ¶ 57, 959 P.2d 1274, 1288 (1998).

¶65 The State, however, erred when proving the (F)(2)
aggravator, which turns on Hidalgo’s having been “previously convicted
of a serious offense, whether preparatory or completed.” When Hidalgo
murdered Cordova and Rojas in 2001, this aggravator could not be
established based on offenses concurrently committed or charged. See
A.R.S. § 13-703(F)(2) (1989 & Supp. 2000). In 2003, the legislature amended
the statute to include serious offenses concurrently committed or charged.
See A.R.S. § 13-751(F)(2). Because the earlier version of the statute applied,
the State (as it acknowledges on appeal) erred in arguing during the
aggravation phase that Hidalgo’s conviction for the first degree burglary
committed concurrently with the murders supported the (F)(2) aggravator.
See State v. Rutledge, 206 Ariz. 172, 178 ¶ 25, 76 P.3d 443, 449 (2003).

¶66 Hidalgo did not object, however, and this error was not
fundamental as he was not prejudiced. First degree murder is also a serious
offense supporting the (F)(2) aggravator. A.R.S. § 13-703(H)(1)(a) (1989 &
Supp. 2000). Hidalgo pleaded guilty to two counts of first degree murder
in 2002. While one such conviction satisfies the (F)(1) aggravator, the
second establishes the (F)(2) aggravator. Thus, the record independently
supports the finding of the (F)(2) aggravator beyond a reasonable doubt.

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Opinion of the Court

2. Mitigating Circumstances

¶67 At the sentencing phase, Hidalgo presented several witnesses
who explored his difficult and abusive childhood, which included physical
and sexual abuse by his parents and extended family, gang affiliation,
poverty, juvenile incarceration, and drug use. Hidalgo’s chief mitigation
witness, Dr. Clark, testified that Hidalgo likely had attention deficit
hyperactivity disorder (“ADHD”), conduct disorder, post-traumatic stress
disorder (“PTSD”), and antisocial personality disorder (“APD”). Another
mitigation expert described the gang family and culture Hidalgo was born
into and the difficulties with renouncing one’s gang affiliation. Hidalgo
also presented evidence that while in prison he renounced his gang
affiliation and participated in educational and self-improvement programs.
During allocution, Hidalgo expressed remorse and a desire to be
rehabilitated.

¶68 Hidalgo had a cruel and traumatic childhood. Dr. Clark
observed that Hidalgo’s upbringing and mental disorders “constrained”
his ability to make choices. Dr. Clark’s diagnosis of PTSD, however, was
based primarily on Hidalgo’s self-reporting, and an expert witness for the
State concluded Hidalgo’s symptoms were contrived and inconsistent with
PTSD. Hidalgo understood the wrongfulness of his actions, and no
mitigation witness convincingly explained how his childhood or mental
conditions led him, at age 23, to murder Cordova and Rojas. Although we
consider all mitigating circumstances, we view them as less compelling
because Hidalgo has not shown their causal connection to the murders.
State v. Prince, 226 Ariz. 516, 541 ¶ 109, 542 ¶ 113, 250 P.3d 1145, 1170–71
(2011).

3. Propriety of Death Sentence

¶69 We consider the quality and the strength, not simply the
number, of aggravating and mitigating factors. State v. Greene, 192 Ariz.
431, 443 ¶ 60, 967 P.2d 106, 118 (1998). When independently reviewing a
death sentence, we have given “extraordinary weight” to the multiple
murders aggravating circumstance and found the pecuniary gain
aggravator “especially strong” in the case of a contract killing. State v.
Moore, 222 Ariz. 1, 23 ¶ 137, 213 P.3d 150, 172 (2009); Harrod, 218 Ariz. at 284
¶ 63, 183 P.3d at 535. Here, Hidalgo admitted killing one man for $1,000
and another simply to eliminate an eyewitness. In light of the aggravating

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Opinion of the Court

factors, we conclude that “the mitigation is not sufficiently substantial to
warrant leniency[.]” A.R.S. § 13-755(B).

F. Additional Issues

¶70 Stating that he seeks to preserve certain issues for federal
review, Hidalgo lists twelve additional constitutional claims that have been
rejected in previous decisions. We decline to revisit these claims.

CONCLUSION

¶71 We affirm Hidalgo’s convictions and sentences.

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