State v. Estevez

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

MARTIN QUEZADA ESTEVEZ, Petitioner.

No. 1 CA-CR 22-0483 PRPC
FILED 4-25-2023

Petition for Review from the Superior Court in Yuma County
No. S1400CR200801584
The Honorable Brandon S. Kinsey, Judge

REVIEW GRANTED/RELIEF GRANTED

COUNSEL

Yuma County Attorney’s Office, Yuma
By Jon R. Smith
Counsel for Respondent

Yuma County Legal Defender’s Office, Yuma
By Zachary John Dumyahn
Counsel for Petitioner
 STATE v. ESTEVEZ
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Michael J. Brown and Judge Michael S. Catlett joined.

M c M U R D I E, Judge:

¶1 Martin Quezada Estevez petitions this court to review the
summary dismissal of his post-conviction relief (“PCR”) petition filed
under Arizona Rule of Criminal Procedure 32.1. We grant review and relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2004, Estevez lived with his girlfriend (Camila),1 his two
daughters, and Camila’s daughter. One afternoon, while the children were
with a sitter, Estevez was at his neighbor’s house when he saw Camila
return from work. Estevez went home, took Camila’s phone, and returned
to the neighbor’s house. Camila followed him and threatened to call the
police if Estevez did not give her back the phone. She then took the phone
and returned home. Estevez followed, and the two argued. Meanwhile, the
daughters were with a sitter dropping off the eldest girl at a soccer game.

¶3 When the sitter and two of the girls returned, Estevez met
them at the door. He instructed them to go to a neighbor’s house, but one
of the girls slipped past Estevez, proceeded to the patio, and saw Camila
lying on the ground with blood on her mouth. Estevez explained to his
daughter that Camila must have hurt herself in the bathroom. He returned
his daughter to the sitter, who led the girls to the neighbor’s house. The
sitter and the girls later left to pick up the eldest daughter from her game.

¶4 When the daughters returned, the eldest searched for Camila
but could not find her. She found Camila’s wallet and keys, however. She
telephoned Estevez, who claimed he was out buying beer and did not know
Camila’s whereabouts. After about 45 minutes, she called again. Estevez
said he was almost home but did not return for a half hour. Once Estevez
arrived, she told him that if he did not call the police, she would. So, Estevez
called the police.

1 We use a pseudonym to protect the victim’s identity.

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¶5 Officers arrived, and Estevez admitted to arguing with
Camila. Police then deployed a cadaver dog, which alerted on Estevez’s
truck. When the police interviewed Estevez again, he acknowledged that
Camila did not hurt herself in the bathroom and that one of the girls saw
her lying on the patio. Still, he denied having anything to do with her
disappearance.

¶6 No one saw Camila again until her body was found on a farm
more than a year later, dressed in the same clothes the girls saw her wearing
the day she disappeared. Police obtained cell site location information
showing Estevez’s phone was used near the farm when Camila
disappeared. In 2008, a grand jury indicted Estevez for second-degree
murder, and the police arrested him.2 The indictment did not differentiate
between the different methods of committing second-degree murder. See
A.R.S. § 13-1104(A)(1)–(3).

¶7 The case proceeded to a jury trial. The medical examiner
testified that the bodily remains were “almost completely skeletonized.”
When he examined the bones, the examiner found no evidence of stabbing,
gunshot wounds, or blunt force trauma. He also noted that some bones,
including the hyoid bone, were missing. Without the hyoid bone, he could
not determine whether there was trauma to the neck area. In sum, the
examiner stated that he could not determine Camila’s cause of death.

¶8 Before the closing arguments, Estevez requested that the
court instruct the jury on the lesser-included offenses of manslaughter and
negligent homicide. He argued that because the State advocated for reckless
second-degree murder, the jury should also consider reckless manslaughter
and negligent homicide as lesser-included offenses. The State replied that
the court must provide a reckless manslaughter instruction only if the
evidence supported it, and there was no such evidence in the case. The court
denied the motion because “there was no evidence of any recklessness that
was presented to the jury,” and it declined to instruct on the lesser-included
offenses.

¶9 At closing argument, the State theorized that “[Estevez]
strangled [Camila] or choked her or suffocated her,” noting that officers
found no blood on the scene, no one reported a scream or gunshot, and the

2 The arrest did not occur until 2018, when Estevez returned to the
United States from Mexico. The State extradited Estevez from California to
begin the prosecution.

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medical examiner found nothing remarkable about the skeleton. The State
clarified, however, that cause of death is not an element of the crime, and
the jury could convict Estevez without believing the asphyxiation theory.

¶10 The State also explained that second-degree murder requires
the jury to find that Estevez intentionally, knowingly, or recklessly caused
Camila’s death. The defense countered that the State relied too heavily on
speculation and guesswork and thus failed to prove its case beyond a
reasonable doubt.

¶11 The jury found Estevez guilty. The court sentenced Estevez to
an aggravated prison term of 22 years.

¶12 Estevez appealed. On appeal, he argued that the superior
court lacked the authority to impose extradition costs, and the police
unlawfully seized his cell phone records. He did not raise a jury-instruction
issue. We affirmed his conviction and sentence. State v. Estevez, 1 CA-CR
19-0037, 2020 WL 734226 (App. Feb. 13, 2020) (mem. decision).

¶13 Estevez then petitioned for PCR. He raised several claims,
including that appellate counsel was ineffective by failing to raise the claim
that the court erred by refusing to give the lesser-included instructions. The
court summarily denied the petition.

¶14 Estevez petitioned this court for review, and we have
jurisdiction under A.R.S. § 13-4239(C) and Rule 32.16(a)(1).

DISCUSSION

¶15 Estevez argues, among other things, that his appellate counsel
was ineffective by failing to raise the jury-instruction issue. The superior
court summarily dismissed the petition. Generally, we will affirm the
superior court’s resolution of a petition for PCR unless the court abused its
discretion or legally erred. State v. Evans, 252 Ariz. 590, 594, ¶ 7 (App. 2022).
But whether an attorney rendered ineffective assistance “is a mixed
question of fact and law,” with the superior court’s legal conclusions subject
to de novo review. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017); State v.
Macias, 249 Ariz. 335, 340, ¶ 16 (App. 2020).

¶16 We must determine whether Estevez presents a colorable
claim of ineffective assistance. State v. Bennett, 213 Ariz. 562, 566, ¶ 17
(2006). A colorable claim alleges facts that, if true, would have probably
changed the outcome. State v. Amaral, 239 Ariz. 217, 220, ¶¶ 10–11 (2016).
To state a colorable ineffective-assistance-of-counsel claim, a defendant

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must show that counsel performed below objectively reasonable standards
and that counsel’s deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant is prejudiced
if there is a reasonable probability that the outcome would have been
different. Id. at 694.

¶17 “A strong presumption exists that appellate counsel provided
effective assistance,” as appellate counsel may reasonably raise some issues
and reject others. Bennett, 213 Ariz. at 567, ¶ 22. Generally, “[a]ppellate
counsel is not ineffective for selecting some issues and rejecting others.” Id.;
Jones v. Barnes, 463 U.S. 745, 752–53 (1983) (“There can hardly be any
question about the importance of having the appellate advocate examine
the record with a view to selecting the most promising issues for review. . . .
A brief that raises every colorable issue runs the risk of burying good
arguments.”); Macias, 249 Ariz. at 341, ¶ 17. But “if counsel ignores issues
that are clearly stronger than those selected for appeal, a defendant can
overcome the presumption.” Bennett, 213 Ariz. at 567, ¶ 22. Estevez argues
that the court’s refusal to instruct on the lesser-included offenses was the
strongest appellate issue, and appellate counsel was ineffective by not
raising it.

¶18 At the trial, the court instructed the jury on second-degree
murder:

The crime of second-degree murder requires proof of
one of the following:

1. The defendant intentionally caused the death of another
person; or

2. The defendant caused the death of another person by
conduct which the defendant knew would cause death or
serious physical injury; or

3. Under circumstances manifesting extreme indifference to
human life, the defendant recklessly engaged in conduct
that created a grave risk of death and thereby caused the
death of another person. The risk must be such that
disregarding it was a gross deviation from what a
reasonable person in the defendant’s situation would have
done.

See A.R.S. § 13-1104. A defendant is entitled to a lesser-included instruction
if the jury could find “(a) that the State failed to prove an element of the

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greater offense and (b) that the evidence is sufficient to support a conviction
on the lesser offense.” State v. Wall, 212 Ariz. 1, 4, ¶ 18 (2006).

¶19 As relevant here, and as instructed by the superior court, a
person commits second-degree murder if “[u]nder circumstances
manifesting extreme indifference to human life, the person recklessly
engages in conduct that creates a grave risk of death and thereby causes the
death of another person.” A.R.S. § 13-1104(A)(3). Similarly, a person
commits manslaughter by “[r]ecklessly causing the death of another
person.” A.R.S. § 13-1103(A)(1). The distinction between the offenses is
whether the person acted “under circumstances manifesting extreme
indifference to human life . . . through conduct that created a grave risk of
death.” State v. Valenzuela, 194 Ariz. 404, 406–07, ¶ 11 (1999). If the evidence
supports a finding that the defendant acted recklessly but without the
additional distinguishing elements, the court must instruct on the
lesser-included offense of reckless manslaughter. Id. at 407, ¶ 13.

¶20 At trial, the State presented little evidence about the
circumstances surrounding Camila’s death. During closing arguments, the
prosecutor admitted, “We don’t know how he killed her, and that’s a fact.”
Before this court, the State concedes that “the evidence did not show how
[Camila] died.” On these facts, a jury could have found that the State failed
to prove Estevez acted “under circumstances manifesting extreme
indifference to human life . . . through conduct that created a grave risk of
death.” See Valenzuela, 194 Ariz. at 406–07, ¶ 11. This satisfies the first Wall
prong.

¶21 To satisfy the second prong, Estevez must also show that “the
evidence is sufficient to support a conviction on the lesser offense.” Wall,
212 Ariz. at 4, ¶ 18. The State argues that the evidence here could not
support a lesser conviction “[b]ecause Estevez presented an all or nothing
defense.” This argument is problematic for two reasons. First, Estevez chose
not to put on evidence and only argued that the State failed to meet its
burden of proof. He did not present an all-or-nothing defense, such as an
alibi or mistaken identity. Cf. Wall, 212 Ariz. at 6, ¶ 29. Second, even if he
had, “the evidence in the record can be sufficient to require a
lesser-included offense instruction even when the defendant employs an
all-or-nothing defense.” Id. at ¶ 30.

¶22 “[E]vidence to support a conviction exists when ‘reasonable
persons could accept [it] as adequate and sufficient to support a conclusion
of [a] defendant’s guilt beyond a reasonable doubt.’” State v. Burns, 237
Ariz. 1, 21, ¶ 72 (2015) (quoting State v. West, 226 Ariz. 559, 562, ¶ 16 (2011)).

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In other words, if a jury could reasonably infer from the evidence that a
defendant committed a lesser-included offense, the defendant is entitled to
that instruction. See Valenzuela, 194 Ariz. at 407, ¶ 13; see also State v. Harvill,
106 Ariz. 386, 391 (1970) (A jury may consider direct and circumstantial
evidence equally.); State v. Riley, 12 Ariz. App. 336, 337 (1970)
(“Circumstantial evidence is the proof of the existence of some fact from
which fact the existence of the thing in issue may be legally and logically
inferred.”).

¶23 At the trial, the State advocated for second-degree murder
under three mental states, including recklessness. In this court, the State
maintains that “the evidence proved second degree murder, even if
committed recklessly.” But the issue here is not whether the evidence was
sufficient to support the convicted offense. Instead, the issue is whether the
evidence was “sufficient to support a conviction on the lesser offense.” Wall,
212 Ariz. at 4, ¶ 18 (emphasis added). Here, the State contends that the
prosecutor “properly argued that the jury could find guilt if Estevez . . .
recklessly caused the death of [Camila].” This assertion cuts against
denying the lesser-included instruction because it implies evidence
supports a reckless manslaughter conviction. Cf. A.R.S. § 13-1103(A)(1) (A
person commits manslaughter by “[r]ecklessly causing the death of another
person.”).

¶24 More importantly, we agree with the State that the jury could
have concluded that the crime was committed recklessly. Because of the
nature of the evidence presented and the State’s concession that it did not
know what happened in the moments preceding Camila’s death, the jury
reasonably could have made various inferences, especially about Estevez’s
mental state. The jury reasonably could have inferred that Estevez
recklessly killed Camila, either with or without the elements distinguishing
murder from manslaughter. See Valenzuela, 194 Ariz. at 407, ¶¶ 12–13.
Similarly, the jury reasonably could have concluded that Estevez killed
Camila with criminal negligence. See A.R.S. § 13-1102(A) (“A person
commits negligent homicide if with criminal negligence the person causes
the death of another person.”); A.R.S. § 13-105(10)(d) (Criminal negligence
occurs when “a person fails to perceive a substantial and unjustifiable risk
. . . . constitut[ing] a gross deviation from the standard of care that a
reasonable person would observe.”) When evidence permits conflicting
inferences, it supports giving the lesser-included instruction. See State v.
Miranda, 200 Ariz. 67, 69, ¶ 7 (2001).

¶25 The superior court declined to instruct on reckless
manslaughter because it found “no evidence of any recklessness that was

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presented to the jury.” Yet the court instructed the jury on the definition of
“recklessly” and reckless second-degree murder. If there were “no evidence
of any recklessness,” it would have been error to instruct on reckless
second-degree murder. See State v. Sprang, 227 Ariz. 10, 14, ¶ 14 (App. 2011)
(Superior court committed an “error of law and, therefore, abused its
discretion because no evidence warranted an instruction.”). If there was
evidence supporting a reckless second-degree murder instruction, that
same evidence supported a reckless manslaughter instruction. State v.
Valenzuela, 194 Ariz. at 407, ¶ 13. Likewise, given the lack of evidence about
the homicide, a negligent homicide instruction appears warranted.

¶26 Appellate counsel’s failure to raise this issue “suggests that
[Estevez’s] counsel fell below objective standards in his representation.” See
Bennett, 213 Ariz. at 568, ¶ 24.

¶27 Estevez must also show prejudice to establish a colorable
claim. See Bennett, 213 Ariz. at 568, ¶ 25. In this case, he must show a
reasonable probability that his lesser-included argument would have
succeeded on appeal. See id.

¶28 There is a reasonable probability that the argument would
have succeeded. The lesser-included claim does not turn on disputed facts,
nor is it a novel question. See, e.g., Wall, 212 Ariz. 1; Valenzuela, 194 Ariz.
404. And not only is the argument legally sound, as expressed above, but it
also follows the policy considerations for giving lesser-included
instructions. As our supreme court has explained, “‘[w]here one of the
elements of the offense charged remains in doubt, but the defendant is
plainly guilty of some offense, the jury is likely to resolve its doubts in favor
of conviction.” Wall, 212 Ariz. at 4, ¶ 16 (quoting Beck v. Alabama, 447 U.S.
625, 634 (1980)). “Giving a lesser-included offense instruction mitigates that
risk.” Id.

¶29 By not allowing the jurors to consider reckless manslaughter,
the court denied them the “‘option of convicting on a . . . less drastic
alternative’ than . . . second-degree murder, and precluded [Estevez] from
receiving ‘the full benefit of the reasonable-doubt standard.’” Valenzuela,
194 Ariz. at 407, ¶ 13 (quoting State v. Celaya, 135 Ariz. 248, 253 (1983)).
Estevez has therefore established a reasonable probability that the outcome
of his case would have been different had appellate counsel raised the
jury-instruction issue.

¶30 Because Estevez has shown a reasonable probability that
appellate counsel rendered ineffective assistance, he has stated a colorable

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claim. See Bennett, 213 Ariz. at 568, ¶ 29. Typically, a petitioner who states a
colorable claim “is entitled to a hearing to determine issues of material fact.”
Ariz. R. Crim. P. 32.13. But in cases like this, “when there are no material
facts in dispute and the only issue is the legal consequence of undisputed
material facts,” a court need not hold a hearing and may rule on the claim’s
merits. Amaral, 239 Ariz. 217, 220, ¶ 12 (quoting State v. Gutierrez, 229 Ariz.
573, 579, ¶ 32 (2012)).

CONCLUSION

¶31 Estevez’s counsel was ineffective by failing to challenge the
superior court’s refusal to instruct the jury on the lesser-included offenses.
We, therefore, grant review, vacate Estevez’s conviction and sentence, and
remand for a new trial. Because we grant relief on this ground, we decline
to reach the remaining issues.

AMY M. WOOD • Clerk of the Court
FILED: AA

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