Petition for Writ of Certiorari — Lalako Jonathan Jose, Petitioner v. Arizona

No. ____________

IN THE SUPREME COURT OF THE UNITED STATES

LALAKO JONATHAN JOSE,

Petitioner,

vs.

STATE OF ARIZONA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ARIZONA COURT OF APPEALS

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

DAVID J. EUCHNER

Counsel of Record

Pima County Public Defender’s Office

33 N. Stone, 21st Floor

Tucson, Arizona 85701

Telephone: (520) 724-6800

David.Euchner@pima.gov

Attorney for Petitioner

INDEX TO APPENDIX

Exhibit 1: Decision of Arizona Court of Appeals (not published)

Exhibit 2: Order of Arizona Supreme Court Denying Discretionary

Review

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

LALAKO JONATHAN JOSE,

Appellant.

No. 2 CA-CR 2023-0224

Filed May 10, 2024

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND

MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20221408001

The Honorable Scott McDonald, Judge

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General

Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals

By Jacob R. Lines, Assistant Attorney General, Tucson

Counsel for Appellee

Megan Page, Pima County Public Defender

By David J. Euchner, Assistant Public Defender, Tucson

Counsel for Appellant

STATE v. JOSE

Decision of the Court

MEMORANDUM DECISION

Chief Judge Vásquez authored the decision of the Court, in which Presiding

Judge Eppich and Judge Gard concurred.

V Á S Q U E Z, Chief Judge:

¶1

After a jury trial, Lalako Jose was convicted of aggravated

assault of a peace officer, and the trial court sentenced him to the minimum

prison term of four years. On appeal, Jose contends the court erred by

instructing the jury on a different type of assault than was charged in the

indictment, empaneling an eight-person jury, and imposing a time payment

fee. For the following reasons, we affirm.

Factual and Procedural Background

¶2

In April 2022, law enforcement officers arrested Jose on an

unrelated offense. While the officers were placing an uncooperative Jose

into a patrol vehicle and attempting to secure the seatbelt, Jose told one of

the officers to “stop touching him” then “slammed his head into” the

officer’s head, stating, “[G]et the fuck off me.”

¶3

Jose was charged with aggravated assault of a peace officer

and was convicted and sentenced as described above. Jose appealed, and

we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and

13-4033(A)(1).

Discussion

I.

Amended Indictment

¶4

Jose contends that he was convicted of an uncharged offense,

violating his constitutional right to be informed of the charges against him

and constituting either structural or fundamental, prejudicial error. This

occurred, he claims, because the trial court instructed the jury on assault

under a subsection different than the one he was charged with in the

indictment. The indictment alleged that Jose had committed aggravated

assault on a peace officer “resulting in physical injury” under A.R.S.

2

STATE v. JOSE

Decision of the Court

§ 13-1203(A)(1).1 Six days before trial, the state filed its proposed jury

instructions, defining the assault underlying the aggravated assault charge

as “knowingly touching another person with the intent to injur[e], insult, or

provoke such person” under § 13-1203(A)(3). When settling final jury

instructions, the court asked the state to confirm that it was proposing an

instruction for assault under subsection (A)(3) and not (A)(1). The state

responded “[t]hat is correct,” and, when asked, Jose did not object.

Accordingly, the court’s final jury instruction included § 13-1203(A)(3)’s

language.

¶5

Jose argues on appeal that he lacked notice of the offense for

which he was convicted as required by the Sixth Amendment, constituting

structural error. The Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be informed of the nature and cause of the accusation.” See also

Ariz. Const. art. II, § 24 (“In criminal prosecutions, the accused shall have

the right . . . to demand the nature and cause of the accusation against him,

to have a copy thereof . . . .”).

¶6

Relying on State v. Sanders, 205 Ariz. 208 (App. 2003), abrogated

on other grounds by State v. Freeney, 223 Ariz. 110 (2009), Jose maintains the

evidence presented to the grand jury and the offense as charged in the

indictment required the state to prove he injured the officer. In Sanders, the

defendant was charged with aggravated assault of a peace officer by

knowingly touching the officer with the intent to injure, insult, or provoke

him in violation of § 13-1203(A)(3). 205 Ariz. 208, ¶ 5. During the trial, the

state successfully moved to amend the assault charge under Rule 13.5(b),

Ariz. R. Crim. P., to allege the defendant intentionally placed the officer in

reasonable apprehension of imminent physical injury in violation of

§ 13-1203(A)(2) to conform to the evidence elicited during the state’s

case-in-chief. 205 Ariz. 208, ¶¶ 9-10. On appeal, this court held that “an

amendment proposed mid-trial that changes the nature of the original

charge deprives an accused of the type of notice and opportunity to prepare

a defense contemplated by the Sixth Amendment and is therefore not

permitted by Rule 13.5(b).” 205 Ariz. 208, ¶ 1. We characterized this type

1Although the indictment does not cite the assault statute, the parties

agree its reference to “physical injury” is a reference to § 13-1203(A)(1),

which states a person commits assault by “[i]ntentionally, knowingly or

recklessly causing any physical injury to another person.”

3

STATE v. JOSE

Decision of the Court

of Rule 13.5(b) violation as “prejudicial per se.” 205 Ariz. 208, ¶¶ 20-24,

49-50 & 50.

¶7

Our supreme court rejected that characterization. In Freeney,

the court stated that “[c]ontrary to Sanders, . . . a violation of Rule 13.5(b) is

neither prejudicial per se nor structural error.” 223 Ariz. 110, ¶¶ 21-26 &

26. Jose maintains that Freeney “seemingly agree[d] with the fact that a Sixth

Amendment violation occurred in Sanders” and that it “overruled Sanders

only on the point that a rule-based change of the offense constitutes

structural error.” To be sure, if Jose received constitutionally insufficient

notice of the charge as amended, it would require us to vacate his conviction

and sentence. See id. ¶¶ 26, 29-30 (“For Sixth Amendment purposes, when

a defendant does not receive constitutionally adequate notice of the charges

against him, he is necessarily and actually prejudiced.”).

¶8

“[T]he touchstone of the Sixth Amendment notice

requirement is whether the defendant had actual notice of the charge, from

either the indictment or other sources.” Id. ¶ 29. Indeed, we noted in

Sanders that the Sixth Amendment’s notice requirement “does not bar any

change at all to an original charge” as long as the amendment’s “substance

or timing” does not “undermine or defeat the interest in a fair trial that the

[Sixth] Amendment is designed to protect.” Id. ¶ 17. A violation occurs

when a defendant receives “insufficient notice and is therefore actually

prejudiced by a new or amended charge.” Freeney, 223 Ariz. 110, ¶ 29.

¶9

Viewed in its entirety, the record in this case reflects Jose was

given sufficient notice that the state was alleging and seeking to prove that

he intended to provoke or insult the officer, despite his argument to the

contrary. In fact, Jose concedes the state provided him notice of its intent

to pursue assault under § 13-1203(A)(3) when it filed its requested jury

instructions before the start of trial. This alone could satisfy the Sixth

Amendment’s notice requirement. See Freeney, 223 Ariz. 110, ¶ 29. And as

noted above, Jose stated that he did not object to the change when the trial

court asked during the settling of jury instructions. Moreover, during

opening statements and closing arguments, the state and Jose informed the

jury of the state’s burden to prove Jose had the “intent to injure, insult, or

provoke” the officer. Similarly, Jose moved for judgment of acquittal under

Rule 20, Ariz. R. Crim. P., arguing that the state could not prove the charged

crime, in part, because there was no “evidence to show that there was intent

to injure, insult, or provoke” the officer. Because the state’s requested jury

instructions provided Jose with “constitutionally adequate notice” of the

modification, demonstrated by his arguments at trial, we cannot say he was

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STATE v. JOSE

Decision of the Court

deprived of his Sixth Amendment right to notice. See Freeney, 223 Ariz. 110,

¶¶ 26, 29.

¶10

We next turn to whether the trial court’s final jury instructions

violated Rule 13.5(b). Because Jose did not object to the jury instruction,

our review is limited to fundamental, prejudicial error. See State v. Escalante,

245 Ariz. 135, ¶¶ 12-13 (2018); see also Freeney, 223 Ariz. 110, ¶ 26 (violation

of Rule 13.5(b) is not structural error). Under this standard, Jose must show

error and, if it exists, that the error is fundamental. See Escalante, 245 Ariz.

135, ¶ 21. “A defendant establishes fundamental error by showing that

(1) the error went to the foundation of the case, (2) the error took from the

defendant a right essential to his defense, or (3) the error was so egregious

that he could not possibly have received a fair trial.” Id. Additionally, the

defendant must make a separate showing of prejudice if alleging error

under the first two prongs. Id.

¶11

Under Rule 13.5(b), a “grand jury indictment limits the trial

to the specific charge” stated therein and it can “be amended only to correct

mistakes of fact or remedy formal or technical defects” unless the defendant

consents to the amendment. An indictment is constructively amended

when a trial court allows the state to “prove its case in a fashion that creates

a substantial likelihood that the defendant may have been convicted of an

offense other than that charged in the indictment.” Sanders, 205 Ariz. 208,

¶ 81 (Hall, J., dissenting) (quoting United States v. Apodaca, 843 F.2d 421, 428

(10th Cir. 1988)). An amendment that changes the nature of the charged

offense without the defendant’s consent violates Rule 13.5(b). See Freeney,

223 Ariz. 110, ¶ 31. Because the three types of assault defined under

§ 13-1203(A) “are distinct offenses with different elements, not merely

different manners of committing the same offense,” State v. Waller, 235 Ariz.

479, ¶ 29 (App. 2014), the court’s final instruction altered the nature of the

crime charged, see Freeney, 223 Ariz. 110, ¶ 17, thereby constructively

amending the indictment, see Sanders, 205 Ariz. 208, ¶ 81 (Hall, J.,

dissenting). Consequently, whether the jury instruction’s constructive

amendment of the indictment violated Rule 13.5(b) hinges on whether Jose

consented to the amendment.

¶12

Jose did not object to the instruction amending the charge and

his opening and closing arguments related to assault solely as defined

under § 13-1203(A)(3). Thus, this is not a situation where Jose was forced

to make the best of an adverse ruling because he did not challenge the

state’s proposed instruction in the first instance. But even assuming a Rule

13.5(b) violation, Jose cannot demonstrate prejudice. He contends the

5

STATE v. JOSE

Decision of the Court

amendment was prejudicial because it deprived him of the “right to defend

against the charge that was brought” in the indictment and that his Rule 20

motion “surely would have been granted” because the state “simply could

not prove [the officer’s] injury.” At trial, Jose’s defense focused on the

voluntariness of his actions, which he does not suggest would have

changed if the state were seeking to prove assault as defined under

§ 13-1203(A)(1). Likewise, whether the trial court would have granted a

judgment of acquittal for aggravated assault “resulting in physical injury”

does not amount to prejudice when Jose had notice six days before trial that

the state was alleging and intending to prove assault under § 13-1203(A)(3).

See State v. Bruce, 125 Ariz. 421, 423 (1980) (rejecting defendant’s prejudice

argument when the record shows defendant “had notice of the

discrepancies . . . well before trial”). This is particularly true when his Rule

20 argument did not mention any other basis for the jury to find assault as

a predicate for aggravated assault on the officer. See Freeney, 223 Ariz. 110,

¶ 28 (finding no prejudice when amendment did not affect defendant’s

“litigation strategy, trial preparation, examination of witnesses, or

argument”). We therefore conclude that even if Jose had not consented to

the amendment, thereby resulting in a violation of Rule 13.5(b), he has not

shown any resulting prejudice.

II. Twelve-Person Jury

¶13

Jose argues the trial court erred by permitting his case to be

tried to an eight-person jury, thus violating the Sixth Amendment of the

United States Constitution. Because Jose did not raise this claim in the trial

court, we review only for fundamental, prejudicial error. See Escalante, 245

Ariz. 135, ¶ 12. The “[i]mproper denial of a twelve-person jury” constitutes

“fundamental error that may provide a basis for relief even if not raised in

the trial court.” State v. Kuck, 212 Ariz. 232, ¶ 8 (App. 2006).

¶14

The Sixth Amendment guarantees criminal defendants “the

right to a speedy and public trial, by an impartial jury.” U.S. Const. amend.

VI. Applied to the states through the Fourteenth Amendment, the Sixth

Amendment does not require a twelve-person jury panel. See Williams v.

Florida, 399 U.S. 78, 86 (1970) (“hold[ing] that the 12-man panel is not a

necessary ingredient of ‘trial by jury’”); see also State v. Soliz, 223 Ariz. 116,

118, ¶¶ 6-7 & 7 (2009) (recognizing United States Supreme Court’s holding

in Williams and explaining that under Arizona law, legislature has

“reserved the twelve-person jury only for the most serious offenses,” as

measured “by the potential sentence upon conviction”); A.R.S. § 21-102(A),

(B) (providing for twelve-person jury in criminal cases “in which a sentence

6

STATE v. JOSE

Decision of the Court

of death or imprisonment for thirty years or more is authorized by law” and

eight-person jury in “any other criminal case”).

¶15

Jose acknowledges the holding in Williams but argues it has

been implicitly overruled by Ramos v. Louisiana, 590 U.S. ___, ___, 140 S. Ct.

1390, 1397 (2020), which holds that the Sixth Amendment right to a jury trial

in criminal cases includes the right to a unanimous verdict. He maintains

he was entitled to a twelve-person jury “regardless of the maximum

sentence . . . imposed” because “Ramos has fatally wounded the reasoning

of Williams.” Jose also acknowledges, however, that we “cannot assume

that the U.S. Supreme Court has implicitly altered its interpretation of the

Sixth Amendment concerning the size of the jury.” See Agostini v. Felton,

521 U.S. 203, 237 (1997) (“We do not acknowledge, and we do not hold, that

other courts should conclude our more recent cases have, by implication,

overruled an earlier precedent.”).

Jose nevertheless contends the

amendment to Arizona’s constitution in 1972, permitting fewer than twelve

jurors in criminal cases where the maximum permitted sentence is less than

thirty years, was “Williams-inspired,” and the court’s reasoning in Williams

was undermined by Ramos. See Ariz. Const. art. II, § 23.

¶16

As Jose acknowledges, we do not have the authority to

modify or disregard the rulings of our supreme court. See State v. Smyers,

207 Ariz. 314, n.4 (2004). We also decline his invitation to “take the

opportunity to criticize that precedent and invite higher courts to overrule

Williams and Soliz.”

¶17

Here, the maximum possible sentence that Jose faced was less

than thirty years. See A.R.S. § 13-1204(A)(8)(a), (G) (classification of

offense); A.R.S. § 13-703(C), (J) (sentencing range). He therefore was not

entitled to a twelve-person jury and, consequently, cannot show the trial

court erred, fundamentally or otherwise.

III. Time Payment Fee

¶18

Jose argues the trial court erred by imposing a $20 time

payment fee when he was not ordered to pay fines or restitution. Section

12-116(A), A.R.S., requires the court to impose a $20 time payment fee “on

each person who pays a court ordered penalty, fine or sanction on a time

payment basis.” Because he did not object below our review is limited to

fundamental, prejudicial error. See Escalante, 245 Ariz. 135, ¶ 12; see also

State v. McDonagh, 232 Ariz. 247, ¶ 7 (App. 2013).

7

STATE v. JOSE

Decision of the Court

¶19

Here, in addition to the time payment fee, the trial court

assessed attorney fees against Jose, imposed an indigent administrative

assessment fee, a probation assessment, a crime penalty assessment, a

victim rights enforcement fund fee, and a victim rights assessment. Relying

on State v. Connolly, 216 Ariz. 132 (App. 2007), Jose contends the

assessments imposed by the court were not “indicative of a penalty, fine, or

sanction” and nothing in the record “suggests the trial court intended them

to be considered as a sanction.” However, we held in State v. Dustin, 247

Ariz. 389, ¶¶ 9-11 (App. 2019), that a probation assessment imposed on a

defendant is considered a fine that allows for the imposition of a time

payment fee. We therefore must reject Jose’s argument.

¶20

Jose nonetheless maintains that we should not follow Dustin

because it “was wrongly decided.” “Stare decisis . . . requires special

justification to depart from existing precedent,” State v. Olague, 240 Ariz.

475, ¶ 23 (App. 2016), and Jose has not presented any such justification here.

We therefore reject his invitation to reconsider Dustin in this case.

Disposition

¶21

We affirm Jose’s conviction and sentence.

8

Supreme Court

STATE OF ARIZONA

ANN A. SCOTT TIMMER

Chief Justice

ARIZONA STATE COURTS BUILDING

1501 WEST WASHINGTON STREET, SUITE 402

PHOENIX, ARIZONA 85007

TELEPHONE: (602) 452-3396

TRACIE K. LINDEMAN

Clerk of the Court

December 16, 2024

RE:

STATE OF ARIZONA v LALAKO JONATHAN JOSE

Arizona Supreme Court No. CR-24-0136-PR

Court of Appeals, Division Two No. 2 CA-CR 23-0224

Pima County Superior Court No. CR20221408001

GREETINGS:

The following action was taken by the Supreme Court of the State

of Arizona on December 13, 2024, in regard to the abovereferenced cause:

ORDERED: Petition for Review to Arizona Supreme Court = DENIED.

Tracie K. Lindeman, Clerk

TO:

Alice Jones

Jacob R Lines

David J Euchner

Beth C Beckmann

lg