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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,

v.

OSCAR CABRERA-ORTEGA, Appellant.

No. 1 CA-CR 21-0549 

Appeal from the Superior Court in Maricopa County

No. CR2020-001722-001

The Honorable Roy C. Whitehead, Judge

VACATED IN PART AND AFFIRMED IN PART

COUNSEL

Arizona Attorney General’s Office, Tucson

By Diane L. Hunt

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Thomas K. Baird

Counsel for Appellant

FILED 9-27-2022
STATE v. CABRERA-ORTEGA

Decision of the Court

2

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the court, in which 

Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.

H O W E, Judge:

¶1 Oscar Cabrera-Ortega appeals the financial assessments in his 

sentencing order. For the following reasons, we vacate in part and affirm in 

part.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2020, Cabrera-Ortega was indicted on three counts of 

sexual assault and three counts of kidnapping, class 2 felonies committed 

in July 2002 and in April and May 2006. Following a jury trial, the jury 

convicted Cabrera-Ortega on all six counts. On the three counts of sexual 

assault, he was sentenced to consecutive terms of imprisonment totaling 28 

years. On the three counts of kidnapping, the trial court suspended the 

imposition of sentence and imposed concurrent five-year terms of 

supervised probation upon his release. The court ordered him to pay 

financial assessments for one count of the sexual assault convictions: a $20 

time-payment fee, $20 probation assessment, $250 sex offender registration 

fee, $13 criminal penalty assessment, $50 address confidentiality program 

assessment, and $500 dangerous crimes against children (“DCAC”) or 

sexual assault assessment. The court also ordered him to pay financial 

assessments for one probation count: a $65 monthly probation fee, $20 

probation assessment, $20 time-payment fee, $13 criminal penalty 

assessment, and $2 victim rights enforcement assessment. Neither party 

objected to these amounts at sentencing. Cabrera-Ortega timely appeals.

DISCUSSION

¶3 Cabrera-Ortega argues that his sentence was illegal because 

the court ordered him to pay assessments in violation of ex post facto

principles.

1 Namely, he appeals from the criminal penalty assessment, 

1 While Cabrera-Ortega identifies the issues in his opening brief, he 

does not support his arguments until the reply brief. In our discretion we 
STATE v. CABRERA-ORTEGA

Decision of the Court

3

address confidentiality program assessment, sex offender registration fee,

DCAC or sexual assault assessment, and time-payment fee. Because 

Cabrera-Ortega did not object to this issue at sentencing, we review for 

fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 140 ¶ 12 

(2018); State v. McDonagh, 232 Ariz. 247, 248 ¶ 7 (App. 2013). But “[w]e 

review de novo issues concerning the meaning and scope of statutes, 

attempting to discern and fulfill legislative intent.” State v. Payne, 223 Ariz.

555, 561 ¶ 16 (App. 2009).

¶4 The State properly concedes that the statutes authorizing the 

financial assessments in this appeal became effective after the dates of the 

offenses alleged in the indictment. See A.R.S. §§ 12–116.04, –116.05, –116.07; 

A.R.S. § 13–3821(Q). Ex post facto laws punish acts not punishable at the 

time they were committed or impose more punishment than prescribed at 

the time offenders committed the offense. State v. Weinbrenner, 164 Ariz. 

592, 593 (App. 1990). The Arizona Constitution prohibits the enactment of 

such laws, Ariz. Const. art. II, § 25, “to secure substantial personal rights 

against arbitrary and oppressive legislation, and not to limit the legislative 

control of remedies and modes of procedure which do not affect matters of 

substance.” Weinbrenner, 164 Ariz. at 593 (quoting Beazell v. Ohio, 269 U.S. 

167, 171 (1925)). Newly enacted laws that change defendants’ procedural 

rights are not ex post facto. State v. Beltran, 170 Ariz. 406, 408 (App. 1992).

Procedural or regulatory laws may be applied retroactively, whereas 

punitive laws may not. State v. Henry, 224 Ariz. 164, 167 ¶ 8 (App. 2010).

“[T]he person challenging a law on ex post facto grounds bears the burden 

of demonstrating by ‘the clearest proof’ that the law is in fact punitive.” 

State v. Haverstick, 234 Ariz. 161, 167 ¶ 11 (App. 2014) (internal quotation 

marks omitted); Henry, 224 Ariz. at 167 ¶ 9.

I. Criminal Penalty Assessments

¶5 The court erred in imposing the criminal penalty assessments.

The State concedes that the $13 criminal penalty assessment constitutes a 

fine or penalty that violates ex post facto laws and should be vacated. Its 

concession was proper. Arizona Revised Statutes § 12–116.04 provides that 

“a penalty assessment shall be levied in an amount of thirteen dollars on 

every fine, penalty and forfeiture imposed and collected by the courts for 

criminal offenses . . . .” (emphasis added). “The term ‘penalty’ in its 

broadest sense includes fines as well as other kinds of punishment.” State 

consider the merits of the appeal. See State v. Shipman, 208 Ariz. 474, 474 

¶ 4 n.2 (App. 2004) (stating that the court may disregard arguments raised 

for the first time in the reply brief).
STATE v. CABRERA-ORTEGA

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v. Sheaves, 155 Ariz. 538, 541 (App. 1987) (finding that a fine is a criminal 

penalty). Because a “criminal penalty” implicates punishment, the criminal 

penalty assessment is punitive in nature and thus violates ex post facto 

principles. See id. (finding that a “felony penalty assessment” is punitive 

because the assessment is “exacted from each individual defendant for each 

felony of which he or she is convicted”); Beltran, 170 Ariz. at 408 (holding 

that statute increasing surcharge of penalty assessment from 37% at the 

time the offense was committed to 40% was substantive in nature and 

imposed additional punishment). Because of the criminal penalty 

assessment’s punitive nature, its imposition here violates ex post facto 

principles. We therefore vacate the imposition of this assessment for both 

the sexual abuse and kidnapping counts.

II. Address Confidentiality Program Assessment

¶6 The court did not err in imposing the address confidentiality 

program assessment. To characterize the assessment as regulatory or 

punitive, courts look first to the legislature’s intent. State v. Trujillo, 248 Ariz. 

473, 477 ¶ 20 (2020); Haverstick, 234 Ariz. at 166 ¶ 11. “If the legislature has 

indicated a nonpunitive purpose, we then determine whether the statutory 

scheme is so punitive either in purpose or effect as to negate that intention.” 

Haverstick, 234 Ariz. at 166 ¶ 11 (internal quotation marks omitted). The 

address confidentiality program assessment is levied pursuant to A.R.S. 

§ 12–116.05, which provides that “a person who is convicted of an offense 

included in title 13, chapter 14 . . . shall pay an assessment of fifty dollars.” 

The statute’s purpose is not to punish offenders but to fund the address 

confidentiality program, id.; A.R.S. § 41–169(A), which helps victims of 

“domestic violence offenses, sexual offenses or stalking to keep their 

residence confidential and not accessible to the general public,” A.R.S. 

§ 41–162(A). The legislature has thus indicated a nonpunitive purpose in 

the statute’s plain language. To determine whether the law’s punitive 

effects outweigh its regulatory purpose, we consider the enumerated 

factors in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963), as this

court applied in Haverstick, 234 Ariz. at 167 ¶ 15:

[w]hether the sanction involves an affirmative disability or 

restraint, whether it has historically been regarded as a 

punishment, whether it comes into play only on a finding of 

scienter, whether its operation will promote the traditional 

aims of punishment—retribution and deterrence, whether the 

behavior to which it applies is already a crime, whether an 

alternative purpose to which it may rationally be connected is 
STATE v. CABRERA-ORTEGA

Decision of the Court

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assignable for it, and whether it appears excessive in relation 

to the alternative purpose assigned.

¶7 First, the address confidentiality program statute places

neither an “affirmative disability” nor a “restraint” on Cabrera-Ortega’s 

activities. See Haverstick, 234 Ariz. at 167 ¶ 16; see also Smith v. Doe, 538 U.S. 

84, 100 (2003). Second, although assessments related to the address 

confidentiality program have not come under scrutiny in Arizona, money 

penalties themselves historically have not been viewed as punishment but 

as a sanction in civil proceedings. See Haverstick, 234 Ariz. at 167 ¶ 16. Third,

the assessment does not require a finding of scienter; the legislature 

requires the assessment without regard to Cabrera-Ortega’s state of mind. 

See id. at ¶ 17. Fourth, the address confidentiality statutes do not have an 

inherently deterrent effect; the primary purpose is remedial: the program 

protects victim address confidentiality, A.R.S. § 41–162(A), and the 

assessment helps fund this program, A.R.S. § 12–116.05(B). Even if it did 

have a deterrent effect, it would be minimal and “does not, by itself, 

transform the assessment into a criminal penalty.” See Trujillo, 248 Ariz. at 

482 ¶ 52. Fifth, the underlying offense is criminal, but “[t]his fact is 

insufficient to render the money penalties . . . criminally punitive.”

Haverstick, 234 Ariz. at 168 ¶ 17 (quoting Hudson v. United States, 522 U.S.

93, 105 (1997)). Sixth, the assessment is rationally connected to the

nonpunitive purpose of protecting victim address confidentiality. A.R.S. 

§ 41–161(2); see Martin v. Reinstein, 195 Ariz. 293, 316 ¶ 74 (App. 1999) 

(“[P]rotecting the public from sex offenders is a paramount governmental 

interest.”). Lastly, the $50 assessment is not excessive “on the fact of the 

statute,” but reasonable in relation to this purpose. See Haverstick, 234 Ariz. 

at 168 ¶ 19 (finding the $500 DCAC and sexual assault assessment not 

excessive in relation to the purpose of funding past and future examinations

of victims).

¶8 Even if the statute has punitive effects, they do not outweigh 

the nonpunitive effects. Cabrera-Ortega argues that for each assessment, 

this court should apply the factors set forth in McDonagh and Payne, which 

provide that an “assessment” is a “sentence” if (1) “it is a pecuniary 

punishment imposed by a lawful tribunal upon a person convicted of a 

crime[,] (2) the money recovered goes to the people of Arizona[,] and (3) the 

money is not a civil penalty or restitution to a crime victim.” McDonagh, 232 

Ariz. at 249 ¶ 10 (internal quotation marks omitted). But these cases do not 

apply here because whether an imposed financial assessment violates ex 

post facto depends on whether the assessments are punitive or 

nonpunitive, not on whether they are sentences. See id. at ¶ 11 (holding that 

the assessments are illegal sentences); Payne, 223 Ariz. at 569 ¶ 49 (holding 
STATE v. CABRERA-ORTEGA

Decision of the Court

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same). The assessment levied under A.R.S. § 12–116.05 is nonpunitive and 

does not violate ex post facto principles.

III. Sex Offender Registration Fee

¶9 The court did not err in imposing the sex offender registration 

fee. The sex offender registration fee is levied pursuant to A.R.S. 

§ 13–3821(Q), which provides that “[o]n conviction of or adjudication of 

guilty except insane for any offense for which a person is required to 

register pursuant to this section, in addition to any other penalty prescribed 

by law, the court shall order the person to pay an additional assessment of 

$250.” Although this particular provision has not been explicitly considered

on its own, “the structure of the [sex offender] registration scheme is 

regulatory, not punitive.” Trujillo, 248 Ariz. at 479 ¶ 30 (applying the

Kennedy factors to the sex offender registration scheme indicates its 

regulatory nature); Henry, 224 Ariz. at 172 ¶ 26 (holding that sex offender 

registration scheme did not violate ex post facto principles). After all, the 

legislative purpose of the statute is to provide sex offender information to 

the public, Henry, 224 Ariz. at 169 ¶ 17, much of which is already public, 

Trujillo, 248 Ariz. at 480 ¶ 38. Cabrera-Ortega did not address the 

aforementioned cases in his brief and has not shown that the analyses 

would not cover the assessment. Therefore, this fee does not violate ex post 

facto principles. 

IV. DCAC or Sexual Assault Assessment

¶10 The court did not err in imposing the DCAC or sexual assault 

assessment. The $500 DCAC or sexual assault assessment is levied pursuant 

to A.R.S. § 12–116.07, which provides that a person convicted of a DCAC 

under A.R.S. § 13–705 or sexual assault must be ordered “to pay an 

assessment of five hundred dollars.” The collected assessment “defray[s]

the cost of investigations pursuant to [A.R.S.] § 13–1414.” A.R.S. 

§ 12–116.07(B). The statute’s purpose is “not to punish offenders but to help

ensure that the agencies responsible for investigating sex crimes against 

children have the funds to secure crucial evidence.” Haverstick, 234 Ariz. at 

167 ¶ 14 (applying the Kennedy factors to the DCAC or sexual assault 

assessment indicates its nonpunitive nature). Cabrera-Ortega did not 

address in his brief whether the Haverstick analysis would not cover the 

assessment here. Thus, the assessment does not violate ex post facto 

principles.
STATE v. CABRERA-ORTEGA

Decision of the Court

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V. Time-Payment Fees

¶11 The court did not err in imposing two time-payment fees. 

Arizona Revised Statutes § 12–116(A) provides that “a fee of twenty dollars 

shall be assessed on each person who pays a court ordered penalty, fine or 

sanction on a time payment basis . . . .” Cabrera-Ortega argues that the court 

erred in imposing two time-payment fees in the same case. But this is 

proper because “one time payment fee should be imposed on each count or 

case in which a time payment plan is approved, even though that plan may 

include, for example, a fine, a felony assessment, and restitution.” State v. 

Pennington, 178 Ariz. 301, 303 (1994). The sexual assault and probation 

offenses are treated as separate counts. At the sentencing hearing, the court 

read a $20 time-payment fee associated with one count of sexual assault.

The court then read a separate $20 time-payment fee for one probation 

count. The court’s ordering two time-payment fees suggests an intent to 

order two separate payment plans. The court therefore did not err.

CONCLUSION

¶12 For the foregoing reasons, we vacate the $13 criminal penalty 

assessments but affirm the address confidentiality program assessment, sex 

offender registration fee, DCAC or sexual assault assessment, and 

time-payment fees.