IN THE

SUPREME COURT OF THE STATE OF ARIZONA

JESUS BUSSO-ESTOPELLAN

Petitioner,

v.

THE HONORABLE ROSA MROZ, JUDGE OF SUPERIOR COURT OF THE STATE OF 

ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,

Respondent Judge,

STATE OF ARIZONA,

Real Party in Interest.

No. CV-15-0102-PR

Filed December 31, 2015

Special Action from the Superior Court in Maricopa County

The Honorable Rosa Mroz, Judge

No. CR2011-133622

VACATED

Order of the Court of Appeals, Division One

Filed March 17, 2015

COUNSEL:

Tonya J. Peterson (argued), The Law Office of Tonya J. Peterson, Phoenix; 

Stacy L. Hyder, The Law Office of Stacy L. Hyder, P.L.C., Phoenix; and 

Richard L. Lougee, Mexican Capital Legal Assistance Program, Tucson, 

Attorneys for Jesus Busso-Estopellan

William G. Montgomery, Maricopa County Attorney, Gerald R. Grant 

(argued), Deputy County Attorney, Attorneys for State of Arizona

David J. Euchner (argued), Tucson, Attorney for Amicus Curiae Arizona 

Attorneys for Criminal Justice

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF 

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES 

BRUTINEL and BERCH (RETIRED) joined. 
BUSSO-ESTOPELLAN V. MROZ (STATE)

Opinion of the Court

2

JUSTICE TIMMER, opinion of the Court:

¶1 During the penalty phase of a capital trial, “the defendant and 

the state may present any evidence that is relevant to the determination of 

whether there is mitigation that is sufficiently substantial to call for 

leniency,” A.R.S. § 13-752(G), including any aspect of the defendant’s 

character, A.R.S. § 13-751(G). Today we hold that a capital defendant’s 

pretrial offer to plead guilty in exchange for a natural life sentence is 

admissible to demonstrate the defendant’s acceptance of responsibility for 

the murder, a non-statutory mitigating circumstance.

I. BACKGROUND

¶2 The State indicted Jesus Busso-Estopellan in 2011 on two 

counts of first degree murder and filed a notice of intent to seek the death 

penalty. Less than a year later, Busso-Estopellan’s attorneys sent a letter to 

the trial court judge stating that “Mr. Busso-Estopellan has indicated that 

he would accept a plea offer to natural life if it were offered to him.” The 

State did not extend a plea offer.

¶3 In 2014, Busso-Estopellan filed a motion in limine seeking

permission to introduce evidence of his willingness to accept a natural life 

plea offer at the penalty phase of his trial if he is convicted and becomes 

eligible for the death penalty. The trial court denied the motion and BussoEstopellan’s subsequent motion for reconsideration. The court reasoned 

that Busso-Estopellan’s proposition did not relate to any aspect of his 

character, evidenced only a “desire to avoid the consequences of the death 

penalty rather than a true acceptance of responsibility for his actions, or 

remorse,” and improperly asked the jury to speculate about why the State 

had rejected the offer.

¶4 Busso-Estopellan sought special action relief from the court of 

appeals, but that court summarily declined jurisdiction. We granted BussoEstopellan’s petition for review because it presents a recurring legal 

question of statewide importance. We have jurisdiction pursuant to article 

6, section 5 of the Arizona Constitution.

II. DISCUSSION
BUSSO-ESTOPELLAN V. MROZ (STATE)

Opinion of the Court

3

¶5 Busso-Estopellan argues that the trial court usurped the jury’s 

role by ruling that his plea offer could not evidence an acceptance of 

responsibility. The State responds that a conditional plea offer can never 

evidence an acceptance of responsibility because the condition renders the 

offer meaningless. We review evidentiary rulings for an abuse of 

discretion. State v. Chappell, 225 Ariz. 229, 238 ¶ 28, 236 P.3d 1176, 1185 

(2010). “An error of law committed in reaching a discretionary conclusion 

may, however, constitute an abuse of discretion.” State v. Wall, 212 Ariz. 1, 

3 ¶ 12, 126 P.3d 148, 150 (2006).

¶6 Acceptance of responsibility is a non-statutory mitigating 

circumstance, see A.R.S. §§ 13-751(G), -752(G); State v. Sansing, 206 Ariz. 232, 

241 ¶ 35, 77 P.3d 30, 39 (2003), and the trial court is constitutionally required

in capital cases to admit proffered evidence of this aspect of a defendant’s 

character, see Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality) (“[T]he 

Eighth and Fourteenth Amendments require that the sentencer, in all but 

the rarest kind of capital case, not be precluded from considering, as a 

mitigating factor, any aspect of a defendant’s character or record and any of 

the circumstances of the offense that the defendant proffers as a basis for a 

sentence less than death.”); see also Eddings v. Oklahoma, 455 U.S. 104, 112

(1982). But any evidence offered to show acceptance of responsibility still

must be relevant. See Chappell, 225 Ariz. at 238 ¶ 29, 236 P.3d at 1185

(quoting Lockett and concluding that its holding “does not limit the 

traditional authority of a court to exclude, as irrelevant, evidence not 

bearing on the defendant’s character, prior record, or the circumstances of 

his offense”); see also A.R.S. § 13-751(C). Although the Arizona Rules of 

Evidence do not apply in the penalty phase, we are “guided by 

fundamentally the same considerations as . . . a relevancy determination 

under Arizona Rule of Evidence 401 or 403.” State v. Guarino, ___ Ariz. ___, 

¶ 6, ___ P.3d ___ (Dec. 3, 2015).

¶7 We agree with Busso-Estopellan that his pretrial offer to plead 

guilty is relevant because it tends to make his acceptance of responsibility

for the murders more probable. See Ariz. R. Evid. 401(a); see also State v. 

Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077 (1988) (noting that the relevance 

standard “is not particularly high”). Other courts have differed on whether 

a capital defendant’s willingness to plead guilty if sentenced to natural life 

reflects an acceptance of responsibility. Compare Johnson v. United States, 860 

F. Supp. 2d 663, 903 (N.D. Iowa 2012) (concluding that such an offer has 

“some bearing on the defendant’s character and, more specifically, on the 
BUSSO-ESTOPELLAN V. MROZ (STATE)

Opinion of the Court

4

defendant’s acceptance of responsibility for the charged offense”), with

Owens v. Guida, 549 F.3d 399, 420 (6th Cir. 2008) (reaching the opposite 

conclusion). We are persuaded that the condition (the imposition of a life 

sentence) on Busso-Estopellan’s offer to plead guilty affects the weight of 

the evidence rather than its admissibility. Cf. Eddings, 455 U.S. at 114–15 

(holding that the sentencer may determine the weight to be given to 

relevant mitigating evidence, but the trial court cannot give it no weight by 

excluding its consideration). Each juror must individually assess whether 

Busso-Estopellan’s offer evidences some degree of acceptance of 

responsibility and, if so, decide the weight to give it. Cf. State ex rel. Thomas 

v. Granville (Baldwin), 211 Ariz. 468, 473 ¶ 18, 123 P.3d 662, 667 (2005) (“A 

mitigating factor that motivates one juror to vote for a sentence of life in 

prison may be evaluated by another juror as not having been proved or, if 

proved, as not significant to the assessment of the appropriate penalty.”).

¶8 This Court’s decision in State v. Dann, 220 Ariz. 351, 207 P.3d 

604 (2009), relied on by the trial court, does not direct a different result. The 

defendant in Dann unsuccessfully argued that the trial court erred by 

refusing to admit evidence in the penalty phase showing he had offered 

before that phase to stipulate to a life sentence and waive his right to parole 

if the jury did not impose a death sentence. Id. at 372–73 ¶¶ 122–23, 207 

P.3d at 625–26. We held that the defendant could not “presentence” 

himself, reasoning both that Arizona law granted the trial court discretion 

to decide the sentence if the jury did not impose the death penalty, and that 

it was speculative whether the defendant’s waiver of a right to parole could 

affect a future decision of the Arizona Board of Executive Clemency. Id. at 

373 ¶ 124, 207 P.3d at 626.

¶9 The situation here is different. The defendant in Dann never 

offered to plead guilty, which might have evidenced an acceptance of 

responsibility, and he did not argue that his offer constituted mitigating 

evidence. Id. at 374–75 ¶ 135, 207 P.3d at 627–28. In contrast, BussoEstopellan expressed a pretrial willingness to plead guilty to the charges, 

which is relevant to his acceptance of responsibility. He does not seek to 

effectively negotiate a sentence with the jury or constrain the trial court’s 

authority if he is convicted and becomes eligible for a death sentence but 

instead asks to introduce mitigating evidence. Consequently, Dann does 

not apply.
BUSSO-ESTOPELLAN V. MROZ (STATE)

Opinion of the Court

5

¶10 We also reject the trial court’s apparent concern that evidence

of Busso-Estopellan’s willingness to plead guilty if given a natural life 

sentence necessarily would confuse the jury by inviting it to speculate about 

the State’s response. The trial court may avert such confusion, for example, 

by instructing the jury that the State was not required to extend a plea offer.

¶11 In sum, the trial court erred by ruling that Busso-Estopellan’s 

pretrial expression of willingness to plead guilty to the charges is not 

relevant mitigation evidence merely because the offer was conditioned on 

a natural life sentence. If Busso-Estopellan is convicted, becomes eligible 

for the death penalty, and wants to offer this evidence, the trial court must 

permit the jury to know of his offer. Of course, the court may exercise its 

discretion to determine how best to admit the evidence. For example, the 

court may permit introduction of part of the offer letter.

III. CONCLUSION

¶12 A defendant’s pretrial offer to plead guilty in a capital case, 

even with a sentencing condition, is relevant to whether he accepts

responsibility for his actions, a non-statutory mitigating circumstance. 

Because the trial court ruled otherwise, we vacate its order denying BussoEstopellan’s motion to permit introduction of this evidence in the penalty 

phase if he is convicted and becomes eligible for the death penalty.