NOTICE: NOT FOR PUBLICATION. UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS D IVISION O NE

STATE OF ARIZONA, Appellant / Appellee
,

v.

RUBEN MURRIETTA, Appellee/ Appellant

.
No s . 1 CA

- CR 12

- 0460 1 CA

- CR 12

- 0665 (Consolidated)

Appeal from the Superior Court in Maricopa County No. CR 2012

- 106250

- 001 The Honorable Carolyn K. Passamonte
, Judge Pro Tem

AFFIRMED AND REMANDED

COUNSEL
Maricopa County Attorney’s Office By Karen Kemper Counsel for Appellant

Maricopa County Public Defender’s Office
, Phoenix By Terry Reid Counsel for Appellee/Cross

- Appellant2 Arizona Attorney General’s Office , Phoenix By Andrew Reilly Counsel for Appellee on cross

- appeal

MEMORANDUM DECISION
Judge Kenton D. Jones deliver ed the decision of the Court, in which Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop joined.

J O N E S , Judge :

¶1 Th ese consolidated appeal s arise from Ruben Murrietta’s trial on two counts of aggravated assault and one count of resisting arrest. The State appeals t he trial court’s ruling declaring a mistrial on one of the aggravated assault counts . Murri e tta appeals from his conviction and sentencing for resisting arrest

. For reasons that follow, we affirm in both appeals and remand the aggravated assault count that was the subject of the mistrial to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 Based up on informat ion received from a citizen, a police officer enter ed a restaurant to contact Murrietta

. Murrietta was not in the dining area, so the officer checked t he men’s restroom

. After finding th at restroom empty and hearing noises coming from the women’s restroo m, the officer knock ed on the door to the women’s restroom. In response to the knock, t he door opened partway and the officer saw Murrietta peeking out

. U pon recognizing the officer, Murrietta slam m ed the door closed
, striking the officer in the right shoulder and face

. ¶3 T he officer force d his way into the restroom and grabbed Murri e tta’s left arm in order to handcuff him. Murrietta hit the officer in the mouth with his right elbow while struggling to avoid being handcuffed

. The officer thereaf ter employed pepper spray in an attempt to control Murrietta, but it was only after back

- up officers arrived and used a stun gun on Murrietta that the officer s were able to take him into custody.

¶4 Murrietta was indicted on two counts of aggravated assault
, each a class 5 felony (Counts 1 and 2), and one count of resisting arrest
, aSTATE v. MURRIETTA Decision of the Court

3 class 6 felony (Count 3)

. 1 During jury selection, Murrietta challenged the State’s use of a peremptory strike to remove a Black prospectiv e juror from the venire panel. The tr ial court denied the challenge based up on a finding that Murrietta failed to make a prima facie showing of racial discriminat ion

. ¶5 At the conclusion of trial, the court submitted the two counts of aggravated assault and one count of resisting arrest to the jury

. During deliberations, the jury sent a note to the trial court that stated : “We have voted a guilty verdict by a 7 to 1 count on [Count 2] .” After discussing the note with counsel off the record , the trial court announced that it was declarin g a mistrial on Count 2

. With counsel s’ agreement, the trial court prepared an impasse instruction for the jury , which initially directed the jury to continue their deliberations on Counts 1 and 3 . After further discussion, however, the trial court and counsel agreed to give the instruction without reference to specific counts to avoid confusing the jury with the understanding that if the jury return ed verdicts on all three counts, the trial court would accept verdicts only on Counts 1 a nd 3

. ¶6 The trial court gave the impasse instruction as agreed upon by the parties and directed the jury to continue their deliberations. T he jury thereafter returned guilty verdicts on Counts 2 and 3 and a not guilty verdict on Count 1

. T he trial court accepte d the verdicts on Counts 1 and 3 and
, in accordance with its previous ruling, d eclared a mistrial on Count 2. When the State asked why it was necessary to declare a mistrial on Count 2, the trial court stated: “I believe that the law is such that if they do tell us what their vote is on a particular count, and their vote was easily identified to this count, because it was so specific about the actions that were alleged in that count, that the Court could not consider the n a second verdict from them.” The State filed a motion for reconsideration on the declaration of mistrial, arguing that because the jury was able to reach a verdict on Count 2 , there was no requirement that a mistrial be declared

. Following the denial of the motion, the State timely appea led.

¶7 At the sentencing hearing for the conviction on Count 3 , the parties agreed that in return for Murrietta admitting to four prior convictions the State would withdraw the allegation that the offense was committed while on release and stipulate to a presumptive 3.75

- year

1 Murrietta was also indicted on one count of shoplifting, a class 1 misdemeanor; however, on the first day of trial, the trial court granted the State’s motion to dismiss this count.STATE v. MURRIETTA Decision of the Court

4 prison term to run concurrent with a sentence to be imposed in another pending matter . The trial court sentenced Murrietta in accordance with the parties’ agreement
, and Murrietta timely appealed. On this C ourt’s own motion, the two appeals were consolidated.

DISCUSSION

I. State’s Appeal

¶8 Relying primarily up on State v. Cruz , 218 Ariz. 149, 181 P.3d 196 (2008), the State argues the trial court erred in sua sponte declaring a mistrial on Count 2 and requests that the guilty verdict returned by the jury on that count be reinstated. We review a trial court’s decision to grant a mistrial for abuse of discretion. State v. Givens , 161 Ariz. 278, 279, 778 P.2d 643, 644 (App. 1989); see Arizona v. Washington , 434 U.S. 497, 510 (1978) (“The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is [ ] accorded great deference by a reviewing court.”).

¶9 In Cruz , the defendant claimed the jury’s verdict was coerced by the trial court directing the ju ry to continue their deliberations in response to a note from the jury that asked: “If one person ’s decision remains unchanged against the other 11 jurors [i]s this a hung jury? If so, what happens next?” 218 Ariz. at 166

- 67, ¶ ¶ 107

- 08, 181 P.3d at 213

- 1 4. In affirming the defendant’s conviction and sentence, o ur supreme court determined that the trial court’s instruction to continue deliberating did not improperly coerce or influence the jury. Id. at 167, ¶ 115, 181 P.3d at 214. The State contends this C ourt should likewise find that no coercion occurred in the present case and hold that there was no necessity for the declaration of mistrial.

¶10 The State’s reliance on Cruz is misplaced. There is n o issue of jury coercion in the present case. The issue is whether the trial court abused its discretion in declaring a mistrial on Count 2 after the jury reported it had “ voted a guilty verdict by a 7 to 1 count .” Based up on the jury’s note, t he trial c ourt could reasonably conclude the jur y was at an impasse on that count

. Arizona Rule of Criminal Procedure 22.4 grants the trial court discretion to assist jurors at an impasse by way of additional instructions , as occurred in Cruz , but there is nothing in Cruz or elsewhere in the law that precludes the trial court from declaring a mistrial when the trial court reasonably believes the jury is deadlocked. See Renico v. Lett
, 559 U.S. 766, 774 (2010) (noting “[ a ] mistrial premised upon the trial judge's belief that the jury is unable to reach a verdict [has been] long considered the classic basis for a proper mistrial” ) (quoting Washington
,STATE v. MURRIETTA Decision of the Court

5 434 U.S. at 5 09) ; Givens , 161 Ariz. at 281, 778 P.2d at 646 ( explaining “t he mere availability of another alternativ e does not render a mistrial order an abuse of discretion” ).

¶11 The t rial court’s decision appears even more reasonable given the jury had reported its numerical division when it informed the trial court that it had reached a non

- unanimous verdict. In Cruz , our supreme court specifically warned about further instructions to a jury in such a situation due to the heighten ed risk of jury coercion. 218 Ariz. at 167, ¶ 114, 181 P.3d at 214. Here, t he trial court was cognizant of that risk and, as the trial cou rt explained in its order denying the State’s motion for reconsideration, believed that under the circumstances any additional instruction s with respect to Count 2 would have “great potential” to influence the lone holdout juror. We defer to the trial cou rt’s decision that further instructions would create a risk of coercion because the trial court is in the best position to determine whether a mistrial is required

. Givens
, 161 Ariz. at 279, 778 P.2d at 644.

II. Murriett a ’s Appeal

¶12 Murreitta argues the trial court erred by denying his Batson 2 challenge to the State's peremptory strike of the only Black prospective juror. Murrietta contends the trial court should have required the State to provide a race

- neutral reason to justify the strike. When reviewing a ruling on a Batson challenge, we defer to the trial court’s factual findings, but we review de novo the trial court’s application of the law. State v. Lucas , 199 Ariz. 366, 368, ¶ 6, 18 P.3d 160, 162 (App. 2001). We will not

rev erse a trial court's denial of a Batson challenge unless it is clearly

erroneous. State v. Newell , 212 Ariz. 389, 400, ¶ 52, 132 P.3d 833, 844 (2006).

¶13 Racially discriminatory use of a peremptory strike violates the Equal Protection Clause of the Fourteenth Amendment of the United State Constitution

. Batson , 476 U.S. at 89

. A Batson challenge is used to determine if a prohibited strike has been made and involves a three

- step process : first, the opponent of the strike must make a prima facie showi ng of racial discrimination; second, if a prima facie showing is made, the striking party must articulate a facially race

- neutral explanation for the strike; and third, if such an explanation is articulated, the opponent must show the facially

- neutral expl anation is merely a pretext for purposeful

2 Batson v. Kentucky , 476 U.S. 79 (1986)STATE v. MURRIETTA Decision of the Court

6 discrimination. Id. at 93

– 94 , 97

- 98 ; State v. Murray , 184 Ariz. 9, 24, 906 P.2d 542, 557 (1995) (citing Purkett v. Elem , 514 U.S. 765, 767 (1995)).

¶14 Here, t he trial court denied Murrietta’s Batson challenge at the first step based up on a finding that Murrietta failed to establish a prima facie case of discrimination. To establish a prima facie case, a defendant must show facts and other relevant circumstances sufficient to raise an inference of purposeful discriminat ion

. Batson , 476 U.S. at 9 6

. ¶15 A s argued below and re

- urged on appeal, the sole basis for Murrietta’s claim is that the prosecutor used a p er emptory challenge to remove the only Black prospective juror from the venire panel. In State v. Johnson
, 183 Ariz. 623, 633, 905 P.2d 1002, 1012 (App. 1995), this C ourt recognized that “a prima facie case can be established by showing that the prosecutor used a peremptory challenge to remove the only person of the same ethnicity as the defendant.” Murrietta, however, i s Hispanic, not Black

. Under these circumstances, the fact that the prosecutor struck the only Black prospective juror on the venire panel does not, in and of itself, establish a prima facie case of racial discrimination

. See Crittenden v. Ayers
, 624 F.3d 943, 955

- 56 (9th Cir. 2010) ( noting “ ’ [ t]he fact that the juror was the one Black member of the venire does not, in itself, raise an inference of discrimination ’ because ‘ it is not per se unconstitutional, without more, to strike one or mor e Blacks from the jury ’ ” ) (quoting United States v. Vasquez

- Lopez , 22 F.3d 900, 902 (9th Cir. 1994))

. Furthermore, though we are unable to discern the racial makeup of the entire jury from the record
, we note that other persons with Hispanic surnames rema ined on the jury. “The presence of minority group members on the jury undermines an inference that the State exercised its strikes in a racially

- discriminatory fashion.” State v. Thompson , 190 Ariz. 555, 557, 950 P.2d 1176, 1178 (App. 1997).

¶16 Murrietta c ontends a comparative examination of similarities in voir dire answers by the Black juror and other jurors who were seated supports his claim that the State’s peremptory strike was exercised with discriminatory intent. We decline to engage in such a comparative analysis because the alleged similarities were never presented to the trial court. State v. Medina , 232 Ariz. 391, 405, ¶ 48, 306 P.3d 48, 6 2 (2013). On this record, we cannot say the trial court clearly erred in ruling Murrietta failed to ma ke the requisite prima facie showing of discriminatory intent to warrant an inquiry into the prosecutor's reasons for striking the Black prospective juror.STATE v. MURRIETTA Decision of the Court

7 CONCLUSION

¶17 For the foregoing reason s , we affirm Murrietta’s conviction and sentence on Count 3 for resisting arrest . We further remand the matter of the aggravated assault charge in Count 2 to the trial court for further proceedings consistent with this decision.