NOTICE: NOT FOR PUBLICATION.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

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, Appellant/Appellee,

v.

RUBEN MURRIETTA, Appellee/Appellant.

Nos. 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-Appellant
2

Arizona Attorney General’s Office, Phoenix

By Andrew Reilly

Counsel for Appellee on cross-appeal

MEMORANDUM DECISION

Judge Kenton D. Jones delivered 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 These consolidated appeals arise from Ruben Murrietta’s 

trial on two counts of aggravated assault and one count of resisting arrest. 

The State appeals the trial court’s ruling declaring a mistrial on one of the

aggravated assault counts. Murrietta 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 upon information received from a citizen, a police 

officer entered a restaurant to contact Murrietta. Murrietta was not in the 

dining area, so the officer checked the men’s restroom. After finding that

restroom empty and hearing noises coming from the women’s restroom, 

the officer knocked on the door to the women’s restroom. In response to 

the knock, the door opened partway and the officer saw Murrietta

peeking out. Upon recognizing the officer, Murrietta slammed the door 

closed, striking the officer in the right shoulder and face. 

¶3 The officer forced his way into the restroom and grabbed 

Murrietta’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 thereafter 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 officers 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, a 
STATE v. MURRIETTA

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3

class 6 felony (Count 3).1 During jury selection, Murrietta challenged the 

State’s use of a peremptory strike to remove a Black prospective juror 

from the venire panel. The trial court denied the challenge based upon a 

finding that Murrietta failed to make a prima facie showing of racial 

discrimination. 

¶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 declaring a mistrial on Count 2. With counsels’ 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 returned verdicts on all three 

counts, the trial court would accept verdicts only on Counts 1 and 3. 

¶6 The trial court gave the impasse instruction as agreed upon 

by the parties and directed the jury to continue their deliberations. The 

jury thereafter returned guilty verdicts on Counts 2 and 3 and a not guilty 

verdict on Count 1. The trial court accepted the verdicts on Counts 1 and 

3 and, in accordance with its previous ruling, declared 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 then 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 appealed. 

¶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. 
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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 Court’s 

own motion, the two appeals were consolidated. 

DISCUSSION

I. State’s Appeal

¶8 Relying primarily upon 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 jury 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 213-14. In 

affirming the defendant’s conviction and sentence, our 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 Court 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 no 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 upon the 

jury’s note, the trial court could reasonably conclude the jury 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, 
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434 U.S. at 509); Givens, 161 Ariz. at 281, 778 P.2d at 646 (explaining “the 

mere availability of another alternative does not render a mistrial order an 

abuse of discretion”). 

¶11 The trial 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 heightened risk of jury coercion. 218 Ariz. at 

167, ¶ 114, 181 P.3d at 214. Here, the trial court was cognizant of that risk 

and, as the trial court explained in its order denying the State’s motion for 

reconsideration, believed that under the circumstances any additional 

instructions with respect to Count 2 would have “great potential” to 

influence the lone holdout juror. We defer to the trial court’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. Murrietta’s Appeal

¶12 Murreitta argues the trial court erred by denying his Batson2

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 

reverse 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 showing 

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 explanation is merely a pretext for purposeful 

 2 Batson v. Kentucky, 476 U.S. 79 (1986)
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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, the trial court denied Murrietta’s Batson challenge at 

the first step based upon 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 discrimination. Batson, 476 U.S. at 96.

¶15 As argued below and re-urged on appeal, the sole basis for 

Murrietta’s claim is that the prosecutor used a peremptory 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 Court 

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, is 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 more 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 remained 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 contends 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, 62 (2013). On this record, we cannot say the trial court clearly 

erred in ruling Murrietta failed to make 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

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CONCLUSION

¶17 For the foregoing reasons, 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.