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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

CHRISTOPHER AREVALO, Appellee.

Nos. 1 CA-CR 18-0298; 1 CA-CR 18-0299

(Consolidated)

Appeal from the Superior Court in Maricopa County

Nos. CR2017-117321-001; CR2017-002116-001

The Honorable Michael D. Gordon, Judge

REVERSED

COUNSEL

Maricopa County Attorney's Office, Phoenix

By Amanda M. Parker

Counsel for Appellant

Maricopa County Public Defender's Office, Phoenix

By Mikel Steinfeld

Counsel for Appellee
STATE v. AREVALO

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in 

which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.

M O R S E, Judge:

¶1 The State appeals an order of the superior court holding that 

Arizona Revised Statutes ("A.R.S.") section 13-1202(B)(2), a statute 

enhancing the penalty for threatening or intimidating committed by a 

member of a criminal street gang, is unconstitutional. For the following 

reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

¶2 In two separate cases, Defendant Christopher Arevalo was

charged with four counts of threatening or intimidating. Under A.R.S. § 13-

1202, threatening or intimidating is ordinarily a class 1 misdemeanor; 

however, it is a class 6 felony if the defendant is a member of a criminal 

street gang. Pursuant to this statute, the State alleged that Arevalo is a 

member of a criminal street gang and charged the four counts as felonies.

The State does not allege that Arevalo committed any of these crimes in 

connection with a criminal street gang.

¶3 Arevalo moved to dismiss all counts for threatening or 

intimidating or reduce them to misdemeanors, arguing that the added 

punishment for members of a criminal street gang is unconstitutional. The 

superior court agreed and dismissed the charges, holding that "the 

undeniable guilt-by-association character of the statute violates the dueprocess clause and is therefore unconstitutional." The State appealed in 

both cases, and we have consolidated those appeals. We have jurisdiction 

pursuant to A.R.S. § 13-4032(1).

DISCUSSION

¶4 The constitutionality of a statute is question of law we review

de novo. State v. Russo, 219 Ariz. 223, 225, ¶ 4 (App. 2008). Because we 

presume the constitutionality of our statutes, the party challenging the 

statute bears the burden of proving otherwise. Id.
STATE v. AREVALO

Decision of the Court

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¶5 Arevalo's principal argument—and the law relied on by the 

superior court—is that A.R.S. § 13-1202(B)(2) impermissibly imposes guilt 

by association by punishing mere membership in a group. Under 

substantive due process rights of the United States Constitution, "guilt is 

personal." Scales v. United States, 367 U.S. 203, 224 (1961). With that 

principle in mind, the Supreme Court explained that

[W]hen the imposition of punishment on a status or on 

conduct can only be justified by reference to the relationship 

of that status or conduct to other concededly criminal activity 

. . . , that relationship must be sufficiently substantial to satisfy 

the concept of personal guilt in order to withstand attack 

under the Due Process Clause of the Fifth Amendment.

Id. at 224-25. In the context of a statute criminalizing membership in an 

organization, the Supreme Court held that due process is satisfied if the 

statute is only applied to "active" members who have "a guilty knowledge 

and intent." Id. at 228.

¶6 Section 13-1202 states, in relevant part:

A. A person commits threatening or intimidating if the person 

threatens or intimidates by word or conduct:

1. To cause physical injury to another person or serious 

damage to the property of another;

. . . .

B. Threatening or intimidating pursuant to subsection A, 

paragraph 1 or 2 is a class 1 misdemeanor, except that it is a 

class 6 felony if:

. . . .

2. The person is a criminal street gang member.

A.R.S. § 13-1202.

¶7 Thus, the law only criminalizes conduct and enhances the

punishment for that criminal conduct if the defendant is a member of a 

criminal street gang, as defined in A.R.S. § 13-105(9). As we stated in State 

v. Meeds, 244 Ariz. 454 (App. 2018), "Section 13-1202(B)(2) does not penalize 

mere membership in a criminal street gang—it penalizes the added menace 

inflicted when a criminal street gang member is engaged in criminal 
STATE v. AREVALO

Decision of the Court

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conduct." Id. at 465, ¶ 32. For this reason, the statute does not implicate the 

constitutional considerations in Scales and properly relies on personal guilt. 

See State v. Cooper, 1 CA-CR 16-0869, 1 CA-CR 17-0502, 2018 WL 6217090, at 

*2-3, ¶¶ 7, 11 (Ariz. App. Nov. 29, 2018) (mem. decision) (rejecting 

substantive due process and other constitutional challenges to A.R.S. § 13-

1202(B)).

¶8 Arevalo also argues that the statute violates the equal 

protection guarantees of the Arizona and United States Constitutions

because most gang members are racial minorities and the statute therefore 

has a disparate impact on a suspect class. Even taking this assertion as true, 

however, "[r]acial imbalance . . . does not, without more, establish a prima 

facie case of disparate impact." Texas Dep't. of Hous. & Cmty. Affairs v. 

Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2523 (2015) (alterations in 

original) (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 653 (1989)). 

Therefore, we review whether there is a rational basis for the enhancement 

for members of criminal street gangs. See Governale v. Lieberman, 226 Ariz. 

443, 448, ¶ 13 (App. 2011) ("If the statute does not affect a suspect class or 

limit a fundamental right, we apply the 'rational basis' test and uphold the 

law if it serves a legitimate state interest and the classification rationally 

advances that interest."). As stated in Meeds, the State has a "compelling" 

interest "to protect the public from threats and intimidation by members of 

criminal street gangs, who presumably have a much greater ability than 

non-gang members to make good on those threats." Meeds, 244 Ariz. at 465, 

¶ 32. Section 13-1202(B)(2) is rationally related to that purpose.

¶9 Arevalo argues that the statute violates the rights of 

association and free speech, but this Court has already decided that A.R.S. 

§ 13-1202(B) does not violate First Amendment rights. Meeds, 244 Ariz. at

462-65, ¶¶ 21-32. We decline to revisit Meeds. Arevalo asserts that the 

Arizona Constitution provides greater protection for the right of association 

than the First Amendment. However, he cites to no authority to explain

how application of the Arizona Constitution would lead to a different result 

than an application under the United States Constitution. For this reason, 

we reject this argument.

¶10 Finally, Arevalo argues that his due process rights will be 

violated if the admission of gang membership evidence is used in trial, 

prejudicing the jury in its deliberations on the threatening or intimidating 

charge. This issue is not relevant to the constitutionality of the statute. In 

addition, Arevalo submitted a motion in limine to exclude such evidence 

from the "guilt phase" of trial, and only allow it at the "enhancement" phase. 

It appears the superior court did not rule on this issue, presumably because 
STATE v. AREVALO

Decision of the Court

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it held the enhancement to be unconstitutional. On remand, the superior 

court will have an opportunity to respond to these concerns.

CONCLUSION

¶11 For the foregoing reasons, we reverse the order of the superior 

court dismissing the four counts of threatening or intimidating.