State v. Garcia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELISEO GARCIA, JR., Appellant.

No. 1 CA-CR 24-0093
FILED 11-12-2025

Appeal from the Superior Court in Maricopa County
No. CR2019-139754-001
The Honorable David W. Garbarino, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Quinton S. Gregory
Counsel for Appellee

Sandra Day O’Connor College of Law Post-Conviction Clinic, Phoenix
By Randal McDonald, Robert J. Dormady, Andi Humphreys, Jawana
Baxter (Rule 39(c) Certified Limited Practice Student), Allison Stroud
(Rule 39(c) Certified Limited Practice Student), Austin Morrow (Rule 39(c)
Certified Limited Practice Student)
Counsel for Appellant
STATE v. GARCIA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Eliseo Garcia, Jr., appeals the superior court’s order denying
his petition under Arizona Revised Statutes (“A.R.S.”) § 36-2862 to expunge
the records of some of his charges and convictions for marijuana-related
offenses. We affirm because those charges and convictions are ineligible for
expungement under the statute.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2019, the State charged Garcia with three counts of sale or
transportation for sale of less than two pounds of marijuana under A.R.S.
§ 13-3405(A)(4) (Counts 1, 2, and 3), one count of possession for sale of less
than two pounds of marijuana under A.R.S. § 13-3405(A)(2) (Count 4), and
one count of possession for sale of less than two pounds of cannabis under
A.R.S. § 13-3408(A)(2) (Count 5). In mid-2020, the parties entered into a plea
agreement, which dismissed Counts 1 and 5 and convicted Garcia on
Counts 2 and 3, amended to facilitation charges, see A.R.S. § 13-1004, and
Count 4, amended to a solicitation charge, see A.R.S. § 13-1002. Under the
plea agreement, Garcia would be placed on probation.

¶3 Garcia completed his probation, and the convictions were
designated misdemeanors. In 2024, he petitioned to expunge his
marijuana-related offense records under A.R.S. § 36-2862. The State
responded that expungement was only appropriate for the possession
counts. The superior court ultimately agreed with the State’s position and
expunged the records as to Counts 4 and 5, but not the remaining counts.

¶4 Garcia appealed from the denial of expungement for the
offenses arising from the sale or transportation of marijuana, Counts 1
through 3. We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(3), and
36-2862(F).

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STATE v. GARCIA
Decision of the Court

DISCUSSION

¶5 In late 2020, a voter initiative known as the Smart and Safe
Arizona Act (“Act”) legalized adult possession and personal use of
marijuana in Arizona and authorized the expungement of certain
marijuana-related criminal records. See 2020 Ariz. Legis. Serv. Prop. 207
(West) (codified at A.R.S. §§ 36-2850 to -2865); State v. Sorenson, 255 Ariz.
316, 318, ¶ 3 (App. 2023). As relevant here, A.R.S. § 36-2862(A) provides that
a person “who was arrested for, charged with, adjudicated or convicted by
trial or plea of, or sentenced for” having “possess[ed], consum[ed] or
transport[ed] two and one-half ounces or less of marijuana,” as “based on
or arising out of conduct” predating the Act’s effective date, may petition
to have the related records expunged. The superior court must grant the
petition unless the prosecuting agency shows ineligibility for expungement
by clear and convincing evidence. A.R.S. § 36-2862(B)(3). We review denials
of expungement petitions for an abuse of discretion, but we review issues
of statutory interpretation de novo. State v. Bouhdida, 258 Ariz. 542, 544, ¶ 7
(App. 2024).

¶6 As we held in Sorenson, transporting marijuana with the
intent to sell it, the only way to commit a “transporting” crime under our
law, is eligible for expungement under A.R.S. § 36-2862(A). Sorenson, 255
Ariz. at 320, ¶¶ 11-12. But as we recently held in Bouhdida, selling marijuana
is not eligible for expungement under the Act. 258 Ariz. at 544, 546, ¶¶ 9-10,
16-17. We reject Garcia’s arguments that Bouhdida was wrongly decided.
Contrary to Garcia’s suggestion, Bouhdida tracks the plain statutory
language and follows Sorenson. And although Garcia argues that the
expungement statutes are broader than the decriminalization statutes, he
does not allege any differences in how the statutes treat sales. As Bouhdida
observed, nothing in the Act legalized the unauthorized sale of marijuana
by individuals. See id. at 545-46, ¶ 16.

¶7 Garcia contends that the offenses he was charged with and
convicted of—identified as “sale or transportation” in the complaint,
facilitation of “sale or transportation” in the plea agreement, facilitation of
“transportation and/or sale” in the sentencing order, and facilitation of
“transport and/or sell” in the probation terms—are expungable because they
arise from a “single unified offense” under A.R.S. § 13-3405(A)(4).
(Emphases added.) A statute describes a “single unified offense” when
“there is only one crime but the statute’s language or structure provides
different ways of committing the crime.” State v. Allen, 253 Ariz. 306, 337,
¶ 82 (2022).

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STATE v. GARCIA
Decision of the Court

¶8 A.R.S. § 13-3405(A)(4) provides that “a person shall not
knowingly . . . [t]ransport for sale, import into this state or offer to transport
for sale or import into this state, sell, transfer or offer to sell or transfer
marijuana.” As in Bouhdida, we do not decide whether that language defines
a “single unified offense.” See 258 Ariz. at 545, ¶ 15. Whether an offense is
expungable ultimately depends not on the elements of the offense but on
the defendant’s conduct. See State v. Santillanes, 254 Ariz. 301, 308, ¶¶ 32-33
(App. 2022) (“Because Arizona law did not criminalize the specific
‘offenses’ now eligible for expungement, the superior court’s inquiry into a
petitioner’s arrest, charge, conviction, or sentence may extend beyond the
elements of the underlying offense.”), vacated in part by 256 Ariz. 534, 543,
¶ 39 (2024) (vacating paragraphs 1 and 7-21 only); see also State v. Cisneros,
255 Ariz. 564, 568, ¶ 19 (App. 2023) (A conviction for drug paraphernalia
did not qualify for expungement because it “unequivocally involved
methamphetamine.”). Thus, where a conviction results from a plea, the
court may consider the plea agreement, the factual basis for the plea, and
admissible evidence to determine whether the expungement requirements
are satisfied. See Santillanes, 254 Ariz. at 304, 308, ¶¶ 4, 33 (Where a plea
agreement and factual basis were silent about the amount of marijuana
involved in a facilitation to transport or sell conviction, the court could
consider any admissible evidence to determine expungement eligibility.);
Cisneros, 255 Ariz. at 565, 569, ¶¶ 3, 19 (Where the factual basis for a plea to
possession of drug paraphernalia used to store “methamphetamine or
marijuana” described the main use as for storing methamphetamine, the
court properly found the conviction ineligible for expungement.). Here, a
presentence investigation report described all the relevant charges as
resulting from Garcia’s admitted sales of marijuana, and the factual bases
for the relevant guilty pleas each described the “sale of marijuana.”

¶9 On this record, the superior court did not err by deeming
expungement unavailable for Counts 1 to 3.

CONCLUSION

¶10 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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