State v. AlvarezState v. Alvarez
- Reporters:
- , , ,
- Before:
- Espinosa
OPINION
¶ 1 A jury found appellant Jose Uzarraga Alvarez guilty of six counts of second-degree burglary and seven counts of sexual abuse, all nondangerous offenses. The charges arose from six separate incidents between December 1996 and March 2001. On each occasion, while selling tamales door-to-door in apartment complexes, Alvаrez entered the apartment of a different female victim whom he then fondled and, in some eases, forced the victim to fondle him. For each incident, he was convicted of burglary, and in four of the incidents, he was also convicted of sexual abuse. The trial court imposed presumptive sentences for the three offenses committed against the first victim and aggravated sentences for the remaining offenses, all to be served concurrently. The five longest, for burglary, are twelve-year terms. As the basis for imposing aggravated sentences, the court cited “multiple victims” as the sole aggravating circumstance.
¶ 2 On appeal, counsel for Alvarez filed a brief pursuant to
Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), suggesting two arguable issues. Alvarez did not file a supplemental brief. We address the second issue first. Although Alvarez did not object below, counsel contends on appeal that the trial court might have erred by failing at the end of the evidence to repeat some of the instructions it had given at the beginning of trial “regarding some
¶ 3 In State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992), our supreme court held that a trial court’s failure to reinstruct the jury at the end of trial on the state’s burden of proof “is an error which can be waived.” But, because of an erroneous, burden-shifting instruction the trial court had also given, the failure to reinstruct in Johnson was held to be reversible error despite the lack of an objеction. Here, however, there were no similarly extenuating circumstances, and the jurors were given written copies of the court’s preliminary instructions in the trial notebooks they took into their deliberations. We find that Alvarez waived any arguable error by not objecting to the trial court’s omission of those instructions and that the resulting error, if any, did not aрproach the level of fundamental error. See State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991) (error fundamental when defendant cannot possibly have had fair trial).
¶ 4 We turn now to the other issue raised on appeal. The trial court enhanced Alvarez’s sentences pursuant to
¶ 5 In addition to enhancing Alvarez’s sentences pursuant to
¶ 6 Counsel argues it was improper for the court to aggravate Alvarez’s sentences on the basis of “multiple victims” because his multiple, single-victim offenses had already been factored into the enhanced range of sentencing he faced under § 13-
702.02
¶ 7 In State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980), our supreme court held that neither double jeoрardy nor double punishment considerations prevent the legislature from establishing a sentencing scheme such as Arizona’s in which an element of a crime may also be used for sentence enhancement and aggravation. Bly recognized that “the legislature’s power to define crime and prescribe punishment” includes the power to dictаte that a given circumstance constituting an element of an offense — there, the use of a handgun, which converted a robbery into armed robbery — may also afford the basis for both enhancing and aggravating the sentence imposed for that offense and for “mak[ing] probation unavailable and a minimum prison term mandatory.” Id. at 372, 373, 621 P.2d at 281, 282.
¶ 8 However, as later observed in
State v. Germain,
150 Ariz. 287, 290, 723 P.2d 105, 108 (App.1986),
“Bly
permitted the use оf a deadly weapon to be used as an aggravating factor despite the fact that it is a necessary element of the crime of armed robbery,
only
because of the legislative mandate in
¶ 9 Here, in contrast to
Bly,
the single factor the trial court used to aggravate Alvarez’s sentences — “multiple victims” — is not among the aggravating factors specifically listed in
¶ 10 The defendant in Germain was convicted of two counts of reckless manslaughter after the pickup truck hе had been driving while intoxicated collided with an oncoming motorcycle, killing both people on the motorcycle and seriously injuring a passenger in the truck. The defendant claimed the trial court had erred in finding that his reckless conduct and infliction of serious injury and death supported the imposition of aggravated sentences “becausе these are the very elements of the crime of reckless manslaughter.” 150 Ariz. at 290, 723 P.2d at 108. Division One disagreed, holding that, if the degree of a defendant’s conduct exceeds the minimum level needed to establish the offense, that extreme misconduct may be considered as an aggravating factor.
¶ 11 Although the present case does not similarly entail the use оf an element of the offense to enhance or aggravate Alvarez’s sentences but, rather, the use of a single factor both to enhance and aggravate the sentences,
Germain
is instructive, nonetheless, in its discussion of when an element of an offense that is not specifically listed as an aggravating factor in
Were the courts of this statе permitted to enhance punishment, in the absence of any legislative intent, by using the very elements of the crime as aggravating factors, the carefully structured statutory scheme providing for presumptive sentences would be undermined.
However, this does not end our inquiry. Unlike such factors as the use of a deadly weapon or infliction of serious injury or death, which provide the trial court with objective issues of fact — i.e., either a deadly weapon was used or it was not — matters involving such factors as the defendant’s recklessness present the court with subjective questions as to the degree of the defendant’s wrongful conduct. We believe that the trial court has the authority to consider such questions. Where the degree of the defendant’s misconduct rises to a level beyond that which is merely necessary to establish an element of the underlying crime, the trial court may consider such conduct as an aggravating factor under the broad language of§ 13-702 [ (C)(19) ].
150 Ariz. at 290, 723 P.2d at 108. Unlike Germain, in which the degree of the defendant’s recklessness went well beyond the threshold necessary to establish that element of the offense, the trial court here made no comparable finding that Alvarez had done anything more on each occasion than simply commit the offenses with which he was charged, making the presumptive sentence arguably appropriate for any of his offenses standing alone. See Bly. In addition, because the existence of a victim was implicit in the cluster of offenses Alvarez committed on each occasion, to say that he had “multiple victims” reflects nothing more, on these facts, than his commission of multiple offenses over time.
¶ 12 The state argues that using “multiple victims” as an aggravating factor is appropriate because “[t]he multiple оffenses factored into
¶ 13 Based on the particular facts of this case, we conclude the trial court erred in imposing aggravated sentences on the basis of “multiple victims” alone. Alvarez did not have “multiple victims” in the sense in which that term is normally used, denoting multiple viсtims of a single act, episode, or scheme.
See, e.g., State v. Powers,
200 Ariz. 363, 26 P.3d 1134 (2001);
State v. Henley,
141 Ariz. 465, 687 P.2d 1220 (1984);
State v. Bruggeman,
161 Ariz. 508, 779 P.2d 823 (App.1989);
State v. White,
160 Ariz. 377, 773 P.2d 482
¶ 14 Alvarez did not commit these offenses against all six women simultaneously or in the course of a continuous spree or rampage.
Cf. State v. Rogovich,
188 Ariz. 38, 44, 932 P.2d 794, 800 (1997) (upholding capital sentencing under
¶ 15 Finally, the facts of this case do not resemble those in
Tschilar,
on which the state relies. There, Division One approved the trial court’s treating the number of viсtims as an aggravating factor under the catch-all provision of
While the court could not have aggravated the sentence based on the crimes having been committed against one person, by committing the acts agаinst multiple victims simultaneously, Tschilar altered the character and increased the magnitude of the offenses. Kidnapping and assaulting four teenagers at once arguably creates a greater risk of physical and emotional injury as to each as they see the others terrorized or injured and arguably represents a graver offensе to society.
200 Ariz. 427, ¶ 34, 27 P.3d 331, ¶ 34. In Tschilar, the term “multiple victims” denoted multiple contemporaneous victims in a single incident. Here, in contrast, Alvarez’s “multiple victims” referred to a series of widely separated incidents involving a different, lone victim on each occasion.
¶ 16 To justify imposing a longer sentence than the presumptive under our “carefully structured statutory scheme,” a trial court must point to conduct that somehow exceeds the elements or aggravates the circumstances of the offense. Germain, 150 Ariz. at 290, 723 P.2d at 108. The presumptive sentence is to be presumptively applied when the defendant’s conduct- satisfies but does not surpass the definition of the crime. See §§ 13-701(0, 13-702(A). As far as we have determined from this recоrd, apparently in none of these six incidents did either the degree of Alvarez’s misconduct, see Germain, or the quality and circumstances of his acts, see Bly, rise to a level beyond simple commission of the offenses charged. The existence of a victim was intrinsic in each cluster of offenses Alvarez committed and, thus, his “multiple victims” were synonymous with, and inextricable from, his “multiple offenses” under these specifiс circumstances.
¶ 17 We view
¶ 18 Because Alvarez’s “multiple victims” were subsumed in the multiple offenses аlready used to enhance the sentencing range for those offenses under
¶ 19 Because it is unclear whether the judge would have imposed the same sentences absent the inappropriate factоr, the case must be remanded for resentencing on all but the first three counts. See State v. Ojeda, 159 Ariz. 560, 769 P.2d 1006 (1989). Accordingly, we affirm the judgment of convictions on all counts and the sentences on counts one, two, and three, but remand the case for resentencing on the remaining convictions.
DRUKE, P.J. and PELANDER, J., concurring.
Notes
. Sentence enhancement elevates the entire range of permissible punishmеnt while aggravation and mitigation raise or lower a sentence within that range. “It is only within the [enhanced] range provided for dangerous class 2 felonies that the trial judge may consider the aggravating and mitigating circumstances.”
State v. Bly,
127 Ariz. 370, 372, 621 P.2d 279, 281 (1980);
. Aggravating and mitigating factors the court “shall consider” are enumerated in
.
See State v. Gutierrez,
130 Ariz. 148, 634 P.2d 960 (1981) (injury inflicted during aggravated assault with knife supported sentence enhancement for dangerous-nature offense,