State v. Gonzales
687 P.2d 1267
Ariz.
1984
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The STATE of Arizona, Appellant, v. Guadalupe Montano GONZALES, Appellee.

No. 6317.

Supreme Court of Arizona, En Banc.

Sept. 13, 1984.

687 P.2d 1267

victim could not testify against him. We think this tends to prove depravity. See

(slitting of throat after “execution-style” murders is depraved because it was done to send a “message” to others). Ending the life of a human being so that that person cannot testify against the defendant indicates a complete lack of understanding of the value of a human life. Killings committed with this cold-blooded logic in mind are especially depraved. Also, a witness at the trial testified that Smith laughed and joked about the murder. This would tend to indicate an especially depraved state of mind. In our disposition of this matter, however, we will not consider these facts because the trial court, in its special verdict, ignored them. We can only conclude that the trial court did not find these facts to be true beyond a reasonable doubt.

Since we do not rely on the finding that the murder was committed in an especially depraved manner as an aggravating circumstance, we must now determine whether the sentence of death was properly imposed in this case. Smith claims the following as mitigating circumstances: 1) his age at the time of the crime (21 years); 2) he is the father of a small child; 3) he did not intend to kill; 4) he had taken drugs and used alcohol on the day of the crime; 5) he is remorseful of the crime; and 6) the gun accidentally discharged. We agree with the analysis and conclusion of the trial court. The trial judge found Smith‘s age was not mitigating because he thought Smith was mature for his age. The trial court found that Smith‘s being the father of a small child was not mitigating. The trial judge noted the birth was out of wedlock and there was no “family tie” of which he was aware. The trial court noted that Smith‘s claim of intoxication was without merit. Smith has a precise memory of the events of that day. Smith did express remorse while on the witness stand, but the trial court did not find it sufficiently substantial to call for leniency. The judge said, “I‘d get a little remorseful too, after spending a few years in prison.” The trial court said Smith‘s claim of accidental discharge “is not a credible statement.”

The trial court said the aggravating circumstances “were each sufficiently severe by themselves to overcome any and all mitigating circumstances.” We find that the two aggravating circumstances outweigh the evidence presented in mitigation and, finding the penalty to be proportional, see Jordan, supra, we affirm the sentence.

HOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.

Robert K. Corbin, Atty. Gen., Bruce M. Ferg, Asst. Atty. Gen., Stephen D. Neely, Pima County Atty., Tucson, for appellant.

Kelly C. Knop, Tucson, for appellee.

HAYS, Justice.

Appellee, Guadalupe Montano Gonzales, was convicted of dangerous or deadly assault by a prisoner. See A.R.S. § 13-1206. Appellee was sentenced to 11.25 years imprisonment. Gonzales did not appeal his conviction. The state appealed to the court of appeals, alleging that the sentence imposed was illegal. We granted the motion to transfer the case to this court. See 17 A.R.S. Arizona Rules of Supreme Court, rule 47(e). We have jurisdiction pursuant to A.R.S. § 13-4032.

At the time of the crime and at the time of sentencing, A.R.S. § 13-1206 provided for a mandatory life sentence without possibility of parole for twenty-five years. The sentencing court determined that the mandatory sentencing provision of the statute was unconstitutional. The sentencing court imposed a lesser sentence.

The state argues that the sentence imposed by the sentencing court is illegal. We agree. The sentencing court was incorrect to conclude that former A.R.S. § 13-1206 was unconstitutional. See

. The sentence is therefore vacated.

While this case was pending on appeal, the legislature amended A.R.S. § 13-1206. The statute now makes this crime a class-three felony, and the mandatory life sentence provision has been stricken from the statute. Although not addressed by either party, we must determine whether Gonzales is to be resentenced pursuant to the provisions of former A.R.S. § 13-1206 or the current version of that statute.

Unless a statute provides otherwise, “it will not govern events that occurred before its effective date.”

. See also A.R.S. § 1-244. We find no provision indicating that the current version of A.R.S. § 13-1206 was intended to apply to events that occurred before its effective date. A.R.S. § 1-246 provides:

When the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second took effect, but the offender shall be punished under the law in force when the offense was committed.

Sentence vacated. Remanded to the trial court for proceedings not inconsistent with this opinion.

HOLOHAN, C.J., GORDON, V.C.J., and CAMERON, J., concur.

FELDMAN, Justice, dissenting,

I dissent from the result reached by the court. My views on the unconstitutionality of A.R.S. § 13-604.01 are set forth in my dissent in

and
. In addition, in the case at bench the trial judge who heard all the facts and circumstances surrounding the crime of which defendant was convicted, believed the imposition of a mandatory life sentence without possibility of parole for twenty-five years was so excessive as to violate the Eighth Amendment to the United States Constitution. In my view, therefore, the statute is both unconstitutional on its face and unconstitutionally applied in the case at bench. I would affirm the sentence imposed by the trial judge.