State v. Lara
830 P.2d 803
Ariz.
1992
Check Treatment

*1 comparable to the sentence White,

cases. — (1991), denied, 815 P.2d 869 cert.

U.S.-, 112 S.Ct. 117 L.Ed.2d 439

(1992); Poland, v. Ariz. State (1985), aff'd, 476 U.S. (1986); v.

S.Ct. 90 L.Ed.2d 123 State

Carriger, 692 P.2d 991

(1984); Ceja, v. State (1980). GORDON, (retired),

CAMERON JJ.

concur in Vice Chief Justice MOELLER’s

opinion and Chief Justice FELDMAN’s

special concurrence. Woods, Atty. by Paul J.

Grant Gen. Counsel, McMurdie, Appeals Chief Crim. Section, McClennen, Atty. Crane Asst. Arizona, Appellee, STATE of Gen., Phoenix, appellee. for v. Trebesch, Maricopa County Dean W. LARA, Appellant. Rosalio Perez by Klapper, Deputy Public Defender Paul Defender, Phoenix, for appellant Public Arizona, Appellee, STATE of Lara. v. Martin, R. Hart & Fullerton James MALONE, Appellant. Dene Clarence Hart, II, Mesa, appellant Malone. CR-91-0039-PR, Nos. CR-91-0131-PR. OPINION

Supreme Court of En Banc. MOELLER, Vice Chief Justice. April AND JURISDICTION

FACTS re proceeding, In this consolidated opinions appeals’ view two court reach address the same issue and different Malone, 171 Ariz. results: State v. Lara, 170 v. (App.1990). Malone, defendant was convicted kidnapping, both class armed im dangerous felonies. The trial court based, aggravated part, posed used a finding that defendant had commission of the crimes. in the affirmed, relying on properly could that the state hold *2 283 weapon (1) charge (G) felony alleged use the to: increase the if is and found to be the i.e., robbery robbery pursuant “dangerous,” involving from to armed to the “intentional 13-1904; (2) knowing physical A.R.S. enhance the or infliction of serious sentence § pursuant allegation finding injury” to an and of the “use or exhibition of a dead or 13-604(G); dangerousness ly weapon dangerous or instrument.” Ad under A.R.S. § (3) aggravate pursuant ditionally, imposed and the sentence to sentences under these 13-702(D)(2). may aggravated mitigat be or A.R.S. subsections § pursuant ed to forth in factors set A.R.S. Lara, pled to In defendant no contest 13-702(C),(D) (E). Statutory aggra and § manslaughter, designated as dan- a class 3 vating use circumstances include of a dead gerous felony. imposed court an The trial 13-702(D)(2), ly weapon, A.R.S. and the § based, aggravated part, sentence its on injury, of serious bodily infliction A.R.S. finding that defendant had killed a human § being dangerous and had a used instru- doing Although ment so. the sentence II. and Orduno range permitted by was within the agreement, plea challenged the defendant this court Bly, considered whether appeal. it The court of remand- punishment jeopardy double or double con- resentencing, relying ed for on State v. prohibited siderations the from Orduno, 564, 159 Ariz. 769 P.2d 1010 establishing sentencing a scheme which (1989), to hold that because death the of an element of a crime also could be used victim is an and “essential irreducible” ele- aggravation pur- enhancement and of manslaughter, ment the trial court erred poses. Gutierrez, also State v. 130 by considering aggravating the death as an 149, 960, 148, (1981); 634 P.2d sentencing. at factor 571, Tresize, 574, State v. 127 Ariz. (1980). pled In Bly, defendant granted We pursu review both cases guilty to two counts armed robbery, of 31.19, Ariz.R.Crim.P., ant to Rule 2 dangerous both class felonies. Under (1987), (A.R.S.) clarify Rev.Stat.Ann. to the 13-604(G), sentencing section range the pursuant situation. We jurisdiction have to years, years was 7 to 10.5 being with 6, 5(3) Ariz. Const. art. and 12- A.R.S. § presumptive the term. trial court con- 120.24. We hold that controls these statutory aggravating mitigat- sidered and cases, princi non-DUI and that the Orduno factors, ing including defendant’s use of a ple limited to DUI cases. deadly weapon, finding that the miti- gation outweigh aggravation, not did the QUESTION PRESENTED pre- sentenced defendant to two concurrent Orduno, Whether the State v. sumptive years. terms of 10.5 (1989), the to argued, appeal, part, On defendant effect the motor vehicle in a DUI case that his sentences the violated fifth amend also a “dangerous be used as instru prohibition against punish ment’s double mentality” changes to sentencing, enhance ment trial court used one the rule (use of a deadly weapon) factor to raise the held, a non-DUI offense from robbery to armed case, that the trial court could consider and weighed also considered same use a for both enhancement factor an aggravating as circumstance. aggravation purposes. Bly, 127 Ariz. at at 280. This disagreed, pointing that the out use DISCUSSION deadly weapon Sentencing I. Arizona’s Scheme expose appellant factor “does addi 13-701(C) pre- punishment beyond sets forth the tional the enhanced sumptive felony range pro sentences for offenses. sentence. It is within the subject dangerous These are to enhance- vided for felonies class pursuant 13-604(F) judge may aggravat- ment to A.R.S. and the trial consider

ing mitigating (App.1982) circumstances.” Id. at Meador, (first degree burglary); P.2d at 281. We concluded that presence weapon, deadly of a as “[i]f (second murder); degree otherwise, of the crime element or *3 81, 7, Martinez, 80, 8 v. 130 634 P.2d Ariz. legislature impose moves the to more se- (second (App.1981) degree burglary). offense, punishment

vere for the we must by legislative abide the determination.” court, however, The “an Lara held that 373, 282. Id. at 621 P.2d at a essential and element irreducible [of aggravate cannot serve to the crime case, crime] In the more recent Orduno this 206, Lara, that it 170 defines.” Ariz. at of operation court considered whether “the original). in (emphasis 823 P.2d at 73 a motor vehicle in a DUI consti- case also conclusion, first Reaching this the court dangerous the use of a instrument tute^] prior holding discussed its State v. Ger 13-604(F) so under A.R.S. as to enhance main, (App. 150 Ariz. 723 565-66, penalty.” the Ariz. DUI 159 at 769 1986). Germain, In court concluded the P.2d resolving ques- at 1011-12. In this merely that is suf “reckless conduct which tion, legislative looked to the we intent ficient to constitute element of reckless an 13-604(F) (G). underlying and A.R.S. § manslaughter may ... not be used as an context, that, We concluded in the DUI a aggravating sentencing” factor at because motor as vehicle be characterized a 13-702(D) provision “there is no under § dangerous instrumentality purposes of ag specifically that makes recklessness an sentencing legisla- enhanced the gravating factor.” at 723 P.2d at Id. dangerous ture “well understood that the However, 108. the court held that reckless involved,” use of a motor vehicle was beyond merely conduct that is suf “which “could have therefore not intended that ficient to constitute an element of reckless differently punished identical DUIs be de- manslaughter” could considered under be particular pending jury on the of a whim provision, section 13-702’s “catch all” sec panel.” Id. at 769 P.2d at 1012. Or- tion Id. expressly acknowledged our earlier duno implication, decision the inapposite is ad Germain because it many relying non-DUI Bly. cases We dressed the the situation specifically holding limited our in Orduno sought not to specify had proper interplay “to a of the determination aggravating that also an circumstance was 'dangerous the lan- between instrument’ contrast, ag element In of crime. guage as to applied of A.R.S. 13-604 a gravating circumstances considered motor vehicle a DUI case.” Id. being a of Lara —death of human and use dangerous specifi

a instrument —are both 13-702(D)(1) of Appeals’ cally III. Court Decisions in section enumerated (2).1 Lara, appeals of Until the court consist ently case, applied Bly challeng resolve to cases addition the Germain ing single our the use of a element to both Lara court also relied on and extended ac- aggravate enhance and a sentence. decision in Orduno. While court Olsen, 603, 606-07, knowledged that “the court care- v. Orduno State (App.1988)(negligent fully interplay 760 limited its to the P.2d 606-07 534, 551, homicide); Just, dangerous provi- 138 Ariz. between the instrument cases,” (second it sion of 13-604 and neverthe- de DUI murder); gree that Rybolt, v. less concluded Orduno “elucidated State Therefore, may properly aggravating consider circumstance enumerated in the trial court The 13-702(D)(1) aggravating or is threat "[i]nfliction section ened infliction death the victim circum physical injury.” Howard, serious Ariz. stance. See also State v. assumed, parties appeals and the (App.1989); v. agree, although explicitly "death” is Meador, 343, 346, 13-702(D)(1), physical "serious in mentioned (App.1982). jury" necessarily a included element of death. Justice, Lara, FELDMAN, specially principles applicable Chief general here.” (footnote concurring. at P.2d at omitted). succinctly, princi Stated gun robbery, he used a Because ple the court of felt to be —one prosecuted and convicted of defendant was ele “irreconcilable” with that an —is robbery, a more serious crime than armed ment of a crime cannot be used as an 13-1904 simple robbery. A.R.S. §§ “surpass[es] it factor unless (armed (simple robbery). robbery), 13-1902 (citing the definition of the crime.” Id. gun, he used that the sentence for Because Sexton, 301, 303, robbery armed was then enhanced. See (App.1989)).2 13-604(G). reason, For same the enhanced sentence for armed *4 slate, today writing clean Were we on a aggravated. 13- was also might agree court’s we well with Lara 702(D)(2). transpired All of this because of A extension of Orduno’s rationale. in Bly, this court’s decision State v. however, decisis, healthy respect for stare 621 P.2d 279 which seem recognition Bly and the frank that ingly interpreted to hold that the has been upon similar cases have to re- been relied legislature as an intended that an act used hundreds, thousands, solve if not of non- severity element to increase the of the cases in leads us DUI to restate crime could also be used as a factor to originally in what we stated Orduno: Or- aggravate enhance and then to the sen application duno’s is limited to DUIs. Martinez, tence. reaffirming the rule of we also note 80, 81, (Ct.App.1981). although legislature has amended might argue Bly did One well both that many Bly section 13-604 times since was legis- expressly state that this was the decided, it has never modified or over- cogently, lature’s intent more even turned the rule. This confirms our illogical should not infer so we original concerning proper conclusion legislative expression, intent a clear absent interpretation legislative of the scheme notably lacking which is in these statutes. concerning non-DUI felonies. Today’s un- decision thus reaffirms another us, Applying Bly to the cases before we seemingly only fortunate rule followed (1) prop hold that: the trial court in Lara Arizona. erly considered of the victim as an death Nevertheless, join I in Justice Moeller’s aggravating circumstance under A.R.S. opinion “healthy I share his re- 13-702(D)(1); (2) the trial court in spect for stare and his decisis” observation properly deadly Malone considered use of a that, statutory on this reliance unwise circumstance construction, if hundreds not thousands of under A.R.S. § sentences have been Arizona since was decided 1980. This is one simply of those in which cases we DISPOSITION undo that has been done can but imposed by the trial courts hope that the will correct case, are, opinion in each affirmed. The errors. our appeals court of Lara vacated. reasons, For these I concur with Justice Although agree with the result reached opinion. MOELLER’s Malone, opin- court of its having ion in that case is also vacated as MYERS, J., CAMERON, (Retired), J. superseded by opinion. this

been concur in Chief Justice Vice MOELLER’s

opinion and Chief Justice FELDMAN’s CORCORAN, J., special concurrence. concurs. however, Sexton, falling squarely within the was a DUI case Orduno.

GORDON, J., participate did not this 3 of the

decision. Pursuant article Constitution, D. Judge

Arizona Robert County Superior

Myers Maricopa of the designated in his stead.

Court was to sit COMMIS-

ARIZONA CORPORATION

SION, Weeks, Jennings D. Marcia Renz Morgan,

and Dale H. as members Commission, Petitioners,

said *5 of Arizona ex rel. Grant

STATE General,

WOODS, Attorney

Respondent, Telephone

The Mountain States

Telegraph Company, Pinnacle West

Capital Corporation, New Vec- US West Inc., Utility Group,

tor Arizona Sierra Utilities, Inc.,

Company, First National Company, Water Granite

Bella Vista Association, Water Users Water

Oaks Valley

Utility Buckeye, of Greater West Combine,

Utility Electric Tucson Water Company, Public Ser-

Power Arizona Company,

vice Citizens Utilities Com- Dodge Corporation,

pany/Phelps Mor- Company, & AJO

enci Electric Water Company, Corpo-

Improvement Alltell

ration, Corporation, National Great CP Inc., Telephone Company,

Southwest Company,

Navajo Communications

Inc., Company, South- Southern Union Corporation, Intervenors.

west Gas

No. CV-91-0082-SA.

Supreme Court of

En Banc.

April 16, 1992. Denied June

Reconsideration