STATE of Utah, Plaintiff and Appellee, v. Cameron Thomas LOPES, Defendant and Appellant.
No. 960551.
Supreme Court of Utah.
March 16, 1999.
Rehearing Denied June 23, 1999.
1999 UT 24
Linda M. Jones, Michael A. Peterson, Kimberly A. Clark, Salt Lake City, for defendant.
ZIMMERMAN, Justice:
¶1 Cameron Thomas Lopes appeals from a judgment and conviction for murder, a first degree felony, and enhanced sentences imposed by the district court pursuant to
¶2 In March of 1996, the State charged Lopes and several other individuals with murder, a first degree felony, in violation of
¶3 In the district court, Lopes moved to strike the gang enhancement as unconstitutional under both the state and federal constitutions. The court denied his motion. Thereafter, he pleaded guilty to the homicide offense, with enhancements, in exchange for dismissal of charges pending against him in another case. Lopes conditioned his plea pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988).2 Lopes‘s conditional plea preserved
¶4 Thereafter, the trial court issued findings that Lopes was subject to an enhanced penalty under
¶5 Lopes contends that the gang enhancement statute creates a separate criminal offense by combining a separate mental element—“in concert“—with a criminal act and, therefore, for the statute to satisfy state and federal due process concerns, the State must prove the elements of the enhancement beyond a reasonable doubt, as with any other crime. He also asserts that
¶6 A constitutional challenge to a statute presents a question of law, which we review for correctness. See State v. Mohi, 901 P.2d 991, 995 (Utah 1995). When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality. See Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993); Mountain States Tel. & Tel. Co. v. Garfield County, 811 P.2d 184, 187 (Utah 1991).
¶7 In response to Lopes‘s argument that in enacting the gang enhancement statute, the legislature created a new crime, the State notes that the legislature specifically expressed an intent that the gang enhancement not be a separate offense. The legislature does have broad authority to define crimes and prescribe punishments. See State v. Bishop, 717 P.2d 261, 263-64 (Utah 1986); State v. Angus, 581 P.2d 992, 994-95 (Utah 1978). However, although the legislature specifically stated in the statute that it intended
¶8 The gang enhancement statute provides in part:
(1) (a) A person who commits any offense listed in Subsection (4) in concert with two or more persons is subject to an enhanced penalty for the offense as provided below.
(b) “In concert with two or more persons” as used in this section means the defendant and two or more other persons would be criminally liable for the offense as parties under Section 76-2-202.
¶9 This leads us to the burden of proof issue. In Labrum I, we did not address the burden of proof by which the State must prove the “in concert” element of the gang enhancement statute, but the court of appeals did address that question in a subsequent appeal. In Labrum I, we stated that before imposing the gang enhancement, the statute required “the sentencing judge [to] make discrete ... findings” that are “indispensable to the gang enhancement statute because they establish the legal basis that justifies imposition of the prescribed penalty.” Labrum I, 925 P.2d at 940. We remanded Labrum I for further proceedings because “no specific finding was entered with respect to the complicity of the other two persons who accompanied Labrum.” Id. at 941. On remand, the trial court made factual findings regarding the other two actors’ participation and then enhanced Labrum‘s sentence. See State v. Labrum, 959 P.2d 120, 121 (Utah Ct.App.1998) (Labrum II). Labrum again appealed.
¶10 Before the court of appeals, Labrum argued that the sentencing court‘s findings were legally insufficient to fix accomplice liability. Labrum premised his argument on both the language of the statute and due process. The court of appeals reversed the enhancement on grounds that the findings were insufficient. It did not address the constitutional question; instead, it held:
Under this statute, it is not enough that others were present when the crime was committed. Rather, the quality of their involvement must rise to the level of participation described in section 76-2-202,
Id. at 124. The court of appeals then went on to say that all three actors “must possess a sufficiently culpable mental state, and the prosecution must prove the foregoing beyond a reasonable doubt.” Id. (emphasis added). Because the court of appeals appeared to rely on statutory interpretation to fix the burden of proof, it had no occasion to address Labrum‘s constitutional challenges.5
¶11 Today, Lopes presents to this court a challenge to the gang enhancement statute that is essentially identical to the one passed upon by the court of appeals in Labrum II. He contends that the State must prove all the elements of accomplice liability, including the mental state, beyond a reasonable doubt. We agree with Lopes and conclude that the statutory “enhancement” requires proof of the other actor‘s criminal culpability, and that the State must prove their criminal culpability beyond a reasonable doubt. This conclusion finds support in
¶12 In Angus, the defendant was charged with aggravated assault, and the State sought a firearm enhancement. The defendant argued that the firearm enhancement statute created a separate offense that the State had to plead as a separate crime, not as an enhancement. This court disagreed. See id. at 994. In rejecting the claim of a separate crime that had to be separately charged, we said: “When the matter is looked at correctly and realistically, it is seen that there is but one criminal act charged, but describing it accurately brings it within the higher penalty prescribed by law: to-wit, an aggravated assault which was committed with a firearm.” Id. at 994 (footnote omitted). Angus acknowledged that the legislature has the prerogative “to prescribe the punishment for crimes” and thereby may “increase the degree of crime.” Id. We said that the legislature, by enacting the firearm enhancement, had increased the degree of the crime by establishing a separate set of elements that, if proven, warranted a higher punishment. Importantly for present purposes, we concluded in Angus that while the State did not need to separately charge the enhancement as a crime, it did need to prove each element, including the defendant‘s use of a firearm, beyond a reasonable doubt because the crime was increased as to degree by the presence of the firearm. See id. at 995.
¶13 Returning to the present case, as both a state and federal constitutional matter, we conclude that due process requires that the prosecution prove every element of the charged crimes beyond a reasonable doubt. See
¶14 Furthermore, and independently, as a statutory matter, the Code requires that the State prove each element of the charged crime beyond a reasonable doubt. See
¶15 When the legislature passed the gang enhancement provision, it acted just as it did when it passed the firearm enhancement provision: it mandated imposition of an enhancement only upon proof of elements over and above those required for the crime of lesser consequence. In essence, it created a specific new crime or a crime of a higher degree. As such, each of the elements must be proved beyond a reasonable doubt. Here, they were not. Therefore, we find the trial courts imposition of the gang enhancement to have been in error.
¶16 Finally, we turn to Lopes‘s assertion that the gang enhancement statute interferes with his right to a jury trial. He argues that since the statute creates a separate and new offense, each element must be found beyond a reasonable doubt by a jury, not the trial judge. We agree. The Utah Constitution provides “[i]n criminal prosecutions the accused shall have the right ... to have a speedy public trial by an impartial jury.”
¶17 The gang enhancement statute,
(c) The sentencing judge rather than the jury shall decide whether to impose the enhanced penalty under this section. The imposition of the penalty is contingent upon a finding by the sentencing judge that this section is applicable. In conjunction with sentencing the court shall enter
written findings of fact concerning the applicability of this section.
This section of the enhancement statute directs the judge to become the fact finder, expressly taking that power away from the jury. In this case, the judge followed the statute and became the fact finder. Even though Lopes pled guilty to the underlying offense, his plea did not establish the requisite mental state of the other actors, as is necessary to support imposition of the gang enhancement. His plea, then, did not establish all of the elements of the enhancement offense beyond a reasonable doubt. The trial judge supplemented the plea by making the factual finding that the elements of the gang enhancement were established, and implemented the enhancement. This clearly violated
¶18 Having held subsection (5)(c) unconstitutional, we now determine if the remainder of the gang enhancement statute can remain in effect. The general rule is “that statutes, where possible, are to be construed so as to sustain their constitutionality. Accordingly, if a portion of the statute might be saved by severing the part that is unconstitutional, such should be done.” Celebrity Club Inc. v. Utah Liquor Control Comm‘n, 657 P.2d 1293, 1299 (Utah 1982). This basic rule applies to criminal and civil statutes equally. See State v. Nielsen, 19 Utah 2d 66, 69, 426 P.2d 13, 15 (1967) (court severed unconstitutional section of criminal statute); State v. Green, 793 P.2d 912, 917 (Utah Ct.App.1990) (holding that basic rule [of severing unconstitutional provision] applies to the construction of criminal statutes).
¶19 To determine if a statute is severable from its unconstitutional subsection, we look to legislative intent. If the intent is not expressly stated, we then turn to the statute itself, and examine the remaining constitutional portion of the statute in relation to the stricken portion. If the remainder of the statute is operable and still furthers the intended legislative purpose, the statute will be allowed to stand. See Union Trust Co. v. Simmons, 116 Utah 422, 429, 211 P.2d 190, 193 (1949), quoted in Stewart v. Utah Pub. Serv. Comm‘n, 885 P.2d 759, 779-80 (Utah 1994).
¶20 The criminal code contains a separability clause, but it does not aid us in this situation.6 Furthermore, since there is no express intent on the severability question in the gang enhancement statute, we examine the statute itself to determine if severing
¶21 We address the proper course of further proceedings in this case. We reverse and remand for a new trial on the gang enhancement charge. Our remand does not
¶22 We hold that the gang enhancement statute creates a new and separate offense and, therefore, the Code requires each element of this crime be proved beyond a reasonable doubt. Since the elements of the crime were not established against Lopes, either by his plea or by a jury trial, he was deprived of his due process rights as guaranteed by the federal and Utah constitutions. Furthermore, subsection (5)(c) of
¶23 Associate Chief Justice DURHAM and Justice STEWART concur in Justice ZIMMERMAN‘S opinion.
RUSSON, Justice, dissenting:
¶24 I dissent. In my opinion, the gang enhancement statute is simply a sentencing statute. It does not create a separate offense with a separate penalty, nor does it add elements to the underlying offense. Rather, it merely enhances the minimum sentence for the underlying offense once the accused has been found guilty of that offense; the maximum sentence remains the same regardless of whether the enhancement applies. In fact, the statute specifically states, “This section does not create any separate offense but provides an enhanced penalty for the primary offense.”
¶25 As a general principle, the legislature has broad authority to define crimes and corresponding punishments, and its decision in this regard should not be proscribed unless it offends some fundamental principle of justice. See McMillan v. Pennsylvania, 477 U.S. 79, 85-86, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); see also State v. Angus, 581 P.2d 992, 994-95 (Utah 1978) (“It is the prerogative of the legislature to prescribe the punishment for crimes.“). With respect to Utah‘s firearm and gang enhancement statutes, this court has recognized and upheld the legislature‘s authority to require a trial judge to enhance a defendant‘s statutory minimum sentence if certain requirements are met during the sentencing phase. See, e.g., State v. Alvarez, 872 P.2d 450, 461 (Utah 1994) (affirming trial court‘s imposition of enhanced minimum sentence under
¶26 Notably, with respect to the firearm enhancement statute, we have consistently held that the statute does not create a separate, additional penalty for the underlying offense; it merely “enhances” the minimum sentence. For example, in Angus, after the defendant had been convicted of aggravated assault, the trial court imposed an enhanced minimum sentence pursuant to the firearm enhancement statute. See 581 P.2d at 993. Rejecting the defendant‘s argument that the statute created a separate offense which must be charged separately, we stated:
The punishment for a crime is not and has never been considered a part of the pleading charging a crime.... After conviction, the penalty to be imposed is an entirely separate proposition to be determined by the court as a matter of law on
the basis of the penalty prescribed by the statutes.
¶27 More recently, in Deli, we affirmed a firearm enhancement imposed after the defendant was convicted of a number of crimes, including murder. Once again, we emphasized that the enhancement penalties of the firearm enhancement statute are not separate sentences; instead, “the legislature intended the penalty for using a firearm in the commission of a felony to simply ‘increase’ or ‘enhance’ the original sentence imposed, not to stand alone as a separate sentence.” Deli, 861 P.2d at 434.
¶28 In Alvarez, we upheld an enhanced penalty imposed pursuant to the gang enhancement statute, see 872 P.2d at 461-62; however, in that case we did not address whether
¶29 The majority opinion holds that the “in concert” requirement defined in
¶30 The mere fact that the statute requires the judge to make a certain finding before imposing a sentence does not make that finding an additional element of the predicate offense. For instance, in connection with sentencing, a judge is called upon to weigh aggravating and mitigating factors, and those factors do not thereby become additional elements of the underlying offense:
¶31 Furthermore, in considering the pertinent sentencing factors, judges sometimes must take into account the defendant‘s mental state. For example, the Utah Code of Judicial Administration requires judges to “[c]onsider [the following] aggravating circumstances only if they are not an element of the offense ... 5. Offense was characterized by extreme cruelty or depravity.... 7. Offender‘s attitude is not conducive to supervision in a less restrictive setting.” Utah Code of Judicial Admin. app. C, at 1297 (1998); accord id. app. D, at 1368 (authorizing presentence investigator to consider whether crime was characterized by extreme cruelty or depravity); id. at 1371 (same). Thus, weighing the defendants state of mind is well within the realm of a sentencing judge‘s authority.
¶32 Moreover, acting with “in concert” mental culpability is not identified as an element of any of the enumerated felonies in the gang enhancement statute. See
¶33 The United States Supreme Court‘s decision in McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), is instructive. That case involved a constitutional challenge to a Pennsylvania sentencing statute which provides that anyone convicted of certain enumerated felonies is subject to a mandatory minimum sentence of five years’ imprisonment if the sentencing judge finds, by a preponderance of the evidence, that the defendant “visibly possessed a firearm” during the commission of the offense. McMillan, 477 U.S. at 81. Recognizing that states have broad authority to define crimes and prescribe penalties, the Court observed that
the Pennsylvania Legislature has expressly provided that visible possession of a firearm is not an element of the crimes enumerated in the mandatory sentencing statute ... but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt.
¶34 In upholding the constitutionality of the Pennsylvania statute, the McMillan Court reasoned that (1) the enhancement implied no presumption of guilt, nor was the prosecution relieved of its burden of proving the defendant guilty of an enumerated offense, see id. at 87; (2) the enhancement did not extend the period of incarceration beyond the terms provided for any of the enumerated felonies to which it applied, nor did it create a separate offense calling for a separate penalty, but rather merely limited the trial court‘s sentencing discretion in selecting a penalty within the range already available to it, see id. at 87-88; (3) “[t]he statute [gave] no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense,” i.e., the argument that the enhancement was really an element of the offense lacked even superficial appeal because it did not expose the defendant to greater or additional punishment, see id. at 88; and (4) the Pennsylvania legislature “did not change the definition of any existing offense [but] simply took one factor that has
In conclusion, the Court stated:
Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all.
....
Sentencing courts necessarily consider the circumstances of an offense in selecting the appropriate punishment, and we have consistently approved sentencing schemes that mandate consideration of facts related to the crime without suggesting that those facts must be proved beyond a reasonable doubt.
Id. at 91-92 (citations omitted).
¶35 Under McMillan‘s reasoning, the gang enhancement statute at hand is clearly constitutional. First, the Utah Legislature expressly chose to make group criminal activity a sentencing factor rather than a separate offense. See
¶36 Finally, I disagree with the majority‘s description of the claimed constitutional right allegedly impinged upon by the gang enhancement statute. The majority contends that because the statute enhances the minimum sentence on the basis of findings concerning the defendant‘s mental culpability, those findings somehow become additional elements of a separate crime. As already indicated, I disagree with this premise. More disturbing, however, is that from this, the majority extrapolates that under both the state and the federal due process clauses, the statute violates a criminal defendant‘s fundamental right to be presumed innocent until each element of the offense is proven beyond a reasonable doubt. While criminal defendants certainly have a right to such a presumption of innocence, the majority identifies no authority that this right is infringed when a sentencing judge makes findings relevant to sentencing without the state having to prove those findings beyond a reasonable doubt. Without any articulated constitutional basis, the majority simply states that this is required.
¶37 In sum, because the gang enhancement statute creates neither a separate crime with a separate penalty nor an additional element to an underlying offense, I
¶38 Chief Justice HOWE concurs in Justice RUSSON‘S dissenting opinion.
Notes
After objection, the first paragraph was changed to read:In his Statement of Defendant [sic] executed in connection with his entry of guilty plea and in his colloquy with the court, the defendant, although challenging its constitutionality, acknowledged the applicability of the gang enhancement as pleaded by the state.
By making this modification, the trial court acknowledged that Lopes never conceded that all the elements of the enhancement statute were satisfied, i.e., that the other individuals shared the requisite mental state for murder. This means that the issue of the applicable burden of proof is squarely before us today. See infra ¶9. SeeDefendant admitted that he went with at least two other people to Joey Miera‘s home for the purpose of retaliating for a fellow gang members shooting, and with the stated purpose of “[gett]ing the punks.”