State v. Peregrina, 261 P.3d 815

State v. Peregrina

261 P.3d 815

Idaho

2011

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*1 P.3d 815 Idaho, Plaintiff-Respondent, STATE PEREGRINA,

Diego Morales

Defendant-Appellant. 37900.

No. Idaho, Court of

Boise, May 2011 Term. 7, 2011.

Sept. *2 possession of a firearm of unlawful

victed was 18-3316. No instruction under Peregrina either or the State requested 19-2520E, regarding I.C. which states the same two crimes “arise out of when conduct,” the defendant indivisible course enhanced “may to one penalty.” Peregrina as district court sentenced years fixed the first count of follows: ten for battery; years ten fixed for aggravated aggravated battery consecu- second count of count; years indetermi- tive to the first ten enhancing the in the first nate count; years ten enhanc- and indeterminate Huskey, Appellate Public Molly State J. count, both ing the sentence Boise, Defender, Jason C. appellant. for previous Peregri- consecutive to the counts. argued. Pintler years sentenced fixed for na was also to five Wasden, Attorney G. Lawrence possession for unlawful of a his conviction Boise, General, C. respondent. John firearm, to ran concurrent with the other McKinney argued. sentences, days with credit for two hundred Peregrina appealed Judgment his served. BURDICK, Chief Justice. Appeals, which and Sentence Court of Per- Diego arises Morales This case out of review, Peregrina petitioned affirmed. aggra- counts of egrinad conviction for two granted petition. and this Court enhancements; battery vated and two firearm argues that battery. Peregrina for each one II.ISSUES ON APPEAL support was insufficient evidence there “implicit” finding that court’s district the fact of increases 1. Whether of con- arose out of divisible courses crimes statutory penal- the maximum authorized was, duct, the State and that even if there ty was under such that there the issue of divisi- had the burden submit in the State’s failure to submit it to error bility prove it and prove beyond a and it reason- to the district reasonable doubt. We remand able doubt. proceedings consistent with this court for alleged Apprendi error was 2. Whether opinion. and fundamental reversible. AND PROCEDURAL I.FACTUAL OF REVIEW III.STANDARD BACKGROUND gives Court consider Peregrina attended a child’s This “serious In June Appeals Court of consider birthday party and in a verbal confronta- ation to the when was already reviewed our interme Peregrina men. returned later a case tion with two Kerrigan, court.” State v. night exchange, appellate diate and continued Peregrina shooting Alfred Ra- P.3d culminated omitted). (2006) (internal quotation Garcia in the marks mirez in the chest and Juan the decision of charged by information this Court reviews face. trial, convicted, were directly, two court as if the case after a the district and judge’s battery appeal from the district aggravated on direct counts 18-903(a) -907(l)(b), Statutory interpretation is a two en- Id. §§ decision. exer during law over which this Court a firearm hancements for use of State, 149 Idaho review. Fields v. cises free the commission those batteries charged and con- He was also (b) tiles; operable, if the firearm was IY. ANALYSIS readily operable. have been could rendered ques- single around a This case revolves found, Once these facts are fact with tion: Who can make *3 penal- to maximum mandates increase the regard divisibility of under conduct ty by for the crime fif- allowed enumerated for cer- § I.C. Idaho law allows 19-2520E? years. important teen It to note that is the severely punished tain be more crimes to jury predicate beyond found these elements using firearm. they when committed a are doubt, subjecting Peregrina a reasonable to battery Aggravated § Idaho Code mandatory the sentence increase. If is one of crimes. Id. a finds those Section as a limita 19-2520E acts the that a used a firearm in com- defendant mandatory tion to sentence increase. battery, may be mission of a his sentence Johns, P.2d at 1336. years. by increased a maximum fifteen Id. “by § Johns stated 19-2520E its word statute, legislature The used the “shall” in mandatory ing, duty limits the otherwise of mandatory making this a increase ‘multiple’ court to district enhance sen penalty. maximum Id. § tences under I.C. 19-2520.” Id. Because However, limita- this statute is not without § operates limit other 19-2520E to provides tion. section of the Another code increase, mandatory wise nature of the find only subject that a defendant can be to one ing divisibility indivisibility or a is not fact penalty if the out of increased “crimes arose penalty increases the for the crime. conduct____” of same indivisible course finding indivisibility, Rather of 19- Thus, Idaho 19-2520E. if two Code a mitigating 2520E is that acts to factor firearm, using crimes are committed but such, penalty reduce the for the crime. As it those crimes were in the same committed subject Apprendi is not to and is a fact that conduct, can indivisible course of a defendant can be found court. only with be sentenced one enhancement Here, found pеnalty. aggravated battery committed two acts of undisputed It is Therefore, using a while firearm. the statu Johns, divisibility one of is fact. State tory thirty years. maximum for is each crime 112 Idaho §§ Idaho Code 18-907 and 19-2520. (1987). “[ojther Apprendi, Under than the Code 19-2520E decrease the statu would conviction, prior fact of a that in fact tory penalty Peregri maximum as to one of penalty for a beyond creases the crime if na’s convictions both of his crimes “arose prescribed statutory maximum be must sub out of the same divisible course of conduct.” proved beyond mitted to a a rea Thus, operate § 19-2520E would to reduce Apprendi sonable Jersey, doubt.” v. New Peregrina’s maximum for one of his 2362-63, convictions, result, not to it. As a it increase (2000). ques The within was well the inherent tion, then, finding divisibility whether a is judge finding regarding trial to make a or indivisibility penalty for the increases divisibility indivisibility Peregrina’s or statutory crime maximum. Un finding no such crimes. there was does, Apprendi lеss it it not fall does made, matter to must remanded required and the is not to find that fact. court on finding district the issue of indivisibility pursuant to I.C. 19-2520E. Under the State must finding divisibility or Because indivisibili prove beyond jury: a reasonable doubt to ty subject Apprendi is not this Court (1) does one or convicted of not need address the issue raised (2) crimes; more of the delineated the defen- appeal. used, threatened, displayed, dant attempt- ed deadly weapon to use a or other firearm V. CONCLUSION crimes; during the commission of these firearm, weapon if deadly indivisibility at issue A can act (a) capability propelling projec- has reduce the maximum

RAI unobject- whether that must then determine penalties to enhanced multiple crimes result, fundamental under State v. find- ed-to error was § 19-2520. As 209, 245 P.3d 961 Perry, and can be subject Apprendi, not judge. Majority We remand to holds that does trial found re- finding of not increase the but for a court district conduct, followed Peregrina’s and thus does indivisibility of duces finding. with that concurs. Jus- apply. consistent Justice Eismann 19-2520E is an. tice Horton believes and J. JONES EISMANN Justices waived Pere- affirmative defense that was concur. it. grina’s failure to raise *4 JONES, dissenting.

Justice W. attempt prove to prosecution The did not there was no error Majority holds that batteries, aggravated divisibility of the two Supreme Court’s decision the U.S. under the issue to the and did not submit Jersey, 530 U.S. Apprendi v. New it did not have the bur- The State contends (2000), 2348, because 147 L.Ed.2d 435 dissent, S.Ct. Horton, in den to do so. Justice his punish- the reduces § 19-2520E relies on dicta in this agrees. The State respectfully dissent. ment authorized. Clements, in State v. Court’s decision 82, 218 P.3d 1143 wherein the Divisibility In- the Fact of A. Because “[b]y guilty pleading that to Court stated Authorized the Maximum creases enhancements, Clements waived both firearm Penalty By Authorizing Statutory statutory, that fact-based defense Enhancement, Ap- There Was Second attempted murder arose out of murder and Failure to prendi in the State’s Error of conduct under the same indivisible course Jury. the Issue Submit 86, 218 P.3d 19-2520E.” ease, brought Clements at 1147. question of divisi- undisputed that It is to correct his sentence I.C.R. 35 motion indivisibility under I.C. 19-2520E bility or 873, Johns, allegation that the court did not based on the v. 112 Idaho of fact. State is one (1987). 1327, Ap- two firearm 882, have Under 736 P.2d (other second-degree for murder and fact of a enhancements “any fact than the prend,% murder, conviction) second-degree attempted because increases prior statutory arose out of the same indivisible prescribed the crimes for a crime 83, Id. at 218 P.3d at course of conduct. to a must be submitted maximum pled guilty Ap- had to both 1144. Clements beyond a reasonable doubt.” proved 466, 490, well as the firearm underlying offenses as Jersey, 530 U.S. prendi v. New 2348, 2362-63, Id. He did not raise is- enhancements. 147 L.Ed.2d motion, indivisibility until his Rule 35 sue of is unconstitu- “[i]t This is because time, the district court reviewed as- and at that from the ... to remove tional ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍prеliminary hearing and pre- transcript of the of facts that increase sessment crimes had arisen out found that both range penalties to which criminal scribed course of conduct. Id. equally same indivisible exposed. It is clear at 1145. This Court stated by proof be- 218 P.3d facts must be established such guilty to the fire- plea 120 because Clements’ Id. at yond a reasonable doubt.” non-jurisdie- all enhancements waived The first arm 455. S.Ct. at resolved, then, to those enhance- tional defects and defenses that must be ments, statutory, fact- divisibility he had waived indivisibility or the fact of whether indivisibility under defense of based increases in I.C. 19-2520E 19-2520E, not raise it for the and could beyond the authorized a crime motion. Id. at does, time at his I.C.R. 35 proof first the burden maximum. If it eventually it, The Court rest- at 1147. prove 218 P.3d prosecution to raise was on the holding proposition its it to ed doubt and submit beyond a reasonable review the facts under- court not the failure to district Apprendi; and Rule “illegal” sentence at a lying alleged The Court acts was error. all of those do hearing, and the Court’s statement the fundamental error doctrine.” Hansen, had Clements waived his defense under State v. 148 Idaho 224 P.3d by pleading guilty (Ct.App.2009) 19-2520E to the en- (citing State v. Anderson, that did hancements was dictum not affect (2007)). holding. Therefore, Id. at 218 P.3d at 1148. Peregrina’s failure to ask for an instruction on did not Here, Clements, Peregrina pled unlike in right challenge waive his whether the lack enhancements, guilty to the not firearm of an instruction on the issue was error. non-jurisdictional thus he did not waive his Rather, challenges to the enhancements. Majority Both the State and the conclude “every pleading guilty, allega- material reduces the indictment, tion of the information or com- underlying increasing crimes rather than plaint” put in issue. it and is Apprendi. thus not Pere right grina did not “waive” his to have a argument contends that was al divisibility by determine the ready issue of rejected made Arizona and by the failing By failing to raise it. Arizona, raise the U.S. in Ring Court below, object issue or Peregrina may to it U.S. 153 L.Ed.2d 556 *5 19-2520E, have “forfeited” the issue under Ring At issue in was a but he did not it. “waive” v. United States scheme in judge Arizona which a was Olano, 733, 725, 1770, required 113 S.Ct. presence to find the aggrava of an 1777, (1993) (distin- 508, 123 L.Ed.2d ting factor in order to sentence a defendant claim, guishing “forfeiture” of a which results first-degree convicted of murder to death. from a 604, failure to assert the claim in timely a 2440, 536 U.S. at 122 S.Ct. at fashion, prevent and which does ap- L.Ed.2d at 573-74. specified Arizona law pellate reviewing court from the claim imprisonment” that “death or life were the error, plain “waiver,” only is the “in- options first-degree mur relinquishment der, tentional or abandonment of but that explicitly same statute cross- right,” a known permanently and which ex- referenced another required statute that claim). tinguishes right to raise finding As aggravated of an circumstance a set forth in this Perry, Court’s decision in an judge imposition before penalty. of the death 604, asserted error in a 2440-41, criminal trial raised for Id. at 122 S.Ct. at appeal the first time on is still renewable at Ring argued 573-74. Appren that under di, analysis the fundamental error even if right he had the jury to have a determine have been “forfeited” Perry, presence below. aggravating factor be 225, 245 P.3d at yond 977. Therefore a reasonable doubt. argued Arizona appropriate it is not apply to the dictum in already that “death” the statutory maxi characterizing Clements determination of mum jury’s for the verdict for first- here, facts degree as waived murder language under the of the relinquishment” statute, where no “intentional and therefore the aggravating factor determination on required occurred. Unit- to the death did not Polouizzi, 142, (2d ed States v. 564 F.3d increase the maximum penalty (beyond Cir.2009) “death”) (holding that the defendant waived 603-04, 122 Apprendi. Id. at right challеnge his to jury 2440,153 instructions S.Ct. at L.Ed.2d at 573-74. in response because to judge’s proposed Court noted “[i]f a State instruction, alternative the defendant indicat- makes an increase in a defendant’s author- original ed that the instruction was satisfac- punishment ized contingent finding on the tory). fact, that fact —no matter how the State 30(b) It is also noted that while I.C.R. labels by jury it —must be found beyond a normally prohibits a defendant from chal- reasonable doubt.” Id. at 122 S.Ct. at lenging instruction for the first time 153 L.Ed.2d at 572-73. It reiterated appeal, timely objection “even absent a dispositive “the ... is not one court, form, the trial claims of instructional error but of effect.” Id. It found that are reviewable appeal for the first time on though language even of the statute stat- statutorily imprisonment” a lesser life were sentence within defined ed “death or murder, first-degree range “pertain punishments for facts whether the legal right to a aggravating that the defendant hаs a lesser sen- interpretation Arizona’s tence,” the latter of which is within the sentence under “the factor reduced jury,” traditional and thus Apprendi render the rule of role of “must statute would by jury” be found under the Sixth “meaningless and formalistic.” Id. at Amend- 2441,153 at ment. Id. 124 S.Ct. at 573-74. The at 122 S.Ct. at L.Ed.2d at 417. required the statute Court held ' found fact had to be in order another A recent ease decided the U.S. Su- death, the defendant and there- preme Court under tackled a simi- by the fore the maximum authorized to the one distinguishable lar but issue here. imprisonment. life Id. verdict was Ice, Oregon At issue in U.S. 602-04, L.Ed.2d at 172 L.Ed.2d 517 was Ore- Thus, required it concluded gon’s imposing statutory scheme for consecu- factor aggravating exposed the finding of an tive, concurrent, sentences than when punishment, greater the death defendant to a a defendant had been convicted more than that authorized penalty, than one crime. 555 U.S. at S.Ct. at aggravating of an verdict without the Under L.Ed.2d at 522-23. thе Ore- factor, Ap- imprisonment, thus under life statute, gon required sentences were to run underlying the prendi, aggravating facts concurrently judge found unless the required to be factor determined were offenses did from the same not “arise contin- jury beyond doubt. Id. at a reasonable conduct,” uninterrupted uous course 153 L.Ed.2d at 576-77. S.Ct. at *6 judge in which the case the had discretion to impose consecutively. the sentences Id. The princi- reiterated The Court 296, Supreme the Washington, Court found that discretion to ple Blakely in v. 2531, impose rather L.Ed.2d 403 hold- consecutive sentences than 124 159 S.Ct. historically concurrent rested ones with the that 167-69, judge, not 129 jury. Id. at [wjhether judge’s authority impose to 717, 172 It also at L.Ed.2d at 524-25. noted depends finding a sentence on enhanced in the develop- that States have an interest (as Apprendi), specified fact one of sev- systems, penal ment of their and thus the (as Ring), facts or specified eral Oregon’s Court shоuld defer to decision to (as here), it aggravating fact remains the place imposing discretion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for consecutive sen- jury’s verdict not case that the alone does a judge compelling tences with the absent judge the sentence. The ac- authorize 169-72, reason not so. Id. at 129 S.Ct. to do quires authority only finding upon 718-19, at at 525-27. The 172 L.Ed.2d Court fact. some additional found that Amendment did not Sixth 305, 2538, 124 S.Ct. at at U.S. judges, assigning inhibit to rath- States It acknowledged 414-15. L.Ed.2d at juries, finding necessary er than of facts Ring, Apprendi both “the defendant’s consecutive, justify imposition to rath- rights had been violated be- constitutional multiple er than concurrent sentences imposed judge cause had a sentence 166-74, 716-20, at offenses. at 129 S.Ct. Id. greater the maximum he could have than 172 L.Ed.2d at 523-29. imposed state law without the chal- Here, 303, divisibility the fact of lenged finding.” Id. at 124 S.Ct. find factual 2537, It increases maximum authorized sentence L.Ed.2d at 413. also clarified on the when that defendant has ‘statutory maximum’ for defendant “the charged judge multiple been with enhancements. purposes the maximum sentence a is analogous. may solely The decision in Ice is not It impose on the basis the facts judge or jtvry whether a a verdict or admitted revolved around reflected (emphasis to decide if two original). should have the discretion Id. defendant.” imposed a sentences should be served consecu- It difference between factors that noted the tively. revolves The case here around judge imposing to consider in has discretion authority power impose to im- to a judge suspend has the sentence.” whether the all, Stover, pose an enhanced at 974. additional sentence P.3d just judge may language expressly not whether determine of 19-2520E refer- necessary statutes, decide whether to facts to stating ences the enhancement consecutively sen- other “[n]otwithstanding applies the enhanced Ice, concurrently. con- tences instead of thus provisions in sections [list- “sentencing function in which the cerned ing other enhancement statutes].” Black’s i.e., played traditionally part,” no Dictionary “notwithstanding” Law defines to impose a discretion to consecutive “despite; in spite mean of.” Black’s Law Ice, than a U.S. at concurrent sentence. (9th 2009). Dictionary Accordingly, ed. 129 S.Ct. at L.Ed.2d at Ice, Oregon unlike in where the statute clear- ly intended to decide the discretion facts hand, On the here it clear that other seems necessary to impose a consecutive sentence Legislature § 19-2520E was intended with judge to rest instead prohibit to imposition of more than one en- Stover, clearly where the statute found, intended indivisibility hanced sentence if weigh lay discretion list factors to place to im- discretion whether or not judge, § with the intended to pose multiple enhanced sentences limit inherent the court to judge hands of a rather than Act actually impose multiple enhancements April eh. Laws. Sess. charged under 19-2520 and other sec- (stating 19-2520E was enacted “to §in tions listed 19-2520E. provide multiple penalties enhancement prohibited.”) are The intent of the statute is words, In other “despite” the enhance important in the determination of whether a may ments that be fact is one that must be submitted to the 19-2520, only one enhancement Apprendi. the State under United States imposed if the occurred in crimes — O’Brien, -, -, U.S. multiple course of If indivisible conduct. en (2010); 992-93 charged, hancements are then Stover, see also State v. 931— prerequisite becomes a to the au (looking *7 thority judge impose of the to more than one legislative in purpose holding that 19- fact, judge the them. Without that is not give 2521 to was intended discretion to the impose authorized to the second enhanced judgе decide, lists, to based on the it factors 305, 124 Blakely, at sentence. 542 U.S. S.Ct. place probation whether to a defendant on or (“The judge 159 L.Ed.2d at 414-15 sentence him a prescribed within acquires impose that authority an en [to range, Apprendi and therefore not ren- did only upon finding hanced some sentence] ad unconstitutional). der it added)); (emphasis fact.” Ring, ditional 536 This Court stated has before that 19- U.S. at S.Ct. at L.Ed.2d at “by wording, 2520E its limits the otherwise (“If a State in makes an increase mandatory duty the district court to en- authorized, punishment defendant’s contin ‘multiple’ hance sentences under 19- fact, gent the finding on of a that fact —no Johns, 2520.” P.2d at how matter the labels State it —must be 1336. I do not believe as the by jury beyond found a reasonable doubt.” does, Majority provides it sentencing added)). result, (emphasis As a the fact of punishment factor that “reduces” the for the divisibility increases the maximum author Rather, crime. I believe that it limits the statutory рenalty ized a defendant will be authority sentencing If the court. exposed authorizing to the second en during crimes occur course of indivisible hanced sentence. Ice’s second “twin-consid conduct, a is not authorized eration,” respect the sovereignty for a state’s circumstances under the statute. enacting penal in own system, its would thus This is in to in interpreting contrast the factors listed also be furthered way to in- in nothing clearly “do[] the intended the fringe upon sentencing Legislature: authority impose inherent to limit to court’s underlying hypothetical when take this multiple logical step enhancements To further, con- occur in an indivisible course of the Legislature crimes this rationale Ice, 160, 167-69, 129 S.Ct. duct. pass a could statute where crime of caus- ing penalty death was to a maximum prison, judge of life but the could reduce Further, I how absence of fail to see penalty that maximum if the defendant did authority impose to a second enhancement intend to kill killed in not the heat of possibly By defini- can “reduce” sentence. By passion. argument, the State’s not hav- tion, sentencing enhancement increases the kill, killing the intent to in the heat of Dictionary penalty. maximum Black’s Law merely passion, would be facts that would aug- as act of “[t]he defines “enhancement” penalty (9th Ap- reduce for the crime. menting.” Dictionary Black’s Law 2009). prendi specifically Court stated finding A the crimes oc- ed. unconstitutionally that such a statute would of con- during curred an indivisible course legislatures not allow state to simply means that court does “circumvent” con- duct authority augment protections “merely to have increase or stitutional ‘rede- itself the sentence. That does not fining] the elements constitute different augment Failure to crimes, “reduce” sentence. characterizing them as factors equivalent reduction. to solely on punishment.’” bear the extent of Apprendi 530 U.S. at 120 S.Ct. at Majority’s interpretation of indivisibil- (quoting Winship, In re ity a fact the sentence as reduces U.S. 25 L.Ed.2d 368 argument falls into the same “formalistic” (brackets original)). Interpreting attempted put Ring, that Arizona forth indivisibility fact of as one that merely focusing the form the words in on decreases maximum focuses the statute than their effect to obvious effect, form rather than and would allow the limit the court protections Ap- State to circumvent the By the multiple enhancements. logic, Legisla- prendi. Majority’s State’s and the simply ture could rewrite that have the facts Carrying a firearm is a fact that authorizes authorizing effect of in the maxi- increase a sentence because Legisla- enhancement by phrasing mum on the defendant ture has deemed that act one that increases declaring and then negative them culpability the defendant’s for the crime. they only “reduce” order Committing a with the murder intent to kill protections circumvent passion similarly rather than the heat of example, Legislature For could choose culpability, increases a au- defendant’s thus say every aggravated carries a assault *8 thorizing greater a punishment for that more thirty years, maximum if the of but culpable crime of murder than the less during not use a firearm the did crime culpable manslaughter. of Just assault, only commission be of the he can same, committing two crimes in divisible Thus, years. for sentenced fifteen under by courses of conduct has been deemed logic the fact Majority, of State and the Legislature egregious to be more than com- that a a not be defendant used firearm would mitting those crimes one indivisible course a fact increases the maximum court of conduct. The district does not have reading because formalistic of the words authority impоse enhance- carry- lead “not

would to the conclusion that if ment the crimes were in one committed only penalty. a firearm” decreases the indivisible course of conduct. The district ignores purpose and effect This the obvious court the second enhance- one, hypothetical of a statute as that such if the ment crimes were committed in divisi- just interpreting indivisibility as as a fact conduct, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍thereby increasing of ble courses merely “reduces” maximum way culpability the defendant’s the same ignores purpose is to carrying a acting firearm or with the sentencing limit the of the court to kill impose a intent to would. second enhancement. Thus, has I error in Court addressed that would find the State’s facts, go types way divisibility

these ones that to the failure to submit the fact of committed, exactly jury. the offense was are itself Apprendi requires type facts B. The Failure to Submit Issue of by in contrast to be found fаcts that Divisibility Jury Was Funda- focus on of the offender. the characteristics mental Error. In its recent decision United States v. — U.S.-, O’Brien, 130 S.Ct. Perry, Under State v. (2010) the Court noted L.Ed.2d 979 the im- alleged P.3d 961 if an error was not portant a fact difference between that consti- contemporaneous objection, followed “sentencing tutes a factor” which does not will reviewed Court under the implicate Apprendi, and a fact that must be fundamental error doctrine. Id. at of the considered an element offense under P.3d at 980. This doctrine involves a three

Apprendi interpreting In a federal statute prong inquiry by defendant must carrying during in which firearm offense persuade appellate court alleged punishable was a a minimum crime of five (1) error: violates one defendant’s years, mandatory but the minimum in- (2) rights; plainly unwaived constitutional ex- thirty yeai-s if the creased to firearm was a ists, without the need for additional informa- machinegun, thе stated: Court appellate tion not contained within the rec- ord; and was not harmless. Id. Because Sentencing traditionally factors involve divisibility I believe the fact of increases the characteristics of offender-such as re statutory penalty maximum authorized cidivism, cooperation with law enforce enhancements, multiple then Appren- under ment, acceptance responsibility. I Peregrina’s believe Sixth Amendment States, 120, di [Castillo v. United U.S. rights were violated the State’s failure to 2090, 2093-94, 120 S.Ct. jury. submit the Apprendi issue to the (2000)]. 94 [100] Characteristics at U.S. 120 S.Ct. 147 L.Ed.2d at traditionally are treated as offense itself above, 446-47. As stated in section Per- elements, machinegun and the use of a egrina rights by did not waive these inten- 924(c) lies “closest to the heart of tionally relinquishing them. Id., the crime at issue.” [at at 100]. plainly The error also exists because it is clear from the record that a determination on — -, U.S. S.Ct. at was not submitted added). (еmphasis L.Ed.2d at 988 Divisibili- ty indivisibility nothing Finally, have to do with the error was not harmless. In harmless, the offender also a and are “characteristic order error to be deemed they go the offense straight itself’ because this Court must declai'e a belief way in which the offense was committed. reasonable error doubt that the did not affect contrast, the Court the verdict. Perry, noted Here, that a fact such as whether defendant is a P.3d at 979. because believe that the “war typical veteran” be a would was not instructed an issue that implicate factor that does not should have been to it Ap- submitted *9 directly prendi unless, rule. This line with the error was not harmless O’Brien, authority pursuant States, Court’s later be- to Neder v. United 527 U.S. (1999), cause the fact that a defendant is a war 119 S.Ct. 144 L.Ed.2d 35 “the clearly veteran is reviewing a characteristic of the of- court concludes a reason- fender and Divisibility not of the offense. able doubt that the оmitted element was the crimes is a supported by characteristic the offense uncontested overwhelming and evidence, jury increases the on a sentence such that verdict would by authorizing a second enhancement. Un- have been the same absent error.” Per- Apprendi, ry, der a fact that it was should P.3d (quoting have at 975 State, Neder, by been raised submitted to the S.Ct. U.S. at 52). Here, proved beyond and a reasonable doubt. L.Ed.2d at the State did not that indi- “arose out of “overwhelming evidence” crimes the same indivisible provide Where, case, in divisible course of conduct.” as in this the two batteries occurred cated raised, Cotton, the issue has not been the defense is conduct. States v. courses of United waived. 535 U.S. (2002) (Apprendi error 869-70 recognize I at the outset of this discussion because there was “overwhelm-

was harmless prior that neither the nor our case- statutes of the fact ing and uncontroverted evidence” § addressing particu- I.C. law 19-2520E are charged and submitted should have been larly helpful. pro- § Idaho Code fact, of the record jury). a review years vides for an enhanced of fifteen evidence, anything, indicat- that the if shows used, the defendant “displayed, where threat- likely the crimes did occur ed that ened, attempted to or a firearm or other use conduct, although indivisible course of same deadly weapon committing attempt- while by way was made no determination either variety ing to commit” of felonies. The jury.1 The error not harmless. was requires that the firearm enhance- statute charged in the ment be indictment and required to I believe State attempted use or of the firearm be use divisibility beyond doubt prove a reasonable true found to be the trier of fact. I.C. the issue before the submit and § I.C. court had the district states: not do so. enhancement. It did second Notwithstanding the еnhanced" Therefore, I and would vacate his sentence 19-2520, 19-2520A, provisions in sections jury deter- to the district court for a remand Code, 19-2520C, 19-2520B occurred mination as to whether the crimes (2) convicted of person two or more sub- conduct, followed during divisible courses of provided crimes stantive for in the above resentencing with that consistent sections, which code crimes arose out of determination. conduct, may indivisible the same course of penal- HORTON, J., one enhanced dissenting. ty- the ma- In addition to debate between specify does Section 19-2520E Jones, I believe jority and Justice Warren “indivisible course of conduct” is to be found second, that there is related sentencing or Nor is trier fact. wheth- discussion. The first debate is merits element it labeled as an of a second enhance- ques- “indivisible conduct” er the course of ment, defense, circum- 19-2520E, presented is an tion stance. a seсond enhancement. element of join prior I our addresses Jones that it is. None of caselaw Justice believes majority holding it is not. The whether the U.S. Court’s concluding that view, question, ap- Apprendi Jersey, v. New my is whether ques- applies a factual 147 L.Ed.2d 435 plication of 19-2520E is Indeed, majority tion for Both the 19-2520E. the caselaw majority places In this Jones believe that it is not. somewhat inconsistent. The Justice my weight part company great all col- on this Court’s earlier state- regard, leagues, as I would 19- ment that 19-2520E “limits the otherwise hold defense, mandatory duty of the en- is an affirmative to be raised district court to 2520E which, having “multiple” been under I.C. 19- by the defendant and hance sentences Johns, raised, requires make the factual State v. 2520.” described the two substantive Johns determination whether Garcia, "br[ing] right his Ramirez after he felt Mr. he saw strike Mr. 1. Mr. testified that legs, [Mr. Garcia]” his he hand down towards and when Mr. Garcia fall down hit the back of *10 lunged Peregrina; Peregrina Peregrina pointing at he around and Ramirez saw turned saw Garcia, gun Ramirez in the Frances at Mr. Mr. Ramirez saw shoot Mr. chest. down Garcia. Once Garcia, eyewitness, Mr. Peregrina pointing Mr. Ra- testified that she saw down at Mr. another down, step Peregrina to him and was shot Garcia fall saw Mr. Ramirez rush mirez took toward Jay Cogle, get eyewitness, Mr. Ramirez shot in the chest. him. testified and saw question Johns, the resolution of the whether the indivisible of E.g., course conduct. 1336;3 substantive crimes are divisible as a “factual 736 P.2d at State v. continued, Custodio, 197, 207-08, determination.” The Court Idaho Id. 30 P.3d offenses, describing (Ct.App.2001). the facts of the before concluding amply that the district court “was view, my In we are thus left.with unan- justified upon sentencing prem- Johns questions regarding swered the nature of robbery ise that the acts of murder and were 19-2520E and the constitutional and divisible, rather than indivisible.” Id. statutory requirements regarding the bur- production proof. dens оf point at While no Johns did the majority believes why is providing Court consider mitigating circumstance and Justice Jones fact, for a trial on all issues of believes it is an element of a second inapplicable. McLeskey, State 138 Ida- enhancement, I read the statute as (2003), ho an affirmative I defense. would therefore Court stated that I.C. 19-2520E: hold Mr. bore the burden ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of prohibits imposing more than one en- and, raising that defense failing to raise penalty person hanced where a is convicted court, the defense before the trial waived it. of two or more substantive crimes that arose out of the same indivisible course “divisibility” I. Is an element of the of- prohibit conduct. It charging does not fense? more than penalty one enhanced even if charged the crimes all out arose begin dissent, I with Justice Jones’ as the If, same indivisible course conduct. constitutional basis for his dissent is the first circumstance, a defendant is convicted hurdle interpretation of the statute. of more than one crime for which an en- Admittedly, the text of I.C. 19-2520E does charged, hanced then at sentenc- explicitly element, not state whether it may only impose the court one en- defense, circumstance. penalty. hanced However, to the extent that it does indicate intent, Legislature’s the statute’s text While this statement support tends to certainly against reading leans the statute as majority’s view of an “indi- creating an element of some “second en- visible course conduct” is to occur at sen- penalty” provision. hanced pro- The statute tencing, provides it no rationale reaching exception vides an liability premised that conclusion. indivisibility of the course of conduct. only explicit The description of the nature is, That it divisibility is the lack of of I.C. 19-2520E comes in State v. Clem- precludes imposition of a second enhance- ents, 218 P.3d 1143 ment, divisibility than permits which providing describes it “statutory, as imposition of the second enhancement. Nevertheless, fact-based defense.”2 both agree therefore with majority that I.C. this Court and the Appeals Idaho Court of § 19-2520E potential does increase the have felt free to but, review whether instead, two en- reduces the were, fact, hancements upon the result of an showing that the substantive offenses Despite case, ble, 2. indivisible,” Johns, Justice Jones’ concurrence in that rather than he now describes that statement as dictum. applica- 736 P.2d can be read anas dictum, is, may qualify While that statement as substantial, competent tion of the evidence stan- below, argue as I description the best typically applied questions dard ever, of fact. How- nature 19-2520E. question the Court’s statement that the requires "is a factual opinion 3. The in Johns is unclear as to the stan- lengthy us to review the record” and the discus- dard applying. of review that the Court was underlying sion of the facts be inter- also language Court’s amply that the "trial court was preted as de novo review. justified upon premise Johns robbery that the acts of murder and were divisi-

549 clearly accurately and described cannot be course of indivisible of the same arose out * * *.’ exception if the is omitted conduct. 210, 208, Segovia, 93 Idaho 457 P.2d State v. protects clause Due Process “[T]he (1969) 905, (quoting 41 Indict Am.Jur.2d 907 except upon proof against conviction accused 98). In State v. ments and every fact nec- Informations a reasonable doubt 43, P.2d 1053 Huggins, 105 Idaho 665 he with which the crime essary to constitute judg appeal from a the Court considered 358, Winship, 397 U.S. In re charged.” is charge acquittal on a of assault ment of 1073, 368, 1068, 364, 375 25 L.Ed.2d S.Ct. 90 rape entered because the State had commit (1970). not true of the same is of the lack of mari present evidence failed defenses. relationship Huggins between and the tal required process has Traditionally, due rape victim. This Court considered procedural safe- only the most basic 18-6101, statute, amended to had been observed; subtle balanc- more guards be relationship. a marital reference to eliminate society’s against those interest statute, separate It also considered legisla- left to the have been the accused provided that one could not will not disturb We therefore tive branch. spouse raping except convicted of previous cases hold- the balance struck legal separation where divorce instances requires Process Clause ing that the Due parties or the proceedings had been initiated beyond a reason- prosecution prove apart more than six months. had lived included all of the elements able doubt that the lаtter statute The Court determined of which of the offense the definition statute, rape exception and was of the nonex- charged. Proof relationship that the absence of marital nev- has all affirmative defenses istence of rape. crime of Accord not an element of the constitutionally required; and we er been ingly, that the defendant bore the Court held a rule in to fashion such perceive no reason presenting proving the burden of apply it to this case and relationship an affir of a marital as existence here. defense at issue 45, P.2d at 1055. mative defense. Id. at 665 168, 175, Nab, 742 v. See also State York, v. New Patterson 423, (Ct.App.1987) (distinguishing P.2d 53 L.Ed.2d S.Ct. excep of an offense and between elements Mubita, Idaho See also State liability they are upon based whether tions to (requiring a defen defining referenced in the found or statute an affir proving to bear the burden dant offense). proсess) due does not violate mative defense 228, 235-36, Ohio, 480 U.S. (citing Martin v. of I.C. Nothing about the text or structure 1098, 1102-03, 275- distinguishable §§ 19-2520 and 19-2520E (1987); Egelhoff, 518 U.S. Montana v. Huggins. the statutes considered 2017, 2023-24, Legis- no indication that the Just as there is (1996)). sta- parties’ intended the non-marital lature rape Huggins, so an element of tus to be has not discussed While this Court too, sugges- no or structural there is textual of a crime between elements distinction divisibility was intended to be an tion that factors, the dis- it has discussed of a enhancement. element and defenses: tinction between elements requirements provides Code upon that the burden is enhancement and general rule is for a firearm sentence negative to I.C. 19-2520E. in a criminal case to makes no reference the state majority that the part in that with the proviso appearing therefore concur exception or giving conduct the crime if of the course of which defines of the statute underlying of- substantivе with the rise to the two incorporated exception is ‘so firearm an element of a second defining the of- fenses is not describing language § 19-2520E. under I.C. enhancement ingredients of the offense fense *12 550 First, mitigating gener- circumstances are provide § a de- 19-2520E

II. Does I.C. mitigating by fense circumstance? ally weighed party to be mak- or factors sentencing part determination as of § if is not an I.C. 19-2520E even discretionary determination of the sen- “second firearm enhance- element of some Cobler, E.g., tence. State v. does not resolve the ment” that still provides (2010) of statute a fact-based (finding whether the P.3d 378 no whether defense to a second enhancement or upon weighing discretion of miti- abuse of consider- mitigating it is a circumstance for gating aggravating factors sentenc- sentencing.4 by judge at As ation the trial Stover, ing); v. Idaho State above, § not label noted I.C. 19-2520E does (emphasizing P.3d discre- a defensе mitigating itself a circumstance or tionary weighing mitigating nature of by jury. to be decided Nor does it factors). aggravating death Even assign duty applying § of 19-2520E I.C. binary where there cases is choice jury. judge to the likewise As parole between life without and a sentence of above, prior may noted our caselaw reason- death, jury weighs mitigating factors ably support positions. be read to both mitigating to determine whether those cir- majority’s Superficially, position, penalty unjust. render cumstances the death § mitigating I.C. 19-2520E is a circumstance 2515(3)(b). § I.C. See also State v. Dun- 19— by court, be considered trial is some- lap, 125 Idaho P.2d pro- § what attractive. Idaho Code 19-2520 (1993) (describing weighing process). imprison- vides for an term “extended contrast, § I.C. 19-2520E allows for no exer- defining altogether ment” rather than new cise If aggravated of discretion. two felonies giving extend- offense. The fact rise to that single, are the result of a indivisible сourse of is, therefore, aggravating ed term circum- conduct, subject defendant is one Logically, stance. a factor that reduce would fifteen-year punishment guilty using sentence enhancement. If one found those a firearm specified divisible, in one the felonies aggravated two felonies are the de- may § I.C. be to be a 19-2520 considered is simply fendant to both. There is mitigating Mitigating circumstance. circum- weighing no or discretion involved. As a usually by stances are the trial considered result, assumption § I.C. 19-2520E Moore, judge part sentencing. as State a mitigating simply defines circumstance be- (1969) (de- sentencing cause it concerns does not follow. scribing weighing the trial court’s role in evidence). mitigating § That 19-1902 An affirmative defined I.C. defense is as a “de- by requires that issues of fact all be tried arguments fendant’s assertion of facts and change § does not this as true, I.C. that, plaintiffs if will defeat concerning defines fact as issues of those claim, prosecution’s allegations all the even if guilt or to be innocence decided trial. complaint are true.” Black’s Law solely Idaho Code 19-2520E is concerned (9th 2009). Dictionary 482 ed. Under I.C. sentencing. mitigating with in- factors 19-2520E, a defendant defeat a count 19-2521, cluded such as whether the advancing a second enhancement strong provocation, acted upon showing underlying offenses require by also a factual the court in arose from an indivisible course conduct. they sentencing but do not fall under the scope delegated by of issues Finding that I.C. 19-2520E is an affir- § 19-1901. to, presented defense mative which must by, and decided with consistent However, despite logic, this I would never- “[ijssues provides is a theless hold that de- jury.” fact must be tried This party asserting fense to be it. statute raised position. gives There are two main reasons for guarantees effect the related of trial possibility, guishable defense, рractical viewing 4. There is a third that I.C. 19- terms as a circumstance, possibility separate- 2520E a one to I do albeit not discuss that reading ly- be found As this is indistin- factors: the ab- combination of Given this questions of factual and resolution by jury *13 Legislature in by the V, of statement § 1 sence art. of § 7 and in art. juries found assigning the § defining I.C. 19-2520E fact is A Constitution. the Idaho facts; the fact the relevant role guilty. plea of not upon a triggered finding are not discre- results of that that the 19-1901(1). charged Peregrina was Mr. considering tionary; the fact and enhancements; when he sentence with two factors, generally Idaho statutes mitigating him, against charges guilty to the pled not mitigating factors to aggravating and commit issues were issue. the factual I would find that I.C. 19- party, the same Second, were if I.C. even which, properly when is a defense 2520E circumstance, that mitigating as a viewed raised, be decided is to it would be automatically mean that does mitigating judge. Not all finding fоr the an affir- 19-2520E is III. Because judge, for weighed by the are circumstances defense, Peregrina waived mative and mitigating weighing example by failing raise it defense determining a circumstances in aggravating the trial court. before death. that, indicates also death statute dispute Peregrina Mr. no There is aggravating both law sets forth where the jury instruction on the requested never circumstances, generally mitigating actions constituted question of whether his with as- decision-maker charges the same Nor was “indivisible course of conduct.” defense, Idaho Code sessing those circumstances. part of his defense. “As to a aggra- the assessment of required put § 19-2515 commits generally himself, as, mitigating circumstances vating some means defense issue by introducing commits that as- evidence or example, while I.C. upon pleading.” Huggins, judge. specially Based sessment State, (quoting Rogers v. chapter Title 665 P.2d at 1055 within parallel structure (1978)). Ind. 373 N.E.2d intended Legislature I would hold that that, Peregrina Having do Mr. failed to of the jury find both the existence that the (the defense that his two enhanced waived his of a fire- use aggravating circumstance part of an indivisible course (the convictions were arm) mitigating circumstance and the of conduct. conduct). indivisibility of the en- Statutory ... is a holistic construction I hold that Mr. Because would seem am- provision provided by A 19- deavor. waived the defense 2025E, often clarified deci- biguous in isolation is I would affirm the trial court’s respectfully of the seheme-because dissent remainder sion. therefore terminology majority’s elsewhere direction that this matter is used the same clear, meaning court for further makes its to the district a context that remanded mean- permissible proceedings. because one that is effect ings produces substantive of the law----

compatible with the rest Tex. v. Timbers Sav. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Ass’n United Associates, Ltd., 484 U.S.

Inwood Forest for other parallel structure Given the circumstances

aggravating chapter, I do not believe

within this that struc-

Legislature intended to abandon indicating to the instance without

ture applying with the statutes

courts tasked doing

it was so.

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