State v. Robles

• Decision Date: 25 May 2006
• Docket Number: No. 2 CA-CR 2005-0014.,2 CA-CR 2005-0014.
• Citation: 141 P.3d 748,213 Ariz. 268
• Parties: The STATE of Arizona, Appellee, v. James Albert ROBLES, Appellant.
• Court: Arizona Court of Appeals

141 P.3d 748

213 Ariz. 268

The STATE of Arizona, Appellee, v. James Albert ROBLES, Appellant.

No. 2 CA-CR 2005-0014.

Court of Appeals of Arizona, Division 2, Department A.

May 25, 2006.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Alan L. Amann, Tucson, for Appellee.

Robert J. Hooker, Pima County Public Defender, By Nancy F. Jones, Tucson, for Appellant.

OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, appellant James Albert Robles was convicted of aggravated driving under the influence (DUI) while his license was suspended or revoked and aggravated driving with a blood alcohol concentration (BAC) of .08 of more while his license was suspended or revoked. After finding that Robles had two prior felony convictions, the trial court sentenced him to enhanced, mitigated, and concurrent prison terms of eight years on each count. Robles raises three issues on appeal, none of which merits reversal.

BACKGROUND

¶ 2 We view the facts in the light most favorable to sustaining the convictions. See State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135, 1137 (App.1999). In August 2003, a Tucson police officer stopped Robles for speeding. When Robles rolled down the window of his vehicle, the officer noticed "a heavy odor of alcoholic beverage c[oming] from the inside." Upon speaking with Robles, the officer also smelled alcohol on Robles's breath and noticed his eyes were watery and bloodshot and his speech was slurred. Robles failed to produce a driver's license. When the officer asked Robles to get out of his vehicle, he was "unstable" on his feet and refused to perform field sobriety tests. The officer arrested Robles and, "through a computer check," determined Robles's license had been suspended. Subsequent testing of Robles's breath showed his BAC was at .264 and .256.

¶ 3 Pursuant to A.R.S. § 13-604, the state alleged at the commencement of the case that Robles had two prior felony convictions in Pima County cause numbers CR-52129 and CR-45738, both for aggravated DUI while his license was suspended or revoked. The trial court held a bench trial ("priors trial") on those allegations several weeks after the jury returned its verdicts. Without objection, the state offered and the trial court admitted into evidence a certified copy of a record abstract ("pen pack") from the Arizona Department of Corrections (DOC). That exhibit included a "prior conviction record" that contained identifying information for Robles and reflected his prior convictions in the two Pima County cases referred to above. The state also presented expert testimony on Robles's fingerprints, identifying him as the person convicted in the two other causes. The trial court found the state had proved "beyond a reasonable doubt" that Robles had two historical prior felony convictions and, as noted earlier, imposed an enhanced, mitigated sentence on each of the convictions in this case.¹ This appeal followed.

DISCUSSION

I. Lesser-included-offense instruction

¶ 4 Robles first argues the trial court erred by refusing his request to instruct the jury that driving on a suspended license is a lesser-included offense of aggravated DUI on a suspended license. "The decision to refuse a jury instruction is within the trial court's discretion, and this court will not reverse it absent a clear abuse of that discretion." State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). "An error of law committed in reaching a discretionary conclusion may, however, constitute an abuse of discretion." State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006).

¶ 5 A jury must be instructed on lesser-included offenses if such an instruction is requested and supported by the evidence. Id. ¶ 13; see also State v. Detrich, 178 Ariz. 380, 383, 873 P.2d 1302, 1305 (1994); Ariz. R.Crim. P. 23.3, cmt., 17 A.R.S. "The test for whether an offense is `lesser-included' is whether it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense." State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, 97 (App. 1998); see also State v. Gooch, 139 Ariz. 365, 366-67, 678 P.2d 946, 947-48 (1984); State v. Magana, 178 Ariz. 416, 418, 874 P.2d 973, 975 (App.1994).

¶ 6 "Driving on a suspended license is not an inherent constituent part of aggravated DUI." State v. Brown, 195 Ariz. 206, ¶ 6, 986 P.2d 239, 241 (App.1999). The offense of driving on a suspended license consists of "driv[ing] a motor vehicle on a public highway when the person's privilege to drive a motor vehicle is suspended, revoked, canceled or refused or when the person is disqualified from driving." A.R.S. § 28-3473(A). In contrast, one commits aggravated DUI by either driving or "be[ing] in actual physical control of a vehicle in this state ... [w]hile under the influence of," inter alia, "any drug," § 28-1381(A)(1), when "the person's driver['s] license or privilege to drive is suspended, canceled, revoked or refused." § 28-1383(A)(1). Because one can commit aggravated DUI merely by being in "actual physical control" of a vehicle or while on a non-public roadway, that crime can be committed without necessarily committing the offense of driving on a suspended license. See Chabolla-Hinojosa, 192 Ariz. 360, ¶¶ 11-12, 965 P.2d at 97; see also Brown, 195 Ariz. 206, ¶ 5, 986 P.2d at 240-41.

¶ 7 We also must consider, however, "whether the charging document describes the lesser offense." Brown, 195 Ariz. 206, ¶ 5, 986 P.2d at 240. The indictment charged Robles with driving or being "in actual physical control of a vehicle while under the influence of intoxicating liquor [or] any drug ... while his driver['s] license or privilege to drive was suspended." Based on that charge, Robles could have been convicted of merely having been in actual physical control of the vehicle, rather than having driven it. Therefore, we agree with the state that the crime of aggravated DUI, as charged in the indictment, did not "necessarily subsume[] the offense of driving on a suspended license."

¶ 8 Citing Magana, Robles maintains that "[t]he indictment must be read in light of the facts known to the parties." Even were we to agree with Magana, see 178 Ariz. at 419, 874 P.2d at 976 (Weisberg, P.J., dissenting), Robles's reliance on it for this proposition is misplaced. The Magana court stated that "[c]ommon sense tells us that the indictment must be read in the light of the facts known by both parties." 178 Ariz. at 418, 874 P.2d at 975. Magana, however, addressed whether reckless driving was a lesser-included offense of second-degree murder and, as Division One of this court later noted, "the language of the indictment [in Magana] implied that an automobile was used in committing the offense." State v. Sucharew, 205 Ariz. 16, ¶ 35, 66 P.3d 59, 69 (App. 2003). Thus, the Magana court apparently based its decision on the clear import of the indictment itself, finding that the use of an automobile was implicit in its language. 178 Ariz. at 418, 874 P.2d at 975 ("Although the indictment does not refer to the use of a specific deadly weapon or dangerous instrument in the commission of the crime, it does refer to Highway 95 near milepost 240.9 as the location where the crime was committed.").

¶ 9 Here, in contrast, "the indictment ... made no reference, direct or implied," to facts that necessarily imply Robles could not have committed the charged offense without also having committed the lesser offense. Sucharew, 205 Ariz. 16, ¶ 35, 66 P.3d at 69. We therefore decline to extend Magana's "common sense" language to encompass or mandate consideration of all facts ultimately contained in the record in determining whether a lesser-included-offense instruction was required. See Brown, 195 Ariz. 206, ¶ 10, 986 P.2d at 242 ("[I]t is the charging document and not the evidence that determines the issue."); State v. Teran, 130 Ariz. 277, 279, 635 P.2d 870, 872 (App.1981) ("The test which determines the appropriateness of a lesser included instruction and verdict form by an analysis of the facts of a given case, i.e., the evidentiary test ... is not followed in Arizona."); see also State v. Laffoon, 125 Ariz. 484, 487, 610 P.2d 1045, 1048 (1980) ("Often facts may support another lesser conviction but if not charged in the indictment, the lesser offense may not be found.").

¶ 10 Citing State v. Gonzales, 27 Ariz.App. 308, 554 P.2d 904 (1976), Robles also argues there is "a split of authority as to whether driving on a suspended license is a lesser-included [offense] of aggravated driving while intoxicated on a suspended license," and he urges us to follow Gonzales. In that case, the court affirmed Gonzales's conviction of driving on a suspended license as a lesser-included offense of the charged offense—aggravated DUI on a suspended license—stating without elaboration, the "offense charged [could not] be committed without necessarily committing the included offense." Id. at 309, 554 P.2d at 905. If that conclusion was based on the particular charging language in the indictment in that case, we agree. But, as Division One of this court stated in Brown, "[i]f the Gonzales court intended to hold that driving on a suspended license is always a lesser-included offense of aggravated DUI, we disagree." 195 Ariz. 206, ¶ 9, 986 P.2d at 242. Accordingly, Gonzales does not compel reversal here, and we find no clear abuse of discretion in the trial court's refusal to give Robles's requested instruction. See Bolton, 182 Ariz. at 309, 896 P.2d at 849.

II. Sufficiency of evidence to prove prior convictions

¶ 11 Robles next argues "[t]he allegation of prior convictions was not proven by sufficient evidence, resulting in fundamental error" and requiring that his enhanced sentences "be vacated, and the case remanded to the trial court for resentencing as a first offender." Citing ...