Derendal v. Griffith

Decision Date14 January 2005
Docket NumberNo. CV-04-0037-PR.,CV-04-0037-PR.
Citation104 P.3d 147,209 Ariz. 416
PartiesJustin DERENDAL, Petitioner-Appellant, v. Hon. Deborah GRIFFITH, Judge of the Phoenix City Court, Respondent Judge, Phoenix City Prosecutor's Office, Real Party in Interest-Appellee.
CourtArizona Supreme Court

Law Offices of Neal W. Bassett by Neal W. Bassett and Natalee Segal, Phoenix, and Laurie A. Herman, Attorney at Law by Laurie A. Herman, Scottsdale, Attorneys for Justin Derendal.

Peter Van Haren, Phoenix City Attorney by William C. Solomon, Assistant City Prosecutor and Samuel K. Lesley, Assistant City Prosecutor, Phoenix, Attorneys for Phoenix City Prosecutor's Office.

James J. Haas, Maricopa County Public Defender by Kathleen N. Carey, Deputy Public Defender, Phoenix, Attorneys for Amicus Curiae Maricopa County Public Defender.

Stephen Paul Barnard, Tucson, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice.

Michael G. Rankin, Tucson City Attorney by Laura R. Brynwood, Principal Assistant City Attorney — Deputy and William F. Mills, Supervising Prosecutor Criminal Division, Tucson, Attorneys for Amicus Curiae City of Tucson.

Joseph R. Bertoldo, Scottsdale City Attorney by Kenneth M. Flint, Assistant City Prosecutor, Scottsdale, Attorneys for Amicus Curiae City of Scottsdale.

Tobin C. Sidles, Town Prosecutor, Town of Oro Valley and Dillon Fishman, Rule 38(e) Law Student, University of Arizona, College of Law, Oro Valley, Attorneys for Amicus Curiae Town of Oro Valley.

Deborah J. Spinner, Mesa City Attorney by Roger Kevin Hays, Chief Assistant City Prosecutor, and Stephen Mercer, Assistant City Prosecutor, Mesa, Attorneys for Amicus Curiae City of Mesa.

Law Office of Treasure Vandreumel by Treasure VanDreumel, Phoenix, and Gary Kula, City of Phoenix Public Defender, Contract Office, Phoenix, Attorneys for Amicus Curiae City of Phoenix Public Defender.


McGREGOR, Vice Chief Justice.

¶ 1 We granted review to consider whether Arizona should retain the test set out in Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966), to determine when the Arizona Constitution mandates that a criminal offense be eligible for trial by jury.


¶ 2 Justin Derendal was charged in Phoenix Municipal Court with drag racing,1 a class one misdemeanor, Ariz.Rev.Stat. (A.R.S.) § 28-708.B (2001), punishable by a maximum of six months incarceration, see A.R.S. § 13-707.A.1 (2001), and a $2,500 fine, see A.R.S. § 13-802.A (2001). The municipal court denied Derendal's request for a jury trial, and Derendal filed a special action in superior court. The superior court accepted jurisdiction but denied relief, and Derendal appealed to the court of appeals.

¶ 3 The court of appeals applied the three-part test established by this court in Rothweiler and, concluding that drag racing failed to meet any of the three tests for jury eligibility set out in Rothweiler, affirmed the superior court's judgment.

¶ 4 We granted Derendal's petition for review and ordered the parties to file supplemental briefs addressing whether the Rothweiler test should remain the test for determining jury trial eligibility in Arizona. We exercise jurisdiction pursuant to Article 6, Section 5.3 of the Arizona Constitution and A.R.S. § 12-120.24 (2003).


¶ 5 In 1966, this court adopted a three-pronged test to decide whether, with regard to a particular criminal offense, the federal or Arizona Constitution guarantees the right to a jury trial. Relying on both federal and Arizona constitutional law, we defined three factors as relevant to that inquiry: (1) the relationship of the offense to common law crimes; (2) the severity of the statutory penalties that apply; and (3) the moral quality of the act. Rothweiler, 100 Ariz. at 42, 410 P.2d at 483. Over time, Arizona courts have come to view these factors as three independent prongs in the constitutional analysis of the right to jury trial. See, e.g., State v. Harrison, 164 Ariz. 316, 317, 792 P.2d 779, 780 (App.1990) ("Each prong [of the Rothweiler test] is independently sufficient to give rise to a jury trial.").

¶ 6 Twenty-three years after our Rothweiler decision, the United States Supreme Court held that any criminal offense for which the maximum statutory penalty is less than six months incarceration is presumptively a petty offense to which the right of trial by jury guaranteed by the Sixth Amendment to the United States Constitution does not attach. Blanton v. City of North Las Vegas, 489 U.S. 538, 543, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). On several occasions, this court has rejected invitations to replace the Rothweiler test with the Blanton test, reasoning that the Arizona Constitution requires greater protection of the right to trial by jury than does the federal constitution. See, e.g., Benitez v. Dunevant, 198 Ariz. 90, 94 ¶ 10, 7 P.3d 99, 103 (2000); State ex rel. McDougall v. Strohson, 190 Ariz. 120, 126-27, 945 P.2d 1251, 1257-58 (1997); cf. State ex rel. Dean v. Dolny, 161 Ariz. 297, 299, 778 P.2d 1193, 1195 (1989). We have never expressly considered whether we should adopt a modified version of Blanton. We do so today.

¶ 7 Two separate provisions of the Arizona Constitution secure the right to jury trial for certain criminal defendants. The first, Article 2, Section 23, provides that "[t]he right of trial by jury shall remain inviolate." The second, Article 2, Section 24, further provides that "[i]n criminal prosecutions, the accused shall have the right to ... a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed...."

¶ 8 We have established several principles that govern the interpretation of these constitutional provisions. We have long interpreted them as preserving, rather than creating, the right to jury trial as it existed in Arizona prior to statehood. Bowden v. Nugent, 26 Ariz. 485, 488, 226 P. 549, 549-50 (1924); Brown v. Greer, 16 Ariz. 215, 217, 141 P. 841, 842 (1914). In addition, it is well settled that under the common law at the time of Arizona's statehood, only those accused of "serious offenses" had a right to trial by jury. See, e.g., Goldman v. Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975); Rothweiler, 100 Ariz. at 42, 410 P.2d at 482; Bowden, 26 Ariz. at 491, 226 P. at 551. Thus, Article 2, Sections 23 and 24 do not independently grant a right to jury trial to all criminal defendants; rather, they preserve the right to jury trial for those accused of serious offenses. Benitez, 198 Ariz. at 93 ¶ 4, 7 P.3d at 102; Dolny, 161 Ariz. at 299, 778 P.2d at 1195. As a result, the "test for jury eligibility in this state requires an inquiry into the seriousness of the offense." Benitez, 198 Ariz. at 92 ¶ 4, 7 P.3d at 101.


¶ 9 The language of Article 2, Section 23 mandates that we retain the Rothweiler test's first prong: the relationship of the offense to common law crimes. We have consistently held that the phrase "shall remain inviolate" preserves the right to jury trial as it existed at the time Arizona adopted its constitution. Benitez, 198 Ariz. at 93 ¶ 4, 7 P.3d at 102; Bowden, 26 Ariz. at 488, 226 P. at 550.2 Thus, our constitution requires that the state guarantee a right to jury trial for any defendant charged with an offense for which a jury trial was granted prior to statehood.

¶ 10 We have further held that when the right to jury trial for an offense existed prior to statehood, it cannot be denied for modern statutory offenses of the same "character or grade." Bowden, 26 Ariz. at 491, 226 P. at 551. Because the Arizona legislature abolished all common law crimes more than thirty years ago, see A.R.S. § 13-103.A (1978), many newly minted statutory criminal offenses have no precise analog in the common law.3 To determine whether Article 2, Section 23 assures the right to trial by jury, we consider whether a modern crime has a common law antecedent. We regard a jury-eligible, common law offense as an antecedent of a modern statutory offense when the modern offense contains elements comparable to those found in the common law offense. See Bowden, 26 Ariz. at 490, 226 P. at 550.

¶ 11 In Bowden, for instance, we determined that a defendant charged with operating a poker game in violation of a city ordinance was entitled to a jury trial because the charge was similar in character to the common law crime of conducting or maintaining a gambling house and the elements of the crimes were substantially similar. 26 Ariz. at 490, 226 P. at 550.

¶ 12 Similarly, in Urs v. Maricopa County Attorney's Office, the court of appeals concluded that reckless driving, defined in A.R.S. § 28-693.A (Supp.2000) as "driv[ing] a vehicle in reckless disregard for the safety of persons or property ...," is in the "character of operating a motor vehicle so as to endanger [any] property [or] individual," which was a jury-eligible offense at common law. 201 Ariz. 71, 74 ¶ 8, 31 P.3d 845, 848 (App.2001) (quotations omitted). Because the elements of these offenses are substantially similar, the court held that reckless driving is a jury-eligible offense under Arizona's constitution.4


¶ 13 If an offense does not have a common law antecedent, determining whether the Arizona Constitution requires a trial by jury depends upon whether the offense falls within the guarantee of Article 2, Section 24, which provides in pertinent part:

In criminal prosecutions, the accused shall have the right to ... a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed....

Ariz. Const. art. 2, § 24. Because Section 24 is Arizona's analog to the Sixth Amendment of the United States Constitution,5 we have construed it consistently with the federal constitution to preserve the right to jury trial only for "serious," as opposed to "petty," crimes. See Rothweiler, 100 Ariz. at 41, 410 P.2d at 482 ("This Court has consistently held that the right as guaranteed in the...

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