State ex rel. Thomas v. Contes

• Decision Date: 25 October 2007
• Docket Number: No. 1 CA-SA 07-0201.,1 CA-SA 07-0201.
• Citation: 169 P.3d 115,216 Ariz. 525
• Parties: STATE of Arizona, ex rel. Andrew P. THOMAS, Maricopa County Attorney, Petitioner, v. The Honorable Connie CONTES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Israel Saldana Perez, Real Party in Interest.
• Court: Arizona Court of Appeals

169 P.3d 115

216 Ariz. 525

STATE of Arizona, ex rel. Andrew P. THOMAS, Maricopa County Attorney, Petitioner, v. The Honorable Connie CONTES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge Israel Saldana Perez, Real Party in Interest.

No. 1 CA-SA 07-0201.

Court of Appeals of Arizona, Division 1, Department E.

October 25, 2007.

Andrew P. Thomas, Maricopa County Attorney By David E. Wood, Lisa Marie Martin, Deputy County Attorneys, Phoenix, Attorneys for Petitioner.

Hawkins & Hawkins, PLLC By Mark W. Hawkins, Mesa, Attorneys for Real Party in Interest.

OPINION

TIMMER, Judge.

¶ 1 We are asked in this special action to decide whether the definition of "prohibited possessor" in Arizona Revised Statutes ("A.R.S.") section 13-3101(A)(6)(e) (Supp. 2006), which includes persons who are prohibited possessors under 18 United States Code ("U.S.C.") section 922(g)(5), as excepted by subsection (y) of that provision, requires proof that possession of any firearm or ammunition had a nexus with interstate or foreign commerce. Based on the plain language of A.R.S. § 13-3101(A)(6)(e), we hold that it does.

BACKGROUND

¶ 2 On March 2, 2007, a Mesa Police officer stopped real-party-in-interest Israel Saldana Perez after he was observed speeding and weaving through traffic. The officer arrested Perez when he failed to produce identification, instead providing a Mexican electoral card and drivers license, both of which appeared phony. During a vehicle search incident to arrest, the officer discovered a Smith & Wesson .38 revolver in the center console. A subsequent fingerprint check with the Department of Homeland Security revealed that Perez had been deported from the United States on three prior occasions and had tried to re-enter the United States by using different aliases. Perez's family members later confirmed that Perez was born in Mexico and was in the United States illegally.

¶ 3 The grand jury indicted Perez for multiple offenses, including misconduct involving weapons pursuant to A.R.S. § 13-3102(A)(4) ("Count One"), which prohibits a person from knowingly possessing a deadly weapon or prohibited weapon while being a prohibited possessor. The State alleged Perez was a "prohibited possessor" pursuant to A.R.S. § 13-3101(A)(6)(e), which defines such a person as one "[w]ho is a prohibited possessor under 18 United States Code section 922(g)(5), except as provided by 18 United States Code section 922(y)." Section 922(g)(5), in turn, provides as follows:

(g) It shall be unlawful for any person —

. . . .

(5) who, being an alien —

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa. . . .

. . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Section 922(y)(2) provides an exception for aliens admitted under a nonimmigrant visa and who fall within at least one of four categories.¹

¶ 4 Perez subsequently filed a motion to dismiss or for remand to the grand jury for a new determination of probable cause regarding Count One. He argued the indictment was insufficient as a matter of law because the State failed to present any evidence to the grand jury that the Smith & Wesson revolver was shipped or transported in interstate or foreign commerce or was possessed in or affected commerce, as required by 18 U.S.C. § 922(g)(5). The State did not contest that it had failed to introduce evidence of the revolver's interstate or foreign commerce nexus. Rather, the State argued that such evidence was unnecessary to secure a conviction under A.R.S. § 13-3101(A)(6)(e), and consequently neither dismissal nor remand was necessary. The trial court granted Perez's motion and remanded to the grand jury for a new determination of probable cause regarding Count One. The court reasoned that by enacting § 13-3101(A)(6)(e), the legislature adopted the entirety of 18 U.S.C. § 922(g)(5), including its requirement that the prohibited weapon have an interstate or foreign commerce nexus. This special action followed.²

JURISDICTION AND STANDARD OF REVIEW

DISCUSSION

¶ 5 We exercise our discretion to accept jurisdiction in this special action because it presents a legal question of first impression and of statewide importance, and because the State has no equally plain, speedy, or adequate remedy by appeal.³ Ariz. R.P. Spec. Act. 1(a); see State ex rel. Corbin v. Superior Court, 161 Ariz. 181, 183, 777 P.2d 679, 681 (App.1988) (holding special action proper means for State to seek relief from a remand for new determination of probable cause), vacated in part on other grounds, State ex rel. Corbin v. Ybarra, 161 Ariz. 188, 777 P.2d 686 (1989); State v. Fell, 2007 WL 2570196, 3, ¶ 12, ___ Ariz. ___, ¶ 12, ___ P.3d ___, ___ (Ariz.App.2007) (accepting special action jurisdiction to review trial court's order remanding for new determination of probable cause). We review the trial court's interpretation of A.R.S. § 13-1301(A)(6)(e) de novo as a question of law. State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997).

DISCUSSION

¶ 6 When construing statutes, our primary goal is to ascertain the legislature's intent. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). We first look to the text of the relevant statutes. State v. Christian, 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003). If the statutory language is clear, we ascribe plain meaning to its terms. Rineer v. Leonardo, 194 Ariz. 45, 46, ¶ 7, 977 P.2d 767, 768 (1999). If ambiguity exists, we employ secondary principles of statutory construction to glean legislative intent. State ex rel. Dep't of Econ. Sec. v. Demetz, 212 Ariz. 287, 289, ¶ 7, 130 P.3d 986, 988 (App.2006).

¶ 7 The State argues the trial court erred in ruling that A.R.S. § 13-3101(A)(6)(e) requires the State to prove an interstate or foreign commerce nexus involving the Smith & Wesson revolver because the plain language of that statute demonstrates the legislature's intent to adopt only the portion of 18 U.S.C. § 922(g)(5) that defines the class of aliens who can be prohibited possessors under that provision. Specifically, the State contends that the legislature's reference to a specific subsection of § 922(g) rather than its entirety reflects the legislature's intent to exclude the interstate or foreign commerce requirement of § 922(g). Perez responds that the plain language of § 13-3101(A)(6)(e) adopts the entirety of 18 U.S.C. § 922(g)(5), including the portion addressing commerce. We agree with Perez.

¶ 8 Section 13-3101(A)(6)(e), A.R.S., defines a prohibited possessor as "any person . . . [w]ho is a prohibited possessor under 18 [U.S.C. §] 922(g)(5), except as provided by 18 [U.S.C. §] 922(y)." Pursuant to 18 U.S.C. § 922(g)(5), a "prohibited possessor" is not merely one who is illegally or unlawfully in the United States or, with exception, admitted to the United States under a nonimmigrant visa. Rather, to be a prohibited possessor under § 922(g)(5), such persons must also either ship, transport, or receive a firearm or ammunition in interstate or foreign commerce, possess a firearm or ammunition in commerce, or possess a firearm or ammunition in a manner that affects commerce. Consequently, because the plain language of § 13-3101(A)(6)(e) incorporates the definition of "prohibited possessor" under § 922(g)(5), and the latter definition requires proof of an interstate or foreign commerce nexus, § 13-3101(A)(6)(e) necessarily requires proof of the same interstate or foreign commerce nexus. See Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991) (stating general rule that "the best and most reliable index of a statute's meaning is its language and, when the language is clear and unequivocal, it is determinative of the statute's construction").

¶ 9 The State next argues we should refuse to interpret § 13-3101(A)(6)(e) in the manner described above because (1) the legislative history of the provision reveals the legislature did not intend to adopt the entirety of § 922(g)(5), and (2) this interpretation will lead to absurd results. We will refrain from adopting the plain meaning of § 13-3101(A)(6)(e) if to do so would either be contrary to the legislature's intent or lead to an absurd result. Resolution Trust Corp. v. W. Tech., Inc., 179 Ariz. 195, 201, 877 P.2d 294, 300 (App.1994). We therefore address the State's contentions in turn.

¶ 10 Contrary to the State's view, the legislative history for A.R.S. § 13-3101(A)(6)(e) supports the plain-meaning interpretation of that provision. Carrow Co. v. Lusby, 167 Ariz. 18, 20, 804 P.2d 747, 749 (1990) ("Legislative intent often can be discovered by examining the development of a particular statute."). In the Spring of 2004, the Arizona Senate passed Senate Bill ("S.B.") 1345, which proposed to amend § 13-3101(A)(6) by adding subsection (e) to expand the definition of "prohibited possessor," in pertinent part, as follows:

6. "Prohibited possessor" means any person:

. . . .

(e) Who is an undocumented alien or a nonimmigrant alien traveling with or without documentation in this state for business or pleasure or who is studying in this state and who maintains a foreign residence abroad.

2004 Ariz. Sess. Laws, ch. 134, Senate Engrossed Version. The proposed amendment excluded from the definition those nonimmigrant aliens who fell within particular categories, which predominantly mirrored those set forth in 18 U.S.C. § 922(y).⁴ S.B. 1345 did not mention § 922(g)(5). 2004 Ariz. Sess. Laws, ch. 134, Senate Engrossed Version.

¶ 11 The Senate Fact Sheet for S.B. 1345 described the purpose of the proposed amendment as, "[p]rohibit[ing] undocumented aliens and nonimmigrant...