State v. Campa

• Court: Arizona Supreme Court
• Writing for the Court: MOELLER; GORDON
• Citation: State v. Campa, 814 P.2d 748, 168 Ariz. 407 (Ariz. 1991)
• Decision Date: 27 June 1991
• Docket Number: No. CR-90-0156-PR,CR-90-0156-PR
• Parties: STATE of Arizona, Appellee, v. Humberto Carrillo CAMPA, Appellant.

Page 748

814 P.2d 748

168 Ariz. 407

STATE of Arizona, Appellee, v. Humberto Carrillo CAMPA, Appellant.

No. CR-90-0156-PR.

Supreme Court of Arizona, In Banc.

June 27, 1991.

Grant Woods, Atty. Gen. by Paul J. McMurdie and Randall M. Howe, Asst. Attys. Gen., Phoenix, for appellee.

James S. Alexander, Tucson, for appellant.

OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

Humberto Carrillo Campa (defendant) was arrested for driving a motor vehicle while under the influence of intoxicating liquor (DUI). Because his driver's license had been previously suspended, and because he had prior driving offenses, he was ultimately indicted for and convicted of four separate class 5 felonies. Specifically, defendant was charged with and convicted of the two felonies of DUI and driving with a blood alcohol content (BAC) of .10 percent or more while driving on a suspended license. See A.R.S. § 28-692.02(A)(1). Defendant was also charged with and convicted of the two additional felonies of DUI and driving with a BAC of .10 percent or more while having two DUI convictions in the preceding sixty months. See A.R.S. § 28-692.01(F). With respect to each of the four offenses, the state filed an allegation of two prior felony convictions pursuant to A.R.S. § 13-604(C). The two prior felony convictions were also for driving offenses.

After the jury found defendant guilty of the current offenses, defendant waived a jury trial on the prior convictions and admitted that he had been convicted of two prior driving felonies within sixty months of the present offenses. At sentencing, the trial court used the prior felony convictions to impose an aggravated term of six years on each count, with all four sentences to run concurrently.

On appeal, the court of appeals first vacated the convictions on the two counts relating to driving with a BAC of .10 percent or more. We originally granted review of that portion of the court of appeals' opinion to consider the retroactivity of the rule announced in Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989). We now vacate the Desmond portion of our order granting the petition for review.

With respect to the two DUI charges (DUI with prior convictions and DUI with a suspended license), the court of appeals affirmed the convictions but remanded for resentencing, holding that the trial court could not enhance defendant's sentences by reason of his prior felony convictions. We also granted review of that portion of the opinion and have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3), and A.R.S. § 12-120.24. We vacate that portion of the court of appeals' opinion because we conclude that the trial court properly enhanced defendant's sentences on the DUI counts.

ISSUE

Whether driving offenses that are defined as felonies in Title 28 are subject to enhanced punishment under A.R.S. § 13-604 by reason of similar prior felony convictions.

DISCUSSION

Dismissal of Desmond Retroactivity Issue

In Desmond v. Superior Court we held that:

[E]vidence of a driver's blood alcohol content taken within a reasonable period of time after arrest is admissible if A.R.S. § 28-692.03 is complied with. Such evidence, however, standing alone, does not make a prima facie case of a violation of either subsection A or subsection B of A.R.S. § 28-692. In order for the state to receive the statutory presumption instruction in a charge under subsection A or to make a prima facie case under subsection B, there must be some evidence relating the BAC back to the time of arrest.

161 Ariz. at 528-29, 779 P.2d at 1267-68.

In this case, the appeals court held that Desmond is retroactive. Because there was no relation-back evidence, the court dismissed for lack of sufficient evidence the two charges involving allegations that defendant operated his vehicle with a BAC of .10 percent or more. We originally granted review in this case, in part, to consider the issue of Desmond's retroactivity. Subsequent to our grant of review, Division One of the Arizona Court of Appeals, in an exhaustive opinion, held that Desmond applies to cases not yet final on direct appeal when the relation-back issue has been properly raised in the trial court. State v. Mendoza, Ariz., (App.1990). Although we granted review on another issue in Mendoza, we expressly denied review of the Desmond retroactivity issue. We did so because, after consideration, we agreed with the court in Mendoza that, when the issue has been properly raised and preserved in the trial court, the Desmond relation-back rule applies to cases not yet final on direct appeal.

Defendant in this case did not raise the Desmond issue in the trial court. However, the Desmond issue on the BAC counts is moot because we have now concluded that defendant's convictions and concurrent sentences on the two remaining DUI counts should be affirmed. Accordingly, we now vacate, as improvidently granted, the Desmond portion of our order granting review and deny the petition on that point.

Sentence Enhancement Under A.R.S. § 13-604

I. The Court of Appeals' Ruling

The court of appeals held that defendant's prior felony convictions could not be used for sentence enhancement, and therefore ordered defendant resentenced as if he were a first-time class 5 felon. The court reasoned:

Appellant contends that the trial court improperly enhanced his sentence pursuant to A.R.S. §§ 13-604(A), (C) and 28-692.01. He argues that § 28-692.01 sets forth the only penalties which may be imposed for repetitive offenses committed in violation of § 28-692. We agree. State v. Driggs [155 Ariz. 77, 745 P.2d 135 (1987) ] ... clearly establishes that § 13-604 does not apply to the separate and unique DUI statutes. The trial court therefore erred in its application of § 13-604.

State v. Campa, 164 Ariz., 468, 471, 793 P.2d 1135, 1138 (1988).

We granted review on this point and requested supplemental briefs to shed light on the proper interplay between Titles 13 and 28, and to assist us in determining what effect, if any, the relatively recent cases of State v. Orduno, 159 Ariz. 564, 769 P.2d 1010 (1989), and State ex rel. Collins v. Udall, 149 Ariz. 199, 717 P.2d 878 (1986), should have on the resolution of the issue. We disagree with the court of appeals' conclusion that sentences for felony DUI offenses may not be enhanced by reason of prior felony convictions.

II. The Statutory Scheme of Title 28

Our discussion of statutes in this case is limited to those in force at the time of defendant's offenses. Some amendments have been made since then, but they do not apply to this case.

Title 28 defines driving offenses. A.R.S. § 28-692 makes DUI or driving with a BAC of .10 percent or more a class 1 misdemeanor. If the offense is committed a second time within sixty months, it remains a class 1 misdemeanor, but certain additional minimum sentencing provisions become applicable. See A.R.S. § 28-692.01(E). A third offense within sixty months is a class 5 felony. See A.R.S. § 28-692.01(F). The offense is also a class 5 felony if committed while on a suspended or revoked license. See § 28-692.02(A)(1).

Although Title 28 classifies the offenses as class 1 misdemeanors or class 5 felonies, Title 28 does not set forth the penalties for such offenses. To determine the penalties, one must look to Title 13 to determine the range of sentences for either class 1 misdemeanors or class 5 felonies. Title 28 does, however, contain certain minimum mandatory sentencing provisions, such as minimum jail sentences and minimum periods of incarceration before parole is possible.

III. Driggs

The court of appeals relied on this court's decision in State v. Driggs for the proposition that § 28-692 is a self-contained statute, thus rendering the enhancement provisions of § 13-604 inapplicable to Title 28 felonies. Driggs, 155 Ariz. 77, 745 P.2d 135. The question in Driggs was whether a "prior" DUI misdemeanor conviction could be used to raise a misdemeanor DUI to a felony DUI under A.R.S. § 28-692.01(F) when the "prior" conviction was for an offense that occurred after the one being tried. Id. at 78, 745 P.2d at 136.

Because A.R.S. § 28-692.01(F) specifically provided that "the dates of the commission of the offense are the determining factor in applying this subsection," we held in Driggs that the misdemeanor conviction for the later offense could not be used to upgrade the present offense. Id. at 79, 745 P.2d at 137. In doing so, we distinguished State v. Hannah, 126 Ariz. 575, 577, 617 P.2d 527, 529 (1980), which held that an earlier conviction could be used to enhance a defendant's sentence under § 13-604, even though the enhancing offense occurred after the offense being enhanced. We stated that "[Hannah was] based on the general criminal statute and does not apply to the separate and unique DWI statute." Driggs, 155 Ariz. at 79, 745 P.2d at 137 (emphasis added).

Section 28-692.01, as a "separate and unique DWI statute," does provide time guidelines for driving violations that are unique to those violations and are not affected by A.R.S. § 13-604. Driggs did not, however, address or consider the question presented in this case, which is whether driving offenses that are felonies under A.R.S. § 28-692 are exempt from the enhancement provisions of A.R.S. § 13-604.

IV. Application of A.R.S. § 13-604 Enhancement Provisions to A.R.S. § 28-692 Felonies

The principal rule of statutory interpretation is to determine and give effect to the legislative intent behind the statute. Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1043 (1988) (citing Calvert v. Farmers Ins. Co., 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985)). We consider the statute's context, the language used, the subject matter, the historical background, the statute's effects and consequences, the statute's spirit and purpose, and the evil it was designed to remedy. Martin, 156 Ariz. at 457, 752 P.2d at 1043; Calvert, 144 Ariz. at 294, 697 P.2d at 687; Arizona...