State v. Cazarez-Lopez

• Decision Date: 12 December 2018
• Docket Number: A161203
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Alejandro CAZAREZ-LOPEZ, Defendant-Respondent.
• Court: Oregon Court of Appeals

295 Or.App. 349

434 P.3d 468

STATE of Oregon, Plaintiff-Appellant,

v.Alejandro CAZAREZ-LOPEZ, Defendant-Respondent.

A161203

Court of Appeals of Oregon.

Argued and submitted September 29, 2017.

December 12, 2018

Doug M. Petrina, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Neil F. Byl, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest J. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

The state appeals in this criminal case, raising challenges to the trial court’s imposition of sentence following defendant’s guilty plea to one count of attempted murder (Count 1), four counts of first-degree assault (Counts 2, 3, 4, and 5), one count of felony fourth-degree assault constituting domestic violence (Count 6), and one count of unlawful use of a weapon (Count 7). In its first assignment of error, the state contends that the "trial court erred by merging defendant’s guilty plea to felony fourth-degree assault constituting domestic violence on Count 6 into defendant’s first-degree assault conviction on Count 2." In its second assignment of error, the state argues that the trial court "erred by concluding that it was precluded from imposing the sentence for defendant’s first-degree assault conviction consecutive to the sentence for defendant’s attempted murder conviction." For the following reasons, we conclude that the trial court erred when it merged the guilt determination on felony fourth-degree assault constituting domestic violence into defendant’s first-degree assault conviction. We further conclude that the trial court did not err when it declined to impose the sentence for defendant’s first-degree assault conviction consecutive to the sentence for defendant’s attempted murder conviction. Accordingly, we remand for the entry of separate convictions for one count of felony fourth-degree assault constituting domestic violence and one count of first-degree assault, and for resentencing, and we otherwise affirm.

I. BACKGROUND

"We describe defendant’s criminal conduct to provide context to the facts significant to the issues on appeal; we relate the facts in the light most favorable to the state." State v. Provancha , 293 Or. App. 169, 171, 428 P.3d 916 (2018). In 2013, defendant was convicted of fourth-degree assault constituting domestic violence for assaulting his wife—the victim in this case. After defendant was convicted and placed on probation for that crime, defendant and the victim lived apart and had virtually no contact with each other. In March of 2015, defendant became aware that the victim "would not be taking him back into her life, and that she had begun speaking to another man that she was interested in." After learning that the victim was seeing someone else and that the victim was ending her relationship with defendant, he became "enraged and desperate."

In the early morning hours of March 19, defendant drove to the victim’s apartment and then laid in wait behind the victim’s car with a three-foot-long machete. As defendant expected, the victim left her apartment to go to work at the same time that morning that she did every morning. In what the trial court described as a "sadistic" and "horrific" attack, defendant emerged from behind the car and repeatedly chopped the victims head, face, and arms with the machete. The first blow with the machete caused "a 6-8 inch diagonal cut * * * that spanned from [the victim’s] upper right forehead, down between her eyes, over the bridge of her nose, and extending over her left cheekbone." In an attempt to defend herself, the victim raised her arms and hands to block the blows. Defendant then hacked the victim’s arms and hands between four and seven times causing "her right arm to be partially severed from her body at the elbow," exposing the bones and tendons in her wrists and hands, and breaking her right arm in several places. The victim then fell to the ground face first and defendant imbedded the machete blade in the back of her head, causing "a three to four inch section of scalp [to be] pulled open and gaping ½ inch to an inch," fracturing her skull, and causing a "minor brain bleed." Defendant then violently shook the machete to dislodge it from the victim’s head and left her semi-conscious lying in a pool of her own blood.

Defendant was subsequently arrested, and charged with one count of attempted murder (Count 1), four counts of first-degree assault (Counts 2, 3, 4, and 5), one count of felony fourth-degree assault constituting domestic violence because he had previously been convicted of assaulting the victim (Count 6), and one count of unlawful use of a weapon (Count 7). Defendant pleaded guilty to the crimes as charged.

At defendant’s sentencing hearing, the parties disputed whether certain counts should merge and whether the trial court could impose defendant’s sentences consecutively.

As relevant here, the trial court concluded that the guilt determinations on Counts 2, 3, 4, and 5, for first-degree assault, merged into a single conviction for first-degree assault on Count 2. The court further concluded that the guilt determination on Count 6, for felony fourth-degree assault, merged with the conviction on Count 2, for first-degree assault, because "the fact that [defendant] had been previously convicted of another [assault against the victim] is just a[n] enhancement factor to get it to a felony" and not an element of the crime of fourth-degree assault.

With respect to consecutive sentences, the court stated that, "based on the record in front of it," the court could not make the findings necessary to order defendant to serve the sentence for the first-degree assault conviction on Count 2 consecutive to the sentence on the attempted murder conviction on Count 1. The court reasoned that it could not impose consecutive sentences under ORS 137.123(5)(a) or (b) because "it was a continuous action," there was no indication that defendant had "a separate intent" to commit more than one criminal offense, and "if you're trying to kill somebody, you are obviously then also * * * causing them serious physical injury."¹ The trial court then sentenced defendant to a total of 128 months' imprisonment.

II. ANALYSIS

A. Merger

We begin by addressing the state’s merger argument. On appeal, the state argues that the "trial court erred by merging defendant’s guilty plea to felony fourth-degree assault constituting domestic violence into defendant’s first-degree assault conviction." Specifically, the state contends that the trial court erred when it concluded that all of the elements of felony fourth-degree assault under ORS 163.160(3) were subsumed into the elements of first-degree assault under ORS 163.185 because defendant’s prior conviction was "just a[n] enhancement factor." The state asserts that defendant’s prior conviction for assaulting the victim is an element of felony fourth-degree assault and, therefore, all of the elements of felony fourth-degree assault under ORS 163.160(3) are not subsumed into the elements of first-degree assault under ORS 163.185. Defendant responds that "the trial court did not err in merging the guilty verdict for fourth-degree assault with the guilty verdict for first-degree assault, because the factors that elevate fourth-degree assault to a felony are sentence enhancement facts, not elements of a separate crime."

We review a trial court’s decision to merge guilt determinations for legal error. State v. Breshears , 281 Or. App. 552, 554, 383 P.3d 345 (2016). Merger is governed by ORS 161.067, which provides, in part:

"(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations."

A trial court will apply that statute and find separately punishable offenses if three conditions are met: "(1) the defendant engaged in acts that constituted the same conduct or criminal episode; (2) the defendant’s acts violated two or more statutory provisions; and (3) each statutory provision requires proof of an element that the others do not." State v. White , 346 Or. 275, 279, 211 P.3d 248 (2009) (internal quotation marks omitted).²

In this case, the parties agree that the first two conditions are met—viz. , that defendant’s attack on the victim constituted a single criminal episode that violated two statutory provisions, ORS 163.185 and ORS 163.160(3). Hence, the only issue presented for purposes of merger is whether those two statutory provisions each require proof of an element that the other does not. To resolve that inquiry, "we examine only the statutory elements of each offense, not the underlying factual circumstances recited in the indictment." State v. Fujimoto , 266 Or. App. 353, 357, 338 P.3d 180 (2014). "If, however, a statute sets out alternative forms of a single crime, we look to the indictment to determine which form is charged, and we use the elements of the crime as charged in conducting the merger analysis." Breshears , 281 Or. App. at 555, 383 P.3d 345 (internal quotation marks and ellipsis omitted). "Further, once we rely on the indictment to determine which of the alternative forms of the crime are at issue, we disregard particular facts alleged in the indictment or proved at trial." State v. Alvarez , 240 Or. App. 167, 172, 246 P.3d 26 (2010), rev. den. , 350 Or. 408, 256 P.3d 121 (2011).

We therefore begin by examining the statutory provisions of ORS 163.160 to determine the elements of felony fourth-degree assault. The indictment charged defendant with felony fourth-degree assault under ORS 163.160(3)(b).³ ORS 163.160 provides, in part:

"(1) A person commits the crime of

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