State v. Cordero
| Decision Date | 30 October 1992 |
| Docket Number | CA-CR,LARA-AGUILAR and E,Nos. 2,s. 2 |
| Citation | 174 Ariz. 556,851 P.2d 855 |
| Parties | The STATE of Arizona, Appellant, v. Joaquin Coronado CORDERO and Jose Antonio Lara-Aguilar, Appellees. The STATE of Arizona, Appellee, v. Jose Antonioduardo Segura Contreras, Appellants. 92-0227, 2 92-0315, 2 92-0317. |
| Court | Arizona Court of Appeals |
Joaquin Coronado Cordero and Jose Antonio Lara-Aguilar were charged with two counts of endangerment, one count each of unlawful flight, burglary, theft, conspiracy to commit theft, and criminal damage after Eduardo Segura Contreras, the driver of a vehicle the defendants had stolen, nearly hit a small child and a woman during the course of the defendants' flight from law enforcement officers. Cordero and Lara-Aguilar challenged the justice court's order binding them over to superior court and moved for a new finding of probable cause and for dismissal, claiming that there was insufficient evidence to support the charges of endangerment and unlawful flight. The trial court remanded the matter to the justice court with instructions to dismiss those counts against Cordero and Lara-Aguilar, reasoning that Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), is not the law in this state with respect to substantive crimes committed by co-conspirators. The state appealed from that order and filed a petition for special action relief. This court declined to accept jurisdiction of the special action. 1 Lara-Aguilar appeals from his conviction by a jury on the remaining charges and Contreras joins in that appeal with respect to his convictions on all charges.
In Pinkerton, supra, the Supreme Court held that if a jury finds a defendant guilty of conspiracy, it may also find the defendant criminally liable for substantive offenses committed by his co-conspirators acting within the scope and in furtherance of the conspiracy. The defendant is not culpable however, if "the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement." 328 U.S. at 647, 648, 66 S.Ct. at 1184, 90 L.Ed. at 1497. In dismissing the endangerment and unlawful flight charges against Cordero and Lara-Aguilar, the trial court ruled that the Pinkerton doctrine does not apply in Arizona to impose liability for crimes committed by co-conspirators and that the applicable statute, A.R.S. § 13-1003, limits a defendant's culpability to his participation in the underlying conspiracy. The only statutes creating vicarious criminal liability are A.R.S. §§ 13-301 through 13-303, relating to accomplice liability, which the court specifically found was not supported by the evidence presented at the preliminary hearing.
The state contends that the Pinkerton doctrine of vicarious criminal liability is applicable and that the endangerment and unlawful flight offenses were reasonably foreseeable crimes which could be expected to occur during the course of the conspiracy to steal the car in Tucson and drive it to Mexico. In support of its position, the state cites Recommended Arizona Jury Instruction (Criminal) 10.035, an instruction that has been approved by Division One of this court and interpreted as imposing vicarious liability under the Pinkerton doctrine. State ex rel. Woods v. Superior Court, 169 Ariz. 552, 821 P.2d 213 (App.1991), review granted Jan. 7, 1992. The instruction provides that "[a] conspirator is liable for all criminal acts committed by a co-conspirator during and in furtherance of the conspiracy."
In State v. Superior Court, supra, Division One concluded that the Pinkerton doctrine remains viable in Arizona despite the revision of the criminal code in 1978 abolishing all common law offenses. See A.R.S. § 13-103. The court offered as support for its conclusion the language of A.R.S. § 13-1003 and its legislative history. The court first refers to the following language from § 13-1003:
A. A person commits conspiracy if, with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and one of the parties commits an overt act in furtherance of the offense....
B. If a person guilty of conspiracy, as defined in subsection A of this section, knows or has reason to know that a person with whom such person conspires to commit an offense has conspired with another person or persons to commit the same offense, such person is guilty of conspiring to commit the offense with such other person or persons, whether or not such person knows their identity.
While Division One correctly notes that these subsections extend liability to a conspirator who plans but has not performed the substantive criminal conduct, there is nothing in the conspiracy statute imposing liability for anything but the crime of conspiracy. Likewise, the legislative history cited by Division One focuses exclusively on the scope of the conspiracy and provides no support for the imposition of liability for substantive offenses committed during the course of the conspiracy. Neither the express statutory language nor its history supports the court's conclusion that it is "unnecessary to show evidence that a conspiracy defendant personally participated in the criminal conduct alleged...." 169 Ariz. at 555, 821 P.2d at 216.
Nor do we find persuasive Division One's reference to RAJI 10.035. That instruction is based on State v. Garcia, 117 Ariz. 67, 570 P.2d 1080 (App.1977), a case decided prior to the abolition of common law offenses. As noted above, subsequent to the 1978 revisions, the only criminal offenses recognized in Arizona are those specified by statute. Because the conspiracy statute simply does not address substantive crimes committed during the course or in furtherance of a conspiracy, we conclude that the Pinkerton doctrine is no longer viable in Arizona.
Although the state's primary argument on appeal concerns the continued vitality of the Pinkerton doctrine, the state also argues generally that there was sufficient evidence presented at the preliminary hearing to support the charges as alleged. The charges included an allegation that the co-defendant passengers were culpable under A.R.S. § 13-303 as accomplices. The accomplice statutes provide, in pertinent part, as follows:
A.R.S. § 13-301. Definition.
In this title, unless the context otherwise requires, "accomplice" means a person ... who with the intent to promote or facilitate the commission of an offense:
1. Solicits or commands another person to commit the offense; or
2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing the offense.
3. Provides means or opportunity to another person to commit the offense.
A.R.S. § 13-302. Criminal liability based upon conduct.
A person may be guilty of an offense committed by such person's own conduct or by the conduct of another for which such person is criminally accountable as provided in this chapter, or both....
A.R.S. § 13-303. Criminal liability based upon conduct of another.
A. A person is criminally accountable for the conduct of another if:
1. The person is made accountable for such conduct by the statute defining the offense; or
2. Acting with the culpable mental state sufficient for the commission of the offense, such person causes another person, whether or not such other person is capable of forming the culpable mental state, to engage in such conduct; or
3. The person is an accomplice of such other person in the commission of an offense.
B. If causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that offense if:
1. The person solicits or commands another person to engage in the conduct causing such result; or
2. The person aids, counsels, agrees to aid or attempts to aid another person in planning or engaging in the conduct causing such result.
(emphasis added).
When read together, §§ 13-301 and 13-303 require that, for criminal liability to attach, an accomplice must knowingly and with criminal intent participate, associate or concur with another in the commission of a crime. Accomplice liability attaches to "all persons who participate in the commission of a crime, whether ... as principals, aiders and abettors, or accessories before the fact." State v. McNair, 141 Ariz. 475, 480, 687 P.2d 1230, 1235 (1984), citing Levering v. Commonwealth, 132 Ky. 666, 677, 117 S.W. 253, 257 (1909).
In State v. Marchesano, 162 Ariz. 308, 783 P.2d 247 (App.1989), Division One of this court addressed the question of whether, based on accomplice liability, there was sufficient evidence to sustain a jury's conviction of the defendant for attempted first-degree murder of a restaurant owner shot while the defendant and his companion robbed him. In affirming that conviction and rejecting the defendant's contention that no evidence showed he had the necessary culpable mental state to support the conviction, the court reasoned that "[a]ccomplice liability...
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