State v. Flores

• Decision Date: 10 October 2014
• Docket Number: No. 2 CA–CR 2013–0552.,2 CA–CR 2013–0552.
• Citation: 697 Ariz. Adv. Rep. 10,236 Ariz. 33,335 P.3d 555
• Parties: The STATE of Arizona, Appellee, v. Dominic Rodolpho FLORES, Appellant.
• Court: Arizona Court of Appeals

236 Ariz. 33

335 P.3d 555

697 Ariz. Adv. Rep. 10

The STATE of Arizona, Appellee,

v.Dominic Rodolpho FLORES, Appellant.

No. 2 CA–CR 2013–0552.

Court of Appeals of Arizona, Division 2.

Oct. 10, 2014.

Affirmed. Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee.

Lori J. Lefferts, Pima County Public Defender By Michael J. Miller and David J. Euchner, Assistant Public Defenders, Tucson, Counsel for Appellant.

Judge HOWARD authored the opinion of this Court, in which Presiding Judge KELLY and Judge VÁSQUEZ concurred.

OPINION

HOWARD, Judge.

¶ 1 Dominic Flores appeals from his convictions and sentences for eight counts of first-degree trafficking in stolen property and one count of theft. He argues the trial court erred in sentencing him as a repetitive offender pursuant to A.R.S. § 13–703(B)(1) because the jury, and not the court, should have determined whether his offenses had been committed “on the same occasion.” We affirm.

¶ 2 Flores initially was charged with seven counts of second-degree burglary, nine counts of first-degree trafficking in stolen property, and theft of property valued between $4,000 and $25,000. The state alleged that all but the theft and one of the trafficking counts were not committed on the same occasion but consolidated for trial. See § 13–703(B)(1). The charges stemmed from seven home burglaries between May 14 and June 11, 2012. Flores had pawned much of the property taken in those burglaries on the same day as the burglaries, and other items stolen in those burglaries were found in his home. The trafficking count not alleged to fall within § 13–703(B)(1) was dismissed before trial. After a jury trial, Flores was acquitted of the burglary charges but convicted of the remaining trafficking counts as well as theft.

¶ 3 Before the jury returned its verdicts, Flores argued, based on Alleyne v. United States, ––– U.S., 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the jury was required to determine whether the offenses had been committed on the same occasion. The trial court rejected that argument, concluding those cases were inapplicable and finding the offenses had not been committed on the same occasion and were not “spree offenses.” It sentenced Flores as a repetitive offender for all but the first trafficking count and theft count, imposing concurrent prison terms the longest of which is seven years.

¶ 4 On appeal, Flores repeats his argument that the jury, and not the trial court, was required to find that the trafficking offenses had not been committed on the same occasion before he could be sentenced as a repetitive offender under § 13–703(B)(1). Pursuant to Alleyne and Apprendi, “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, –––U.S. at ––––, 133 S.Ct. at 2155. This rule encompasses facts that increase a sentence's mandatory minimum, id., and those that increase a sentence beyond the presumptive term, State v. Price, 217 Ariz. 182, ¶ 8, 171 P.3d 1223, 1226 (2007).

¶ 5 Section 13–703(B)(1) provides that a person who “[i]s convicted of three or more felony offenses that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions” is sentenced as a category-two repetitive offender, and therefore the person is subject to a higher sentencing range than a category-one or first-time offender. See generally A.R.S. §§ 13–702 through 13–703. The finding that the offenses were not committed on the same occasion but consolidated for trial enhanced Flores's sentence. See § 13–703(B)(1), (I). Accordingly, the determination whether his offenses had been committed on the same occasion pursuant to § 13–703(B) was required to have been submitted to the jury, inherent in the jury's verdicts, or otherwise excepted from Alleyne and Apprendi.¹ Cf. State v. Gatliff, 209 Ariz. 362, ¶¶ 17–18, 102 P.3d 981, 984–85 (App.2004) (no separate dangerousness finding required under Apprendi when dangerousness inherent in offense).

¶ 6 Flores argues that whether his offenses were committed on the same occasion is not inherent in the jury verdict because the facts necessary to that determination were not found by the jury. In State v. Kelly, 190 Ariz. 532, ¶ 6, 950 P.2d 1153, 1155 (1997), our supreme court identified five factors to be considered when determining whether offenses were committed on the same occasion: “1) time, 2) place, 3) number of victims, 4) whether the crimes were continuous and uninterrupted, and 5) whether they were directed to the accomplishment of a single criminal objective.” ²

¶ 7 Flores reasons that the first three Kelly factors, the time, place, and number of victims, are “not ... element[s] of the offense[s] and therefore not determined by the jury.” But the jury verdict forms stated that the jurors found Flores guilty of the various trafficking offenses “as alleged” in the relevant count of the indictment. Each charge of trafficking in the indictment specified the date of the offense, the property in question, and the identity of the victim. Thus, by finding Flores guilty of those offenses, the jury implicitly found those facts.³

¶ 8 Contrary to Flores's argument, the facts alleged in the indictment and found by the jury, viewed in light of the factors enumerated in Kelly, lead inexorably to the conclusion that Flores's trafficking offenses were not committed on the same occasion. The indictment describes different offense dates for each trafficking offense, with at least nine different victims, each offense concerning different property. And the underlying thefts similarly involved different victims.⁴

¶ 9 Additionally, we have found no Arizona case concluding that offenses were committed on the same occasion when the crimes were committed on different days, involved different property, or had unrelated victims.⁵ See, e.g., State v. Sheppard, 179 Ariz. 83, 84–85, 876 P.2d 579, 580–81 (1994) (theft and trafficking offense committed on same occasion when defendant stole car and delivered it to undercover officer same day); State v. Shulark, 162 Ariz. 482, 485, 784 P.2d 688, 691 (1989) (forgery offenses not committed on same occasion when defendant presented forged checks at different banks on same day); State v. Noble, 152 Ariz. 284, 284–86, 731 P.2d 1228, 1228–30 (1987) (kidnapping leading to sexual assault committed on same occasion when offenses spanned thirty minutes); State v. Perkins, 144 Ariz. 591, 595–97, 699 P.2d 364, 368–70 (1985) (robberies committed against distinct victims involving different property within ninety-minute window in same area not committed on same occasion), overruled on other grounds by Noble, 152 Ariz. at 288, 731 P.2d at 1232; State v. Rasul, 216 Ariz. 491, ¶¶ 20–24, 167 P.3d 1286, 1291–92 (App.2007) (arson and conspiracy to commit that arson committed on same occasion when committed against the same victims on same day); State v. Derello, 199 Ariz. 435, ¶¶ 10–15, 18 P.3d 1234, 1237 (App.2001) (unlawful flight and prohibited possession occurred on same occasion when defendant shot convenience store clerk during robbery and fled in vehicle); State v. Williams, 169 Ariz. 376, 380–81, 819 P.2d 962, 966–67 (App.1991) (series of crimes committed against different victims on same day as prison escape not committed on same occasion); State v. Shearer, 164 Ariz. 329, 341–42, 793 P.2d 86, 98–99 (App.1989) (theft and fraudulent schemes spanning several-month period not committed on same occasion); State v. Bedoni, 161 Ariz. 480, 486, 779 P.2d 355, 361 (App.1989) (driving under the influence and forgery committed on same occasion when driver presented false document during traffic stop); State v. Vild, 155 Ariz. 374, 376–77, 746 P.2d 1304, 1306–07 (App.1987) (extended conspiracy leading to drug sale not committed on same occasion as drug sale); State v. Schneider, 148 Ariz. 441, 448–49, 715 P.2d 297, 304–05 (App.1985) (interrelated thefts not committed on same occasion when spanning nineteen months and involving different victims).

¶ 10 Flores insists, however, that his crimes were “continuous and uninterrupted” under the fourth Kelly factor, and thus could have been committed on the same occasion, because he “maintained some of the property from each of the burglaries.” But, even assuming he did so, that does not mean his crimes were continuous and uninterrupted as that term has been applied in our case law. Possession of property related to one offense while committing another offense does not mean that a series of otherwise clearly separate offenses against different victims spanning a month-long period can reasonably be described as “continuous and uninterrupted.” Flores has not cited, nor have we found, any authority suggesting the contrary. See, e.g., Noble, 152 Ariz. at 284–86, 731 P.2d at 1228–30 (kidnapping and child molestation spanning thirty minutes “continuous and uninterrupted”); Derello, 199 Ariz. 435, ¶ 14, 18 P.3d at 1237 (prohibited possession and flight “continuous and uninterrupted” because “[d]efendant continued to possess a weapon during his flight from the police”). And, no appellate court has found this factor to be present when there was any appreciable lapse of time or intervening event between the offenses. Thus, the fact the offenses were committed days apart mandates the conclusion they were not continuous and uninterrupted.

¶ 11 As to the final Kelly factor, Flores asserts that his offenses were directed to accomplish a “single criminal objective,” that of “obtaining cash for stolen property.” ⁶ But our supreme court has flatly rejected the notion that a scheme to commit multiple crimes in order to make money is a single...