State v. Garcia, 1 CA–CR 13–0434.

• Decision Date: 30 September 2014
• Docket Number: No. 1 CA–CR 13–0434.,1 CA–CR 13–0434.
• Citation: 235 Ariz. 627,696 Ariz. Adv. Rep. 14,334 P.3d 1286
• Parties: STATE of Arizona, Appellee, v. Jesus Blas GARCIA, Appellant.
• Court: Arizona Court of Appeals

235 Ariz. 627
334 P.3d 1286
696 Ariz. Adv. Rep. 14

STATE of Arizona, Appellee,
v.
Jesus Blas GARCIA, Appellant.

No. 1 CA–CR 13–0434.

Court of Appeals of Arizona,
Division 1.

Sept. 30, 2014.

Affirmed as modified in part and vacated in part.

[334 P.3d 1287]

Arizona Attorney General's Office By Joseph T. Maziarz, Phoenix, Counsel for Appellee.

Maricopa County Public Defender's Office by Mikel Steinfeld, Phoenix, Counsel for Appellant.

Judge SAMUEL A. THUMMA delivered the decision of the Court, in which Presiding Judge PATRICIA K. NORRIS and Judge KENT E. CATTANI joined. OPINION
THUMMA, Judge.

¶ 1 Defendant Jesus Blas Garcia challenges his theft of means of transportation conviction and resulting sentence. Garcia argues that because he was convicted of armed robbery based on the same conduct, his theft of means of transportation conviction violates his double jeopardy rights. Based on Arizona Supreme Court precedent construing similar offenses, and because the charges arise out of the same conduct, Garcia's theft of means of transportation conviction and resulting sentence are vacated.

[334 P.3d 1288]

FACTS ¹ AND PROCEDURAL HISTORY

¶ 2 In March 2011, Garcia robbed a shopkeeper at gunpoint. Garcia then ran outside and, while still brandishing the gun, ordered a man in the parking lot to give him the keys to his truck. When the man refused, Garcia shot and killed him and drove away in the truck.

¶ 3 A jury convicted Garcia of first-degree murder, armed robbery of the shopkeeper, armed robbery of the man with the truck, theft of means of transportation and misconduct involving weapons. Garcia was sentenced to concurrent prison terms, the longest of which is life in prison, and ordered to pay restitution. This court has jurisdiction over Garcia's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12–120.21(A)(1), 13–4033(A) (2014). ²

DISCUSSION

¶ 4 Claiming his convictions are based on the same conduct, Garcia argues that his theft of means of transportation conviction (a Class 3 dangerous felony) is a lesser-included offense of his conviction for armed robbery of the man with the truck (a Class 2 dangerous felony), meaning his conviction and resulting sentence for theft of means of transportation violate double jeopardy.³ More specifically, Garcia argues that “when the property being taken is a vehicle, a person cannot commit” armed robbery without also committing theft of means of transportation. This court reviews de novo whether a double jeopardy violation has occurred, State v. Braidick, 231 Ariz. 357, 359 ¶ 6, 295 P.3d 455, 457 (App.2013), and whether an offense is a lesser-included offense, see State v. Cheramie, 218 Ariz. 447, 448 ¶ 8, 189 P.3d 374, 375 (2008). Because Garcia did not raise this argument with the superior court, the review on appeal is for fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19–20, 115 P.3d 601, 607 (2005); Ariz. R.Crim. P. 21.3(c) cmt. “Accordingly, [Garcia] ‘bears the burden to establish that “(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice.” ’ ” State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App.2013) (citations omitted).

¶ 5 The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple prosecutions and punishments for the same offense. See U.S. Const. amend. V; Ariz. Const. art. 2, § 10; see also State v. Eagle, 196 Ariz. 188, 190 ¶ 5, 994 P.2d 395, 397 (2000) (federal and Arizona Double Jeopardy Clauses generally provide same protections). Because greater and lesser-included offenses are considered the “same offense,” the Double Jeopardy Clauses forbid the imposition of a separate punishment for a lesser offense when a defendant has been convicted and sentenced for the greater offense. See Illinois v. Vitale, 447 U.S. 410, 421, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); State v. Chabolla–Hinojosa, 192 Ariz. 360, 362–63 ¶¶ 10–13, 965 P.2d 94, 96–97 (App.1998).

¶ 6 To constitute a lesser-included offense, the crime must be “ ‘composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one.’ ” Chabolla–Hinojosa, 192 Ariz. at 363 ¶ 11, 965 P.2d at 97 (quoting State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912, 913 (App.1991)). Stated differently, the greater offense must require each element of the lesser offense plus one or

[334 P.3d 1289]

more additional elements not required by the lesser offense. See State v. Tschilar, 200 Ariz. 427, 436 ¶ 39, 27 P.3d 331, 340 (App.2001); State v. Foster, 191 Ariz. 355, 357 ¶ 6, 955 P.2d 993, 995 (App.1998).

¶ 7 Resolving a lesser-included offense argument involves (1) identifying the elements of both offenses; and (2) determining whether the alleged lesser-included offense is a subset of the alleged greater offense, such that commission of the greater offense constitutes commission of the lesser offense. See Tschilar, 200 Ariz. at 435 ¶ 39, 27 P.3d at 340; Foster, 191 Ariz. at 357, 955 P.2d at 995. This typically requires a close analysis of the elements of the two relevant offenses. See Carter v. United States, 530 U.S. 255, 260–61, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). Here, however, the analysis is somewhat different because the Arizona Supreme Court has held that:

(1) robbery is a lesser-included offense of armed robbery, see State v. Henry, 176 Ariz. 569, 582, 863 P.2d 861, 874 (1993); see also State v. Scott, 187 Ariz. 474, 476, 930 P.2d 551, 553 (App.1996);

(2) theft is a lesser-included offense of robbery, see State v. Wall, 212 Ariz. 1, 3–4 ¶ 15, 126 P.3d 148, 150–51 (2006); State v. McNair, 141 Ariz. 475, 482, 687 P.2d 1230, 1237 (1984); State v. Celaya, 135 Ariz. 248,...