State v. Lopes

• Decision Date: 16 March 1999
• Docket Number: No. 960551,960551
• Citation: 980 P.2d 191
• Parties: 365 Utah Adv. Rep. 17, 1999 UT 24 STATE of Utah, Plaintiff and Appellee, v. Cameron Thomas LOPES, Defendant and Appellant.
• Court: Utah Supreme Court

Page 191

980 P.2d 191

365 Utah Adv. Rep. 17, 1999 UT 24

STATE of Utah, Plaintiff and Appellee, v. Cameron Thomas LOPES, Defendant and Appellant.

No. 960551.

Supreme Court of Utah.

March 16, 1999.

Rehearing Denied June 23, 1999.

Jan Graham, Atty. Gen., Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for plaintiff.

Linda M. Jones, Michael A. Peterson, Kimberly A. Clark, Salt Lake City, for defendant.

ZIMMERMAN, Justice:

¶1 Cameron Thomas Lopes appeals from a judgment and conviction for murder, a first degree felony, and enhanced sentences imposed by the district court pursuant to sections 76-3-203(1) and -203.1 of the Utah Code. Lopes asks this court to reverse the group criminal activity enhancement on the basis that section 76-3-203.1 violates both the federal and Utah constitutions. We hold that the application of section 76-3-203.1 in this case did deprive Lopes of certain fundamental constitutional rights. Furthermore, we hold subsection (5)(c) of section 76-3-203.1 violates the Utah Constitution. We, therefore, reverse and remand for a new trial.

¶2 In March of 1996, the State charged Lopes and several other individuals with murder, a first degree felony, in violation of section 76-5-203 of the Utah Code. The information alleged that early in the morning of February 22, 1996, Lopes, along with three other persons who were parties to the offense, went to the residence of Jimmy DeHerrera with the intent to kill the occupants. One of the defendants fired two shots from a .20 gauge shotgun into an open window. Both shots hit and killed Joey Miera, who was asleep on the floor. The information further alleged that the defendants shot Miera in retaliation for another shooting one week earlier that killed one of the defendants friends. The information also gave notice to Lopes that he was subject to enhanced penalties for the use of a firearm, pursuant to Utah Code Ann. § 76-3-203(1) (Supp.1998) (firearm enhancement), and for having acted in concert with two or more persons, pursuant to Utah Code Ann. § 76-3-203.1 (1995) (group criminal activity or gang enhancement). ¹ Lopes waived his preliminary hearing and agreed to be bound over to the district court.

¶3 In the district court, Lopes moved to strike the gang enhancement as unconstitutional under both the state and federal constitutions. The court denied his motion. Thereafter, he pleaded guilty to the homicide offense, with enhancements, in exchange for dismissal of charges pending against him in another case. Lopes conditioned his plea pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988). ² Lopess conditional plea preserved his right to challenge the constitutionality of the gang enhancement statute.

¶4 Thereafter, the trial court issued findings that Lopes was subject to an enhanced penalty under section 76-3-203.1 and entered judgment against him. ³ The trial court sentenced Lopes to an indeterminate term of five years to life. The court also enhanced the sentence under the gang enhancement statute, sentencing Lopes to an additional four years to run consecutively and not concurrently with the basic sentence. Lopes appeals that order.

¶5 Lopes contends that the gang enhancement statute creates a separate criminal offense by combining a separate mental element--in concert--with a criminal act and, therefore, for the statute to satisfy state and federal due process concerns, the State must prove the elements of the enhancement beyond a reasonable doubt, as with any other crime. He also asserts that section 76-3-203.1(5)(c) interferes with his right to a jury trial, as guaranteed by article I, section 12 of the Utah Constitution. ⁴

¶6 A constitutional challenge to a statute presents a question of law, which we review for correctness. See State v. Mohi, 901 P.2d 991, 995 (Utah 1995). When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality. See Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993); Mountain States Tel. & Tel. Co. v. Garfield County, 811 P.2d 184, 187 (Utah 1991).

¶7 In response to Lopess argument that in enacting the gang enhancement statute, the legislature created a new crime, the State notes that the legislature specifically expressed an intent that the gang enhancement not be a separate offense. The legislature does have broad authority to define crimes and prescribe punishments. See State v. Bishop, 717 P.2d 261, 263-64 (Utah 1986); State v. Angus, 581 P.2d 992, 994-95 (Utah 1978). However, although the legislature specifically stated in the statute that it intended section 76-3-203.1 to be an enhancement, this is not dispositive as to what the legislature actually did.

¶8 The gang enhancement statute provides in part:

(1) (a) A person who commits any offense listed in Subsection (4) in concert with two or more persons is subject to an enhanced penalty for the offense as provided below.

(b) In concert with two or more persons as used in this section means the defendant and two or more other persons would be criminally liable for the offense as parties under Section 76-2-202.

Utah Code Ann. § 76-3-203.1(1)(a) & (b) (1995) (emphasis added). Section 76-2-202 referred to in section 76-3-203.1(1)(b), states that a person who acts with the mental state required for the commission of an offense, and either directly commits the offense, [or] solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct. Id. § 76-2-202. In summary, section 76-3-203.1(1)(a) requires that all three actors must (i) have possessed a mental state sufficient to commit the same underlying offense and (ii) have directly committed the underlying offense or solicited, requested, commanded, encouraged, or intentionally aided one of the other two actors to engage in conduct constituting the underlying offense. At a minimum, under the statute, the State must prove that all three actors are guilty of aiding and abetting. This was the effective holding of our decisions in State v. Labrum, 925 P.2d 937 (Utah 1996) (Labrum I ) and State v. Alvarez, 872 P.2d 450 (Utah 1994). In Labrum I, we made it clear that in concert under the gang enhancement statute means that the defendant acted with at least two other people and that those other persons must also be liable for the underlying offense. Id. at 940; see also California v. Zermeno, 61 Cal.App.4th 623, 628, 71 Cal.Rptr.2d 672 (Cal.Ct.App.1998) (holding that statute imposing enhanced sentence upon showing of pattern of criminal gang activity required State to show beyond a reasonable doubt that at least one other actor was guilty of aiding and abetting defendant).

¶9 This leads us to the burden of proof issue. In Labrum I, we did not address the burden of proof by which the State must prove the in concert element of the gang enhancement statute, but the court of appeals did address that question in a subsequent appeal. In Labrum I, we stated that before imposing the gang enhancement, the statute required the sentencing judge [to] make discrete ... findings that are indispensable to the gang enhancement statute because they establish the legal basis that justifies imposition of the prescribed penalty. Labrum I, 925 P.2d at 940. We remanded Labrum I for further proceedings because no specific finding was entered with respect to the complicity of the other two persons who accompanied Labrum. Id. at 941. On remand, the trial court made factual findings regarding the other two actors participation and then enhanced Labrums sentence. See State v. Labrum, 959 P.2d 120, 121 (Utah Ct.App.1998) (Labrum II ). Labrum again appealed.

¶10 Before the court of appeals, Labrum argued that the sentencing courts findings were legally insufficient to fix accomplice liability. Labrum premised his argument on both the language of the statute and due process. The court of appeals reversed the enhancement on grounds that the findings were insufficient. It did not address the constitutional question; instead, it held:

Under this statute, it is not enough that others were present when the crime was committed. Rather, the quality of their involvement must rise to the level of participation described in section 76-2-202, ...

Id. at 124. The court of appeals then went on to say that all three actors must possess a sufficiently culpable mental state, and the prosecution must prove the foregoing beyond a reasonable doubt. Id. (emphasis added). Because the court of appeals appeared to rely on statutory interpretation to fix the burden of proof, it had no occasion to address Labrums constitutional challenges. ⁵

¶11 Today, Lopes presents to this court a challenge to the gang enhancement statute that is essentially identical to the one passed upon by the court of appeals in Labrum II. He contends that the State must prove all the elements of accomplice liability, including the mental state, beyond a reasonable doubt. We agree with Lopes and conclude that the statutory enhancement requires proof of the other actors criminal culpability, and that the State must prove their criminal culpability beyond a reasonable doubt. This conclusion finds support in our decision in State v. Angus, 581 P.2d 992 (Utah 1978).

¶12 In Angus, the defendant was charged with aggravated assault, and the State sought a firearm enhancement. The defendant argued that the firearm enhancement statute created a separate offense that the State had to plead as a separate crime, not as an enhancement. This court disagreed. See id. at 994. In rejecting the claim of a separate crime that had to be separately charged, we said: When the matter is looked at correctly and realistically, it is seen that there is but one criminal act charged, but describing it accurately brings it within the higher penalty prescribed by law: to-wit, an...