State v. Miranda-Cabrera

• Decision Date: 21 October 2004
• Docket Number: No. 1 CA-CR 01-0926.,1 CA-CR 01-0926.
• Citation: 99 P.3d 35,209 Ariz. 220
• Parties: STATE of Arizona, Appellee, v. Alfredo MIRANDA-CABRERA, Appellant.
• Court: Arizona Court of Appeals

99 P.3d 35

209 Ariz. 220

STATE of Arizona, Appellee, v. Alfredo MIRANDA-CABRERA, Appellant.

No. -0926.

Court of Appeals of Arizona, Division 1, Department C.

October 21, 2004.

As Amended December 2, 2004.

Terry Goddard, Attorney General, By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Diane Leigh Hunt, Assistant Attorney General, Tucson, Attorneys for Appellee.

Paul J. Mattern, Phoenix, Attorney for Appellant.

OPINION

SNOW, Judge.

¶ 1 Defendant Alfredo Miranda-Cabrera appealed his convictions and sentences for one count of reckless second-degree murder, a class one felony and dangerous crime against children, and one count of endangerment, a class six felony. In a memorandum decision, we affirmed the convictions and the sentence for the endangerment offense but vacated the sentencing enhancement imposed pursuant to the dangerous crimes against children statute, Arizona Revised Statutes ("A.R.S.") section 13-604.01 (2001). Our Supreme Court vacated our decision and remanded this case for reconsideration in light of its opinion in State v. Sepahi, 206 Ariz. 321, 78 P.3d 732 (2003) (Sepahi II). This is our opinion on reconsideration.

FACTS AND PROCEDURAL HISTORY

¶ 2 We view the evidence in the light most favorable to upholding the jury verdicts. State v. Farley, 199 Ariz. 542, 543, ¶ 3, 19 P.3d 1258, 1259 (App.2001). In August 2000, Miranda-Cabrera agreed to guide Mr. and Mrs. Saldivar and their thirteen-year-old son Jonathan on foot across the desert into the United States from San Luis, Mexico. Miranda-Cabrera told Mr. Saldivar that he regularly helped people illegally cross the border for payment and that he could deliver the family to the United States safely. Miranda-Cabrera's fee for guiding the Saldivars across the border was $1500 per person, payable after the family arrived in the United States.

¶ 3 The Saldivars lived in southern Mexico and were unfamiliar with desert climates, a fact known by Miranda-Cabrera. In the area where the border crossing was to take place, the daytime high in August ranged between 103 and 107 degrees Fahrenheit, and the soil temperature four inches below the surface reached as high as 118 degrees.

¶ 4 The Saldivars were caught by United States Border Patrol agents during their first attempt to enter the United States with Miranda-Cabrera as their guide. The agents returned the group to Mexico.

¶ 5 The group set out again after sunset two days later after Miranda-Cabrera promised that they would not have to walk as far on this crossing. After the entire group walked for "a good distance," Miranda-Cabrera pointed to a small mountain and told the Saldivar family to go there and wait for him while he scouted the area for Border Patrol agents. Miranda-Cabrera told the family to whistle for him periodically so he could find them in the darkness.

¶ 6 After whistling for two hours with no sight of Miranda-Cabrera, the Saldivars feared they had been abandoned. They walked toward a light in the distance for help, leaving most of their heavy water containers behind. By the time they got to the source of the light, they discovered it to be a fenced, unmanned power station. The family was lost and could find no relief from the sun; they were out of water, and their physical condition was rapidly deteriorating.

¶ 7 That evening, a Border Patrol agent found Mr. and Mrs. Saldivar. Mr. Saldivar was ill but conscious. Mrs. Saldivar's condition was very critical; she survived but with permanent physical injuries. The Saldivars' son, Jonathan, however, had gone off on his own in search of water and was found dead a short distance away. He had died from dehydration and heat exhaustion.

¶ 8 Miranda-Cabrera was charged with second degree-murder for Jonathan's death and two counts of endangerment, one each as to Mr. and Mrs. Saldivar. The charge included the allegation that the second degree murder of Jonathan was a dangerous crime against a child pursuant to A.R.S. § 13-604.01. The State chose to dismiss the endangerment count involving Mr. Saldivar before trial.

¶ 9 Miranda-Cabrera testified at trial that he merely allowed the Saldivars to travel with him as he made his way across the border. He denied he charged the family for his guiding services. He also testified that he returned for the family, but concluded they had returned to Mexico when he could not locate them. He took no steps to ensure they had not become lost in the desert. Two Border Patrol agents testified that the area in which the Saldivars had been walking had no landmarks and that even people who knew the area could easily become disoriented and lose their way.

¶ 10 The jury found Miranda-Cabrera guilty as charged on both counts. On the verdict form pertaining to the second-degree murder charge, the jury made a specific finding that Jonathan was a child younger than the age of fifteen.

¶ 11 The presumptive sentence for second-degree murder that is a dangerous crime against a child is twenty years. A.R.S. § 13-604.01(C) (An adult "who stands convicted of a dangerous crime against children in the first degree involving ... second degree murder of a child who is twelve, thirteen or fourteen years of age ... shall be sentenced to a presumptive term of imprisonment for twenty years.").¹ In imposing the mitigated sentence of seventeen years, the trial court found and weighed three aggravating factors and three mitigating factors. The aggravating factors were: (1) pecuniary gain, (2) mental and physical anguish suffered by the victim, and (3) mental anguish of the family. The mitigating factors were: (1) the crime was reckless rather than intentional, (2) no prior convictions, and (3) the need for consistency with sentencing in other cases of a similar nature. The court found that the mitigating factors outweighed the aggravating factors and sentenced Miranda-Cabrera to a mitigated sentence rather than the presumptive sentence. Miranda-Cabrera timely appealed.

¶ 12 After we affirmed both convictions and the sentence for endangerment, but before our reconsideration of sentencing in light of Sepahi II, the United States Supreme Court decided Blakely v. Washington, ___ U.S. ___, ___, 124 S.Ct. 2531, 2543, 159 L.Ed.2d 403 (2004). We thus also consider the arguments raised by the parties concerning Blakely. However, because neither Sepahi II nor Blakely affects any of the analysis in that part of our memorandum decision in which we affirmed Miranda-Cabrera's convictions, his convictions are affirmed for the reasons stated in that decision. This opinion concerns issues pertaining only to the sentencing of Miranda-Cabrera.

ANALYSIS

A. Applicability of A.R.S. § 13-604.01

¶ 13 Miranda-Cabrera contends that the trial court erred by ruling that the reckless second-degree murder of thirteen-year-old Jonathan was a "dangerous crime against children" within the meaning of A.R.S. § 13-604.01. He contends that because Sepahi II did not explicitly overrule other cases that construed the statute to require that the crime be focused on a child as a child, there was insufficient focus on Jonathan here. We reject that argument.

¶ 14 State v. Williams was the first case interpreting the "dangerous crimes against children" statute. 175 Ariz. 98, 854 P.2d 131 (1993). The defendant in that case was charged with reckless aggravated assault after driving his vehicle into the back of another vehicle, thereby injuring a child. Id. at 99, 854 P.2d at 132. "Aggravated assault" was one of the crimes listed in § 13-604.01(K)(1) (2001) as being a "dangerous crime against children."² Id. at 100, 854 P.2d at 133. The Supreme Court in Williams held that the legislature did not intend that § 13-604.01 apply to a case in which the assaulted child was "the unintended and unknown victim of someone's generalized unfocused conduct." Id. at 101, 854 P.2d at 134. It rejected the contention that "committing an offense `against' a child within the meaning of § 13-604.01[was] the same as committing an offense, the victim of which happens to be a child." Id. at 103, 854 P.2d at 136. It concluded that "[b]ecause a `dangerous crime against children' is defined as one `committed against a minor under fifteen years of age,' the defendant's conduct must be focused on, directed against, aimed at, or target a victim under the age of fifteen." Id. It also stated that, under the statute, "a crime against a child is a crime against a child as a child or in the capacity of a child." Id. at 101, 854 P.2d at 134 (emphasis added). It further held that it was the legislature's intent in enacting the statute "to punish severely those who prey upon children as opposed to those whose actions only fortuitously affect a child." Id. at 103, 854 P.2d at 136.

¶ 15 In State v. Jansing, we reached the same result in a fact situation that differed only because "the victim of defendant's aggravated assault was a passenger in her own car," and she, therefore, "knew that he was present and under fifteen." 186 Ariz. 63, 70, 918 P.2d 1081, 1088 (App.1996), overruled on other grounds by State v. Bass, 198 Ariz. 571, 576,

¶ 13, 12 P.3d 796, 801 (2000). In rejecting the State's contention that a dangerous crime against children had been committed, we recognized that such a crime requires that the "defendant's conduct must be focused on, directed against, aimed at, or target a victim under the age of fifteen" and that the defendant must "prey specifically upon children." Id. (quoting Williams, 175 Ariz. at 102-03, 854 P.2d at 135-36).

¶ 16 In State v. Samano, we once again addressed § 13-604.01, finding that, for the section to apply, a defendant must "prey[ ] upon or target[ ] a child for the commission of a crime at least in part because the child is a child." 198 Ariz. 506, 510 n. 3, ¶ 13, 11 P.3d 1045, 1049 n. 3 (App.2000). The defendant in Samano had ordered a mother to hold her child while the defendant was burglarizing her residence, resulting in the defendant's...