State v. Miranda

• Decision Date: 28 September 2000
• Docket Number: No. 1 CA-CR99-0550.,1 CA-CR99-0550.
• Citation: 198 Ariz. 426,10 P.3d 1213
• Parties: STATE of Arizona, Appellee, v. Alex Martinez MIRANDA, Appellant.
• Court: Arizona Court of Appeals

10 P.3d 1213

198 Ariz. 426

STATE of Arizona, Appellee, v. Alex Martinez MIRANDA, Appellant.

No. 1 CA-CR99-0550.

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

September 28, 2000.

Janet Napolitano, Attorney General By Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Dean W. Trebesch, Maricopa County Public Defender By Louise Stark, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

TIMMER, Judge.

¶ 1 Alex Martinez Miranda appeals his convictions and sentences on three counts of disorderly conduct in violation of Arizona Revised Statutes Annotated ("A.R.S.") section 13-2904(A)(6)(1998). For the reasons that follow, we affirm Miranda's convictions and affirm his sentences, as modified.

FACTS AND PROCEDURAL HISTORY

¶ 2 In July 1998, Miranda stole a handgun from a parked vehicle, intending to sell it. He then went behind a building and inspected his find just as Pamela H. and her four-year-old son were walking nearby. Miranda admits he fired the gun once into the ground in the presence of Pamela and her son to determine if the gun was loaded. According to Pamela, he then fired the weapon two more times, once toward Pamela and once toward her son when they were approximately thirty feet from Miranda.

¶ 3 The state charged Miranda with two counts of aggravated assault against Pamela and her son pursuant to A.R.S. section 13-1204(A)(2) (Supp.1998). Miranda was also charged with disorderly conduct pursuant to A.R.S. section 13-2904(A)(6) (Supp.1999) for intentionally or knowingly disturbing the peace and quiet of a neighborhood, family, or person by recklessly handling, displaying, or discharging a gun.

¶ 4 At trial, Miranda asked the court to instruct the jury that disorderly conduct under A.R.S. section 13-2904(A)(6) is a lesser-included offense of the two aggravated assaults charged against him. Over the state's objection, the trial court gave the instruction, and the jury subsequently convicted Miranda of two counts of felony disorderly conduct rather than the aggravated assaults charged against him. The jury also convicted him of the disorderly conduct offense originally charged by the state. Miranda thereafter was sentenced to consecutive, aggravated prison terms of three years for each of the convictions.

¶ 5 We address three issues¹ in this opinion:

1. Did the trial court err by instructing the jury that disorderly conduct under A.R.S. section 13-2904(A)(6) is a lesser-included offense of the aggravated assaults charged against him?

2. Did the trial court err by imposing consecutive sentences for the convictions?

3. Because only two victims were disturbed, did Miranda's convictions for three counts of disturbing the peace violate his right to be free from double jeopardy?

DISCUSSION

I. THE LESSER-INCLUDED OFENSE INSTRUCTION

¶ 6 Miranda initially argues the trial court erred by instructing the jury that disorderly conduct under A.R.S. section 13-2904(A)(6) is a lesser-included offense of the aggravated assaults charged against him under counts 1 and 2 of the indictment pursuant to A.R.S. section 13-1204(A)(2). Because Miranda requested the instruction, we review for fundamental error. State v. Dickens, 187 Ariz. 1, 22-23, 926 P.2d 468, 489-90 (1996).

¶ 7 Miranda bases his argument entirely upon this court's decision in State v. Cutright, 196 Ariz. 567, 2 P.3d 657 (App.1999) (review denied May 18, 2000), which held that disorderly conduct is not a lesser-included offense of aggravated assault under the above-cited statutory provisions. In light of Cutright, and because the indictment did not describe the crime of disorderly conduct in counts 1 and 2, Miranda contends his convictions for these offenses violated his due process and jury trial rights guaranteed by the federal and state constitutions. See State v. Rybolt, 133 Ariz. 276, 280, 650 P.2d 1258, 1262 (App.1982),

overruled on other grounds by State v. Diaz, 142 Ariz. 119, 120, 688 P.2d 1011, 1012 (1984).

¶ 8 The state counters only that Miranda invited any error by requesting the lesser-included offense instruction and has therefore waived his claim. See State v. Diaz, 168 Ariz. 363, 365, 813 P.2d 728, 730 (1991)

(When a defendant requests an instruction and later claims fundamental error, any error is "invited error at its worst, and it is waived for appeal purposes."). We reject the state's position, however, because the doctrine of invited error is inapplicable when the error is based on a change in the law occurring after a defendant's trial. Id. Cutright was decided after Miranda's trial and seemingly changed the law established by the supreme court in State v. Angle, 149 Ariz. 478, 720 P.2d 79 (1986) (adopting the dissent of Judge Kleinschmidt in 149 Ariz. 499, 507,

720 P.2d 100, 108 (App.1985)), upon which Miranda relied in requesting the contested instruction. Therefore, Miranda did not waive any error by requesting the instruction, and we now turn to the merit of his argument.

¶ 9 A lesser-included-offense instruction is proper only if (1) the lesser offense is composed of some, but not all, of the elements of the greater crime so that it is impossible to commit the greater without committing the lesser offense, and (2) the evidence supports an instruction on the lesser offense. See Angle, 149 Ariz. at 507,

720 P.2d at 108 (Kleinschmidt, J., dissenting). Miranda does not contest that the evidence adduced at trial supported the disorderly conduct instruction. Accordingly, we address only whether it is impossible to commit aggravated assault under A.R.S. section 13-1204(A)(2) without also committing the lesser offense of disorderly conduct under section 13-2904(A)(6).

¶ 10 A person commits aggravated assault under A.R.S. section 13-1204(A)(2) if he (1) intentionally places a person in reasonable apprehension of imminent bodily injury by (2) using a deadly weapon or dangerous instrument. Id. at 508, 720 P.2d at 109 (Kleinschmidt, J., dissenting). A person commits disorderly conduct under section 13-2904(A)(6) if he (1) intentionally or knowingly disturbs a person's peace or quiet by (2) recklessly handling, displaying, or discharging a deadly weapon or dangerous instrument. Id. Our supreme court concluded in Angle that a person who commits aggravated assault under section 13-1204(A)(2) necessarily commits disorderly conduct under section 13-2904(A)(6), reasoning "that as a matter of common sense it is impossible to put a person in reasonable apprehension of imminent bodily injury without also disturbing that person's peace or quiet." Angle, 149 Ariz. at 508, 720 P.2d at 109 (Kleinschmidt, J., dissenting). Accordingly, the court held that disorderly conduct under section 13-2904(A)(6) is a lesser-included offense of aggravated assault under section 13-1204(A)(2). Id.; see also State v. Foster, 191 Ariz. 355, 357,

¶ 9, 955 P.2d 993, 995 (App.1998) (Following Angle, disorderly conduct under section 13-2904(A)(6) is a lesser-included offense of assault under section 13-1203(A)(2).).

¶ 11 The Cutright court addressed the same issue decided by Angle, but held that disorderly conduct under section 13-2904(A)(6) is not a lesser-included offense of aggravated assault under section 13-1204(A)(2). Cutright, 196 Ariz. at 569, ¶ 1, 2 P.3d at 659. The court reasoned that Angle had been "undercut" because this court's decision in Maricopa County Juvenile Action No. JV133051, 184 Ariz. 473, 910 P.2d 18 (App.1995), added an element to the offense of disorderly conduct not present in the offense of aggravated assault. Id. at 571, ¶ 19, 2 P.3d at 661. Specifically, JV133051 held that a conviction for disorderly conduct requires a showing that the victim was "within the peace" when the disorderly act occurred. Id. (citing JV133051, 184 Ariz. at 475, 910 P.2d at 20). Unless the victim is "`in repose of mind and peaceful intent'" before commencement of the disorderly act, the victim's "peace" cannot be "disturbed."² Id. (quoting JV133051, 184 Ariz. at 475, 910 P.2d at 20).

¶ 12 According to Cutright, because disorderly conduct now includes a requirement that the victim be in repose before the conduct occurs, a factor not considered in Angle, and the state need not show that the victim was in repose in order to prove aggravated assault, the elements of disorderly conduct are no longer entirely encompassed within the offense of aggravated assault. Cutright, 196 Ariz. at 571, ¶ 20, 2 P.3d at 661. Not surprisingly, Miranda asks us to follow Cutright's lead and hold that the trial court erred by instructing the jury on disorderly conduct under section 13-2904(A)(6) as it is not a lesser-included offense of aggravated assault under section 13-1204(A)(2). We decline to do so.

¶ 13 This court is bound by the decisions of the supreme court and has "`no authority to overrule, modify, or disregard them....'" State v. Thompson, 194 Ariz. 295, 298, ¶ 20, 981 P.2d 595, 598 (App.1999) (citation omitted). The Cutright court did not believe itself bound by Angle in light of the holding in JV133051. Cutright, 196 Ariz. at 571,

¶ 19, 2 P.3d at 661. We respectfully disagree with both Cutright and JV133051. Because the elements for disorderly conduct and aggravated assault have not been changed by the legislature or interpreted differently by the supreme court since the issuance of Angle, we accept the on-going viability of that opinion. Accordingly, Angle controls this issue unless and until the supreme court decides otherwise.³

Id. We therefore hold that disorderly conduct under section 13-2904(A)(6) is a lesser-included offense of aggravated assault under section 13-1204(A)(2), and the trial court did not err by so instructing the jury.

II. IMPOSITION OF CONSECUTIVE SENTENCES ON MIRANDA.

¶ 14 Miranda next argues that the trial court mistakenly imposed consecutive sentences for his convictions in violation of A.R.S. section 13-116 (1989)....