State v. Parra

• Decision Date: 09 October 1969
• Docket Number: No. 1,CA-CR,1
• Citation: 459 P.2d 344,10 Ariz.App. 427
• Parties: STATE of Arizona, Appellee, v. Cruz PARRA, Appellant. 180.
• Court: Arizona Court of Appeals

Page 344

459 P.2d 344

10 Ariz.App. 427

STATE of Arizona, Appellee, v.Cruz PARRA, Appellant.

No. 1 CA-CR 180.

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

Oct. 9, 1969.

Vernon B. Croaff, Former Public Defender, by Anne Kappes, Deputy Public Defender, for appellant.

Gary K. Nelson, The Atty. Gen., by Carl Waag, Sp. Asst. Atty. Gen., Phoenix, for appellee.

STEVENS, Judge.

Arising out of a single confrontation and a single closely-knit series of acts involving the defendant and Miss Frazee, the defendant was charged in a two-count amended information.Count one charged the offense of attempted grand theft and count two charged the offense of aggravated battery.

Pursuant to A.R.S. § 13--663, grand theft includes the 'theft of money or property from the person of another.'See subsec.A, par. 2.The defendant not having been successful in his efforts was charged with an attempt.Pursuant to A.R.S. § 13--245, a battery is an aggravated battery 'when committed by an adult male upon the person of a female.'See subsec.A, par. 3.The defendant was represented at the trial by private counsel.The jury found him guilty of both counts.He was duly adjudged guilty of both counts.He was sentenced to imprisonment for not less than three nor more than five years on each count, the sentences to run consecutively.

The amended information carried two addendums, each urging a separate prior felony conviction.The alleged felony convictions were admitted by the defendant prior to the beginning of the trial.At the trial, the defendant testified and admitted the two prior convictions set forth in the addendums and also a third prior conviction.

There are three basic questions for our consideration on the appeal.These are:

1.Whether it was error to give Maricopa Recommended Jury Instruction (MARJI) 204 on reasonable doubt;

2.Whether it was error to adjudge the defendant guilty and to sentence him for both counts as constituting double punishment contrary to the provisions of A.R.S. § 13--1641; and

3.Whether the jury was properly instructed as to its duty and authority to consider separately the question of guilt or innocence as to each count.There is no issue raised with reference to the term of either sentence, but, as above noted, it is urged that only one sentence can be imposed and that only in relation to one count.

THE MARJI INSTRUCTION

The instruction on reasonable doubt is, according to the briefs, MARJI InstructionNo. 204.As given, the Instruction reads as follows:

'A defendant in a criminal case is presumed by law to be innocent.The law does not require a defendant to prove his innocence or to produce any evidence.The burden of proving the defendant guilty beyond a reasonable doubt rests upon the State.This burden never shifts.The term 'reasonable doubt' means a doubt based upon a reason.It does not mean an imaginary or possible doubt.It is a doubt for which a reason can be given arising from an impartial consideration of the evidence or lack of evidence.It means a doubt that would cause a reasonable man to pause or hesitate when called upon to act upon the most important affairs of life.If, after a consideration of all of the evidence, you are convinced of the guilt of the defendant, then I instruct you that you are satisfied beyond a reasonable doubt.If, on the other hand, you are not convinced of the guilt of the defendant, then I instruct you you are not satisfied beyond a reasonable doubt.'

A.R.S. § 13--162, subsec.A is as follows:

'A.A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to be acquitted.'

The defendant urges that the Instruction directs each juror to convict unless that juror can give a reason for not convicting.Reading the Instruction as a whole, we do not agree with this contention.

The defendant, through diligent effort, has cited the following cases to this Court on the subject of the reasonable doubt instruction.Territory v. Barth, 2 Ariz. 319, 15 P. 673(1887);Territory v. Clanton, 3 Ariz. 1, 20 P. 94(1889);United States v. Romero, 4 Ariz. 193, 35 P. 1059(1894);Foster v. Territory, 6 Ariz. 240, 56 P. 738(1899);Roberts v. State, 17 Ariz. 159, 149 P. 380(1915);Bush v. State, 19 Ariz. 195, 168 P. 508(1917);Harding v. State, 26 Ariz. 334, 225 P. 482(1924);Hann v. State, 30 Ariz. 366, 247 P. 129(1926);Hash v. State, 48 Ariz. 43, 59 P.2d 305(1936);andState v. Carter, 66 Ariz. 12, 182 P.2d 90(1947).

In these cases our Supreme Court approved a variety of reasonable doubt instructions.They indicate that many attempts have been made by both our trial and appellate courts to improve upon the definition of the term.However, these attempts to explain and simplify often confuse rather than clarify its meaning.Perhaps, this occurs because the language used by appellate courts to explain a proposition of law is not always appropriate for jury instructions.On the other hand, these attempts may fail because the term is almost self-defining.

We do not hold that improvement could not be made upon MARJI InstructionNo. 204.We do hold, however, that the giving of the Instruction in the instant case was not reversible error.The record affirmatively discloses that the defendant's counsel stated that he had no objection when the trial judge informed him that the Instruction would be given.State v. Mays, 105 Ariz. 47, 459 P.2d 307(Decided 2 October 1969).

DOUBLE SENTENCE

A.R.S. § 13--1641 is as follows:

'An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one.An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.'

Viewing the evidence in the light most favorable to supporting the verdicts and judgments of guilt, we find that on 2 September 1967, after dark, Miss Frazee approached a restaurant in the City of Phoenix.She was on foot and alone.She was carrying her purse.The defendant approached her and unsuccessfully attempted to wrest her purse from her.He was not successful due to her resistence of his efforts.A struggle ensued during the course of which she was physically injured by the force of the defendant's efforts.She was thrown with force against the restaurant building.Police officers in the vicinity observed the struggle and promptly arrested defendant.

In this area of the case, we are again indebted to the defendant for a careful review of Arizona case law.We quote from the defendant's opening brief as follows:

'Those cases wherein the court has held that the statute prohibiting double punishment did not apply were cases in which two or more acts were performed by the accused, each one of which constituted a distinct violation of a criminal statute without regard to the other.

State v. Green, 98 Ariz. 254, 403 P.2d 809(1965);(burglary and rape)

State v. Harvey, 98 Ariz. 70, 402 P.2d 17(1965);(statutory rape and lewd and lascivious acts)State v. Hutton, 87 Ariz. 176, 349 P.2d 187(1960);(burglary and theft)

State v. Ballez, 102 Ariz. 174, 427 P.2d 125(1967);(robbery and grand theft)

State v. Westbrook, 79 Ariz. 116, 285 P.2d 161, (53 A.L.R.2d 619)(1955);(burglary and conspiring to commit burglary)

State v. Phillips, 102 Ariz. 377, 430 P.2d 139(1967);(fellatio and lewd and lascivious conduct based on different acts)

State v. Payne, 7 Ariz.App. 43, 436 P.2d 137(1968);(burglary and grand theft)

'Where only a single act is involved the statute prohibiting double punishment applies.

State v. Hunt, 2 Ariz.App. 6, 406 P.2d 208(1965)(contributing to delinquency of minor, permitting life and helth (sic) of child to be neglected and failure to provide)

State v. Boodry, 96 Ariz. 259, 394 P.2d 196(1964);(rape and incest)

State v. Vallejos, 89 Ariz. 76, 358 P.2d 178(1961);(possession of marijuana and possession of marijuana for sale)

State v. Mills, 96 Ariz. 377, 396 P.2d 5(1964);(two counts of obtaining money by false pretenses)

'The latest consideration of this question is contained in State v. Enriquez, 104 Ariz. 16, 448 P.2d 72(1969) which holds the statute does not apply to charges of robbery and assault with a deadly weapon.

'This opinion relies upon language in State v. Westbrook, 79 Ariz. 116, 285 P.2d 161, (53 A.L.R.2d 619,) to the effect that the statute applies only when the two crimes have 'identical components."

In this connection we again refer to Mays.In our opinion the statute is clear in its intent but at times difficult of application to a particular situation.In the matter now before usthe defendant could have committed the offense of attempted grand theft without a battery.The battery was not an essential aspect...