State v. Price

• Decision Date: 30 May 2008
• Docket Number: No. 2 CA-CR 2007-0210.,2 CA-CR 2007-0210.
• Citation: 183 P.3d 1279,218 Ariz. 311
• Parties: The STATE of Arizona, Appellee, v. Laki David PRICE, Appellant.
• Court: Arizona Court of Appeals

183 P.3d 1279

218 Ariz. 311

The STATE of Arizona, Appellee, v. Laki David PRICE, Appellant.

No. 2 CA-CR 2007-0210.

Court of Appeals of Arizona, Division 2, Department A.

May 30, 2008.

Terry Goddard, Arizona Attorney General By Randall M. Howe and Amy M. Thorson, Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender By Kristine Maish, Tucson, Attorneys for Appellant.

OPINION

HOWARD, Presiding Judge.

¶ 1 After a jury trial, appellant Laki Price was convicted of armed robbery, aggravated robbery, and aggravated assault. The trial court sentenced him to mitigated, concurrent prison terms, the longest for seven years. On appeal, Price claims he was improperly tried by an eight-person jury and the trial court abused its discretion in denying his request for instructions on lesser included offenses. The state volunteers that one of Price's convictions violates double jeopardy principles. Finding no error, we affirm.

Facts

¶ 2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App.2006). Price and a man named Miguel Virgen approached the victim, a pedestrian, in a parking lot. Price told the victim to "give it up." Price then lifted his shirt to show the victim a gun that was tucked in his waist area and said, "I ain't playing." When the victim did not respond, Price drew the gun, held it by his leg, and told the victim, "I'll leave you in this parking lot." The victim gave Virgen some money from one pocket and then, after further insistence by Price, some more money from another pocket. Price and Virgen then fled but were later apprehended by police. The jury found Price guilty of armed robbery, aggravated assault, and aggravated robbery and found all three offenses to be of a dangerous nature. The court sentenced Price to concurrent, mitigated prison terms of seven years for the armed robbery, five years for the aggravated assault, and five years for the aggravated robbery. Price now appeals.

Double Jeopardy

¶ 3 Although Price does not raise the issue and, in fact, disagrees, the state asserts that aggravated assault is a lesser included offense of armed robbery. It therefore contends convicting Price of both constituted fundamental, prejudicial error and asks this court to vacate Price's conviction and sentence for aggravated assault. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App.2007) (court will not ignore fundamental error when it sees it).

¶ 4 Because this issue was not raised below, we review solely for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). But, as the state notes, double jeopardy principles prohibit convictions for both a greater offense and a lesser included offense, and a violation of double jeopardy is fundamental error. See Fitzgerald v. Superior Court, 173 Ariz. 539, 544, 845 P.2d 465, 470 (App.1992); see also State v. Siddle, 202 Ariz. 512, n. 2, 47 P.3d 1150, 1153 n. 2 (App.2002). We review this issue de novo. See Siddle, 202 Ariz. 512, ¶ 7, 47 P.3d at 1153.

¶ 5 For double jeopardy purposes, a lesser included offense and the greater offense of which it is a part constitute the same offense, and multiple punishments for the same offense are not permissible. See Lemke v. Rayes, 213 Ariz. 232, ¶¶ 16-18, 141 P.3d 407, 413 (App.2006); Siddle, 202 Ariz. 512, ¶¶ 7-8, 47 P.3d at 1153-54. But two offenses are not the same if "`each [offense] requires proof of an additional fact which the other does not.'" State v. Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d 395, 397 (2000), quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (alteration in Eagle). To determine whether offenses are the same, we analyze the elements of the offenses, not the facts of the case.¹ Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d at 1154.

¶ 6 A person commits aggravated assault by using a deadly weapon or dangerous instrument while:

1. Intentionally, knowingly or recklessly causing any physical injury to another person; or

2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or

3. Knowingly touching another person with the intent to injure, insult or provoke such person.

A.R.S. § 13-1203(A); see also A.R.S. § 13-1204(A)(2).² A person commits armed robbery by, while armed with or threatening with a deadly weapon, dangerous instrument, or simulated deadly weapon, threatening or using force against another person "with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property." A.R.S. § 13-1902(A); see also A.R.S. § 13-1904(A).

¶ 7 Armed robbery can be committed without injuring or touching the victim, so aggravated assault committed pursuant to § 13-1203(A)(1) and (3) has elements that armed robbery does not. And armed robbery does not require either intending to place or actually placing the victim in fear, see State v. Miguel, 125 Ariz. 538, 541, 611 P.2d 125, 128 (App.1980), whereas aggravated assault committed pursuant to § 13-1203(A)(2) requires both an intent to place the victim in "reasonable apprehension of imminent physical injury" and that such apprehension actually results. See State v. Rineer, 131 Ariz. 147, 148-49, 639 P.2d 337, 338-39 (App.1981). Finally, armed robbery requires proof of elements that aggravated assault does not, including the taking of property. See § 13-1902(A); State v. Lopez, 158 Ariz. 258, 264, 762 P.2d 545, 551 (1988). Because each offense requires proof of a fact that the other does not, armed robbery and aggravated assault are not the "same offense" for double jeopardy purposes.

¶ 8 The state relies on State v. Sowards, 147 Ariz. 185, 709 P.2d 542 (App.1984), where this court said "aggravated assault can be a lesser-included offense of armed robbery." Id. at 190, 709 P.2d at 547. But the court's discussion makes clear that it was actually analyzing whether the offenses constituted separate acts under the facts of that case. First, the two cases the court cited in support of its proposition did not analyze whether aggravated assault was by definition a lesser included offense of armed robbery, but rather whether convictions for both offenses were permissible under former A.R.S. § 13-1641, which prohibited multiple convictions for the same act.³ See State v. Jorgenson, 108 Ariz. 476, 477, 502 P.2d 158, 159 (1972); State v. Horton, 108 Ariz. 16, 17-18, 492 P.2d 395, 396-97 (1972). Second, the court in Sowards went on to analyze the facts of that case, concluding "the aggravated assault of each victim [was] not the same crime as the armed robbery of each." Sowards, 147 Ariz. at 190, 709 P.2d at 547. As discussed above, determining whether an offense is a lesser included offense of another for double jeopardy purposes depends on the elements of the offenses, not on the facts of the case. See Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d at 1154. Thus, the court in Sowards did not use the term "lesser-included offense" to mean "same offense" for double jeopardy purposes. Sowards therefore does not support the state's argument.

¶ 9 We conclude that, for double jeopardy purposes, aggravated assault is not the same offense as armed robbery, and convictions for both offenses were constitutionally permissible.

Twelve-Person Jury

¶ 10 Price contends he faced imprisonment of thirty years or more and therefore was entitled to a twelve-person jury. Although he failed to raise this issue in the trial court and therefore forfeited all but fundamental error review, see State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005), the failure to empanel a jury of twelve when required constitutes fundamental, prejudicial error. See State v. Henley, 141 Ariz. 465, 469, 687 P.2d 1220, 1224 (1984). But see State v. Ring, 204 Ariz. 534, ¶¶ 106-07, 65 P.3d 915, 946-47 (2003) (Feldman, J., concurring in part and dissenting in part) (describing trial to insufficient number of jurors as structural error).

¶ 11 A defendant exposed to potential imprisonment of thirty years or more at the time the jury begins deliberations is entitled to a twelve-person jury. Ariz. Const. art. II, § 23; State v. Smith, 197 Ariz. 333, ¶ 16, 4 P.3d 388, 393 (App.1999); State v. Thorne, 193 Ariz. 137, 138, 971 P.2d 184, 185 (App. 1997). In determining the length of a defendant's potential sentence, we take into account allegations of sentence enhancements, see State v. Prince, 142 Ariz. 256, 259, 689 P.2d 515, 518 (1984), and whether the sentences could be imposed consecutively.⁴ See Henley, 141 Ariz. at 468, 687 P.2d at 1223.

¶ 12 Here, the state alleged the dangerous nature of the offenses. Thus, when the jury began deliberations, Price faced maximum prison terms of twenty-one years for armed robbery, fifteen years for aggravated assault, and fifteen years for aggravated robbery. See A.R.S. §§ 13-604(I); 13-1204(A)(2), (B); 13-1903; 13-1904. Because none of these individual sentences is thirty years or more, the resolution of this issue turns on whether the sentences could have run consecutively.

¶ 13 As discussed above, aggravated assault and armed robbery are not the same offense for double jeopardy purposes. And the state does not suggest that aggravated assault and aggravated robbery are the same offense. Therefore, we agree with Price that double jeopardy principles would present no impediment to consecutive sentences. See Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d at 397. But that does not end our analysis. Section 13-116, A.R.S., prohibits consecutive sentences for multiple offenses that constitute a single act and could bar consecutive sentences even though double jeopardy principles do not. See Siddle, 202 Ariz. 512, ¶¶ 16-17, 47 P.3d at 1155.

¶ 14 Price argues consecutive sentences were permissible under § 13-116. To determine whether conduct constitutes a single act for purposes of § 13-116, we apply the test set forth in ...