State v. Quijada
| Decision Date | 05 March 2013 |
| Docket Number | 2 CA-CR 2012-0157 |
| Parties | THE STATE OF ARIZONA, Appellee, v. ALFREDO QUIJADA, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Nicholas Klingerman
Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By David J. Euchner
Tucson
Attorneys for Appellant
¶1 Following a jury trial, Alfredo Quijada was convicted of one count each of assault and kidnapping, and two counts of sexual assault. The trial court imposed a sentence of time-served on the assault count and consecutive, maximum, twenty-eightyear terms of imprisonment on the remaining counts, for a total sentence of eighty-four years. On appeal, Quijada argues his conviction for kidnapping violates double jeopardy, and the court erred both in imposing consecutive sentences and in considering his lack of remorse as an aggravating factor.1 We affirm.
¶2 We view the facts in the light most favorable to sustaining the convictions. State v. Gray, 227 Ariz. 424, ¶ 3, 258 P.3d 242, 243 (App. 2011). One night in October 2009, victim A.V. went with her boyfriend to his cousin's home in Tucson. Around 3:00 a.m., A.V. asked her boyfriend to drive her home but he refused. A.V. then telephoned her friend A.A. who agreed to pick her up at a nearby intersection. While A.V. was walking to the intersection, Quijada approached and grabbed her arm, forced her to an area near an abandoned building, and then penetrated her vagina with his fingers and penis. Quijada eventually released A.V. and fled.
¶3 A.A. had been on the telephone with A.V. while she was walking to the intersection. She testified A.V. had "sounded scared" and had asked A.A. "to stay on the phone . . . until [she] got to her." A.A. heard a "scuffle," followed by A.V. saying "[s]top, [l]et me go." A.V.'s telephone "went dead" and after trying to call her numerous times and receiving no answer, A.A. contacted the police.
¶4 A.V. was taken to the hospital and a sexual assault examination was performed. Semen containing Quijada's DNA2 was discovered on her body. After a jury trial, Quijada was convicted and sentenced as noted above and this appeal followed.
¶5 Quijada argues his conviction for kidnapping violates principles of double jeopardy because kidnapping is a lesser-included offense of sexual assault. Because he did not object on this ground at trial, we review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). A double jeopardy violation is fundamental error. State v. Siddle, 202 Ariz. 512, n.2, 47 P.3d 1150, 1153 n.2 (App. 2002).
¶6 The double jeopardy clauses of the Arizona and United States Constitutions prohibit the imposition of multiple convictions and punishments for the same offense. Lemke v. Rayes, 213 Ariz. 232, ¶ 10, 141 P.3d 407, 411 (App. 2006). Therefore, when a defendant is convicted of an offense, double jeopardy prohibits further prosecution for that or any lesser-included offense. State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 10, 965 P.2d 94, 96-97 (App. 1998). To determine whether offenses are the "same offense" for purposes of double jeopardy, we apply the test set forth in Blockburger v. United States, 284 U.S. 299 (1932). See Lemke, 213 Ariz. 232, ¶ 16, 141 P.3d at 413.
¶7 In State v. Eagle, our supreme court applied Blockburger and determined sexual assault and kidnapping are separate offenses that may be punished separately without violating double jeopardy. 196 Ariz. 188, ¶¶ 6, 18, 994 P.2d 395, 397, 399-40 (2000). Quijada argues at length that Eagle was wrongly decided. However, as he concedes, we are bound by the decisions of our supreme court and thus have no authority to overrule it. See State v. Stanley, 217 Ariz. 253, ¶ 28, 172 P.3d 848, 854 (App. 2007).
¶8 Quijada also claims his case is distinguishable from Eagle because the verdict form for his kidnapping charge contained an interrogatory asking the jury to determine if he had released A.V. voluntarily and without harm in a safe place before his arrest and before sexually assaulting her.3 See A.R.S. § 13-1304(B). He contends the interrogatory constituted "an additional element" of the kidnapping offense that required completion of the sexual assault and therefore his convictions "violate double jeopardy in a way that Eagle's did not." But, our supreme court considered and rejected a similar argument in Eagle. 196 Ariz. 188, ¶¶ 9, 10, 17, 994 P.2d at 397-98, 399-400 (). Therefore, because kidnapping is a separate offense from sexual assault, Quijada's convictions do not violate double jeopardy. See id. ¶ 18.
¶9 Quijada argues the trial court erred in ordering his kidnapping sentence to be served consecutive to the sexual assault sentences because Arizona's double punishment statute, A.R.S. § 13-116, requires that it be concurrent. Quijada did not object on this ground at sentencing and we therefore review solely for fundamental prejudicial error.4 Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. An illegal sentence, however, constitutes fundamental error. State v. Zinsmeyer, 222 Ariz. 612, ¶ 26, 218 P.3d 1069, 1080 (App. 2009); State v. Gonzalez, 216 Ariz. 11, ¶ 2, 162 P.3d 650, 651 (App. 2007).
¶10 Section 13-116 may "bar consecutive sentences even though double jeopardy principles do not." State v. Price, 218 Ariz. 311, ¶ 13, 183 P.3d 1279, 1283 (App. 2008). It provides: "An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." § 13-116. "Unlike our double jeopardy analysis, which focuses on the elements of distinct statutory offenses to determine if they are the same offense, our analysis under § 13-116 focuses on the 'facts of the transaction' to determine if the defendant committed a single act." Siddle, 202 Ariz. 512, ¶ 17, 47 P.3d at 1155, quoting State v. Gordon, 161 Ariz. 308, 313 n.5, 778 P.2d 1204, 1209 n.5(1989). To determine whether conduct constitutes a single act for the purposes of § 13-116, we apply the following test:
First, we must decide which of the two crimes is the "ultimate charge—the one that is at the essence of the factual nexus and that will often be the most serious of the charges." Then, we "subtract[] from the factual transaction the evidence necessary to convict on the ultimate charge." If the remaining evidence satisfies the elements of the secondary crime, the crimes may constitute multiple acts and consecutive sentences would be permissible. We also consider whether "it was factually impossible to commit the ultimate crime without also committing the secondary crime." Finally, we consider whether the defendant's conduct in committing the lesser crime "caused the victim to suffer a risk of harm different from or additional to that inherent in the ultimate crime."
State v. Urquidez, 213 Ariz. 50, ¶ 7, 138 P.3d 1177, 1179 (App. 2006), quoting Gordon, 161 Ariz. at 315, 778 P.2d at 1211 ().
¶11 The parties assert, and we agree, that sexual assault is the "ultimate charge." See Gordon, 161 Ariz. at 315, 778 P.2d at 1211. To convict Quijada of that charge, the state was required to prove he "intentionally or knowingly engag[ed] in sexual intercourse . . . with [A.V.] without [her] consent." A.R.S. § 13-1406(A). The evidence established that after Quijada shoved A.V. against the wall of the abandoned building, he pushed her to the ground and had nonconsensual sexual intercourse with her.
¶12 Subtracting the facts necessary to establish sexual assault, sufficient evidence remained to prove the kidnapping charge. Gordon, 161 Ariz. at 315, 778 P.2d at 1211. Quijada restrained A.V. by grabbing her arm and taking her to an abandonedbuilding where he pushed her against a wall and attempted to remove her pants.5 See A.R.S. § 13-1304(A) ().
¶13 Proceeding to the next part of the Gordon test, we consider whether "it was factually impossible to commit the ultimate crime without also committing the secondary crime." Gordon, 161 Ariz. at 315, 778 P.2d at 1211. Quijada argues that here, as in Gordon, it was impossible to commit sexual assault without also committing kidnapping. In Gordon, the defendant sexually assaulted the victim within her home. Id. at 309, 315, 778 P.2d at 1205, 1211. The court reasoned that, because the restraint used for the kidnapping charge was that inherent in the sexual assault, the defendant could not have committed the sexual assault without committing the kidnapping. Id. at 315-16, 778 P.2d at 1211-12.
¶14 Unlike Gordon, the restraint necessary for the kidnapping charge here was not limited to that used by Quijada during the sexual assault, but also existed beforehand when Quijada forced A.V. to the building from the street. See A.R.S. § 13-1301(2) (). Under the facts presented here, it was not impossible to commit the ultimate crime of sexual assault without committing the secondary crime of kidnapping. Accordingly, because we conclude Quijada'sconduct did not constitute a single...
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