State v. Sepahi, No. 2 CA-CR 2001-0403

• Decision Date: 28 January 2003
• Docket Number: No. 2 CA-CR 2001-0403, No. 2 CA-CR 2002-0163-PR.
• Citation: 61 P.3d 479,204 Ariz. 185
• Parties: The STATE of Arizona, Appellee/Respondent, v. Abraham David SEPAHI, Appellant/Petitioner.
• Court: Arizona Court of Appeals

61 P.3d 479

204 Ariz. 185

The STATE of Arizona, Appellee/Respondent, v. Abraham David SEPAHI, Appellant/Petitioner.

Nos. -0403, -0163-PR.

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

January 28, 2003.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Diane Leigh Hunt, Tucson, for Appellee.

Robert Carter Olson, Pinal County Attorney, By Robert C. Brown, Florence, for Respondent.

Roberts & Rowley, Ltd., By Brian D. Strong, Mesa, for Appellant/Petitioner.

OPINION

PELANDER, J.

¶ 1 After a five-day jury trial, appellant Abraham David Sepahi was convicted of two counts of aggravated assault against K., a minor. The trial court sentenced Sepahi to two, consecutive, ten-year prison terms pursuant to A.R.S. § 13-604.01(K). On appeal, Sepahi contends the trial court erred in finding that his offenses were dangerous crimes committed against a child, in imposing consecutive sentences, and in empaneling twelve rather than eight jurors.

¶ 2 We affirm Sepahi' s convictions but conclude that the trial court erred in classifying the offenses as dangerous crimes against a child and in sentencing Sepahi pursuant to § 13-604.01(K). We further conclude that, because Sepahi's aggravated assaults constituted a single act for purposes of A.R.S. § 13-116, concurrent sentences are required.

¶ 3 In his consolidated petition for review from the trial court' s summary denial of relief on his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S., Sepahi claims he received ineffective assistance of trial counsel. We grant review but deny relief, finding the trial court did not abuse its discretion in dismissing the petition.

APPEAL

BACKGROUND

¶ 4 We view the facts, which are largely undisputed, in the light most favorable to sustaining the convictions. State v. Marshall, 193 Ariz. 547, ¶ 3, 975 P.2d 137, ¶ 3 (App.1998). In September 1999, Sepahi and his friend, W., both minors, approached K. and D., an adult, while the latter two were on the front porch of D.' s trailer. W. asked D. who he was "claiming," apparently an inquiry about what gang D. was affiliated with. D. answered that he was "a member of GD Folks," referring to the "Gangster Disciples Folks" gang. W. then responded with an expletive, "F____ Folks."

¶ 5 Concerned that the situation could escalate into a fight between D. and W., K. stepped off the porch and repeatedly asked W. and Sepahi to leave. Sepahi then told W. to "[h]it the bitch and get it over with." At this, K. became agitated, began waving her arms, and threatened to fight both Sepahi and W. While K. was waving her arms, Sepahi hit her on the arm. In response, K. hit Sepahi on the head. Sepahi then stepped back, pulled out a gun from his waistband, and fired one shot, which hit K. in the stomach. Sepahi and W. then ran off ¶ 6 Although Sepahi was a minor when this incident occurred, he was charged as an adult with attempted second-degree murder, A.R.S. §§ 13-1001, 13-1104(A)(2); aggravated assault causing serious physical injury, A.R.S. § 13-1204(A)(1); and aggravated assault involving the use of a deadly weapon or dangerous instrument. § 13-1204(A)(2). The jury acquitted Sepahi of the attempted murder charge but found him guilty on both counts of aggravated assault. The jury also found that both offenses were dangerous and that, at the time of the incident, K. had been less than fifteen years old. At sentencing, the trial court found, pursuant to § 13-604.01, that Sepahi' s offenses were dangerous crimes committed against a child. Accordingly, the court sentenced Sepahi to two, consecutive, ten-year prison terms pursuant to § 13-604.01(K). This appeal followed.

DISCUSSION

I. Applicability of § 13-604.01

¶ 7 Sepahi challenges the trial court's conclusion that § 13-604.01 applies to his offenses. Because this issue involves interpretation and application of a statute, we review the claim de novo. State v. Samano, 198 Ariz. 506, ¶ 6, 11 P.3d 1045, ¶ 6 (App. 2000).

¶ 8 Section 13-604.01 requires enhanced penalties for persons convicted of "dangerous crimes against children." The statute sets forth various offenses that, if "committed against a minor who is under fifteen years of age," constitute "[d]angerous crime[s] against children." § 13-604.01(L)(1). Among the statutorily prescribed offenses that come within that definition is "[a]ggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument." § 13-604.01(L)(1)(b).

¶ 9 Relying primarily on State v. Williams, 175 Ariz. 98, 854 P.2d 131 (1993), and State v. Jansing, 186 Ariz. 63, 918 P.2d 1081 (App. 1996), Sepahi argues that his offenses were not dangerous crimes committed against a child because "§ 13-604.01 requires more than a victim under age fifteen," and because his crimes were "not the type of high-recidivism offenses which gave birth to A.R.S. § 13-604.01." In Williams, the defendant was convicted of aggravated assault for having recklessly rammed his pickup truck into the rear of a station wagon while intoxicated, injuring a fourteen-year-old boy in the station wagon. 175 Ariz. at 99, 854 P.2d at 132. Because that victim was under fifteen years of age, the trial court found that the offense was a dangerous crime against a child and accordingly enhanced the defendant' s sentence pursuant to § 13-604.01. 175 Ariz. at 99, 854 P.2d at 132. Our supreme court vacated the sentence, however, because "there was no evidence that [the defendant' s] behavior was directed at or focused upon the victim, or that he was even aware of the minor's presence in the station wagon." Id. at 104, 854 P.2d at 137. In Jansing, Division One of this court reached the same result in a similar case, but in which "the victim of defendant' s aggravated assault was a passenger in her own car," and therefore, the defendant "knew that he was present and under fifteen." Jansing, 186 Ariz. at 70, 918 P.2d at 1088.

¶ 10 In Williams, the court "reject[ed] the state's contention that committing an offense `against' a child within the meaning of § 13-604.01 is the same as committing an offense, the victim of which happens to be a child." 175 Ariz. at 103, 854 P.2d at 136. To constitute a "dangerous crime against children," the court stated, "the defendant' s conduct must be focused on, directed against, aimed at, or target a victim under the age of fifteen." Id. The court also noted, however, that a defendant's "knowledge of the victim' s age is unnecessary" under § 13-604.01. 175 Ariz. at 103, 854 P.2d at 136. Rather, "[w]hen an individual targets a person, he or she generally assumes the risk that the victim will turn out to be within a protected age group." Id.

¶ 11 This case clearly satisfies the Williams requirement that Sepahi's "conduct [was] focused on, directed against, aimed at, or target[ed] a victim under the age of fifteen." Id. By pointing his gun at K., a minor under the age of fifteen, and shooting her in the stomach, Sepahi clearly "aimed at" and "targeted" K. Id. Indeed, the court in Williams specifically noted that, when a person "cause[s] serious physical injury by striking a child, or ... confront[ing] a child with a deadly weapon[,] ... there [can] be no serious doubt that the crime of aggravated assault would be a dangerous crime against a child." Id. at 101, 854 P.2d at 134.

¶ 12 That Sepahi committed offenses prescribed in § 13-604.01(L)(1) against a minor under fifteen years of age, however, does not end the inquiry or analysis. As the court stated in Williams:

Given the list of crimes, and the language "against a minor," a fair construction of the statute is that it refers to crimes in which a child is the target of the criminal conduct. That is to say, a dangerous crime against a child is a crime against a child qua child.... This supports the meaning that a crime against a child is a crime against a child as a child or in the capacity of a child.

175 Ariz. at 101, 854 P.2d at 134. The court further noted:

The legislative history indicates quite clearly that the enactment of § 13-604.01 was calculated to reach criminals who prey specifically upon children.... Of particular concern was the perceived recidivist nature of the people who commit these crimes.

We conclude, as we have before, that the legislature, in enacting § 13-604.01, was attempting to respond effectively to those predators who pose a direct and continuing threat to the children of Arizona. The lengthy periods of incarceration are intended to punish and deter those persons, and simultaneously keep them off the streets and away from children for a long time. The special penalties ... are calculated to deal with persons peculiarly dangerous to children.

Id. at 102-03, 854 P.2d at 135-36 (footnote omitted); see also Jansing, 186 Ariz. at 70,

918 P.2d at 1088,

quoting Williams, 175 Ariz. at 102,

854 P.2d at 135 ("To be guilty of a dangerous crime against children, ... [t]he defendant must ` prey specifically upon children.'").

¶ 13 In Samano, Division One of this court extended that reasoning beyond the context of intoxicated drivers. The defendant in that case was charged with and convicted of, inter alia, kidnapping a two-year-old child, a dangerous crime against children pursuant to § 13-604.01. 198 Ariz. 506, ¶ 4, 11 P.3d 1045, ¶ 4. During a burglary and robbery of the child' s mother' s residence, the defendant had told the mother to hold her child, who had been wandering around the apartment. Id. at ¶ 3. On appeal, the defendant contended that his kidnapping of the child "was purely incidental to the burglary and robbery and was not based on or related to [the boy' s] status as a child." Id. at ¶ 5. Division One of this court agreed and vacated the consecutive sentence the trial court had imposed for that count pursuant to § 13-604.01(K). Id. at ¶ 20. Application of § 13-604.01, the court noted, "turns ... upon whether a...