State v. Soza
| Citation | 464 P.3d 696,249 Ariz. 13 |
| Decision Date | 14 May 2020 |
| Docket Number | No. 1 CA-CR 19-0003,1 CA-CR 19-0003 |
| Parties | STATE of Arizona, Appellee, v. Andrew Ray SOZA, Appellant. |
| Court | Court of Appeals of Arizona |
Arizona Attorney General's Office, Phoenix By Eliza Ybarra Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix By Mikel Steinfeld Counsel for Appellant
OPINION
McMURDIE, Judge:
¶1 Andrew Soza appeals from his convictions and sentences for possessing dangerous drugs for sale, possessing narcotic drugs for sale, four counts of possessing drug paraphernalia, and false reporting to a law enforcement agency. Because we hold that a defendant who simultaneously possesses multiple objects of drug paraphernalia commits only one violation of Arizona Revised Statutes ("A.R.S.") section 13-3415(A), we vacate three of Soza's convictions and the resulting sentences under that statute. We otherwise affirm.
¶2 A police officer pulled over a car driven by Soza's wife for a traffic violation. When the officer asked Soza, who was in the passenger seat, for identification, he provided a false name and date of birth. He also claimed that he did not have any identification or know his Social Security number. Soza eventually disclosed his identity.
¶3 The officer arrested Soza for false reporting and searched him incident to the arrest. Soza was carrying "two small micro baggies," an identification card, and $305 in cash. Because Soza's wife was driving with a suspended license, the officers impounded and searched the car. In the trunk, an officer found several packages of methamphetamine and heroin, a glass pipe, multiple micro baggies, and a digital scale with "white residue" and a "black tar-like smudge" on its surface.
¶4 The State charged Soza with possessing dangerous drugs for sale (methamphetamine), possessing narcotic drugs for sale (heroin), four counts of possessing drug paraphernalia (micro baggies for methamphetamine, micro baggies for heroin, a scale for methamphetamine, and a scale for heroin), and one count of false reporting to a law-enforcement agency. The jurors found him guilty as charged, and the court sentenced him as a category-three repetitive offender to presumptive, concurrent prison terms, the longest being 15.75 calendar years. Soza appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
¶5 The jury found Soza committed four separate violations of A.R.S. § 13-3415(A) : possessing micro baggies for methamphetamine, possessing micro baggies for heroin, possessing the scale for methamphetamine, and possessing the same scale for heroin. Soza argues that he committed only one prosecutable violation of A.R.S. § 13-3415(A). We agree.
¶6 Imposing multiple punishments for the same offense violates the Double Jeopardy Clause, which constitutes fundamental error. State v. Jurden , 239 Ariz. 526, 528–29, ¶¶ 7, 10, 373 P.3d 543, 545–46 (2016). Whether Soza's convictions for possessing drug paraphernalia implicate double jeopardy requires us to determine what the "allowable unit of prosecution" is under A.R.S. § 13-3415(A). See Jurden, at 529, ¶ 11, 373 P.3d at 546 (quoting United States v. Universal C.I.T. Credit Corp. , 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952) ). Put another way, what is "the scope of conduct for which a discrete charge can be brought"? Id.
¶7 Soza argues that the unit of prosecution under A.R.S. § 13-3415(A) is an "act" of possession—regardless of the number or kind or intended use of the paraphernalia possessed. The State, in turn, argues that A.R.S. § 13-3415(A) makes each "object" of paraphernalia a separate offense. Under its interpretation, this court would vacate one of Soza's convictions because he possessed only one scale, not two.
¶8 Determining the allowable unit of prosecution requires us to interpret the statute at issue, which we do de novo . Jurden , 239 Ariz. at 528-29, ¶¶ 7, 11, 373 P.3d at 545–46 ; see also State v. McPherson , 228 Ariz. 557, 560, ¶ 5, 269 P.3d 1181, 1184 (App. 2012) (). The ultimate objective is to divine the legislature's intent, and we begin by looking to the statutory text. Jurden , 239 Ariz. at 530, ¶ 15, 373 P.3d at 547. If the language is clear, our examination ends there. Id. If the language is ambiguous, "we consider secondary principles of statutory interpretation, such as the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose." Id. We also "consider the policy behind the statute and the evil it was designed to remedy." State v. Korzep , 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990) ; see also A.R.S. § 13-104 (). The "context" of the statute under consideration and "related statutes on the same subject" also bear on our interpretation. Nicaise v. Sundaram , 245 Ariz. 566, 568, ¶ 11, 432 P.3d 925, 927 (2019).
¶9 Section 13-3415(A) reads:
It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a drug in violation of this chapter. Any person who violates this subsection is guilty of a class 6 felony.
Section 13-3415(F)(2) defines "drug paraphernalia" using comparable language:
all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a drug in violation of this chapter.
The statute goes on to enumerate a long list of items intended to fall within the definition of drug paraphernalia, including kits for growing and manufacturing drugs, scales for measuring drugs, and containers for compounding, packaging, and storing drugs. A.R.S. § 13-3415(F)(2).
¶10 Section 13-3415(A) does not set forth "the scope of conduct for which a discrete charge can be brought." Jurden , 239 Ariz. at 529, ¶ 11, 373 P.3d at 546. As a general matter, the term "paraphernalia" may be used to describe items in the singular or plural. See Am. Heritage Dictionary 1279 (5th ed. 2011); cf. A.R.S. § 1-214(B) (). Section 13-3415 uses the term in both respects. Therefore, the statute is ambiguous because it can reasonably be read as endorsing an act-based unit of prosecution, as the defendant urges, or an object-based unit of prosecution, as the State proposes.
¶11 We also find A.R.S. § 13-3415(A) amenable to an intent-based interpretation, under which the unit of prosecution would turn on the defendant's intent to use the drug paraphernalia in a manner resulting in a specific drug crime. In this case, an intent-based unit of prosecution would support two convictions under A.R.S. § 13-3415(A) —one for possession of paraphernalia relating to the sale of dangerous drugs and one for possession of paraphernalia relating to the sale of narcotic drugs.
¶12 Having found the text of the statute ambiguous, we turn to secondary methods of construction. The statute's legislative history is bereft of helpful information. Our legislature enacted A.R.S. § 13-3415 (formerly A.R.S. § 13-3411 ) in 1982 and has made few amendments to the statute since that time. See 1982 Ariz. Sess. Laws, ch. 216 (2d Reg. Sess.); 1986 Ariz. Sess. Laws, ch. 256, § 8 (2d Reg. Sess.); 1987 Ariz. Sess. Laws, ch. 307, §§ 23, 27 (1st Reg. Sess.); 1996 Ariz. Sess. Laws, ch. 217, § 5 (2d Reg. Sess.). The statute is patterned on—and nearly identical to—the Model Drug Paraphernalia Act drafted by the United States Department of Justice Drug Enforcement Administration. See Dale Joseph Gilsinger, Annotation, Construction and Application of State Drug Paraphernalia Acts , 23 A.L.R. 6th 307, § 2 (2007) ; Annotation, Validity, Under Federal Constitution, of So-called "Head Shop" Ordinances or Statutes, Prohibiting Manufacture and Sale of Drug Use Related Paraphernalia , 69 A.L.R. Fed. 15, § 1[c] (1984) ().
¶13 The language and context of A.R.S. § 13-3415 demonstrate that its purpose is to deter the commission of drug crimes, both by bolstering the effectiveness of existing drug laws and by preventing the violation of those laws before they occur. The statute is contained in the chapter addressing drug offenses and is violated only upon evidence that the defendant's intended conduct would result in a drug offense. See A.R.S. § 13-3415(A), (F)(2). Although, in theory, an act-based, object-based, or intent-based unit of prosecuting paraphernalia possession each would ultimately help deter the commission of drug crimes, as explained below, construing the prosecutable offense as the act of possession is more faithful to the text of the statute, while still fulfilling the goal of deterring drug crimes.
¶14 An object-based unit of prosecution offers the poorest fit, considering the language and purpose of A.R.S. § 13-3415. The State relies on A.R.S. § 13-3415(E) ’s use of the term "object" to support its argument,2 but all that shows is that "drug...
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