State v. Urquidez

• Citation: 138 P.3d 1177,213 Ariz. 50
• Decision Date: 31 January 2006
• Docket Number: No. 2 CA-CR 2004-0419.,2 CA-CR 2004-0419.
• Parties: The STATE of Arizona, Appellee, v. Guillermo Camacho URQUIDEZ, Appellant.
• Court: Court of Appeals of Arizona

Page 1177

138 P.3d 1177

213 Ariz. 50

The STATE of Arizona, Appellee, v. Guillermo Camacho URQUIDEZ, Appellant.

No. 2 CA-CR 2004-0419.

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

January 31, 2006.

Terry Goddard, Arizona Attorney General By Randall M. Howe and Karla Hotis Delord, Phoenix, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Alex Heveri, Tucson, Attorneys for Appellant.

OPINION

ECKERSTROM, Judge.

¶ 1 Appellant Guillermo Urquidez was convicted after a jury trial of one count of aggravated assault with a deadly weapon and one count of possession of a deadly weapon as a prohibited possessor. He was sentenced to the substantially aggravated term of twenty-five years for the aggravated assault and to a consecutive, presumptive term of ten years for the prohibited possession. Urquidez argues that his indictment was duplicitous and that the trial court inadequately instructed the jury during the aggravation phase of his trial and erroneously imposed consecutive sentences. We affirm.

¶ 2 We view the evidence in the light most favorable to sustaining the conviction. State v. Mada, 168 Ariz. 289, 289, 812 P.2d 1107, 1107 (App.1991). Urquidez was dating M. in early 2004. M.'s father, G., was at her house one morning, fixing the back door, when he heard an argument between Urquidez and M. When G. attempted to intervene, Urquidez pulled a gun from his jacket; said, "I am going to kill you, fucker"; and then pointed the weapon at G.'s face. M. shoved Urquidez, who lost his balance for a moment, allowing G. to run into the house. A few moments later, G. heard a gunshot outside. M. told an officer who responded to the scene that Urquidez had shot at her father's vehicle.

¶ 3 At trial, Urquidez stipulated that he had previously been convicted of a felony and that his civil rights had not been restored. After the jury reached its verdicts, the court held a second phase of the trial for the jury to consider evidence of aggravating factors for sentencing purposes.

Duplicitous Indictment

¶ 4 Urquidez argues that the charges against him were duplicitous. At the outset, we note Urquidez did not raise this objection before the trial court and therefore waived any claim of error based on it. As to most claims of error, we would nonetheless grant relief to the defendant if we were convinced that the error was both fundamental and prejudicial. See State v. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d 601, 607 (2005); see also State v. Martinez, 210 Ariz. 578, n. 2, 115 P.3d 618, 620 n. 2 (2005) ("Defendants who fail to object to error at trial do not, strictly speaking, `waive' their claims. Rather, defendants who fail to object to an error below forfeit the right to obtain appellate relief unless they prove that fundamental error occurred."). However, our supreme court has recently used terminology suggesting, but not expressly concluding, that unpreserved claims of error concerning a defect in the charging document might not be subject to review of any kind. See State v. Anderson, 210 Ariz. 327, ¶¶ 13-20, 111 P.3d 369, 377-79 (2005) (noting strategic advantage to defendants in withholding such arguments until appeal; referring to such a claim, if not properly preserved, as "precluded" and "waived"; and making no mention of fundamental error review in that context).

¶ 5 However, we need not determine whether Urquidez would be entitled to relief if we determined the error was fundamental because we conclude the trial court committed no error of any kind in proceeding with Urquidez's trial on the two offenses separately charged. "An indictment is duplicitous if it charges more than one crime in the same count." Anderson, 210 Ariz. 327, ¶ 13, 111 P.3d at 377. "Duplicitous indictments are prohibited because they fail to give adequate notice of the charge to be defended, present the potential of a non-unanimous jury verdict, and make a precise pleading of prior jeopardy impossible in the event of a later prosecution." Id. Here, the indictment charged prohibited possession and aggravated assault in two separate counts and thus, on its face, was not duplicitous.

Consecutive Sentences

¶ 6 Urquidez contends the trial court erred by ordering consecutive sentences on offenses that arose from a single incident. We review de novo a trial court's decision to impose consecutive sentences in accordance with A.R.S. § 13-116. See State v. Siddle, 202 Ariz. 512, ¶ 16, 47 P.3d 1150, 1155 (App. 2002). Under § 13-116, a trial court may not impose consecutive sentences for the same act. The test set forth in State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1989), is "used to determine whether defendant's conduct `constitutes a single act, which requires concurrent sentences, or multiple acts, which permit consecutive sentences.'" State v. Styers, 177 Ariz. 104, 113, 865 P.2d 765, 774 (1993), quoting Gordon, 161 Ariz. at 312, 778 P.2d at 1208.

¶ 7 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." Gordon, 161 Ariz. at 315, 778 P.2d at 1211. Then, we "subtract[] from the factual transaction the evidence necessary to convict on the ultimate charge." Id. If the remaining evidence satisfies the elements of the secondary crime, the crimes may constitute multiple acts and consecutive sentences would be permissible. Id. We also consider whether "it was factually impossible to commit the ultimate crime without also committing the secondary crime." Id. 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." Id.

¶ 8 Here, the ultimate and more serious crime is aggravated assault with a deadly weapon, and the secondary crime is prohibited possession. See A.R.S. § 13-1204(A)(2), (B) (aggravated assault with deadly weapon is class three felony); A.R.S. § 13-3102(A)(4), (J) (possessing weapon as prohibited possessor is class four felony). If we subtract the evidence necessary to convict Urquidez for the aggravated assault—his pointing a gun at and threatening to kill G.— the remaining evidence is that Urquidez was a convicted felon whose civil rights had not been restored, that he already possessed a gun before this altercation occurred, and that he shot a gun at G.'s vehicle before driving away. This remaining evidence is sufficient to convict him of prohibited possession. See A.R.S. § 13-3101(A)(6)(b) (prohibited possessor one "[w]ho has been convicted . . . of a felony . . . and whose civil right to possess or carry a gun or firearm has not been restored"); § 13-3102(A)(4) (possession of deadly weapon by prohibited possessor constitutes weapons misconduct).

¶ 9 On the other hand, when we consider the transaction as a whole under the next factor of the Gordon test, we conclude it would have been impossible for Urquidez, as a convicted felon, to commit the aggravated assault with a deadly weapon without also committing the crime of prohibited possession of a deadly weapon. Accordingly, we must consider the final factor under Gordon, whether G. was exposed to an additional risk of harm from the secondary crime of prohibited possession.

¶ 10 In State v. Carreon, 210 Ariz. 54, ¶ 109, 107 P.3d 900, 921 (2005), our supreme court held that consecutive sentences were not permissible for prohibited possession and attempted murder under circumstances when the defendant's prohibited possession of a firearm did not expose the victim to "a risk that exceeded that inherent in the attempt on [the victim's] life." But in that case, the defendant did not use the gun against the victim a second time after the sequence of events that constituted the attempted murder. 210 Ariz. 54, ¶¶ 11-12, 107 P.3d at 906. Here, by contrast, Urquidez shot at G.'s vehicle after the assault on G. had been completed. We conclude that Urquidez's continued prohibited possession of a deadly weapon after G. ran into the house thus exposed G. to an additional risk beyond that inherent in being threatened at gunpoint. Because two of the three Gordon factors weigh in favor of viewing the two crimes as multiple acts, we hold the trial court was not required to impose concurrent sentences under § 13-116. It therefore did not err in imposing consecutive sentences because the two offenses were discrete and created separate risks of harm to the victim under the particular facts of this case.

¶ 11 In a related argument, Urquidez maintains the trial court violated his right to have a jury determine whether the two offenses arose from separate acts. We review de novo sentencing issues that involve statutory interpretation and constitutional law. See State v. Bomar, 199 Ariz. 472, ¶ 5, 19 P.3d 613, 616 (App.2001). "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000). In Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), the Court clarified that "the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."

¶ 12 Under Arizona law, sentences for multiple counts must be imposed consecutively in the absence of any additional fact-finding by the court. A.R.S. § 13-708 ("[I]f multiple sentences of imprisonment are imposed on a person at the same time . . . [the] sentences imposed by the court shall run consecutively unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence."); State v. Garza, 192 Ariz. 171, ¶ 12, 962 P.2d 898, 901-02 (1998) (...