Opinion
No. 2 CA-CR 2017-0081
04-12-2018
THE STATE OF ARIZONA, Appellee, v. JAVIER RUBEN CORDOVA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee James L. Fullin, Pima County Legal Defender By Stephan J. McCaffery, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20144483002
The Honorable Sean E. Brearcliffe, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee James L. Fullin, Pima County Legal Defender
By Stephan J. McCaffery, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 After a jury trial, Javier Cordova was convicted of burglary, three counts of aggravated assault with a deadly weapon or dangerous instrument, one count of aggravated assault resulting in temporary, substantial disfigurement, two counts each of attempted armed robbery and attempted aggravated robbery, and one count of impersonating a peace officer. The trial court sentenced him to a combination of concurrent and consecutive terms of imprisonment totaling 28.5 years. On appeal, he argues the court committed fundamental error by imposing consecutive terms for two aggravated assaults committed against the same victim and by ordering sentences for aggravated assaults to be served consecutively to sentences for attempted armed robberies committed against the same two victims. We affirm.
Factual and Procedural Background
¶2 Cordova's convictions arise from a home invasion and attempted robbery he committed with two associates, Alberto Herrera Jr. and Jennifer Ortiz. We view the evidence in the light most favorable to sustaining Cordova's convictions. See State v. Granados, 235 Ariz. 321, ¶ 2 (App. 2014).
¶3 Late at night in October 2014, Cordova, Herrera, and Ortiz arrived at the home of C.H. and his wife D.H., having agreed on a plan to rob the couple, and knowing Herrera was armed with a collapsible baton. Herrera and Ortiz, who were wearing badges, rang the bell, identified themselves as police officers, and told the couple that their relative had been in a serious car accident, while Cordova paced nearby.
¶4 After the couple admitted Herrera and Ortiz into the house, Herrera drew the baton and started hitting C.H. repeatedly on the head. Herrera then dropped the baton and hit C.H. with his fists while Ortiz picked up the baton and began struggling with D.H. C.H.'s son-in-law T.A. emerged from a bedroom and came to C.H.'s assistance, placing Herrera in a chokehold. Cordova then entered the house and began hitting C.H. with the baton. Cordova and Ortiz eventually ran out the front door, while C.H., D.H., and T.A. held Herrera until sheriff's deputies arrived. C.H. and T.A. both had multiple injuries, including gashes that required stitches, and D.H. had a crushed knee. The state charged Cordova, Herrera, and Ortiz in a single indictment, naming each of them in the nine counts of burglary, aggravated assault, and attempted robbery alleged.
¶5 The jury convicted Cordova on all counts. At sentencing, the trial court imposed concurrent sentences for the aggravated assaults that were based on use of a deadly weapon or dangerous instrument, with those sentences to run consecutively to concurrent sentences imposed for the burglary and all attempted robbery convictions. The court ordered the sentence for the remaining aggravated assault, based on causing temporary but substantial disfigurement, to be served consecutively to those eight counts, and the sentence for impersonation of a peace officer to be consecutive to all others. This appeal followed.
Discussion
¶6 As the sole issue raised on appeal, Cordova argues certain consecutive sentences imposed by the trial court violated A.R.S. § 13-116, which 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." According to Cordova, the aggravated assaults and attempted armed robbery of C.H. constituted a "single act" that required concurrent sentencing. He makes the same argument with respect to his sentences for the aggravated assault and attempted armed robbery of D.H. In addition, he contends the court erred in ordering his sentence for aggravated assault, based on causing C.H. temporary but substantial disfigurement, A.R.S. § 13-1204(A)(3), to be consecutive to his sentence for aggravated assault of C.H. with a deadly weapon or dangerous instrument, § 13-1204(A)(2), asserting both convictions were based on the same conduct.
¶7 We review de novo whether consecutive sentences are permissible under § 13-116. State v. Urquidez, 213 Ariz. 50, ¶ 6 (App. 2006). Because Cordova failed to object below, we review his claims only for fundamental, prejudicial error, State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005), recognizing that an illegal sentence constitutes fundamental error, State v. Pesqueira, 235 Ariz. 470, ¶ 29 (App. 2014).
¶8 As we explained in Urquidez, to determine whether multiple charges are based on a single act, we rely on the following test set forth in State v. Gordon, 161 Ariz. 308 (1989):
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."Urquidez, 213 Ariz. 50, ¶ 7, quoting Gordon, 161 Ariz. at 315 (citations omitted; alteration in Uriquidez).
Aggravated Assault Sentence Consecutive to Attempted Armed Robbery (C.H. and D.H.)
¶9 As between the attempted armed robbery and the aggravated assaults against C.H., Cordova maintains "[t]he attempted armed robbery was the ultimate offense; the goal was to take [C.H.]'s money through force with the baton." Relying on State v. Price, 218 Ariz. 311 (App. 2008), he then argues "[t]he facts needed to support the conviction on Count 5 for the attempted armed robbery, inclusive of the dangerous nature allegation, were that [Cordova] and his accomplices used force against [C.H.] to take property, thereby assaulting him with the baton," and "[t]hese same facts form the basis for the conviction for aggravated assault [against C.H.] in Count 2."
¶10 In Price, this court emphasized that "our analysis under § 13-116 focuses on the 'facts of the transaction' to determine if the defendant committed a single act." Id. ¶ 14, quoting State v. Siddle, 202 Ariz. 512, ¶ 17 (App. 2002). In that case, the defendant was convicted of armed robbery, aggravated assault (using a deadly weapon), and aggravated robbery against the same victim. Id. ¶ 2; see § 13-1204(A)(2). The conviction was based on evidence that Price had demanded money from a victim, first exhibiting "a gun that was tucked in his waist area" and then drawing the gun, and that the victim gave him money from his pockets in response. Price, 218 Ariz. 311, ¶ 2. There was no evidence Price had caused any physical injury to the victim, see A.R.S. § 13-1203(A)(1), or even that he had touched the victim with the intent to insult or injure, see § 13-1203(A)(3). See Price, 218 Ariz. 311, ¶ 2. Accordingly, the only basis for his conviction, for "commit[ing] assault as prescribed by § 13-1203 . . . us[ing] a deadly weapon or dangerous instrument," § 13-1204(A)(2), was that he "[i]ntentionally plac[ed] another person in reasonable apprehension of imminent physical injury," § 13-1203(A)(2). See Price, 218 Ariz. 311, ¶ 16.
¶11 Applying the Gordon analysis, and viewing the armed robbery as the ultimate crime, we identified, as the facts required to convict Price on that charge, that, "armed with a gun, [he] threatened force against the victim, demanded money, and in fact received the money." Id. ¶¶ 15-16, citing A.R.S. §§ 13-1902(A), 13-1904(A). We wrote, "Subtracting that evidence from the factual transaction, the record contains no evidence of a deadly weapon or an act that could have placed the victim in 'reasonable apprehension of imminent physical injury,' both of which were required to convict Price of aggravated assault in this case." Id. ¶ 16. Finding no additional risk of harm from an aggravated assault that was based on the same conduct as the armed robbery, we concluded the third Gordon factor also supported our determination that consecutive sentences would have been impermissible. Id. ¶¶ 17, 20.
The second factor—whether it would have been factually impossible for Price to commit one offense without committing the other—was not argued by the parties, and so was not addressed. Price, 218 Ariz. 311, ¶¶ 14, 20 & n.5.
¶12 As the state points out, Price is distinguishable for two reasons. First, unlike Price's victim, there was evidence that C.H. and D.H. were both touched and actually injured; the evidence was not limited, as it was in Price, to a threat of force that was necessarily the basis of proving both armed robbery and the reasonable apprehension of imminent injury, as required to support a conviction for aggravated assault. See id. ¶ 16. Subtracting such a threat of force would still leave evidence of the injury or touching required to prove an assault under § 13-1203(A)(1) or (3).
¶13 The second, and more important, distinction is that, unlike Price, who was convicted of a completed armed robbery, Price, 218 Ariz. 311, ¶ 2, Cordova was convicted of attempted armed robbery. Cordova correctly designates the attempted armed robbery as the ultimate crime, because robbing the victims was "[t]he object of the episode." State v. Alexander, 175 Ariz. 535, 537 (App. 1993) (aggravated assault was "simply ancillary" to purpose of robbing victim). But, as the jury was instructed, a conviction for attempt required proof that Cordova had "intentionally committed any act that was a step in a course of conduct that [he] planned or believed would end in the commission of the crime," see A.R.S. § 13-1001(A)(2), in this case, the crime of armed robbery. And the offense of armed robbery, had it been completed, would have required proof that the defendants used or threatened to use a deadly weapon or dangerous instrument to take any property of another from his person or his immediate presence. §§ 13-1902(A), 13-1904(A)(2).
¶14 We agree with the state that the attempted armed robbery was complete by the time Herrera, Ortiz, and Cordova arrived at C.H.'s home, knowing Herrera was armed with a baton and having travelled there with the intent to rob the residents. See State v. LaGrand, 138 Ariz. 275, 280 (App. 1983) (entering store with intent to rob, coupled with gun found in car, sufficient evidence of attempted armed robbery); cf. State v. May, 137 Ariz. 183, 186-87 (App. 1983) (evidence defendant went to victim's home armed with pistol and waited in victim's shed sufficient to establish attempted aggravated assault with deadly weapon). Subtracting from the evidence of all charges that "step in a course of conduct," § 13-1001(A)(2), expected to result in a robbery, evidence remained that Herrera beat C.H. with a baton, brandishing it near D.H., and that, after Herrera was restrained, Cordova brandished the baton and beat C.H. with it. That remaining evidence was sufficient to support the charges of aggravated assault with a deadly weapon or dangerous instrument as to both C.H. and D.H. See §§ 13-1203, 13-1204(A)(2); see also A.R.S. §§ 13-301, 13-303(A)(3) (criminal accountability of accomplice).
¶15 The second and third steps of the Gordon analysis lead to the same conclusion. Because the attempted armed robbery was complete before any assault on C.H. or D.H., it was not impossible to commit the attempted armed robbery without also committing the aggravated assaults. See Gordon, 161 Ariz. at 315; cf. State v. Cruz, 127 Ariz. 33, 36 (1980) (consecutive sentences permitted where offense of possession of dangerous instrument by prisoner completed before commission of prisoner assault with dangerous instrument). We have no difficulty concluding, under the third step of the Gordon analysis, that the aggravated assaults with the baton exposed C.H. and D.H. to a risk of harm greater than that inherent in the attempted armed robbery. See Gordon, 161 Ariz. at 315. As addressed above, the conviction for attempted armed robbery did not require evidence that Cordova or his associates used the weapon or even brandished it. And that conduct clearly exposed C.H. and D.H. to an increased risk of harm. We agree with the state that the attempted armed robberies and the aggravated assaults with a deadly weapon or dangerous instrument were based on separate acts, and thus could be punished separately, by the imposition of consecutive sentences.
Aggravated Assault Causing Temporary but Substantial Disfigurement
¶16 Cordova also maintains the trial court erred in imposing consecutive sentences for the offenses of aggravated assault using a deadly weapon or dangerous instrument and aggravated assault resulting in temporary but substantial disfigurement. He argues the "injuries result[ed] from being hit with the baton" and, therefore, "[t]he two offenses clearly arose from the same conduct." We disagree.
¶17 Beginning the Gordon analysis again, we regard the aggravated assault with a deadly weapon or dangerous instrument as the more serious, and therefore ultimate crime. See § 13-1204(A)(2), (3), (E) (classifying aggravated assault with deadly weapon as class three felony and aggravated assault causing temporary but substantial disfigurement as class four felony). As the state suggests, "[s]ubtracting the facts of Herrera's beating C.H. with the baton, there remains sufficient facts to support the additional aggravated assault because [Cordova] also beat C.H. with the baton." Considering the second step of the test, the offense of aggravated assault with a deadly weapon would not be rendered impossible had there not been an assault resulting in disfigurement; there simply were two separate assaults, by different men, independent of each other. And, finally, C.H. was indeed exposed to additional harm when, after Herrera had been restrained, Cordova began beating him a second time with the baton, satisfying the third step of the Gordon analysis.
The jury was instructed on accomplice liability, and, consistent with Arizona law, the state argued they could find Cordova liable for "not just his own conduct," but for Herrera's as well. See §§ 13-301, 13-303(A)(3). --------
Disposition
¶18 We find no error in the trial court's order that sentences for the aggravated assaults with a deadly weapon be served consecutively to those for the attempted armed robberies, and that the sentence for aggravated assault causing disfigurement be served consecutively to the other aggravated assaults. Accordingly, Cordova's convictions and sentences are affirmed.