Opinion
No. 1 CA-CR 13-0854
12-02-2014
STATE OF ARIZONA, Appellee, v. MICHAEL EDWIN DOBSON, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee Mohave County Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Mohave County
No. S8015CR201101052
The Honorable Steven F. Conn, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Donn Kessler joined. CATTANI, Judge:
¶1 Michael Edwin Dobson, Jr., appeals the sentences imposed for his second degree murder and theft of means of transportation convictions. Dobson argues the superior court erred by using his 2002 California conviction to enhance one of the sentences and as a basis for imposing aggravated sentences for both convictions. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Dobson was charged with first degree murder and theft of means of transportation for acts committed in mid-September 2011. The State alleged several aggravating factors, including that the victim was at least 65 years old and that Dobson had been convicted of a felony within ten years preceding the offense. The State also filed an allegation of three prior convictions, all from California: (1) attempted voluntary manslaughter, forcible oral copulation, and forcible rape committed in 1984; (2) second degree burglary committed in January 1999; and (3) possession of methamphetamine committed in February 2002.
¶3 After a three-day trial, a jury found Dobson guilty of theft of means as charged and of the lesser-included offense of second degree murder. The jury also found as an aggravating factor that the victim was over 65 years old. At a pre-sentencing hearing on priors, the State presented fingerprint evidence that Dobson had been convicted of each of the three alleged California priors. Based on the documentation of the California convictions, however, the court concluded only that the 1999 burglary and the 2002 methamphetamine possession offenses (but not the 1984 offenses) would have been felonies if committed in Arizona. The court further found that neither felony was a "historical prior felony conviction" under Arizona Revised Statutes ("A.R.S.") § 13-105(22).
Absent material revisions after the relevant date, we cite a statute's current version. We note that, after the date of Dobson's offenses, the Legislature amended the definition of historical prior felony convictions under § 13-150(22) to include offenses from other jurisdictions "that [were] punishable by that jurisdiction as a felony." See 2012 Ariz. Sess. Laws ch. 190, § 1 (adding subsections (e) and (f) defining foreign convictions that qualify as historical prior felony convictions). Because the superior court determined Dobson's California priors were "non-historical," however, this amendment is immaterial to our decision.
¶4 The superior court imposed an enhanced sentence for Dobson's theft of means conviction, finding Dobson to be a category two repetitive offender based on the two prior felony convictions from California. The court also aggravated both of Dobson's sentences based on two factors: the age of the victim and Dobson's prior felony conviction (the 2002 California possession of methamphetamine conviction) within ten years preceding the present offense. The court ordered the resulting sentences—22 years for second degree murder and 13 years for theft of means—to be served consecutively.
¶5 Dobson timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033.
DISCUSSION
¶6 Dobson argues the superior court erred by determining that his 2002 California conviction of methamphetamine possession may be treated as a prior felony conviction under Arizona law and, therefore, by using that prior conviction to enhance the theft of means sentence and to aggravate both sentences. Dobson argues that, unlike the Arizona offense of possession of dangerous drugs under A.R.S. § 13-3407(A)(1), the California crime of possession of methamphetamine does not require proof that the defendant knowingly possessed the drug. We review de novo the determination that an out-of-jurisdiction conviction may be treated as a prior felony conviction under Arizona law. State v. Smith, 219 Ariz. 132, 134, ¶ 10, 194 P.3d 399, 401 (2008). Because Dobson did not object on this basis before the superior court, we review for fundamental, prejudicial error. See id. at 136, ¶ 22, 194 P.3d at 403; State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005).
¶7 An individual may be sentenced to an enhanced term of imprisonment as a category two repetitive offender if he has been "convicted of three or more felony offenses that were not committed on the same occasion but . . . are not historical prior felony convictions." A.R.S. § 13-703(B)(1). For these purposes, an out-of-jurisdiction offense may be considered as a prior felony in Arizona if it would be punishable as a felony "under the laws, regulations or ordinances of this state . . . if the act had occurred in this state." A.R.S. § 13-105(27); see also A.R.S. § 13-105(18) (defining "felony"). Similarly, a defendant's prior felony conviction within ten years of the present offense may be considered an aggravating circumstance, and the statute expressly applies to an out-of-jurisdiction conviction "for an offense that if committed in this state would be punishable as a felony." A.R.S. § 13-701(D)(11).
¶8 Accordingly, an out-of-jurisdiction conviction may be considered as a prior felony conviction or as an aggravating factor if it "includes every element that would be required to prove an enumerated Arizona offense." State v. Crawford, 214 Ariz. 129, 131, ¶ 7, 149 P.3d 753, 755 (2007) (citation omitted). This assessment focuses solely on the elements of the foreign offense as defined by statute and relevant case law, not on the factual circumstances underlying the foreign charges. Id. at 132, ¶ 9, 149 P.3d at 756; State v. Inzunza, 234 Ariz. 78, 85, ¶ 25, 316 P.3d 1266, 1273 (App. 2014).
Crawford addressed the use of out-of-jurisdiction convictions as historical prior felony convictions. See 214 Ariz. at 131, ¶ 7, 149 P.3d at 755 (addressing sentencing enhancement under A.R.S. § 13-604 (2007) based on historical prior felony convictions). Although governed by different statutes, the substance of the provisions on use of foreign convictions as "non-historical" priors or as an aggravating factor (allowing use if the offense would be a felony in Arizona) is analogous to the provision formerly governing use of a foreign conviction as a historical prior. See A.R.S. § 13-604(N) (2007) (stating repetitive offender sentencing provisions applicable to an out-of-jurisdiction conviction "which if committed within this state would be punishable as a felony"); A.R.S. § 13-703(M) (2011) ("For the purposes of [the historical prior felony conviction sentencing provisions], a person who has been convicted in any court outside the jurisdiction of this state of an offense that if committed in this state would be punishable as a felony is subject to this section."). We therefore apply the Crawford test in reviewing the superior court's assessment of Dobson's 2002 California conviction as a "non-historical" prior and as an aggravating factor.
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¶9 Here, Dobson pleaded guilty to "possession [of] a controlled substance, to wit: methamphetamine" in violation of California Health and Safety Code § 11377(a). Although the statute does not specify a mental state, California case law establishes that "[t]he essential elements of possession of a controlled substance are dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character." People v. Morales, 18 P.3d 11, 15 (Cal. 2001) (citation omitted). Arizona's analogous offense of possession of dangerous drugs criminalizes knowingly possessing a dangerous drug, including methamphetamine, and designates the offense a class 4 felony. A.R.S. §§ 13-3407(A)(1), (B)(1), -3401(6)(c)(xxxviii). This requires proof that the defendant knowingly possessed (including exercising dominion or control over) a dangerous drug, knowing the substance was a dangerous drug. State v. Cheramie, 218 Ariz. 447, 449, ¶¶ 10-11, 189 P.3d 374, 376 (2008); see also State v. Norris, 221 Ariz. 158, 161, ¶¶ 8-9, 211 P.3d 36, 39 (App. 2009) (construing the "knowing" requirement applicable to each element of the analogous marijuana-related offense under A.R.S. § 13-3405).
¶10 By pleading guilty to the California offense, Dobson necessarily admitted to exercising dominion and control over a usable quantity of methamphetamine, knowing the methamphetamine was present and knowing it was a restricted dangerous drug. Dobson's California conviction thus includes each element of the Arizona offense: knowing possession of methamphetamine, knowing the substance to be methamphetamine. Accordingly, the superior court did not err by determining that the 2002 California conviction could be considered as a prior felony conviction for enhancement of the theft of means sentence under § 13-703(B)(1) and for aggravation of both sentences under § 13-701(D)(11).
CONCLUSION
¶11 For the foregoing reasons, we affirm.