Opinion
No. 1 CA-CR 13-0783
02-12-2015
STATE OF ARIZONA, Appellee, v. ROBERTO LIZARDI, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Frances J. Gray Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2007-150761-001
The Honorable Jo Lynn Gentry, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge Kenton D. Jones and Judge Michael J. Brown joined. SWANN, Judge:
¶1 Roberto Lizardi, Jr., appeals his convictions and sentences for armed robbery, aggravated assault, and theft of means of transportation. A.R.S. § 13-116 provides that when a person commits multiple crimes constituting a single act, the sentences for those crimes must be served concurrently. Lizardi contends that the trial court erred when it ordered that his sentences be served consecutively rather than concurrently. We hold that the trial court properly sentenced Lizardi to consecutive prison terms for armed robbery and theft of means of transportation. However, because we conclude that the armed robbery and aggravated assault constituted "an act" within the meaning of A.R.S. § 13-116, we hold that the trial court erred when it ordered that these sentences be served consecutively. Therefore, we vacate Lizardi's sentence for aggravated assault and remand for resentencing consistent with this decision.
Lizardi also argues that the trial court violated his Sixth Amendment right to have a jury make the factual determinations governing whether his sentences should be served consecutively. However, in Oregon v. Ice, the United States Supreme Court unequivocally held that the Sixth Amendment does not inhibit a state's ability to assign to judges rather than juries the finding of facts necessary to impose consecutive sentences for multiple offenses. 555 U.S. 160, 163 (2009). We reject Lizardi's argument.
FACTS AND PROCEDURAL HISTORY
¶2 The victim, a cab driver, was stopped at a red light when Lizardi opened the cab's rear door and sat in the backseat. Lizardi then directed the victim to drive to an apartment complex. The victim drove to the complex, stopped in the parking lot, turned the meter off, and turned on the interior car light to wait for payment. The victim noticed that Lizardi was taking longer than usual to pay, and when he turned around to see what Lizardi was doing, Lizardi put a knife to his abdomen. The victim testified that he struggled with Lizardi for control of the knife and was injured. Then Lizardi began screaming "give me the money." After the initial struggle, Lizardi held the victim by the mouth and put the knife to the victim's head. Eventually, the victim gave Lizardi the money he had in his pocket.
¶3 The victim testified that after he gave Lizardi his money, Lizardi ordered him to get out of the car. The car was still in the "drive" gear, so the victim jumped out of the moving car and Lizardi climbed into the driver's seat. According to the victim, once Lizardi took control of the car, he tried to run over the victim and then drove away. The victim called the police and Lizardi was later apprehended with the car in his possession.
¶4 The jury found Lizardi guilty of armed robbery, aggravated assault, and theft of means of transportation. The court sentenced Lizardi to presumptive prison terms of 10.5 years for armed robbery and 7.5 years for aggravated assault, as well as a 3 year term of probation for theft of means of transportation -- all to be served consecutively. Lizardi timely appeals.
Lizardi was also convicted of one count of resisting arrest; however, the court "terminally disposed" of this conviction.
DISCUSSION
¶5 A.R.S. § 13-116 provides that "[a]n 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 the sentences be other than concurrent." Lizardi contends that the court erred when it sentenced him to consecutive prison terms because his conduct constituted "an act" within the meaning of this statute. "We review de novo whether a superior court has complied with A.R.S. § 13-116 in imposing consecutive sentences." State v. Cotten, 228 Ariz. 105, 108, ¶ 8, 263 P.3d 654, 657 (App. 2011).
¶6 The Arizona Supreme Court has defined a three-part test to determine whether a defendant's conduct constitutes "an act" under A.R.S. § 13-116. First, we must discern the "ultimate crime," meaning the crime that is at the essence of the factual nexus, often the most serious of the charges. State v. Forde, 233 Ariz. 543, 574, ¶ 138, 315 P.3d 1200, 1231 (2014). Then we must subtract from the factual transaction the evidence necessary to convict the defendant of the ultimate crime. "If the remaining evidence satisfies the elements of the other crime, then consecutive sentences may be permissible . . . ." State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989). Second, we will consider "whether, given the entire 'transaction,' it was factually impossible to commit the ultimate crime without also committing the secondary crime. If so, then the likelihood will increase that the defendant committed a single act . . . ." Id. Finally, we consider "whether the defendant's conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime." Id. If so, then ordinarily we will find that the defendant committed multiple acts. Id. I. ELIMINATION OF THE ELEMENTS
¶7 Here, the parties agree that the "ultimate crime" was armed robbery. A person commits armed robbery if, in the course of taking property from another person against his will, such person threatens or uses force against the victim, with intent to coerce surrender of property or to prevent resistance, and such a person is armed with a deadly weapon or threatens to use a deadly weapon. A.R.S. §§ 13-1902, -1904. Now we must subtract from the entire transaction between Lizardi and the victim the evidence necessary to convict Lizardi of armed robbery and determine whether the remaining evidence satisfies the elements of aggravated assault and theft of means of transportation.
A. Aggravated Assault
¶8 A person commits aggravated assault by intentionally, knowingly or recklessly causing any physical injury to another person, or intentionally placing another person in reasonable apprehension of imminent physical injury, using a deadly weapon. A.R.S. §§ 13-1203, -1204. The state argues that because Lizardi put a knife to the victim's abdomen before he demanded any money, this act constituted an entirely separate crime -- aggravated assault -- rather than a component of the armed robbery. We disagree. Whatever seconds may have passed between the positioning of the knife and the demand for money, the two acts were part of the same conduct. And after subtracting the evidence necessary to convict Lizardi of armed robbery, the remaining evidence does not satisfy the elements of aggravated assault.
¶9 In State v. Jorgenson, the victim opened his front door to his assailants and was immediately hit on the head with a tire iron. 108 Ariz. 476, 477, 502 P.2d 158, 159 (1972). The victim fell to the floor and when he attempted to get up, was hit again. Id. The assailants began looking around the victim's apartment, presumably to rob him, but made no demands. Id. The victim tried to escape at this point, but was dragged back to the apartment and was bound, gagged and blindfolded. Id. Then his assailants robbed him of $4.00 and a television set. Id. The court found that "the force used was that force necessary to subdue the victim to commit the robbery" and "the elements of assault were those same elements included in the crime of robbery." Id.
¶10 And in State v. Howes, the court found that "the element of fear necessary for the robbery conviction was the act of holding a gun on [the victim]. The same act was also a necessary element of assault with a deadly weapon. As a result . . . the facts will not support [consecutive sentences for] both robbery and assault with a deadly weapon." 109 Ariz. 255, 257, 508 P.2d 331, 333 (1973).
Howes dealt with the previous version of A.R.S. § 13-116, which barred convictions of both the ultimate crime and the lesser crime if the lesser crime did not pass the "elimination of the elements test." Now, we allow a person to be convicted of both crimes, but the punishment is effectively reduced to punishment for only the ultimate crime.
¶11 Here, the facts necessary to convict Lizardi of armed robbery are that he, armed with a knife, threatened and used force against the victim, demanded his money, and received the money through the use of that force. Subtracting that evidence from the transaction, the record does not support the state's argument that the initial assault separately placed the victim in "reasonable apprehension of imminent physical injury." Although Lizardi initially used force against the victim, just as in Jorgenson, the force used was part of the force necessary to subdue the victim and commit the robbery. Put another way, when Lizardi threatened and used force against the victim, intending to coerce the surrender of his property, Lizardi also assaulted the victim, meaning that the same act was necessary to both crimes. As a result, the facts will not support consecutive sentences for armed robbery and aggravated assault.
B. Theft of Means of Transportation
¶12 A person commits theft of means of transportation if, without lawful authority, the person knowingly controls another person's means of transportation with the intent to permanently deprive him of it. A.R.S. § 13-1814(A). After subtracting the evidence necessary for the armed robbery, the evidence needed to convict Lizardi of theft of means of transportation remains. After Lizardi demanded and received the victim's money through the use of force, the armed robbery was complete. Lizardi then took control of the victim's vehicle and drove away with it, intending to permanently deprive the victim of the vehicle. Therefore, these facts will support consecutive sentences for armed robbery and theft of means of transportation. II. FACTUAL IMPOSSIBILITY
¶13 Next, using a similar analysis, we must consider whether it was factually impossible for Lizardi to commit the ultimate crime of armed robbery without also committing aggravated assault or theft of means of transportation.
A. Aggravated Assault
¶14 In State v. Washington, the defendant walked into a gas station, grabbed an individual standing near the register around the neck, pointed a gun at the cashier, and then demanded money from the register. 132 Ariz. 429, 432, 646 P.2d 314, 317 (App. 1982). When the cashier hesitated, the defendant shot through the glass around the register, injuring the cashier, and ordered two other individuals to retrieve the money. Id. Only after the defendant received the money was the armed robbery complete. Id. The defendant then fled the scene on foot and fired a second shot. Id. We held that the first shot the defendant fired could not form the basis of assault because it was too intertwined with the elements of the armed robbery. Id. The second shot, however, "was an act by [defendant] separate and distinct from the armed robbery." Id.
¶15 This case is similar. Lizardi held a knife to the victim's abdomen and demanded his money. At this point, the armed robbery was not yet complete. When the victim tried to defend himself, Lizardi grabbed him by the mouth and held the knife to his head. Eventually the victim complied and gave Lizardi his money. Only when Lizardi finally received the money was the armed robbery finished. Unlike the second shot fired in Washington, it is not apparent that the assault the state refers to was an act separate and distinct from the armed robbery. Rather, the assault constituted part of the force necessary to subdue the victim and coerce the surrender of his property. Therefore, Lizardi could not have committed the armed robbery without also committing this assault.
B. Theft of Means of Transportation
¶16 But it was possible for Lizardi to commit the armed robbery without also committing theft of means of transportation. In Washington, it was possible for the defendant to complete the crime of armed robbery and then commit aggravated assault as he was fleeing the scene. Here, the armed robbery was complete once Lizardi received the victim's money. At that point, Lizardi could have exited the cab and fled the scene of the crime without committing theft of means of transportation. However, he committed a separate crime when he then forced the victim out of the car and drove away with it. III. ADDITIONAL RISK OF HARM
¶17 Finally, we consider whether Lizardi's conduct in committing aggravated assault or theft of means of transportation caused the victim to suffer an additional risk of harm beyond that inherent in the armed robbery.
A. Aggravated Assault
¶18 The state argues that Lizardi's assault caused an additional risk of harm to the victim because the victim was injured in the episode (when he began to struggle with Lizardi) before Lizardi demanded his money. We disagree. In Jorgenson, the victim was severely beaten and injured before his assailants robbed him. There, the court held that the injuries the victim suffered did not constitute an assault separate from the armed robbery because the force used in injuring the victim was the force necessary to commit the armed robbery. Here, the injuries that the victim sustained were part of the force necessary to subdue him and coerce him into complying with Lizardi's demands.
B. Theft of Means of Transportation
¶19 Finally, the state contends that the victim was subjected to an additional risk of harm when Lizardi stole his car, because after Lizardi gained control of the car, he tried to run over the victim before driving away. The armed robbery and the theft of means of transportation were two distinct acts, and we agree that the act of stealing the car subjected the victim to additional and distinct risk.
CONCLUSION
¶20 For the reasons set forth above, we affirm Lizardi's sentences for armed robbery and theft of means of transportation. We vacate his sentence for aggravated assault and remand for resentencing consistent with this decision.