Opinion
2 CA-CR 2012-0230
01-24-2013
THE STATE OF ARIZONA, Appellee, v. CARLOS ALBERTO CHAVEZ, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Amy Pignatella Cain Attorneys for Appellee The Law Office of Vanessa Moss By Vanessa C. Moss Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20112593001
Honorable Jose H. Robles, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Amy Pignatella Cain
Tucson
Attorneys for Appellee
The Law Office of Vanessa Moss
By Vanessa C. Moss
Tucson
Attorney for Appellant
HOWARD, Chief Judge. ¶1 Carlos Chavez appeals from his convictions of armed robbery, aggravated assault with a deadly weapon or dangerous instrument, three counts of aggravated robbery, and two counts of robbery. He argues several of the charged offenses were multiplicitous and the resulting convictions violated the constitutional prohibition against double jeopardy. We affirm in part and vacate in part. ¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In three separate incidents in July 2011, Chavez and other individuals robbed three different victims. In the second incident, the victim was stabbed in the stomach with a knife. As to the first victim, Chavez was charged with and convicted of aggravated robbery and robbery. As to the second victim, he was charged with and convicted of armed robbery, aggravated robbery, and aggravated assault with a deadly weapon or dangerous instrument. Finally, as to the third victim, Chavez was charged with and convicted of aggravated robbery and robbery. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 18.25 years' imprisonment. ¶3 Chavez argues on appeal that his indictment contained multiplicitous charges and several of his convictions therefore violated the constitutional prohibition against double jeopardy. He asserts that, as a result, he is entitled to have each of his convictions reversed because the presentation of the improper multiplicitous charges to the jury prejudiced him and was a "factor in [his] conviction[s]." ¶4 A charge is multiplicitous if it charges a single offense in multiple counts and a multiplicitous charge is improper because it "raise[s] the potential that a defendant may be subjected to double punishment." Merlina v. Jejna, 208 Ariz. 1, ¶ 12, 90 P.3d 202, 205 (App. 2004). Offenses are not multiplicitous "if each requires proof of a fact that the other does not." Id.; see also Blockburger v. United States, 284 U.S. 299, 304 (1932). Thus, a separate charge for a lesser-included offense is multiplicitous with the charge for the greater offense. See Brown v. Ohio, 432 U.S. 161, 166 n.6 (1977). A multiplicitous charge, however, does not violate double jeopardy unless the defendant is subjected to multiple punishments. Merlina, 208 Ariz. 1, ¶ 14, 90 P.3d at 205. ¶5 Chavez argues, without elaboration, that the aggravated robbery and aggravated assault charges related to the second victim were multiplicitous. First, we observe that to the extent Chavez suggests we should examine the underlying facts of his offenses rather than the elements of the crimes charged in determining whether double jeopardy applies, he is incorrect. See State v. Sanders, 205 Ariz. 208, ¶¶ 65-67, 68 P.3d 434, 448-49 (App. 2003), overruled on other grounds by State v. Freeney, 223 Ariz. 110, 219 P.3d 1039 (2009); State v. Cook, 185 Ariz. 358, 361, 916 P.2d 1074, 1077 (App. 1995). As long as the sentences imposed are concurrent, a defendant may be convicted of multiple crimes for the same conduct if the offenses are "punishable in different ways by different sections of the laws." A.R.S. § 13-116. ¶6 And we disagree with Chavez that aggravated robbery and aggravated assault are the same offense for the purposes of double jeopardy. Aggravated robbery requires proof the defendant committed the underlying crime of robbery with the aid of an accomplice. A.R.S. §§ 13-1902(A), 13-1903(A). Aggravated assault with a deadly weapon or dangerous instrument requires proof the defendant committed assault while using a deadly weapon or dangerous instrument. A.R.S. §§ 13-1203(A), 13-1204(A)(2). Aggravated robbery does not require the use of a deadly weapon or dangerous instrument and, unlike aggravated assault, requires proof the defendant or an accomplice took the property of another. §§ 13-1902(A), 13-1903(A). Thus, the aggravated robbery and aggravated assault charges related to the second victim are not multiplicitous, and Chavez's resulting convictions do not violate double jeopardy. ¶7 We agree with Chavez, and the state concedes, however, that the indictment was multiplicitous as to the first and third victims because robbery is a lesser-included offense of aggravated robbery. See § 13-1903(A); Brown, 432 U.S. at 166 n.6; State v. Gooch, 139 Ariz. 365, 366, 678 P.2d 946, 947 (1984) (crime lesser-included offense if necessarily constituent part of major offense). Thus, his convictions for robbery and aggravated robbery violate double jeopardy. See State v. Brown, 217 Ariz. 617, ¶ 13, 177 P.3d 878, 882 (App. 2008) ("[W]hen a defendant is convicted more than once for the same offense, his double jeopardy rights are violated even when . . . he receives concurrent sentences."). ¶8 Relying on State v. Schwartz, 14 Ariz. App. 531, 484 P.2d 1060 (1971), Chavez claims he therefore is entitled to have his convictions for aggravated robbery and robbery vacated. In Schwartz, we observed that "where the same totality of proof is relied upon by the state to support charges of three separate crimes, each of which has the same proof requirements, there might be some cumulative prejudicial effect in submitting all three charges to the jury." Id. at 534, 484 P.2d at 1063. But we made clear in Merlina that this theoretical prejudice does not apply when the charges "neither contain identical elements nor involve identical proof" and thus does not apply when a greater and lesser charge are presented to the jury. 208 Ariz. 1, ¶¶ 16-17, 90 P.3d at 205-06. Instead, "[b]oth charges may be submitted to the jury to decide whether the facts 'support[ ] the lesser charge only, or also the greater charge.'" Id. ¶ 17, quoting Schwartz, 14 Ariz. App. at 534, 484 P.2d at 1063 (second alteration in Merlina). The proper relief in these circumstances is for us to vacate Chavez's convictions for the lesser offenses—his two robbery convictions. See State v. Jones, 185 Ariz. 403, 407-08, 916 P.2d 1119, 1123-24 (App. 1995) (when defendant convicted of both greater and lesser-included offense based on same conduct, lesser-included offense conviction will be vacated). ¶9 For the reasons stated, we vacate Chavez's robbery convictions and the sentences imposed for those convictions. His remaining convictions and sentences are affirmed.
The trial court ordered that Chavez's sentences for the convictions related to the first and third victims be concurrent with each other but consecutive to the concurrent sentences for his convictions related to the second victim.
On the first day of trial, Chavez moved to dismiss the two robbery counts and the aggravated assault count on the basis that they were lesser-included offenses of other offenses charged. The trial court denied the motion without prejudice, stating Chavez could raise the argument again if he found "a case that specifically addresses this particular situation." Chavez did not raise the claim again. But, even assuming, without deciding, that Chavez has forfeited this claim on review, a conviction in violation of double jeopardy may constitute fundamental error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (objection not preserved at trial forfeited absent fundamental, prejudicial error); State v. Siddle, 202 Ariz. 512, n.2, 47 P.3d 1150, 1153 n.2 (App. 2002) (double jeopardy violation fundamental error).
Chavez does not describe the elements of the relevant offenses, cite the pertinent statutory provisions, or explain in any meaningful way his contention that the various charges were multiplicitous; he instead merely assures this court that there is "no disputing the multiplicitous nature" of the charges. His failure to develop these arguments meaningfully would justify our summary refusal to consider them. See State v. Burdick, 211 Ariz. 583, n.4, 125 P.3d 1039, 1042 n.4 (App. 2005). However, because Chavez's argument as to the charges related to the second victim clearly is incorrect and the state concedes error as to the robbery convictions related to the first and third victims, in our discretion, we address the merits of his claims. See State v. Aleman, 210 Ariz. 232, ¶ 24, 109 P.3d 571, 579 (App. 2005) (appellate court has discretion to address waived arguments).
Although the jury was provided separate verdict forms for robbery and aggravated robbery, the trial court properly instructed the jury that robbery was a lesser-included offense of aggravated robbery.
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JOSEPH W. HOWARD, Chief Judge
CONCURRING: _______________
PETER J. ECKERSTROM, Presiding Judge
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J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed December 12, 2012.
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