Opinion
No. 1 CA-CR 02-0715, 1 CA-CR 02-0725, 1 CA-CR 02-0726 (Consolidated)
Filed June 19, 2003.
Appeal from the Superior Court in Maricopa County, Cause Nos. CR 2000-019121, CR 2000-018628 and CR 2002-002245, The Honorable Louis A. Araneta, Judge.
AFFIRMED.Terry Goddard, Attorney General, Phoenix, by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Ginger Jarvis, Assistant Attorney General, Attorneys for Appellee.
James Haas, Maricopa County Public Defender, Phoenix, by Peg Green, Deputy Public Defender, Attorneys for Appellant.
OPINION
¶ 1 Peter Padilla was indicted on one count of theft of means of transportation, in violation of Arizona Revised Statutes ("A.R.S.") section 13-1814(A)(5) (2001). A jury found him guilty of unlawful use of a means of transportation, A.R.S. § 13-1803(A)(1) (2001), and he was sentenced to the presumptive term of five years imprisonment. The conviction led to the revocation of his probation on two other unrelated matters: CR 2000-018628 and CR 2000-019121. In CR 2000-018628, Padilla, under a plea agreement, pled guilty to one count of theft of means of transportation and one count of possession of drug paraphernalia; and in CR 2000-019121, he entered a guilty plea to one count of forgery under a separate plea agreement. For these offenses, Padilla was placed on probation.
He was also indicted on one count of false reporting, A.R.S. § 13-2907 (2001). His motion to sever the counts was granted and the false reporting charge was ultimately dismissed with prejudice.
¶ 2 He now appeals the conviction and probation revocations. On appeal, he raises the following questions:
1. Did the trial court give an improper statement of law when it instructed the jury on the lesser-included offense of unlawful use of a means of transportation?
2. Was he entitled to a jury trial on the existence of his prior convictions?
We have considered Padilla's arguments, pursuant to our jurisdiction under A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, and 13-4033(A) (2001), found no error, and consequently affirm his conviction, sentence, and probation revocations.
I. DISCUSSION
A. Lesser-Included Jury Instruction ¶ 3 Initially, we must determine whether unlawful use of means of transportation, A.R.S. § 13-1803(A)(1), is a lesserincluded offense of theft of means of transportation, A.R.S. § 13-1814(A)(5). Although Padilla's counsel and the state agreed unlawful use of means of transportation was a lesser-included offense, as it is a matter of law, we independently review whether the jury instruction applied. See, e.g., State v. Encinas, 132 Ariz. 493, 496 n. 1, 647 P.2d 624, 627 n. 1 (1982) ("[W]here an instruction does not apply as a matter of law, the mutual agreement of the attorneys [to giving such instruction] has no effect."). "An instruction on a lesser-included offense is proper if the crime is in fact a lesser-included offense to the one charged and if the evidence supports the giving of the lesser-included instruction." State v. Miranda, 200 Ariz. 67, 68, ¶ 2, 22 P.3d 506, 507 (2001).
¶ 4 "The test for whether an offense is `lesser-included' is whether it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense." State v. Brown, 195 Ariz. 206, 207, ¶ 5, 986 P.2d 239, 240 (App. 1999) (quoting State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 12, 965 P.2d 94, 97 (App. 1998)). Using this approach, the first step is to comparatively analyze the elements of the respective statutes.
¶ 5 "A person commits theft of means of transportation if, without lawful authority, the person knowingly . . . [c]ontrols another person's means of transportation knowing or having reason to know that the property is stolen." A.R.S. § 13-1814(A)(5). The elements are: (1) without lawful authority; (2) knowingly controls; (3) another person's means of transportation; and (4) knowing or having reason to know that the property is stolen. Whereas, "[a] person commits unlawful use of means of transportation if, without intent permanently to deprive, the person . . . [k]nowingly takes unauthorized control over another person's means of transportation." A.R.S. § 13-1803(A)(1). In State v. Kamai, 184 Ariz. 620, 622, 911 P.2d 626, 628 (App. 1995), we identified the elements of unlawful use as "(1) knowingly takes control; (2) without authority; and (3) of another person's means of transportation." We determined that the phrase "without intent to permanently deprive" was included simply to differentiate unlawful use from theft, and concluded it was not an additional element for the state to prove. Id.
¶ 6 Our comparison reveals that the unlawful use offense is comprised exclusively of some, but not all, of the elements of the theft offense. See, e.g., State v. Griest, 196 Ariz. 213, 214, ¶ 4, 994 P.2d 1028, 1029 (App. 2000) ("A crime is a lesser included offense if the crime is composed solely of some, but not all, of the elements of the greater crime so that it is impossible to commit the greater offense without committing the lesser."). Because it is not possible to commit the theft offense without also committing the unlawful use, we find that A.R.S. § 13-1803(A)(1) is a lesser-included offense of A.R.S. § 13-1814(A)(5). Having concluded that unlawful use is a lesserincluded offense, we now address Padilla's argument.
¶ 7 After both sides rested, the trial court gave jury instructions, which included the following:
The crime of theft of means of transportation includes the less serious crime of unlawful use of means of transportation.
. . . .
A defendant commits unlawful use of means of transportation if all three of the following are met:
(1) without lawful authority;
(2) the person knowingly controls another person's means of transportation; and
(3) without intending to deprive the person of it permanently.¶ 8 Although Padilla did not object at the time the instruction was given, we will consider the issue because it could be fundamental error to give an instruction unsupported by the law or the evidence. Griest, 196 Ariz. at 214, ¶ 3, 994 P.2d at 1029; see also State v. Valenzuela, 194 Ariz. 404, 405, ¶ 2, 984 P.2d 12, 13 (1999) ("If a party fails to object to an error or omission in a jury instruction, . . . the issue [is waived] on appeal, absent a finding of fundamental error."). Padilla contends that the lesser-included instruction given by the court was improper because it "omit[ted] the `knowingly' requirement relating to taking unauthorized control, and instruct[ed] that the defendant merely knowingly control another person's means of transportation." He claims the instruction was erroneous inasmuch as it told the jury that unlawful use of means of transportation "[could] be committed even if the defendant d[id] not know that the vehicle [was] stolen." He relies largely on Revised Arizona Jury Instructions ("RAJI") Criminal 18.03 (unlawful use of means of transportation). ¶ 9 Contrary to Padilla's assertion, the unlawful use statute does not call for a finding that the vehicle is or was stolen. See Kamai, 184 Ariz. at 622, 911 P.2d at 628. The jury instruction given by the trial court parallels the elements set forth in Kamai. We accordingly find no error in the trial court's instructions.
RAJI Crim. 18.03 provides:
The crime of unlawful use of means of transportation requires proof of the following two things:
1. The defendant knowingly took unauthorized control over another's means of transportation; and
2. The defendant did so without intending to deprive the owner of it permanently.
Users of the new RAJI are on notice that "these instructions, as a group, have not received any approval from the Arizona Supreme Court," and remain subject to judicial review. State v. Logan, 200 Ariz. 564, 566, ¶ 12, 30 P.3d 631, 633 (2001) (quoting RAJI Crim. iii).
B. Existence of Prior Convictions
¶ 10 Next Padilla argues the existence of his prior convictions should have been determined by a jury, rather than by the trial judge. He argues that:
Under the analysis used in Ring [ v. Arizona, 536 U.S. 584 (2002)], since recidivism enhances punishment, recidivism is an aggravator, therefore as an aggravator a jury must determine recidivism.
. . . .
. . . The fact of prior convictions authorizes an increase beyond the maximum sentence pursuant to A.R.S. § 13-604. Because it increases the maximum sentence, it is the "functional equivalent" of an element of a crime, and must be tried to a jury.
Because Padilla did not object at trial, our review is limited to fundamental error. Griest, 196 Ariz. at 214, ¶ 3, 994 P.2d at 1029. Fundamental error results when: the defendant loses a right essential to his/her defense; the defendant's right to a fair trial is compromised; or the error goes to the very foundation of the defense theory. Valenzuela, 194 Ariz. at 407, ¶ 15, 984 P.2d at 15. According to Padilla, "[a] new trial on the priors is appropriate because the nature of the error went directly to [his] constitutional right to a jury trial." We disagree.
¶ 11 It is an established precept that " [o]ther 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 (2000) (emphasis added). Ring expressly excluded the existence of a prior conviction. 536 U.S. at 600. The exemption for the fact of a prior conviction stems from Almendarez-Torres v. United States, 523 U.S. 224 (1998). See State v. Benenati, 203 Ariz. 235, 240, ¶ 16, 52 P.3d 804, 809 (App. 2002).
¶ 12 We reject Padilla's claim of a mandated bifurcated trial and continue our adherence to Apprendi and Almendarez-Torres. See, e.g., Cherry v. Araneta, 203 Ariz. 532, 534, ¶ 10, 57 P.3d 391, 393 (App. 2002); Benenati, 203 Ariz. at 240, ¶ 19, 52 P.3d at 809; State v. Rodriguez, 200 Ariz. 105, 107, ¶ 9, 23 P.3d 100, 102 (App. 2001).
II. CONCLUSION
¶ 13 For the aforementioned reasons, we affirm Padilla's conviction, sentence, and probation revocations.
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CECIL B. PATTERSON, JR., Judge
CONCURRING:
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PATRICK IRVINE, Presiding Judge
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WILLIAM F. GARBARINO, Judge