Opinion
2 CA-CR 2011-0231
11-30-2012
THE STATE OF ARIZONA, Appellee, v. CHRISTOPHER PAUL ROMERO, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Diane Leigh Hunt Tucson Attorneys for Appellee Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin Tucson Attorneys 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Not for Publication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. CR20102568002
Honorable Richard S. Fields, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Diane Leigh Hunt
Tucson
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin
Tucson
Attorneys for Appellant
ESPINOSA, Judge. ¶1 Christopher Romero appeals his conviction and thirteen-year sentence for kidnapping, a class two felony enhanced as a dangerous crime against children. See A.R.S. § 13-705(D). He asserts his conviction and sentence must be vacated because his criminal conduct did not specifically target child-victim D.P. and because the jury failed to make a specific finding that his criminal act was focused on the child. For the reasons stated below, we affirm.
Factual Background and Procedural History
¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 2, 99 P.3d 35, 36 (App. 2004). Late one afternoon in July 2010, eleven-year-old D.P. was watching television in the living room of his mother's apartment while his mother (P.P.), his mother's friend, and his aunt hung laundry and smoked marijuana in the bedroom. P.P. had stayed home from work and had requested that her sister, with whom D.P. lived, bring him to the apartment for a visit. Romero and an accomplice knocked on the front door, and, when P.P. answered it, they forced their way in, pointed guns at both mother and son, and ordered them to the floor. Romero instructed P.P., "Give me all your money, all your drugs," and at one point cocked his gun while pointing it at her. When D.P.'s aunt emerged from the bedroom, she also was ordered down at gunpoint. The men looked for drugs under the couch, and then Romero led P.P. to her bedroom where she handed him her purse; Romero grabbed her cellular telephone and then "took off" out the front door with the other man. ¶3 Police stopped a vehicle based on P.P.'s description to a 9-1-1 emergency dispatcher and arrested the occupants, including Romero, his accomplice, and a third person who had not been in the apartment. After a jury trial, Romero was convicted of aggravated assault and kidnapping as to D.P., with the jury finding that the crimes were dangerous crimes against children (DCAC). Romero was sentenced to a partially mitigated thirteen-year term of imprisonment for kidnapping D.P., to be served concurrently with his sentence for aggravated assault against D.P. and consecutively to his other, concurrent sentences for kidnapping, aggravated assault, armed robbery, aggravated robbery, and burglary, for a total of twenty years. See § 13-705(M) (mandatory consecutive sentence for DCAC conviction). We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
The state later dismissed the DCAC allegation as to the aggravated assault against D.P. Romero was found guilty of two additional counts of kidnapping, two counts of aggravated assault, and one count each of armed robbery, aggravated robbery, and burglary, with the jury finding all the crimes were of a dangerous nature. He also pled guilty to prohibited possession of a deadly weapon.
Romero also was sentenced to an eight-year term of imprisonment for his prohibited-possessor conviction, but that conviction and sentence, which resulted from his plea of guilty, is not before us on appeal. See A.R.S. § 13-4033(B) ("[D]efendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement.").
Discussion
¶4 A defendant's sentence may be enhanced as a DCAC if the state "prov[es] the defendant committed a crime enumerated by the statute that '"focused on, [was] directed against, aimed at, or target[ed] a victim under the age of fifteen."'" Miranda-Cabrera, 209 Ariz. 220, ¶ 19, 99 P.3d at 39, quoting State v. Sepahi, 206 Ariz. 321, ¶ 19, 78 P.3d 732, 735 (2003), quoting State v. Williams, 175 Ariz. 98, 103, 854 P.2d 131, 136 (1993) (second alteration in Miranda-Cabrera, third in Sepahi). Kidnapping is one of several enumerated offenses for which enhancement is specifically provided. A.R.S. §§ 3-705(D), (P)(1)(i); 13-1304(B). ¶5 Romero does not dispute that D.P. was under fifteen years of age, but he asserts there was insufficient evidence to classify the kidnapping as a DCAC because D.P. was only an "incidental and unintentional" occupant of the apartment on which Romero's criminal conduct was focused, citing Williams, 175 Ariz. at 101, 854 P.2d at 134 (DCAC designation improper where defendant's behavior not "directed at or focused upon" child victim "qua child"), and Miranda-Cabrera, 209 Ariz. 220, ¶ 24, 99 P.3d at 40-41 (DCAC applies when child victim "a sufficient focus" of defendant's actions). Romero acknowledges he failed to raise this issue below, but argues without citation to controlling authority that he sufficiently preserved it when he pled "not guilty" to the indictment. ¶6 On the contrary, Romero has forfeited any review on sufficiency-of-the-evidence grounds. See State v. Spinks, 156 Ariz. 355, 360, 752 P.2d 8, 13 (App. 1987). He did not raise or even mention the DCAC allegation during his Rule 20 motion for acquittal of all counts following the state's presentation of evidence. Except on the ground of untimeliness, he did not object to the DCAC allegation, challenge the language of the DCAC verdict interrogatory, or make any substantive motion pertaining to the validity of the jury's DCAC finding. Romero thus failed to preserve appellate review of this issue for all but fundamental error. State v. Kinney, 225 Ariz. 550, ¶ 11, 241 P.3d 914, 919 (App. 2010) (to avoid waiver, defendant must articulate issue sufficiently to allow trial court to rule); State v. Hernandez, 170 Ariz. 301, 306-07, 823 P.2d 1309, 1314-15 (App. 1991) (even constitutional objections waived unless raised at trial in timely manner); see also State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005) (fundamental-error review applies when defendant fails to object to alleged trial error). However, as Romero does not assert the alleged error was fundamental, he has waived even fundamental-error review of his sufficiency-of-the-evidence argument. State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see also Henderson, 210 Ariz. 561, ¶ 22, 115 P.3d at 608 (defendant bears burden to establish fundamental error occurred and that error caused prejudice). ¶7 Romero does assert fundamental error as a result of his sentence enhancement under § 13-705 absent a jury finding that his act was focused on D.P. See U.S. Const. amend. VI; Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (other than fact of prior conviction, any fact increasing penalty for crime beyond prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt); see also Blakely v. Washington, 542 U.S. 296, 302 (2004) (statutory maximum for Apprendi purposes is maximum sentence judge may impose solely on basis of facts reflected in jury verdict or admitted by defendant). Romero asserts that, in addition to the requirement that a jury find a defendant committed a DCAC-enumerated crime, DCAC sentence enhancement requires a jury finding that a defendant's criminal conduct was "focused on, directed against, aimed at, or target[ed] a victim under the age of fifteen." Williams, 175 Ariz. at 103, 854 P.2d at 136 (examining DCAC precursor statute, former A.R.S. § 13-604.01). "To prevail under [fundamental-error] review, [Romero] must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. 561, ¶20, 115 P.3d at 607. The state counters that focused conduct is inherent in the jury finding that Romero kidnapped D.P. ¶8 Under Apprendi, any fact, other than the fact of a prior conviction, "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. We previously have recognized Apprendi's application to DCAC sentence enhancement. Miranda-Cabrera, 209 Ariz. 220, ¶¶ 26-30, 99 P.3d at 41-42. Here, based upon the express findings reflected in the jury verdicts, we find no error. State v. Fernandez, 216 Ariz. 545, ¶ 27, 169 P.3d 641, 649 (App. 2007) (DCAC jury finding inherent in verdict of intentional, premeditated, attempted murder of each victim under age fifteen). Although the jurors were not instructed on any element of a DCAC beyond the specific wording contained in the verdict interrogatories, they had been instructed Romero could be convicted of kidnapping if he "knowingly restrained another person with the intent to aid in the commission of a felony." The jury verdict reflected a specific finding that "the . . . offense is a Dangerous Crime Against Children in that the victim was under 15 years of age at the time of the offense." See A.R.S. § 13-1304(A)(3), (B). Additionally, although the aggravated-assault DCAC finding was not taken into account for sentencing purposes, the jury expressly found Romero guilty on that count, which required a finding that he had intentionally placed D.P. in reasonable apprehension of immediate physical injury. The aggravated assault qualified as a DCAC as well. ¶9 Contrary to Romero's contention that his kidnapping charge qualifies as the "rare" instance in which the crime can be committed against a child victim "by unfocused actions," Williams expressly named kidnapping as an offense for which, "[a]s a practical matter," "[i]t is impossible to imagine . . . could be committed without targeting persons." 175 Ariz. at 103-04, 854 P.2d at 136-37; see also Sepahi, 206 Ariz. 321, ¶ 13, 78 P.3d at 734 ("no doubt that" confronting child with deadly weapon satisfies Williams's focus requirement and that crime is DCAC). Additionally, our supreme court has held that "a defendant who intends to direct his criminal conduct only at adults can nonetheless be subjected to the special sentencing provisions of [§ 13-705] when his victim turns out to be a child." Sepahi, 206 Ariz. 321, ¶ 17, 78 P.3d at 735. The jury's finding that Romero acted intentionally and knowingly in kidnapping D.P., a child under age fifteen, satisfies the Williams targeting requirement and forecloses Romero's suggestion that D.P. was simply "'fortuitously [a victim of Romero's] unfocused conduct.'" Id. ¶¶12, 14, quoting Williams, 175 Ariz. at 103, 854 P.2d at 136. Romero has failed to meet his burden to demonstrate that any error, let alone fundamental error, occurred.
Disposition
¶10 For all of the forgoing reasons, Romero's convictions and sentences are affirmed.
________
PHILIP G. ESPINOSA, Judge
CONCURRING: ________
GARYE L. VÁSQUEZ, Presiding Judge
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VIRGINIA C. KELLY, Judge