FILED BY CLERK MAY 25 2006 IN THE COURT OF APPEALS COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) 2 CA-CR 2005-0014 Appellee, ) DEPARTMENT A ) v. ) OPINION ) JAMES ALBERT ROBLES, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20040413
Honorable Michael J. Cruikshank, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General By Randall M. Howe and Alan L. Amann Tucson Attorneys for Appellee
Robert J. Hooker, Pima County Public Defender By Nancy F. Jones Tucson Attorneys for Appellant
P E L A N D E R, Chief Judge.
¶1 After a jury trial, appellant James Albert Robles was convicted of aggravated
driving under the influence (DUI) while his license was suspended or revoked and aggravated
driving with a blood alcohol concentration (BAC) of .08 of more while his license was suspended or revoked. After finding that Robles had two prior felony convictions, the trial
court sentenced him to enhanced, mitigated, and concurrent prison terms of eight years on
each count. Robles raises three issues on appeal, none of which merits reversal.
BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the convictions. See
State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135, 1137 (App. 1999). In August 2003, a
Tucson police officer stopped Robles for speeding. When Robles rolled down the window
of his vehicle, the officer noticed “a heavy odor of alcoholic beverage c[oming] from the
inside.” Upon speaking with Robles, the officer also smelled alcohol on Robles’s breath and
noticed his eyes were watery and bloodshot and his speech was slurred. Robles failed to
produce a driver’s license. When the officer asked Robles to get out of his vehicle, he was
“unstable” on his feet and refused to perform field sobriety tests. The officer arrested Robles
and, “through a computer check,” determined Robles’s license had been suspended.
Subsequent testing of Robles’s breath showed his BAC was at .264 and .256.
¶3 Pursuant to A.R.S. § 13-604, the state alleged at the commencement of the
case that Robles had two prior felony convictions in Pima County cause numbers CR-52129
and CR-45738, both for aggravated DUI while his license was suspended or revoked. The
trial court held a bench trial (“priors trial”) on those allegations several weeks after the jury
returned its verdicts. Without objection, the state offered and the trial court admitted into
evidence a certified copy of a record abstract (“pen pack”) from the Arizona Department of
Corrections (DOC). That exhibit included a “prior conviction record” that contained
2 identifying information for Robles and reflected his prior convictions in the two Pima
County cases referred to above. The state also presented expert testimony on Robles’s
fingerprints, identifying him as the person convicted in the two other causes. The trial court
found the state had proved “beyond a reasonable doubt” that Robles had two historical prior
felony convictions and, as noted earlier, imposed an enhanced, mitigated sentence on each
of the convictions in this case.1 This appeal followed.
DISCUSSION
I. Lesser-included-offense instruction
¶4 Robles first argues the trial court erred by refusing his request to instruct the
jury that driving on a suspended license is a lesser-included offense of aggravated DUI on
a suspended license. “The decision to refuse a jury instruction is within the trial court’s
discretion, and this court will not reverse it absent a clear abuse of that discretion.” State
v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). “An error of law committed in
reaching a discretionary conclusion may, however, constitute an abuse of discretion.” State
v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006).
¶5 A jury must be instructed on lesser-included offenses if such an instruction is
requested and supported by the evidence. Id. ¶ 13; see also State v. Detrich, 178 Ariz. 380,
383, 873 P.2d 1302, 1305 (1994); Ariz. R. Crim. P. 23.3, cmt., 17 A.R.S. “The test for
1 Although the trial court found beyond a reasonable doubt that Robles had the prior convictions, we note that the applicable standard of proof of prior convictions for sentence enhancement purposes is clear and convincing evidence. State v. Cons, 208 Ariz. 409, ¶ 15, 94 P.3d 609, 615 (App. 2004).
3 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. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, 97 (App. 1998); see also
State v. Gooch, 139 Ariz. 365, 366-67, 678 P.2d 946, 947-48 (1984); State v. Magana, 178
Ariz. 416, 418, 874 P.2d 973, 975 (App. 1994).
¶6 “Driving on a suspended license is not an inherent constituent part of
aggravated DUI.” State v. Brown, 195 Ariz. 206, ¶ 6, 986 P.2d 239, 241 (App. 1999). The
offense of driving on a suspended license consists of “driv[ing] a motor vehicle on a public
highway when the person’s privilege to drive a motor vehicle is suspended, revoked,
canceled or refused or when the person is disqualified from driving.” A.R.S. § 28-3473(A).
In contrast, one commits aggravated DUI by either driving or “be[ing] in actual physical
control of a vehicle in this state . . . [w]hile under the influence of,” inter alia, “any drug,”
§ 28-1381(A)(1), when “the person’s driver[’s] license or privilege to drive is suspended,
canceled, revoked or refused.” § 28-1383(A)(1). Because one can commit aggravated DUI
merely by being in “actual physical control” of a vehicle or while on a non-public roadway,
that crime can be committed without necessarily committing the offense of driving on a
suspended license. See Chabolla-Hinojosa, 192 Ariz. 360, ¶¶ 11-12, 965 P.2d at 97; see
also Brown, 195 Ariz. 206, ¶ 5, 986 P.2d at 240-41.
¶7 We also must consider, however, “whether the charging document describes
the lesser offense.” Brown, 195 Ariz. 206, ¶ 5, 986 P.2d at 240. The indictment charged
4 Robles with driving or being “in actual physical control of a vehicle while under the
influence of intoxicating liquor [or] any drug . . . while his driver[’s] license or privilege to
drive was suspended.” Based on that charge, Robles could have been convicted of merely
having been in actual physical control of the vehicle, rather than having driven it. Therefore,
we agree with the state that the crime of aggravated DUI, as charged in the indictment, did
not “necessarily subsume[] the offense of driving on a suspended license.”
¶8 Citing Magana, Robles maintains that “[t]he indictment must be read in light
of the facts known to the parties.” Even were we to agree with Magana, see 178 Ariz. at
419, 874 P.2d at 976 (Weisberg, P.J., dissenting), Robles’s reliance on it for this proposition
is misplaced. The Magana court stated that “[c]ommon sense tells us that the indictment
must be read in the light of the facts known by both parties.” 178 Ariz. at 418, 874 P.2d at
975. Magana, however, addressed whether reckless driving was a lesser-included offense
of second-degree murder and, as Division One of this court later noted, “the language of the
indictment [in Magana] implied that an automobile was used in committing the offense.”
State v. Sucharew, 205 Ariz. 16, ¶ 35, 66 P.3d 59, 69 (App. 2003). Thus, the Magana
court apparently based its decision on the clear import of the indictment itself, finding that
the use of an automobile was implicit in its language. 178 Ariz. at 418, 874 P.2d at 975
(“Although the indictment does not refer to the use of a specific deadly weapon or
dangerous instrument in the commission of the crime, it does refer to Highway 95 near
milepost 240.9 as the location where the crime was committed.”).
5 ¶9 Here, in contrast, “the indictment . . . made no reference, direct or implied,”
to facts that necessarily imply Robles could not have committed the charged offense without
also having committed the lesser offense. Sucharew, 205 Ariz. 16, ¶ 35, 66 P.3d at 69. We
therefore decline to extend Magana’s “common sense” language to encompass or mandate
consideration of all facts ultimately contained in the record in determining whether a lesser-
included-offense instruction was required. See Brown, 195 Ariz. 206, ¶ 10, 986 P.2d at 242
(“[I]t is the charging document and not the evidence that determines the issue.”); State v.
Teran, 130 Ariz. 277, 279, 635 P.2d 870, 872 (App. 1981) (“The test which determines the
appropriateness of a lesser included instruction and verdict form by an analysis of the facts
of a given case, i.e., the evidentiary test . . . is not followed in Arizona.”); see also State v.
Laffoon, 125 Ariz. 484, 487, 610 P.2d 1045, 1048 (1980) (“Often facts may support
another lesser conviction but if not charged in the indictment, the lesser offense may not be
found.”).
¶10 Citing State v. Gonzales, 27 Ariz. App. 308, 554 P.2d 904 (1976), Robles also
argues there is “a split of authority as to whether driving on a suspended license is a lesser-
included [offense] of aggravated driving while intoxicated on a suspended license,” and he
urges us to follow Gonzales. In that case, the court affirmed Gonzales’s conviction of
driving on a suspended license as a lesser-included offense of the charged
offense—aggravated DUI on a suspended license—stating without elaboration, the “offense
charged [could not] be committed without necessarily committing the included offense.”
Id. at 309, 554 P.2d at 905. If that conclusion was based on the particular charging
6 language in the indictment in that case, we agree. But, as Division One of this court stated
in Brown, “[i]f the Gonzales court intended to hold that driving on a suspended license is
always a lesser-included offense of aggravated DUI, we disagree.” 195 Ariz. 206, ¶ 9, 986
P.2d at 242. Accordingly, Gonzales does not compel reversal here, and we find no clear
abuse of discretion in the trial court’s refusal to give Robles’s requested instruction. See
Bolton, 182 Ariz. at 309, 896 P.2d at 849.
II. Sufficiency of evidence to prove prior convictions
¶11 Robles next argues “[t]he allegation of prior convictions was not proven by
sufficient evidence, resulting in fundamental error” and requiring that his enhanced
sentences “be vacated, and the case remanded to the trial court for resentencing as a first
offender.” Citing State v. Hauss, 140 Ariz. 230, 681 P.2d 382 (1984), and State v. Cons,
208 Ariz. 409, 94 P.3d 609 (App. 2004), he argues “a certified copy of the conviction” is
required to establish a prior conviction unless the state shows that it was unable to obtain
that document despite diligent efforts or the defendant admits the prior conviction. Because
the state made no such showing here and he did not admit the prior convictions, Robles
maintains the state’s evidence was insufficient to prove he had been previously convicted.
¶12 Robles, however, did not object on this basis below.2 Accordingly, he has
forfeited any right to appellate relief absent fundamental, prejudicial error. See State v.
2 At the trial on prior convictions, Robles only argued that, because the fingerprints included in the pen pack were taken after his conviction in cause number 45738, “the only prior conviction that th[e] pen-pack prove[d] [was] . . . 052129.”
7 Henderson, 210 Ariz. 561, ¶¶ 19, 20, 115 P.3d 601, 607 (2005); State v. Martinez, 210
Ariz. 578, n.2, 115 P.3d 618, 620 n.2 (2005). Fundamental error is “‘error going to the
foundation of the case, error that takes from the defendant a right essential to his defense,
and error of such magnitude that the defendant could not possibly have received a fair
trial.’” Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142
Ariz. 88, 90, 688 P.2d 980, 982 (1984). “To prevail under this standard of review, a
defendant must establish both that fundamental error exists and that the error in his case
caused him prejudice.” Id. ¶ 20.
¶13 “Before we may engage in a fundamental error analysis, however, we must first
find that the trial court committed some error.” State v. Lavers, 168 Ariz. 376, 385, 814
P.2d 333, 342 (1991); see also Henderson, 210 Ariz. 561, ¶ 23, 115 P.3d at 608. As
explained below, we find no error, let alone fundamental error, here.
¶14 In Hauss, the prior convictions used to enhance the defendant’s sentences
were proved by a probation officer’s testimony. 140 Ariz. at 230-31, 681 P.2d at 382-83.
Our supreme court affirmed the sentencing enhancement but disapproved the method used
to prove the prior convictions. Id. at 231-32, 681 P.2d at 383-84. The court stated, “subject
to two very limited exceptions,”3 “‘[t]he proper procedure to establish the prior conviction
is for the state to offer in evidence a certified copy of the conviction . . . and establish the
3 Those exceptions are (1) when a defendant admits a prior conviction “while testifying in court,” or (2) when the state “show[s] that its earnest and diligent attempts to procure the necessary documentation were unsuccessful for reasons beyond its control and that the evidence introduced in its stead is highly reliable.” State v. Hauss, 140 Ariz. 230, 231, 681 P.2d 382, 383 (1984). Neither exception applies or was urged by the state here.
8 defendant as the person to whom the document refers.’” Id. at 231, 681 P.2d at 383
(alteration in Hauss), quoting State v. Lee, 114 Ariz. 101, 105, 559 P.2d 657, 661 (1976).
¶15 That holding, however, must be viewed in context. As the court in Hauss also
stated, “[t]hough this Court has emphasized the importance of documentary evidence in
order to prove prior convictions, we have not mandated its introduction as we now do.” 140
Ariz. at 231, 681 P.2d at 383 (citations omitted). Thus, the focus in Hauss was on the need
for reliable documentary evidence, rather than merely testimonial evidence (with its
potential “credibility contests” and “unfair[ness] to defendants”), to substantiate the fact of
a prior conviction. Id. But in this case, without any objection by Robles, the state presented
uncontroverted documentary evidence to prove his prior convictions. When, as here, the
trial court’s finding of prior convictions is primarily based on such documentary evidence,
the concerns expressed in Hauss about “non-documentary evidence [being] offered to
establish the fact of a prior conviction” are dissipated. Id. at 232, 681 P.2d at 384.4
¶16 Although the preferred method of proving prior convictions for sentence-
enhancement purposes is submission of certified conviction documents bearing the
defendant’s fingerprints, see Cons, 208 Ariz. 409, ¶ 16, 94 P.3d at 615, courts may consider
other kinds of evidence as well. As our supreme court has stated, “[i]n State v. Nash, 143
4 We note that, had Robles made a Hauss-based, contemporaneous objection at either the priors trial or later at sentencing, the state might well have either offered an explanation as to why a certified copy of the prior convictions was unavailable or taken steps to secure and produce those documents, perhaps after obtaining a brief recess. It is also notable that Robles has not claimed, either below or on appeal, that he is not the person who was convicted in Pima County cause numbers CR-52129 and CR-45738.
9 Ariz. 392, 694 P.2d 222 (1985), cert. denied, 471 U.S. 1143, 105 S. Ct. 2689, 86 L. Ed.
2d 706 (1985), this court held that the state may prove prior convictions by evidence other
than a certified judgment of conviction.” State v. White, 160 Ariz. 24, 28, 770 P.2d 328,
332 (1989). And, the court in Nash accepted a commitment record as sufficient proof of the
defendant’s prior conviction. 143 Ariz. at 403, 694 P.2d at 233; see also State v. Baca, 102
Ariz. 83, 87, 425 P.2d 108, 112 (1967) (certified prison records which contained an
accompanying fingerprint card adequate proof of prior convictions).
¶17 Robles argues that Nash is distinguishable from Hauss because Nash
committed his crime and was sentenced before Hauss was decided. But the result in Nash
was not based on those procedural facts, our supreme court has continued to follow Nash,
and we are bound by its decisions. State v. Smyers, 207 Ariz. 314, n.4, 86 P.3d 370, 374
n.4 (2004) (“courts of this state are bound by the decisions of ” Arizona Supreme Court);
see White, 160 Ariz. at 28, 770 P.2d at 332 (applying Nash); see also State v. Van Adams,
194 Ariz. 408, ¶¶ 37, 36, 984 P.2d 16, 27 (1999) (court approved finding of prior conviction
when “state introduced a certified copy of California’s Disposition of Arrest and Court
Action” because “[t]he state can make that showing through the use of extrinsic evidence,
including ‘a certified copy of a judgment of conviction.’”) (emphasis added), quoting Nash,
143 Ariz. at 403, 694 P.2d at 233; State v. Hurley, 154 Ariz. 124, 132, 741 P.2d 257, 265
(1987) (without specifying which documents were required, but finding a presentence report
insufficient, court stated, “to prove prior convictions, the state must offer in evidence a
certified copy of the documents establishing the conviction”); State v. Avila, 147 Ariz. 330,
10 338-39, 710 P.2d 440, 448-49 (1985) (“documents . . . from the Department of Corrections’
file on the defendant” sufficient to prove crime committed while defendant was on release
status); State v. Richards, 166 Ariz. 576, 579, 804 P.2d 109, 112 (App. 1990) (same as
Hurley). In sum, relying on the certified copy of the DOC documents showing Robles’s
prior convictions as well as testimony that linked those records to him, the trial court had
sufficient evidence before it to find he had prior convictions.
III. Jury trial on prior convictions
¶18 Robles lastly argues he “was denied his constitutional right to a jury trial on
the allegation of prior convictions.” Again, Robles did not object on this ground below, so
we review only for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶ 19, 115
P.3d at 607; Martinez, 210 Ariz. 578, n.2, 115 P.3d at 620 n.2.
¶19 Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Robles
asserts “[t]he failure to have a jury find the sentencing allegation [of prior convictions]
beyond a reasonable doubt resulted in a denial of Due Process.” But in State v. Keith, 211
Ariz. 436, ¶ 3, 122 P.3d 229, 229-30 (App. 2005), this court explicitly rejected that
argument, holding that a criminal defendant is not entitled to a jury trial on an allegation of
prior convictions for sentencing purposes. See Blakely v. Washington, 542 U.S. 296, 301,
124 S. Ct. 2531, 2536 (2004); see also Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63;
accord United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004);
Martinez, 210 Ariz. 578, ¶ 26, 115 P.3d at 625. Accordingly, the trial court did not err,
11 fundamentally or otherwise, in failing to convene sua sponte a jury trial on the state’s
allegation of prior convictions for sentencing purposes.
DISPOSITION
¶20 Robles’s sentences and convictions are affirmed.
____________________________________ JOHN PELANDER, Chief Judge
CONCURRING:
____________________________________ JOSEPH W. HOWARD, Presiding Judge
____________________________________ GARYE L. VÁSQUEZ, Judge