IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2001-0537 ) DEPARTMENT B Appellee, ) ) OPINION v. ) ) VICTOR DAVID RODRIGUEZ, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20012298
Honorable Frank Dawley, Judge Pro Tempore Honorable Richard D. Nichols, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General By Diane M. Acosta Tucson Attorneys for Appellee
Susan A. Kettlewell, Pima County Public Defender By Nancy F. Jones Tucson Attorneys for Appellant
P E L A N D E R, Presiding Judge.
¶1 A jury found appellant Victor Rodriguez, a juvenile who was prosecuted as an
adult, guilty of possession of a prohibited weapon, and, after Rodriguez waived his right to a jury
trial, the trial court held a bench trial and found him guilty of possession of a deadly weapon by a prohibited possessor. The court placed Rodriguez on intensive probation for four years,
conditioned on a four-month jail term.
¶2 On appeal, Rodriguez contends the trial court lacked personal jurisdiction to try him
as an adult, arguing the state had failed to file a notice of his “chronic felony offender” status
under A.R.S. § 13-501(D) and to prove he was such an offender, as § 13-501(E) requires.
Relying primarily on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), Rodriguez also argues that §§ 13-501(A)(6) and 13-501(E) are unconstitutional because
they violate a juvenile offender’s rights to a jury trial and due process. Finally, Rodriguez asserts
that the trial court erred in denying his pretrial motion to suppress. None of the issues raised
warrants reversal.
BACKGROUND
¶3 The pertinent facts underlying Rodriguez’s convictions, though later detailed in
¶¶35-36, infra, are essentially undisputed. While searching Rodriguez’s residence with his
mother’s consent, officers observed him in close proximity to a firearm found under a mattress
in one of the bedrooms. The officers seized the weapon and some ammunition and arrested
Rodriguez, who later was indicted as an adult on charges of possession of a prohibited weapon and
possession of a deadly weapon by a prohibited possessor. The latter charge was based on
Rodriguez’s having had several prior juvenile delinquency adjudications.
¶4 Before trial, Rodriguez, then sixteen years old, moved to dismiss the charges for
lack of jurisdiction, arguing that the state’s failure to comply with § 13-501(D)’s notice
requirement precluded personal jurisdiction over him as an adult offender. Rodriguez asked the
trial court to dismiss the charges and allow the case to proceed in juvenile court. He also filed a
2 motion to suppress, arguing that the officers had lacked probable cause to seize the firearm and
ammunition.
¶5 After a joint hearing on both motions, the trial court denied the motion to dismiss
without prejudice but set a hearing, pursuant to § 13-501(E), to determine whether Rodriguez
qualified as a “chronic felony offender” under § 13-501(A)(6) and (G)(2). The trial court also
denied the motion to suppress, finding that the officers had had legitimate safety concerns and had
acted reasonably under the circumstances in seizing the gun and ammunition.
¶6 Rodriguez filed a second motion to dismiss, challenging the constitutionality of
§ 13-501(A)(6), which requires that certain juvenile “chronic felony offenders” be tried as adults.
He argued that the statute allows for “enhanced punishment based on constitutionally infirm prior
adjudications of guilt” and that prior juvenile adjudications have insufficient procedural safeguards
to subject a juvenile offender to prosecution and punishment as an adult, as authorized by § 13-
501. After another hearing, the trial court denied Rodriguez’s second motion to dismiss, finding
§ 13-501(A)(6) constitutional, and further determined that Rodriguez was a chronic felony
offender subject to prosecution as an adult. The court also rejected Rodriguez’s renewed argument
that the court lacked personal jurisdiction over him, finding that, although the state should have
filed a chronic felony offender notice with the indictment, Rodriguez had suffered no prejudice
and was properly subject to prosecution as an adult.
DISCUSSION
I. Jurisdiction
¶7 Rodriguez reiterates on appeal that the trial court should have dismissed the charges
on the ground that it lacked personal jurisdiction over him because of the state’s failure to file a
3 notice pursuant to § 13-501(D).1 See State v. Marks, 186 Ariz. 139, 142, 920 P.2d 19, 22 (App.
1996) (any flaw in proceedings transferring juvenile offender to adult criminal division of superior
court deprives that division of personal jurisdiction, not subject matter jurisdiction). “The
decision whether to grant a motion to dismiss is within the sound discretion of the trial court,
which will not be disturbed absent an abuse of discretion.” State v. Pecard, 196 Ariz. 371, ¶24,
998 P.2d 453, ¶24 (App. 1999). But we review de novo any legal issues involving statutory
interpretation and jurisdiction. See Thomas v. Thomas, 203 Ariz. 34, ¶7, 49 P.3d 306, ¶7 (App.
2002).
¶8 “In those instances specified in section 13-501(A), the county attorney is required
to file the charges in adult court.” In re Timothy M., 197 Ariz. 394, ¶23, 4 P.3d 449, ¶23 (App.
2000). Under § 13-501(A)(6), the “county attorney shall bring a criminal prosecution against a
juvenile in the same manner as an adult if the juvenile is fifteen, sixteen or seventeen years of age
and is accused of . . . [a]ny felony offense committed by a chronic felony offender.” Section 13-
501(G)(2) defines a “chronic felony offender” as “a juvenile who has had two prior and separate
adjudications and dispositions for conduct that would constitute a historical prior felony conviction
if the juvenile had been tried as an adult.” Subsections (D) and (E) of § 13-501 provide:
D. At the time the county attorney files a complaint or indictment the county attorney shall file a notice stating that the juvenile is a chronic felony offender. Subject to subsection E of this
1 The superior court’s subject matter jurisdiction is not challenged or otherwise at issue here. Generally, that court has such jurisdiction over any criminal case in which the defendant is charged by indictment or information with a felony. See Ariz. Const. art. II, § 30; art. VI, § 14(4); A.R.S. § 12-123; see generally In re Timothy M., 197 Ariz. 394, ¶24, 4 P.3d 449, ¶24 (App. 2000); In re Cameron T., 190 Ariz. 456, 461-62, 949 P.2d 545, 550-51 (App. 1997); State v. Marks, 186 Ariz. 139, 920 P.2d 19 (App. 1996).
4 section, the notice shall establish and confer jurisdiction over the juvenile as a chronic felony offender.
E. Upon motion of the juvenile the court shall hold a hearing after arraignment and before trial to determine if a juvenile is a chronic felony offender. At the hearing the state shall prove by a preponderance of the evidence that the juvenile is a chronic felony offender. If the court does not find that the juvenile is a chronic felony offender, the court shall transfer the juvenile to the juvenile court pursuant to § 8-302. If the court finds that the juvenile is a chronic felony offender or if the juvenile does not file a motion to determine if the juvenile is a chronic felony offender, the criminal prosecution shall continue.
¶9 Rodriguez claims that the state’s failure to file the mandatory notice specified in
§ 13-501(D) deprived the superior court of personal jurisdiction to try him as an adult.2
Conceding that it did not “explicitly comply with subsection (D)” because it did not file a chronic-
felony-offender notice with the indictment against Rodriguez, the state nonetheless argues that it
“substantially complied” with the statute by filing an interim complaint in juvenile court that
referred to § 13-501(A)(6) on its face. The state also contends Rodriguez suffered no prejudice
from the lack of notice because the trial court held a chronic-felony-offender status hearing,
pursuant to § 13-501(E), before proceeding with the prosecution of Rodriguez as an adult.
¶10 Although the language of § 13-501(D) is relatively clear, its meaning and effect are
not. For example, that subsection expressly states that “the notice shall establish and confer
jurisdiction over the juvenile as a chronic felony offender,” but that provision is “[s]ubject to
2 Although Rodriguez refers to “adult court” as an improper forum for the prosecution against him, “the superior court is not a system of jurisdictionally segregated departments but rather a ‘single unified trial court of general jurisdiction.’” Marks, 186 Ariz. at 142, 920 P.2d at 22, quoting Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 102, 907 P.2d 67, 71 (1995); see also Ariz. Const. art. VI, §§ 14, 15; A.R.S. § 12-123. Therefore, any references to “adult” or “juvenile” court merely refer to the type of proceeding before the superior court or, where established, specialized divisions of the court.
5 subsection (E).” § 13-501(D). And subsection (D) does not state that if no such notice is filed,
the superior court lacks personal jurisdiction to try the juvenile offender as an adult once a hearing
is held and a chronic-felony-offender finding is made under subsection (E). Accordingly, we must
look beyond the language of subsection (D) and consider other factors in determining its meaning
and effect.
¶11 If statutory language is unclear, we “turn to other factors, including ‘the statute’s
context, subject matter, historical background, effects, consequences, spirit, and purpose.’”
Norgord v. State ex rel. Berning, 201 Ariz. 228, ¶7, 33 P.3d 1166, ¶7 (App. 2001), quoting
Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶8, 19 P.3d 1241, ¶8 (App. 2001). And, even
when statutory language, read in isolation, might be susceptible to a particular construction, we
employ a common sense approach, interpreting the statute “by reference to its stated purpose and
. . . the system of related statutes of which it forms a part.” Goddard v. Superior Court, 191
Ariz. 402, ¶8, 956 P.2d 529, ¶8 (App. 1998). Ultimately, “[o]ur objective in interpreting a
statute is to give effect to the legislative intent behind the statute and, when possible, to harmonize
all its sections.” State v. Razo, 195 Ariz. 393, ¶3, 988 P.2d 1119, ¶3 (App. 1999); see also State
v. Wagstaff, 164 Ariz. 485, 491, 794 P.2d 118, 124 (1990) (“We strive to construe a statute and
its subsections as a consistent and harmonious whole.”).
¶12 The legislature enacted § 13-501 in order to implement Proposition 102 (the
“Juvenile Justice Initiative”), which Arizona voters passed in 1996. See generally Andrews v.
Willrich, 200 Ariz. 533, ¶¶1, 10-11, 29 P.3d 880, ¶¶1, 10-11 (App. 2001); In re Victoria K., 198
Ariz. 527, ¶23, 11 P.3d 1066, ¶23 (App. 2000). The Initiative amended the Arizona Constitution
and essentially mandated the statutory scheme set forth in § 13-501. See Ariz. Const. art. IV,
6 pt. 2, § 22(1) (eff. Dec. 6, 1996) (mandating in part that “[j]uveniles 15 years of age or older who
are chronic felony offenders as defined by statute shall be prosecuted as adults” and, with certain
exceptions, “[u]pon conviction . . . shall be subject to the same laws as adults”); Ariz. Const. art.
VI, § 15 (eff. Dec. 6, 1996) (“The jurisdiction and authority of the courts of this state in all
proceedings and matters affecting juveniles shall be as provided by the legislature or the people
by initiative or referendum.”).
¶13 The constitutional amendments effected by passage of Proposition 102 included the
following:
In order to preserve and protect the right of the people to justice and public safety, and to ensure fairness and accountability when juveniles engage in unlawful conduct, the legislature, or the people by initiative or referendum, shall have the authority to enact substantive and procedural laws regarding all proceedings and matters affecting such juveniles.
Ariz. Const. art. IV, pt. 2, § 22. “The overall intent of Prop. 102 was to make possible faster,
more effective, and in some cases[,] more stringent responses to juvenile crime.” In re Cameron
T., 190 Ariz. 456, 459, 949 P.2d 545, 548 (App. 1997); see also id. at 461, 949 P.2d at 550
(Proposition 102 was “clearly intended to speed the pace and augment the effectiveness of the
juvenile justice system in Arizona, and to respond more stringently to juvenile crime when
appropriate.”).
¶14 In light of that background and purpose, and in an attempt to harmonize subsections
(D) and (E) and apply a common sense meaning to them, we conclude that the controlling inquiry
in determining personal jurisdiction under those subsections is whether the juvenile is a chronic
felony offender. The obvious, primary purpose of subsection (D)’s notice requirement is to notify
the juvenile offender that the state seeks to prosecute him or her as an adult because of his or her
7 alleged chronic-felony-offender status.3 If a notice is filed with the indictment pursuant to
subsection (D) and the juvenile does not request a hearing under subsection (E), the notice itself
“establish[es] and confer[s] jurisdiction over the juvenile as a chronic felony offender.” § 13-
501(D). But, if that notice is not filed with the indictment and the juvenile nonetheless receives
a hearing pursuant to subsection (E) and is found to be a chronic felony offender, as happened
here, we believe that finding suffices to establish the court’s personal jurisdiction over the juvenile
as an adult.
¶15 Thus, although the state’s failure to file the notice with the indictment violated the
directive of § 13-501(D), that failure did not ultimately deprive the superior court of personal
jurisdiction over Rodriguez for purposes of the state’s prosecution of him as an adult. Despite the
lack of notice under subsection (D), Rodriguez was well aware of the state’s allegation and
received a hearing pursuant to subsection (E) at which the state had to prove, and the trial court
had to find, that he in fact was a chronic felony offender as defined in § 13-501(G)(2). And, under
that scenario, the trial court’s finding that Rodriguez had that status “establish[ed] and confer[ed]
jurisdiction” to proceed with the prosection against him as an adult. § 13-501(D), (E).
¶16 Moreover, although § 13-501(D) includes the mandatory language, “shall,” “[o]ur
supreme court has ruled[, in State v. Vassar, 111 Ariz. 487, 489, 533 P.2d 544, 546 (1975),] that
a violation of mandatory language, when no sanction is provided, requires a showing of prejudice
before imposing sanctions or remedial action.” Borchers v. Arizona Bd. of Pardons & Paroles,
3 We note that, even though the state failed to file formal notice with the indictment pursuant to A.R.S. § 13-501(D), the state’s interim complaint filed in juvenile court several weeks before the indictment was issued specifically referred to § 13-501(A)(6). That complaint arguably put Rodriguez on notice of the state’s allegation that he was a chronic felony offender subject to mandatory prosecution as an adult under § 13-501(A).
8 174 Ariz. 463, 467, 851 P.2d 88, 92 (App. 1992). Therefore, the state’s failure to file the
requisite notice does not mandate reversal, absent a showing that Rodriguez was thereby
prejudiced. See State v. Jones, 47 P.3d 783, 791 (Kan. 2002) (failure to give statutorily required
notice to juvenile’s parents of hearing to authorize prosecution of juvenile as adult not reversible
error when no prejudice shown, juvenile received adequate notice of hearing and its purpose,
hearing “was not adjudicatory but dispositional,” and juvenile “was present and represented by
counsel at all critical stages of the proceedings”).
¶17 Again, Rodriguez received the § 13-501(E) hearing to which he was entitled and,
consequently, as the trial court observed, suffered no prejudice from the state’s failure to file a
notice with the indictment. In addition, as noted above, the trial court’s finding that Rodriguez
was a chronic felony offender established the court’s jurisdiction over him as an adult.
Accordingly, the trial court did not err in denying Rodriguez’s motion to dismiss for lack of
personal jurisdiction.
II. Sufficiency of the Evidence
¶18 Rodriguez next contends the state did not satisfy its burden of proving he was a
chronic felony offender at the § 13-501(E) hearing. Whether Rodriguez qualified as such was a
finding of fact for the trial court to make, and “[w]e defer to the trial court’s factual findings that
are supported by the record and not clearly erroneous.” State v. Rosengren, 199 Ariz. 112, ¶9,
14 P.3d 303, ¶9 (App. 2000). We do not reweigh the evidence on appeal and will overturn the
trial court’s findings only if no substantial evidence supports them. See State v. Fernane, 185
Ariz. 222, 224, 914 P.2d 1314, 1316 (App. 1995); see also State v. Medrano, 23 P.3d 836, 838
9 (Kan. 2001) (“The standard for reviewing the decision to authorize prosecution as an adult is
whether the decision is supported by substantial evidence.”).
¶19 Two weeks before the hearing, the state filed copies of several juvenile court minute
entries for purposes of “demonstrat[ing] [Rodriguez’s] status as a ‘chronic felony offender’
pursuant to A.R.S. § 13-501.” The minute entries reflected that Victor Rodriguez, born January
28, 1985, was adjudicated delinquent in January 1999 for burglary and theft-related charges and
again in July 1999 for weapons-related charges. The July minute entry also reflected the juvenile
court’s warning to Rodriguez that he was a “repeat felony juvenile offender,” subject to
prosecution as an adult if he were to be arrested for another felony offense. At the § 13-501(E)
hearing, defense counsel told the trial court he had received “documentation from the State in the
form of minute entries from Juvenile Court pretty much verifying that Mr. Rodriguez would
qualify as a chronic felony offender as defined by statute.” Counsel then stated, “I don’t think that
I can say that those minute entries are in some way inaccurate.” The court ultimately found that
Rodriguez “qualif[ied] as a chronic offender.”
¶20 As Rodriguez points out, at the § 13-501(E) hearing, the state did not introduce the
juvenile court minute entries into evidence, the trial court did not take judicial notice of them, and
the parties did not stipulate to any facts. Rodriguez now argues that, before the trial court could
properly classify him as a chronic felony offender, the state was required to present certified
copies of his juvenile court adjudications and prove unequivocally that he was the same Victor
Rodriguez who had committed the prior crimes. He claims that is the “proper procedure to
establish a prior conviction[] for enhancement purposes.” See State v. Hurley, 154 Ariz. 124,
132, 741 P.2d 257, 265 (1987). But the trial court was not enhancing his sentence based on the
10 prior adjudications. Rather, the court was making a pretrial factual finding on Rodriguez’s
chronic-felony-offender status.
¶21 Moreover, Rodriguez did not object to either the nature or sufficiency of the state’s
evidence. In fact, he essentially agreed the juvenile court minute entries established his chronic-
felony-offender status and did not contest the fact that he was the same Victor Rodriguez named
in those minute entries. He has therefore waived any argument that the state’s evidence under
§ 13-501(E) was inadequate. See State v. Anderson, 174 Ariz. 431, 433, 850 P.2d 669, 671
(1993); cf. Hurley, 154 Ariz. at 132, 741 P.2d at 265 (“documentation requirement” for sentence
enhancement purposes excused “if defendant admits the prior conviction”). In addition, Rodriguez
conceded in a previously filed motion that he was born on January 28, 1985, and had been
adjudicated delinquent in January 1999 on burglary and theft charges and again in July 1999 on
weapons-related charges, confirming the information reflected in the juvenile court minute entries
the state had filed. In sum, the record adequately supports the trial court’s finding that Rodriguez
“qualif[ied] as a chronic offender.” See Rosengren.
III. Constitutional Claims
A. Section 13-501(A)(6)
¶22 As he did below, Rodriguez contends § 13-501(A)(6) is unconstitutional “because
it allows for enhanced punishment based on constitutionally infirm prior adjudications of guilt,”
violating his rights to due process and to a jury trial. “We review the validity of a statute de novo
and, if possible, construe it so as to uphold its constitutionality.” In re Leon G., 204 Ariz. 15,
¶9, 59 P.3d 779, ¶9 (2002). And, “[w]e will not overturn an act of the legislature unless we are
11 ‘satisfied beyond a reasonable doubt’ that the statute fails to comply with the Constitution.” Id.,
quoting State v. Gastelum, 75 Ariz. 271, 273, 255 P.2d 203, 204 (1953).
¶23 Relying on Apprendi and its progeny, Rodriguez asserts that “the effect of the
Arizona statute is to authorize judges to increase the punishment for juveniles convicted of certain
offenses beyond the statutory maximum otherwise permitted upon a finding that a juvenile fifteen
years of age or older is a chronic felony offender.” According to Rodriguez, juvenile
adjudications are meant to be rehabilitative, not punitive, and therefore lack the “procedural
safeguards,” including the right to a jury trial, that surround adult convictions. Citing United
States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), he further argues such “constitutionally infirm”
juvenile adjudications therefore cannot be used to enhance his punishment by subjecting him to
prosecution as an adult.
¶24 In Tighe, the adult defendant pled guilty to several federal charges. Based partly
on the defendant’s prior, nonjury-juvenile adjudication, the sentencing court increased the sentence
on one of the counts beyond the ten-year statutory maximum to fifteen years, pursuant to the
Armed Career Criminal Act, 18 U.S.C. § 924(e), and increased the sentence on another count
approximately four years beyond its otherwise applicable statutory maximum. On review, the
Ninth Circuit distinguished adult convictions and juvenile adjudications, noting that the latter
generally lack the “procedural necessities of a jury trial and proof beyond a reasonable doubt.”
266 F.3d at 1194. The court concluded, therefore, that nonjury-juvenile adjudications did not fall
within “Apprendi’s narrow ‘prior conviction’ exception.” Id.; see also Apprendi, 530 U.S. at
490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 (“Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
12 submitted to a jury, and proved beyond a reasonable doubt.”). Accordingly, the Ninth Circuit
held, “the district court violated Apprendi when, at sentencing, it increased [two of] Tighe’s
penalt[ies] beyond the prescribed statutory maximum based on an adjudication which denied
[defendant] the right to a jury trial.” Tighe, 266 F.3d at 1195.4
¶25 We find Tighe inapposite and unhelpful in determining the constitutionality of § 13-
501(A)(6). Having pled guilty and facing sentencing, the adult defendant in Tighe was subject to
and received prison terms substantially longer than the otherwise applicable statutory maximums
based in part on his prior juvenile adjudication. In contrast, § 13-501(A)(6) does not directly
relate to sentencing, “prescribed statutory maximum[s],” or potential sentence enhancements.
Tighe, 266 F.3d at 1195. Rather, it obligates the state to prosecute as adults a certain class of
juvenile offenders.
¶26 Although we agree with Rodriguez that being prosecuted as an adult potentially
involves “more severe consequences,” we do not agree that the mere exposure to adult prosecution
constitutes “enhanced punishment” or offends Apprendi. Rather, as the Ninth Circuit has stated:
4 We note that several courts have rejected the Ninth Circuit’s analysis and conclusion in Tighe. See, e.g., United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002) (“juvenile adjudications can rightly be characterized as ‘prior convictions’ for Apprendi purposes,” and “district court did not err in increasing [defendant’s] sentence based on his prior juvenile adjudications”); People v. Bowden, 125 Cal. Rptr. 2d 513, 516, 517 (Cal. Ct. App. 2002) (in rejecting defendant’s contention that “because a person previously tried as a juvenile had no right to a jury trial in juvenile court, the prior juvenile adjudication cannot constitutionally be treated as a prior conviction for the purpose of [California’s] Three Strikes law,” the court stated: “We agree with the Tighe dissent that the Tighe majority made a ‘quantum leap’ from certain language in a Supreme Court opinion and erroneously concluded prior juvenile adjudications are not prior convictions.”); State v. Hitt, 42 P.3d 732, 740 (Kan. 2002) (“Juvenile adjudications are included within the historical cloak of recidivism and enjoy ample procedural safeguards; therefore, the Apprendi exception for prior convictions encompasses juvenile adjudications.”). As far as we can tell, no other court has followed Tighe.
13 “There is no analogy[]” between “the transfer statute [mandating that juveniles with certain prior
adjudications be tried as adults] [and] statutes increasing the potential penalties in adult criminal
cases . . . . The transfer statute does not per se increase punishment; it merely establishes ‘a basis
for district [adult] court jurisdiction of prosecutions to which it applies.’” United States v.
Juvenile, 228 F.3d 987, 990 (9th Cir. 2000), quoting United States v. David H., 29 F.3d 489, 491
(9th Cir. 1994).5 Rodriguez’s prior juvenile adjudications—whether “constitutionally infirm” or
not, an issue we need not and do not reach—did not serve as the basis for any increased
punishment. Therefore, § 13-501(A)(6) is not constitutionally flawed.
B. Section 13-501(E)
¶27 Relying again on Apprendi, Tighe, and Commonwealth v. Quincy Q., 753 N.E.2d
781 (Mass. 2001), Rodriguez next argues § 13-501(E) is unconstitutional because it subjects a
juvenile defendant to enhanced punishment (prosecution as an adult) based on a judge, not a jury,
finding that the juvenile qualifies as a chronic felony offender. Because he did not challenge § 13-
501(E) below, Rodriguez has waived this argument on appeal.6 See State v. Bolton, 182 Ariz.
290, 297, 896 P.2d 830, 837 (1995). Even if not waived, however, Rodriguez’s argument is
without merit. See Fuenning v. Superior Court, 139 Ariz. 590, 594, 680 P.2d 121, 125 (1983)
(in our discretion we can address constitutional issues first raised on appeal); cf. In re Kyle M.,
200 Ariz. 447, ¶2, 27 P.3d 804, ¶2 (App. 2001).
5 The Ninth Circuit also noted that “[t]here is no constitutional right to be tried as a juvenile, nor does the Constitution require that juvenile proceedings be by indictment or jury trial.” United States v. Juvenile, 228 F.3d 987, 990 (9th Cir. 2000); see also Andrews v. Willrich, 200 Ariz. 533, ¶23, 29 P.3d 880, ¶23 (App. 2001). 6 In its answering brief, the state did not address Rodriguez’s waiver of this argument.
14 ¶28 In Quincy Q., the Massachusetts Supreme Court analyzed that state’s “youthful
offender” statute, which allowed a juvenile defendant to be sentenced as an adult if adjudicated
a “youthful offender.” The court found Apprendi applicable to that statute, stating:
Similar to the New Jersey hate crime statute [in Apprendi], the youthful offender statute authorizes judges to increase the punishment for juveniles convicted of certain offenses beyond the statutory maximum otherwise permitted for juveniles, if the [statutory] requirements . . . have been satisfied. We recognize that a juvenile court system, in which juveniles are given preferential treatment, is not constitutionally required. However, once the Legislature enacted a law providing that the maximum punishment for delinquent juveniles is commitment to the Department of Youth Services (department) for a defined time period any facts, including the requirements for youthful offender status, that would increase the penalty for such juveniles must be proved to a jury beyond a reasonable doubt.
Quincy Q., 753 N.E.2d at 789 (citations omitted).
¶29 Quincy Q. is distinguishable. In Massachusetts, if a minor is adjudicated a
“youthful offender” in juvenile court proceedings, the juvenile court may then enhance the minor’s
punishment. Id. at 788-90. Thus, under that system, a juvenile “youthful offender” is not
transferred to adult court but, rather, faces an enhanced sentence in juvenile court following a
determination of guilt in that forum. See State v. Hartpence, 42 P.3d 1197, 1205 (Kan. Ct. App.
2002) (distinguishing Quincy Q. because “the adjudication [there] was resolved in juvenile court
proceedings and then enhancement of sentence was applied following the resolution in juvenile
court”). And, as the state correctly points out, “the Massachusetts statute authorizes juvenile court
judges to increase the punishment for juveniles who are adjudicated ‘youthful offenders’ beyond
the statutory maximum otherwise permitted for juveniles, and for that reason, the Massachusetts
Supreme Court found that Apprendi applied to their ‘youthful offender’ statute.”
15 ¶30 The Massachusetts “youthful offender” system differs from § 13-501(E), which
generally mandates the prosecution of certain juveniles as adults. Unlike the Massachusetts
statute, § 13-501(E) provides for a preliminary, non-adjudicatory finding to determine whether
a juvenile offender should be prosecuted as an adult or juvenile. It does not allow a judge to
enhance a juvenile offender’s sentence upon a judge-made finding that he or she is a “chronic
felony offender”; it simply allows the juvenile’s further prosecution as an adult. In rejecting an
Apprendi challenge to a similar statutory scheme in Illinois, the court stated:
A hearing under [the Illinois statute] is dispositional, not adjudicatory. That is, the hearing determines not the minor’s guilt but the forum in which his guilt may be adjudicated. Thus, although the juvenile court made findings that exposed him to a greater sanction, defendant had no due process right to have a jury make those findings beyond a reasonable doubt.
People v. Beltran, 765 N.E.2d 1071, 1076 (Ill. App. Ct. 2002) (citation omitted).
¶31 Likewise, the Kansas Supreme Court stated the following about that state’s statutory
scheme for prosecuting juveniles as adults:
Apprendi reviewed a law permitting a judge, after making a factual finding about the crime, to sentence a defendant beyond the statutory sentence authorized by the jury’s verdict. In the present case, the decision under [the Kansas statute] does not follow a finding of guilt for any crime. The decision under [that statute] determines whether there is substantial competent evidence to authorize prosecution of a juvenile as an adult under the applicable criminal statute. If that decision is in the affirmative, the juvenile will be exposed to the statutory maximum sentence under the applicable criminal statute, which in most cases will exceed the statutory maximum disposition in the juvenile system. However, the juvenile tried as an adult will be subjected to the statutory maximum sentence under the applicable criminal statute only after a jury has determined his or her guilt beyond a reasonable doubt. The determination under [the Kansas statute] does not involve guilt or innocence, but involves the determination of which system will
16 be appropriate for a juvenile offender. As indicated above, we conclude that the Kansas procedure for authorizing adult prosecution under [the statute] does not violate the Sixth and Fourteenth Amendments to the United States Constitution.
Jones, 47 P.3d at 797-98. We reach the same conclusion here concerning § 13-501.
¶32 We also find Tighe inapposite because, as noted above, the adult defendant there
had pled guilty and been sentenced to statutorily enhanced prison terms. In contrast, § 13-501(E)
requires a finding of chronic-felony-offender status to be made at the beginning of the criminal
process, before any verdict or determination of guilt.7 Such a finding does not result in any
confinement or other punishment, the nature and duration of which would be entirely speculative
at that time. And it bears repeating that a grand jury returned the indictment against Rodriguez
and that he was exposed to the statutory maximum sentences applicable to his convictions only
after he was found guilty beyond a reasonable doubt at trial. No separate, post-trial finding by
a judge exposed Rodriguez to an enhanced sentence exceeding those statutory maximums.
¶33 In sum, § 13-501(E) is not a sentence enhancement scheme and, therefore, does not
implicate Apprendi. See Hartpence, 42 P.3d at 1205 (“Here, we are dealing with a determination
of in which court a juvenile will be tried for resolution of his or her case and not whether an
individual will be sentenced beyond the statutory maximum. This decision is akin to a
7 Rodriguez argues this distinction elevates form over substance and would allow the legislature to avoid the requirements of Apprendi by transforming what really are sentence- enhancement factors that a jury must find beyond a reasonable doubt into preliminary findings of fact made by a judge before trial. But § 13-501 was not enacted to manipulate or evade Apprendi requirements. And Apprendi clearly focused on factual findings that could expose a defendant, after a finding of guilt, to a sentence that exceeds the otherwise prescribed statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S. Ct. 2348, 2365, 147 L. Ed. 2d 435, 457 (2000) (“[D]oes the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”); see also State v. Brown, No. 2 CA-SA 2003-0003, 2003 WL 21205259, ¶¶10, 20 (Ariz. Ct. App. May 23, 2003).
17 jurisdictional determination.”). A judge’s finding that a juvenile is a chronic felony offender does
not subject that juvenile to enhanced punishment; it subjects the juvenile to the adult criminal
justice system. As such, § 13-501(E) is not constitutionally defective under Apprendi.
IV. Motion to Suppress Evidence
¶34 Rodriguez lastly argues that the trial court erred by denying his motion to suppress
the firearm and ammunition found in his home. We review a trial court’s ruling on a motion to
suppress for a clear abuse of discretion, State v. Sanchez, 200 Ariz. 163, ¶5, 24 P.3d 610, ¶5
(App. 2001), viewing the evidence presented at the suppression hearing and reasonable inferences
therefrom in the light most favorable to upholding the ruling. State v. Riley, 196 Ariz. 40, ¶10,
992 P.2d 1135, ¶10 (App. 1999).
¶35 At the suppression hearing, a probation officer, Quan, and a police officer,
Corrales, testified about the search of Rodriguez’s house. Quan testified that he and Corrales had
gone to the house looking for Rodriguez’s sister, who had absconded from juvenile intensive
probation, and Rodriguez’s mother had consented to their searching the house for her daughter.
When Quan entered one of the bedrooms, he saw Rodriguez lying on one bed and what he
believed to be the butt end of a long rifle sticking out from under the mattress of a second bed.
Due to safety concerns, Quan immediately left the room to tell Corrales what he had seen.
¶36 Corrales testified that, after Quan had told him about the gun, Corrales had gone
to the bedroom and observed Rodriguez sitting on the second bed where Quan had seen the
weapon. Standing outside the bedroom for safety reasons, Corrales asked Rodriguez to come out,
which he did. Corrales then went in the bedroom. Although he could not see a weapon at that
time, he lifted the mattress on the second bed and found a shotgun and some ammunition. Noting
18 that the shotgun obviously “appeared to be” illegal because its barrel had been cut, Corrales took
custody of the weapon for “safety reasons” and determined that it had a shortened barrel and no
serial number.
¶37 In support of his motion to suppress, Rodriguez argued that the officers had lacked
probable cause to seize the firearm until after they had taken it and Corrales had then seen that its
barrel was too short and the serial number had been removed. The state countered that the officers
had had legitimate safety concerns that justified the seizure of the gun. The trial court found that
[the officers] had a right to be [in the house] based on consent. They observed a weapon they had the right to be concerned about. And they seized it without probable cause to believe that a crime had been committed; mere existence and presence of the gun. I find that to be a reasonable series of events, reasonable behavior by the police.
The trial court concluded that “[i]t was not unreasonable for the officers to take the weapon for
safety purposes and without probable cause to believe that a crime was committed” and, therefore,
denied Rodriguez’s motion to suppress.
¶38 “[T]he police may, under certain circumstances, make a warrantless protective
sweep of a residence if they are lawfully inside the residence [and they] reasonably perceive an
immediate danger to their safety.” State v. Kosman, 181 Ariz. 487, 491, 892 P.2d 207, 211
(App. 1995); see also Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276
(1990). Rodriguez contends the officers had no reasonable grounds to fear for their safety because
“[t]here were no circumstances to suggest any basis that [Rodriguez] would present a danger.”
We disagree. Quan initially saw Rodriguez and what appeared to be a rifle in the same room, and
Rodriguez’s sister was still at large. After Quan left the bedroom and before Corrales entered it,
Rodriguez had moved from one bed to the other, and the rifle butt was no longer visible. We
19 agree with the trial court that the officers had a legitimate “right to be concerned about” the
presence of such a weapon, even without initially suspecting that the gun was illegal or that
Rodriguez was a prohibited possessor.
¶39 The trial court rationally could conclude from the totality of the circumstances here
that the officers “reasonably perceive[d] an immediate danger to their safety,” Kosman, 181 Ariz.
at 491, 892 P.2d at 211, and that Corrales was justified in lifting the mattress and temporarily
seizing the weapon. See, e.g., United States v. Malachesen, 597 F.2d 1232, 1234 (8th Cir. 1979)
(officer’s temporary seizure of loaded weapon found beneath mattress during search of residence
was “reasonable precaution to assure the safety of all persons on the premises during the search”);
People v. Gallegos, 117 Cal. Rptr. 2d 375, 388 n.13 (Cal. Ct. App. 2002) (officer’s temporary
seizure of guns found under bed during residential search “was not unreasonable within the
meaning of the Fourth Amendment” even though “it was not ‘immediately apparent’ that they
were contraband”).8 And the shotgun’s seizure and removal were justified by Corrales’s
observation that it was an illegal weapon. See A.R.S. §§ 13-3101(A)(7)(d); 13-3102(A)(3), (J);
see also Malachesen, 597 F.2d at 1235; Gallegos, 117 Cal. Rptr. 2d at 389-90. Thus, the trial
court did not clearly abuse its discretion in denying Rodriguez’s motion to suppress. Sanchez.
8 See also United States v. Humphrey, 759 F.2d 743, 748 (9th Cir. 1985) (once Coast Guard officers who boarded ship learned about firearms below deck, limited protective search for and temporary seizure of guns was justified by security considerations); United States v. Miles, 82 F. Supp. 2d 1201, 1209 (D. Kan. 1999) (once lawfully inside apartment, officers “were free to seize, at least momentarily for their safety and the safety of others in the area, the firearm which was in plain view”); State v. Cotten, 879 P.2d 971, 979-80 (Wash. Ct. App. 1994) (officers’ seizure of shotgun found in residence during consensual search for evidence of bombing, although beyond scope of consent, was reasonable for Fourth Amendment purposes, even though “it was not immediately apparent to the FBI agents that the shotgun was evidence of any crime”).
20 DISPOSITION
¶40 Rodriguez’s convictions and probationary term are affirmed.
_______________________________________ JOHN PELANDER, Presiding Judge
CONCURRING:
_______________________________________ PHILIP G. ESPINOSA, Chief Judge
_______________________________________ WILLIAM E. DRUKE, Judge (Retired)