State v. Lujan

911 P.2d 562, 184 Ariz. 556, 197 Ariz. Adv. Rep. 47, 1995 Ariz. App. LEXIS 192

• Court: Court of Appeals of Arizona
• Decided: August 24, 1995
• Docket: Nos. 1 CA-CR 94-0168, 1 CA-CR 94-0169
• Status: Published

Opinions

OPINION

GARBARINO, Judge.

Daniel Lujan (defendant) appeals the trial court’s revocation of his probation and imposition of a four-year sentence on one count of attempted second-degree burglary. He also appeals his conviction and seventeen-year sentence on one count of kidnapping, contending that the trial court abused its discretion by refusing to strike the jury panel and that his sentence constitutes cruel and unusual punishment under the United States and Arizona Constitutions. We affirm.

FACTS AND PROCEDURAL HISTORY

At age sixteen, defendant was transferred to superior court for prosecution as an adult and charged by indictment with second-degree burglary, a class 3 felony. Eventually, he pled guilty to attempted second-degree burglary, a class 4 felony, and was placed on probation for four years.

On Halloween night of 1992, approximately six weeks after defendant was placed on probation, he was involved in another incident. Robert, the thirteen-year-old victim, was riding on the handlebars of his friend’s bike when defendant and another person yelled at them, causing Robert’s friend to stop the bike. Robert jumped off the handlebars, and defendant grabbed Robert from behind in a “bear hug” and dragged him against his will to a nearby house. The house belonged to Ernestine Guillen, and apparently a party was taking place. After defendant knocked on the door, Julio Carmelo opened it and told defendant to bring Robert inside. Carmelo, who was Ernestine’s fiance and knew Robert prior to this incident, then called Ernestine’s younger brother, Boxer, into the house.

Once inside the house, defendant released Robert. Despite the presence of other persons, including small children, defendant and two or three others proceeded to surround Robert. Defendant said, “What should we do? Stab him? Shoot him? Jump him or whatever____ I don’t mind. I already stabbed four or five others.” Robert’s mouth was shaking, and he was quivering and had tears in his eyes. Robert’s testimony revealed that he feared for his life. According to Carmelo, defendant and another person wanted to take Robert into the backyard and beat him up for a Halloween prank. However, Boxer told Robert to leave, and he left. The incident spanned approximately five minutes.

Following this incident, the seventeen-year-old defendant was again transferred to superior court for prosecution as an adult and charged with kidnapping, a class 2 felony. Because the victim was under fifteen years of age, the offense was alleged to be a dangerous crime against children. See Ariz. Rev.Stat.Ann. (A.R.S.) § 13-604.01. The State also filed an allegation pursuant to A.R.S. section 13-604.02(B) that the offense was committed while defendant was on probation in the attempted second-degree burglary matter. Additionally, a petition to revoke defendant’s probation was filed.

Defendant was found guilty of kidnapping following a jury trial. He was sentenced to the mandatory, presumptive seventeen-year term of imprisonment and credited with 467 days of presentence incarceration. The trial court also revoked defendant’s probation on the attempted second-degree burglary conviction and sentenced him to a presumptive four-year term. The court ordered that the sentence for the kidnapping conviction be served consecutively to the sentence for the attempted second-degree burglary conviction. Timely notices of appeal were filed in each cause number.

DISCUSSION

At defendant’s request, we have consolidated the cause numbers. We will address each separately.

I. REVOCATION OF PROBATION

Defense counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), requesting that this Court search the record for fundamental error pursuant to A.R.S. section 18-4035 and State v. Powell, 5 Ariz. App. 51, 423 P.2d 127 (1967). We have given defendant an opportunity to file a supplemental brief in propria persona raising any points that he might choose to bring to this Court’s attention; however, a supplemental brief has not been filed.

As stated above, defendant was placed on probation for four years after pleading guilty to attempted second-degree burglary. The record indicates that he entered a plea of no contest to a charge of aggravated assault, which resulted in a violation of his probation. The dispositional hearing was conducted simultaneously with the sentencing hearing on the kidnapping conviction. After personally addressing defendant and giving him an opportunity to speak, the trial court found reinstatement of probation inappropriate and sentenced him to a presumptive four-year term of imprisonment. The sentence was run concurrently with the sentence imposed on the aggravated assault conviction, and defendant was given credit for 632 days of presentenee incarceration.

Pursuant to A.R.S. section 13-4035, we have read and considered defense counsel’s brief and reviewed the record for fundamental eiTor. We find none.

II. KIDNAPPING

A. Refusal to Strike the Jury Panel

Defendant first contends that the trial court abused its discretion by refusing to strike the entire jury panel following a panel member’s comments regarding his work with gangs and about defendant’s appearance. We disagree.

During voir dire, a prospective juror, A.G., said that he was a federal law enforcement officer and that he knew several investigators in the Maricopa County Attorney’s Office. The trial court later asked whether any member of the jury panel had been called to testify as a witness at trial. The following colloquy transpired:

JUROR [A.G.]: [A.G.] I’ve had to testify several times in federal court on cases that I have brought before federal court.

THE COURT: In connection with your—

JUROR [A.G.]: With my job, yes. Now that we’re on the subject, I feel that I would be very—what would you call it, prejudicial in the way of my thoughts on this type of case also.

THE COURT: Do you feel that because you’re employed in law enforcement that you also have a bias that would favor the testimony of these law enforcement officers who you have not met, that you would automatically tend to be biased in their favor?

JUROR [A.G.]: Yes.

THE COURT: Do you feel that you would not be able to judge them accuracy and credibility by the same standards you’ll be asked to apply to the nonlaw enforcement officers?

JUROR [A.G.]: Not necessarily that, but just right now I’m assigned to the Violent Gang Task Force where I work. We deal a lot with juveniles or young people, and I’ve seen a lot of violence that goes on in these age groups and right now, I don’t think I could be very—I’d be biased in a case where I think somebody of Mr. Lujan’s age—

THE COURT: So you’re concerned with the ages of the people that are involved?

JUROR [A.G.]: Not only the ages, but I work with gangs a lot, and I already have a preconceived notion of Mr. Lujan by his method of dress, his hair.

The trial court promptly excused A.G.

At the close of voir dire, the trial court asked defense counsel whether she had any additional questions. Defense counsel answered affirmatively and stated:

A couple of the people that were on the panel were excused because they had experience as law enforcement officers. And their answers to the judge’s questions made it pretty clear they had certain biases, and I’m just concerned that having heard that, if any of you share the biases that I think came across from these officers’ answers.

Is there anyone here who thinks that based on what those officers said, it in any way would affect your decisions here?

None of the jurors indicated that the officers’ remarks would affect them. Defense counsel later made a motion to strike the entire panel based on A.G.’s comments regarding gangs; however, the motion was denied.

Although a defendant is entitled to be tried by a fair and impartial jury, he is not entitled to any one particular jury. State v. Greenawalt, 128 Ariz. 150, 167, 624 P.2d 828, 845, cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). The trial court must be affirmed “unless the record affirmatively shows that such a fair and impartial jury was not secured.” State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978). Excusing jurors is within the sound discretion of the trial court, and its actions will not be disturbed absent “a clear and prejudicial abuse of that discretion.” Id.

Our review of the record reveals that the jury was fair and impartial. Defense counsel specifically asked the panel whether the prior remarks would affect their decisions in the case, and no one responded. We therefore decline “to indulge in an assumption ... that the panel was tainted.” See State v. Davis, 137 Ariz. 551, 558, 672 P.2d 480, 487 (App. 1983). Defendant has failed to meet his burden of showing that the panel was prejudiced by A.G.’s remarks. See id. Accordingly, the trial court did not abuse its discretion by refusing to strike the entire panel.

B. Cruel and Unusual Punishment Under the United States Constitution

Defendant next argues that his seventeen-year sentence is disproportionate to his crime and therefore constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. He relies on our supreme court’s opinion in State v. Bartlett, 171 Ariz. 302, 830 P.2d 823, cert. denied, 506 U.S. 992, 113 S.Ct. 511, 121 L.Ed.2d 445 (1992) (Bartlett II).

We first note the statutes applicable to defendant’s sentence. A.R.S. section 13-1304(B) provides that kidnapping is a class 2 felony punishable pursuant to A.R.S. section 13-604.01 if the victim is under fifteen years of age. A.R.S. section 13-604.01(B) states in relevant part that “a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a dangerous crime against children in the first degree involving ... kidnapping shall be sentenced to a presumptive term of imprisonment for seventeen years.” In addition, A.R.S. section 13-604.02(B) requires defendant to serve the entire presumptive term (flat time) because he was on probation at the time of the kidnapping offense. The trial court had no discretion to sentence defendant to a term less severe than a presumptive term of seventeen years flat.

Prior to sentencing, defense counsel filed a motion requesting that the trial court dismiss the allegation of A.R.S. section 13-604.01 and designate the kidnapping offense as either a class 2 or class 4 felony. Counsel argued that defendant is not among the class of offenders to whom A.R.S. section 13-604.01 is intended to apply and that application of the statute in this case violates defendant’s constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution. The motion was denied.

With this background in mind, we now turn to the question of whether the seventeen-year flat sentence exceeds constitutional limitations. The Arizona Supreme Court has applied the standard set forth in Justice Kennedy’s concurring opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), to determine whether a sentence constitutes cruel and unusual punishment. Bartlett II, 171 Ariz. at 305, 830 P.2d at 826. According to our supreme court, “[t]he important test ... is whether the sentence is grossly disproportionate to the gravity of the offense.” Id. at 304, 830 P.2d at 825. A comparative analysis of defendant’s sentence with others in Arizona and across the nation is “ ‘appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ ” See id. (quoting Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707). “[I]n weighing the gravity of an offense against the severity of a penalty,” consideration should be given to “‘the harm caused or threatened to the victim or society, and the culpability of the offender— For example, as the criminal laws make clear, nonviolent crimes are less serious than crimes marked by violence or the threat of violence.’ ” Id. at 306, 830 P.2d at 827 (quoting Solem v. Helm, 463 U.S. 277, 292-93, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1983)).

At sentencing, the trial court engaged in the analysis articulated in Bartlett II and concluded:

[0]n October 31, 1992, the date of this offense, the defendant was 17 years, one month old. He had already been convicted as an adult of attempted burglary. That offense was committed on October 2, 1991, when he was 16.

This present offense, the kidnapping, was committed just one month or just a little more than a month after the defendant was placed on adult supervised probation and released from custody on that attempted burglary conviction.

On October 31, 1992, the victim was a 13-year old boy, 5 feet 2 inches tall, weighing 103 pounds. He was dragged off his bicycle by the defendant and into the home of [Ernestine] Guillen.

At that time the defendant was five feet 11 inches tall, approximately 145 pounds. The victim in this case—this Court has seen the victim. He appeared to be a young boy. He did not appear to be older than his age. He certainly appeared to be a 13-year old boy. There could not be any mistake that he was much younger than the defendant.

The defendant threatened the victim with physical harm. The evidence at the trial was that the defendant threatened to stab him, jump him or kill him. The victim suffered emotional harm in this case.

Witnesses in this case stated that the defendant’s expressed intention was to take the victim into the backyard so that he ... could beat him up.

The victim was admittedly seared, according to the testimony of witnesses, at the time and it appears to the Court that the only reason that the defendant allowed the victim to leave was due to the intervention of third persons.

Under all of these circumstances, including the defendant’s prior felony record as an adult, the fact that he was on probation for six weeks at the time of this offense, the emotional harm to the victim, the threatened physical harm to the victim, the Court finds the defendant is fully culpable as an adult for this offense.

He knew the victim was a child, and he knew that he was already an adult felon at the time that he committed this offense.

Under these circumstances, and the Court applying the standard set forth in Bartlett to attempt to determine whether this is a rare case where the mandatory sentence is grossly disproportionate to the severity of the crime, the Court cannot say that it is.

Having conducted our own review of the case and the relevant factors, we agree with the trial court that a sentence of seventeen years does not raise an inference of gross disproportionality. As did the trial court, we have considered the violent conduct proposed by defendant, including Carmelo’s testimony that defendant wanted to take the victim into the backyard to beat him. The dissent speculates that defendant did not really intend to shoot or stab the victim “because the threat was made in the presence of people who were not sympathetic to it” and that “there is a good chance that [the beating] would not have been severe.” We will not join in this conjecture. It is just as likely that defendant actually intended to inflict serious bodily harm upon Robert and that such harm would have resulted had third parties not intervened. The record clearly supports the conclusion that this crime involved a threat of violence. Moreover, as the trial court observed, defendant had a prior adult felony record and had been placed on probation just weeks before he committed the kidnapping. These facts enhance the gravity of the present offense. Cf. Bartlett II, 171 Ariz. at 307, 830 P.2d at 828 (finding that the defendant’s lack of a prior record reduced the gravity of his offenses). In addition, despite defendant’s age, we cannot disagree with the trial court’s finding that he was fully culpable as an adult given his prior felony record and the evidence that he intended to harm the child victim. Consequently, we do not find that the imposition of a seventeen-year flat term raises an inference of gross disproportionality, and we therefore need not reach the intra- and inter-jurisdictional analyses performed by the dissent.

The Arizona legislature has enacted laws that impose severe consequences upon persons who commit crimes against children. Our supreme court has “acknowledge[d] the legislature’s prerogative to criminalize behavior and to choose the appropriate punishment.” Bartlett II, 171 Ariz. at 308, 830 P.2d at 829; see also Harmelin, 501 U.S. at 998-99, 111 S.Ct. at 2703. It can only be assumed that the legislature intended to remove the people who would commit such crimes from the streets in order to protect children.

The dissent cites Bartlett II and disregards Harmelin, moving directly to a discussion centered on the victim, defendant, and facts of the case, conveniently avoiding the threshold comparison of the crime committed and the sentence imposed. The dissent speaks of the insincerity of the victim when describing his fright and his tolerance for the conduct to which he was subjected. It further postulates that defendant was merely committing a “prank” and that “it seems very unlikely” that defendant ever intended to carry through with his threats. To a limited extent we have engaged in the analysis proposed by the dissent; however, this is not the analysis Justice Kennedy employed in Harmelin. In Harmelin, Justice Kennedy focused on the threat posed to the individual and society by commission of the crime and not on the particular facts and circumstances of the crime. 501 U.S. at 1002-05, 111 S.Ct. at 2705-07. Because our analysis leads us to conclude that this is not “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality,” we must decline the dissent’s invitation to extend our analysis to an intra- and inter-jurisdictional proportionality review. See id. at 1005, 111 S.Ct. at 2707.

C. Cruel and Unusual Punishment Under the Arizona Constitution

Defendant’s final contention is that his sentence violates the ban against cruel and unusual punishment embodied in article 2, section 15 of the Arizona Constitution. He concedes that there is no authority to support his claim that the state constitutional provision should be applied differently than the Eighth Amendment to the United States Constitution. In the absence of such authority, we decline to hold that his sentence violates the Arizona Constitution.

CONCLUSION

Pursuant to A.R.S. section 13-4035, we have reviewed the entire record for fundamental error. We find none. The revocation of probation and sentence imposed on defendant’s conviction for attempted second-degree burglary are affirmed. Upon the filing of this decision, counsel shall inform defendant of the status of his appeal and of his future options. Defense counsel has no further obligation unless, upon review, he finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. We also affirm defendant’s conviction and sentence on the kidnapping charge.

WEISBERG, J., concurs.