Opinion
2 CA-CR 2011-0270
10-18-2012
THE STATE OF ARIZONA, Appellee, v. ALBERT ROBERT GAXIOLA, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Jonathan Bass Tucson Attorneys for Appellee Lori J. Lefferts, Pima County Public Defender By Rebecca A. McLean and David J. Euchner 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Not for Publication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. CR20092300002
Honorable John S. Leonardo, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Jonathan Bass
Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Rebecca A. McLean and David J. Euchner
Tucson
Attorneys for Appellant
HOWARD, Chief Judge. ¶1 After a jury trial, appellant Albert Gaxiola was convicted of two counts each of felony murder and aggravated assault, one count of first-degree burglary, attempted first-degree murder, aggravated robbery, and armed robbery. On appeal, Gaxiola argues the trial court erred by allowing the state to prove felony murder under an accomplice liability theory and to argue his presence at the crime scene was not required to impose accomplice liability, and by allowing jurors to convict him of attempted first-degree murder based on a felony murder theory. He further contends the court erred by imposing consecutive sentences for some of his crimes and by conducting the restitution hearing without his counsel present. Because the court erred by sentencing Gaxiola to consecutive robbery sentences and by conducting the restitution hearing without Gaxiola's counsel, we vacate his aggravated robbery sentence and restitution order, affirm his convictions and other sentences, and remand to the trial court for proceedings consistent with this decision.
Factual and Procedural History
¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). While Gaxiola waited outside, his accomplices Forde and Bush went to the front door of victim Gina G.'s house, claimed to be Border Patrol agents and threatened to shoot her husband, Raul F., if he moved from the door. They then ordered Raul to let them into the house immediately. He opened the door. Forde and Bush entered and began ordering the family to sit down and be quiet. Raul tried to question Bush and Forde about who they were, but Bush shot him. When Gina stood up to protest, Bush shot her twice, then turned back to Raul and shot him again several times, ultimately killing him. While lying on the floor, Gina heard Gaxiola and another intruder ransacking her house, searching for drugs and money, although they only succeeded in stealing her jewelry. Meanwhile, Bush questioned Gina's daughter, B., and shot her twice in the face, ultimately killing her. At this point the intruders left. ¶3 Soon after Gina called 9-1-1 for help, Forde reentered the house, noticed Gina was still alive, and said, "she's still alive, you need to go back in there and finish her off." Gina made her way to Raul's handgun, and when Bush came back and opened fire on her, Gina returned fire. Bush was injured and ran away. Gaxiola then entered the premises and fired at Gina, but fled after Gina began shooting at him. Gaxiola and the others did not return. ¶4 Gaxiola was charged with and convicted of two counts of felony murder, first-degree burglary, attempted first-degree murder, two counts of aggravated assault, and two counts of robbery. He was sentenced to two consecutive life sentences for the felony murders and consecutive sentences on each of the remaining crimes totaling fifty-four years. Gaxiola appeals from these convictions and sentences.
Shawna Forde and Jason Bush both were involved in the planning and execution of the events that occurred at the victims' house that evening. They were tried and convicted separately for their roles in the crimes that took place.
Accomplice Liability for Felony Murder
¶5 Gaxiola first argues the trial court erred in failing to instruct the jury that accomplice liability does not extend to felony murder. He contends "felony murder can only be charged against a person who commits the predicate felony, not an accomplice to one who commits the predicate felony." (Emphasis omitted.) Gaxiola concedes he did not raise this argument below and he therefore has forfeited the right to seek relief for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). To show error is fundamental, the defendant must establish that: (1) an error occurred; (2) the error was fundamental; and (3) the error resulted in prejudice. See id. We have found that instructing a jury on a non-existent legal theory can be fundamental error. State v. Ontiveros, 206 Ariz. 539, ¶ 17, 81 P.3d 330, 333 (App. 2003). ¶6 In arguing accomplice liability does not extend to felony murder, Gaxiola primarily relies on the plain language of the statute and on Evanchyk v. Stewart, for its statement, "Nor can the defendant be convicted of felony murder committed by a codefendant unless he was both an accomplice and a participant in the underlying felony." 202 Ariz. 476, ¶ 14, 47 P.3d 1114, 1118 (2002), citing State v. Phillips, 202 Ariz. 427, ¶ 46, 46 P.3d 1048, 1058 (2002) (the paragraph in Phillips cited by Evanchyk addresses prosecutorial misconduct, not felony murder). However, we previously have rejected both of these arguments. See State v. Rios, 217 Ariz. 249, ¶ 11, 172 P.3d 844, 847 (App. 2007). In Rios, we concluded the plain meaning of the statutes did not "impose an additional undefined requirement of 'participation' in the underlying felony for a conviction of felony murder." Id. ¶ 10. We also found the defendant's reliance on Evanchyk and Phillips misplaced because these cases do not "stand for the proposition that a defendant must be present at the scene of, and participate in the underlying felony, to be convicted of felony murder based on the theory of accomplice liability." Id. ¶ 16. ¶7 Gaxiola acknowledges our holding in Rios, but makes no clear attempt to distinguish it from his case aside from asserting the decision was "wrong[ly]" decided. This argument is inadequate to require us to abandon our precedent. See State v. Patterson, 222 Ariz. 574, ¶ 19, 218 P.3d 1031, 1037 (App. 2009) (we only overturn precedent if firmly convinced prior decision based on clearly erroneous principles, or conditions have changed to render prior decision inapplicable). ¶8 He also cites to State v. Johnson, 215 Ariz. 28, 156 P.3d 445 (App. 2007), and argues this court correctly followed Evanchyk and Phillips in that decision by "not consider[ing] the language of Evanchyk or Phillips to be advisory." However, he concedes the defendant in Johnson obtained relief on other grounds. Because "a court's statement on a question not necessarily involved in the case" is dictum, the language in Johnson regarding Evanchyk and Phillips was merely dictum. See Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324, 1327 (1981) ("Dictum [twice] repeated is still dictum."). Moreover, in Johnson, we held that, under the state of the law at that time, to be an accomplice to felony murder, one had to intentionally aid and abet the predicate felony for the felony murder and not just a related felony. 215 Ariz. 28, ¶¶ 14, 17-27, 156 P.3d at 448, 449-51. Here, there was considerable evidence that Gaxiola was an accomplice—and intended to be an accomplice—to the predicate felonies of burglary and robbery. Thus, Johnson is distinguishable from this case. ¶9 Additionally, allowing a conviction for felony murder based on accomplice liability is consistent with Arizona law on accomplice liability. The accomplice liability statutes, A.R.S. §§ 13-301 and 13-303, make an accomplice "criminally accountable for the conduct of another" and do not create a distinction between principal and accomplice liability. "It is clear when §§ 13-301 and [13]-303 are read together, that an accomplice may be either the principal or an accessory to the crime. In other words, all participants are criminally accountable as principals, regardless of whether a participant was the accomplice in fact. The law makes no distinction." State v. Jobe, 157 Ariz. 328, 331-32, 757 P.2d 604, 607-08 (App. 1988). ¶10 Here, Gaxiola has failed to show that accomplice liability does not apply to felony murder. Accordingly, he has not shown error, let alone fundamental error, in the trial court's failure to give a limiting instruction sua sponte on accomplice liability. ¶11 Gaxiola additionally argues the state did not present sufficient evidence to show he "was a principal in the predicate felonies that resulted in the deaths of [Raul and B.]," but he does not argue insufficient evidence supported his conviction for felony murder under the accomplice liability theory. Because we conclude the accomplice theory of liability applies to felony murder, and Gaxiola does not claim the evidence was insufficient to convict him under this theory, we need not address his argument. See State v. Amaya-Ruiz, 166 Ariz. 152, 173 n.1, 800 P.2d 1260, 1281 n.1 (1990) (when resolution of one issue dispositive of argument, court need not address other issues implicated by argument). ¶12 Gaxiola also argues that instructing the jury on the purportedly non-existent crime of accomplice felony murder was fundamental error. Gaxiola further claims the state improperly argued in its rebuttal closing argument that he could be convicted for felony murder under an accomplice liability theory. But, as we have determined above, accomplice liability applies to felony murder to the extent the defendant is an accomplice to the predicate felony and, accordingly, he has not shown the trial court erred in instructing the jury.
State's Rebuttal Argument
¶13 Gaxiola next argues the trial court erred in permitting the state to argue in rebuttal that he "could be found guilty through accomplice liability for everything that happened at the house regardless of whether [he] was aware of the final plan," or present during the home invasion. Gaxiola suggests he preserved this issue for appeal in his argument concerning his motion pursuant to Rule 20, Ariz. R. Crim. P., and cites to his argument that accomplice liability requires a defendant to be aware of his accomplices' final plan. However, this argument specifically was addressing Gaxiola's Rule 20 motion only. Gaxiola did not make a clear objection to the state's argument in rebuttal that accomplice liability could apply to him if he was not aware of the final plan or was not present during the home invasion. Because the purpose of requiring a specific objection in the trial court is to permit it to rectify possible error, see State v. Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d 50, 56 (2003), and Gaxiola made this argument exclusively in the context of his motion for a judgment of acquittal rather than in the context of limiting argument, he did not alert the court to his contention that such rebuttal argument should be impermissible. He therefore did not preserve for appeal his claim regarding impermissible rebuttal argument. See id. ¶14 Because Gaxiola failed to object properly, we review solely for fundamental, prejudicial error. See State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683-84 (App. 2008). The defendant has the burden of establishing fundamental error occurred and the error resulted in prejudice. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Prejudice results only when, "but for the error, a reasonable fact-finder 'could have reached a different result.'" State v. Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d 263, 273 (App. 2007), quoting Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609. ¶15 First, the record does not support Gaxiola's recitation of facts. Although the state argued accomplice liability in its rebuttal, it did not argue Gaxiola could be convicted for all crimes that took place at the victim's house regardless of whether he was aware of the final plan. Additionally, after State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002), the legislature expanded accomplice liability to include "any offense that is a natural and probable or reasonably foreseeable consequence of the offense for which the person was an accomplice." 2008 Ariz. Sess. Laws, ch. 296, § 1. Noticeably absent is any requirement that a defendant actually participate in the offenses, be present at the scene, or intend the result. Gaxiola does not explain how his argument survives in the face of this amended portion of the statute. Rather he cites State v. Johnson, 205 Ariz. 413, 72 P.3d 343 (App. 2003), which preceded this expansion. Thus, Gaxiola has failed to demonstrate that the state's argument was an incorrect statement of the law. Therefore, Gaxiola's argument fails. ¶16 Furthermore, in his opening brief, Gaxiola argues the trial court erred by allowing the state "to argue an erroneous theory of accomplice liability, [and therefore] the jury may have convicted based on [the theory that his presence at the crime scene was not required] instead of upon the State's original theory that Gaxiola was present and committed the predicate felonies." However, his argument does not show prejudice under the appropriate fundamental error standard, that if the alleged error had not occurred, the jury could have found he was not guilty. See Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d at 273. Accordingly, Gaxiola fails to show how he was prejudiced by the alleged error.
We note that although Gaxiola cites to authority regarding the court's duty to instruct jurors properly, he does not dispute the accuracy of the jury instructions nor does he fully develop an argument regarding the instructions given in this case. Accordingly, we focus our review on the state's comments in its rebuttal argument. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument constitutes waiver of claim on appeal).
Attempted First-Degree Murder
¶17 Gaxiola additionally argues the trial court erred by denying his motion for a judgment of acquittal, made pursuant to Rule 20, Ariz. R. Crim. P., in which he contended the state had produced insufficient evidence of "a plan to murder Gina" to convict him of her attempted premeditated first-degree murder. We review de novo the court's ruling and whether sufficient evidence supports Gaxiola's convictions. See State v. West, 226 Ariz. 559, ¶¶ 15, 19, 250 P.3d 1188, 1191, 1192 (2011). ¶18 A judgment of acquittal should be granted only when "there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a); see also State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). Substantial evidence "may be either circumstantial or direct." State v. Henry, 205 Ariz. 229, ¶ 11, 68 P.3d 455, 458 (App. 2003). We will reverse a conviction "only if 'there is a complete absence of probative facts to support [the jury's] conclusion.'" State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000), quoting State v. Mauro, 159 Ariz. 186, 206, 766 P.2d 59, 79 (1988). ¶19 To sustain a conviction for attempted first-degree murder as a principal, evidence must show the defendant took "'some overt act or steps'" toward the commission of murder and the defendant had "'an intent to commit the crime.'" State v. Cleere, 213 Ariz. 54, ¶ 5, 138 P.3d 1181, 1184 (App. 2006), quoting State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983); see also A.R.S. §§ 13-1105(A)(1) (definition of premeditated first-degree murder); 13-1101(1) (definition of premeditation); 13-1001(A) (definition of attempt). "[T]he act of shooting another person may support an inference that the act was committed with intent or knowledge." State v. Ontiveros, 206 Ariz. 539, ¶ 16, 81 P.3d 330, 333 (App. 2003). ¶20 Viewed in the light most favorable to upholding Gaxiola's conviction and resolving all inferences against him, see State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008), the evidence established that while Gina was on the phone with 9-1-1, Forde came back inside the house and noticed Gina was still alive. Forde turned around and stated, "she's still alive, you need to go back in there and finish her off." Gina retrieved her husband's handgun from the kitchen and collapsed on the kitchen floor. Bush re-entered the house and began shooting at Gina, Gina returned fire, and Bush left the house. Gaxiola then looked through the front door at Raul and B., came in and looked at Gina, said "oh, shit," and Gina told him to "get the fuck out of here." Gina and Gaxiola both started "shoot[ing] at one another," and Gaxiola went back out the front door. ¶21 This evidence is sufficient to support the jury's finding that Gaxiola had entered Gina's house with the intent to kill her. Further, reasonable jurors could infer Forde's command to Gaxiola and Bush to go back into the house to "finish [Gina] off" shows an unambiguous plan to ensure Gina was dead. And, because Gaxiola did not re-enter until after Gina's exchange of fire with Bush, sufficient circumstantial evidence supports a jury's finding that he had reflected on the plan before attempting to carry it out. See State v. Thomson, 204 Ariz. 471, ¶ 33, 65 P.3d 420, 429 (2003) (circumstantial evidence sufficient to show actual reflection; passage of time between formation of intent and act of killing also may show premeditation, but may not be simple proxy for premeditation). ¶22 Further, a reasonable jury could have found that Gaxiola had broken into the victims' house with a loaded rifle and robbed the victims. The rifle with Gaxiola's DNA was found later in Gina's house with one live round in its chamber and 30 rounds in its magazine. Because Gaxiola was helping to commit burglary and robbery against Gina and her family with a deadly weapon, Bush's actions of shooting at Gina after the burglary and robbery were committed were reasonably foreseeable consequences. Further, Bush shooting at Gina in an attempt to kill her was a natural and probable consequence of a criminal episode that involved a plan to kill Raul and rob Gina and her family with deadly weapons. Accordingly, sufficient evidence supports Gaxiola's conviction of attempted first-degree murder, and the trial court did not err in denying his motion for a judgment of acquittal for this count. ¶23 Gaxiola also contends his conviction for attempted first-degree murder should be overturned because Arizona does not recognize the crime of attempted first-degree felony murder. Because the jury was instructed only as to premeditated first-degree murder for Gaxiola's attempted first-degree murder charge, and we presume the jury follows its instructions, see State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996), we do not address this argument further.
Deoxyribonucleic acid.
Consecutive Sentences
¶24 Gaxiola next argues the trial court erred by imposing consecutive sentences in violation of A.R.S. § 13-116 for his first-degree burglary, attempted first-degree murder, aggravated assault causing serious physical injury, aggravated assault with a deadly weapon, armed robbery, and aggravated robbery convictions. Because Gaxiola did not make this objection at trial, we review only for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). The imposition of an illegal sentence can constitute fundamental error. State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App. 2002). ¶25 Section 13-116 prohibits the imposition of consecutive sentences for offenses arising out of a single "act or omission." To determine what constitutes one act, we apply the three-part test from State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989). First, we consider the facts of each crime and subtract from the factual transaction the evidence necessary to convict on the ultimate crime, the crime "that is at the essence of the factual nexus and that will often be the most serious of the charges." Gordon, 161 Ariz. at 315, 778 P.2d at 1211. If the remaining evidence is sufficient to satisfy the elements of the other crime, then consecutive sentences may be imposed. Id. We then consider whether it was factually impossible to commit the more serious offense without also committing the less serious offense. Id. If that is the case, then it is more likely that the defendant committed a single act. Id. We last consider whether the defendant's conduct in committing the lesser offense "caused the victim to suffer an additional risk of harm beyond [the harm ordinarily] inherent in the ultimate crime." Id. If so, consecutive sentences may be imposed. Id. ¶26 Gaxiola argues that the burglary should be the ultimate crime because "the attempted first-degree murder, aggravated assault, and robbery charges involving Gina all stem from the burglary." He contends that after subtracting the factual transaction necessary to convict for burglary, which he claims requires subtraction of evidence of the assault, insufficient evidence remains of the other aggravated assault, the robbery, or the attempted murder. But even if burglary were the ultimate crime, Gaxiola does not support his claim that Gordon requires subtraction of the assault with authority or logic. Nor does he explain why, after subtracting evidence of the assault, there is no further evidence of a separate assault, a robbery, and an attempt to murder Gina. ¶27 Gordon would require, assuming burglary were the ultimate charge, only the subtraction of evidence of Gaxiola or one of his accomplices entering the house with the intent to commit a felony while knowingly possessing a firearm. See State v. Cornish, 192 Ariz. 533, ¶ 19, 968 P.2d 606, 611 (App. 1998) (under Gordon, burglary factually separate from crime of violence committed in residence after entry). Subtracting that evidence does not remove the evidence of all of Gaxiola and his accomplices' additional acts once inside the house. We therefore reject this claim. Because Gaxiola fails to present sufficient argument that the trial court erred in imposing consecutive sentences for burglary, murder, assault, and robbery on any other basis, we find any such arguments waived. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to sufficiently argue claim on appeal constitutes waiver). ¶28 We, however, will not ignore fundamental error if we find it. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007). We find fundamental error in Gaxiola's consecutive sentences for armed robbery and aggravated robbery because both crimes involved a single act. To satisfy the elements of robbery, a defendant must take property from another's person or immediate presence, against that person's will, with the threat or use of force, intending to coerce surrender of the property or prevent resistance to the taking of the property. A.R.S. § 13-1902. Aggravated robbery includes the elements of § 13-1902 and requires having one or more accomplices actually present. A.R.S. § 13-1903. Armed robbery also includes the elements of robbery in § 13-1902 and requires the perpetrator or an accomplice be either (1) armed with a deadly weapon or (2) use or threaten to use a deadly weapon during the commission of the crime. A.R.S. § 13-1904. ¶29 The evidence shows Gaxiola or his accomplices, while armed, took jewelry from Gina's immediate presence, against her will, and with the threat and use of deadly force. Of these two crimes, armed robbery is the more serious crime and involves the greatest risk of harm to the victim, and it is the "ultimate crime" between the two. Taking away the evidence necessary for an armed robbery conviction does not leave sufficient evidence to also satisfy the elements of an aggravated robbery charge, as doing so leaves no evidence of property taken for that charge. In addition, in this case it would be factually impossible to commit armed robbery without also committing aggravated robbery because both crimes hinge on the same property. Finally, there was no additional risk to Gina from the aggravated robbery because the criminal conduct was the same, the same people perpetrated it with the same weapons, and it involved the same property. For these reasons, Gaxiola's sentence for aggravated robbery may not be consecutive to his sentence for armed robbery. Accordingly, we vacate his aggravated robbery sentence and remand to the trial court for resentencing consistent with this decision.
Restitution
¶30 Gaxiola argues that the trial court's restitution order should be vacated because neither he nor his attorney was present for the hearing in violation of his rights under the United States and Arizona Constitutions. Although we "view the facts and all reasonable inferences therefrom in the light most favorable to upholding the trial court's restitution order," see State v. Lewis, 222 Ariz. 321, ¶ 2, 214 P.3d 409, 411 (App. 2009), the denial of the right to counsel is a structural error that, if found, mandates reversal even in the absence of prejudice or an objection at trial by the defendant, State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 235-36 (2009). Because restitution hearings are part of the sentencing process, defendants have the right to be represented by counsel during these hearings. State v. Guadagni, 218 Ariz. 1, ¶ 21, 178 P.3d 473, 479 (App. 2008). ¶31 Neither Gaxiola nor his counsel was present for the restitution hearing. Although Gaxiola waived his own presence for the hearing, he did not waive his right to have counsel present, and the record is unclear as to whether his attorney had been provided notice of the hearing. The trial court denied Gaxiola's motion to vacate the restitution order, but the state now agrees with Gaxiola that this hearing was held in error and the resulting order should be vacated. We agree and conclude the denial of counsel at the restitution hearing was structural error, vacate the restitution order, and remand for a new restitution hearing.
Conclusion
¶32 For the foregoing reasons, we vacate Gaxiola's sentence for aggravated robbery, vacate the trial court's restitution order, and remand for proceedings consistent with this decision. We affirm Gaxiola's convictions and other sentences.
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JOSEPH W. HOWARD, Chief Judge
CONCURRING: ______________
PETER J. ECKERSTROM, Presiding Judge
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J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed August 15, 2012.
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