Opinion
No. 2 CA-CR 2012-0429
04-21-2014
THE STATE OF ARIZONA, Appellee, v. CRYSTAL NADINE GUERRERO, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20102435001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Crystal Guerrero appeals from her convictions for aggravated driving under the influence (DUI) while her license was suspended, revoked, or restricted; aggravated driving with an alcohol concentration of .08 or more while her license was suspended, revoked, or restricted; aggravated DUI having committed or been convicted of two or more prior DUI violations within the preceding eighty-four months; and aggravated driving with an alcohol concentration of .08 or more having committed or been convicted of two or more prior DUI violations within the preceding eighty-four months. In the sole argument raised on appeal, she argues "her constitutional protections against double jeopardy" were violated by her convictions on the eighty-four-month offenses, resulting in fundamental error, "because the prior DUI convictions are elements of the [eighty-four month] offense and [she] was previously convicted and punished for them." Finding no error, we affirm.
¶2 We view the facts in the light most favorable to upholding the convictions. See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). In June 2010, a police officer stopped Guerrero's vehicle after noticing it drifting partially out of its lane and having a possible brake light malfunction. The officer observed signs that Guerrero was intoxicated, and she exhibited cues of impairment on subsequent field sobriety tests. The officer arrested her for DUI, and breath testing indicated she had a blood alcohol content of .140. Guerrero's license to drive had been suspended and revoked at the time of the stop, and she had two previous DUI convictions, stemming from events in 2004 and 2009.
¶3 Guerrero argues her convictions for aggravated DUI pursuant to A.R.S. § 28-1383(A)(2), based on her previous DUI convictions, violate the constitutional prohibition of double jeopardy because they constitute elements of the current offenses and therefore are "functionally identical" to lesser-included offenses of a violation of § 28-1383(A)(2). She concludes that, because she "was already convicted and punished for those prior DUIs," and because "the subsequent prosecution for the greater offense[]" following conviction or acquittal of the lesser offenses is barred by double jeopardy, her prosecution is barred by double jeopardy principles.
Guerrero did not raise this argument in the trial court; accordingly, she has forfeited review for all but fundamental, prejudicial error. State v. Cooney, 223 Ariz. 335, ¶ 11, 312 P.3d 134, 138-39 (App. 2013). A double jeopardy violation, however, is fundamental error. Id.
¶4 As the state points out, we recently rejected an identical argument in State v. Cooney, 233 Ariz. 335, ¶¶ 10-17, 312 P.3d 134, 138-40 (App. 2013). We found no double jeopardy violation because "a prior adjudicated offense cannot be a lesser-included offense of a current charge," id. ¶ 13, and "the effect of § 28-1383(A)(2) is to punish a defendant more severely for a recent crime based on his having committed previous crimes, which is precisely what courts have long held is constitutionally permissible," id. ¶ 15. The circumstances in Cooney are not distinguishable from those presented here. Accordingly, Cooney is dispositive, and we need not address Guerrero's argument further.
¶5 Guerrero's convictions and sentences are affirmed.