IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Appellee,

v. JOSE UZARRAGA ALVAREZ, Appellant. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2001-0379

DEPARTMENT B O P I N I O N

APPEAL FROM THE SUPER IOR COURT OF PIMA C OUNTY Cause No. CR-20010968 Honorable Richard Nicho ls, Judge AFFIRMED IN PART; REVERSED IN PART AND R EMANDED Terry Goddard, Arizona Attorney General By Randall M. Howe and Diane M. Ramsey Susan A. Kettlewell, Pima County Public Defender By Lisa M. Hise Phoenix Attorneys for Appellee

Tucson Attorneys for Appellant E S P I N O S A, Chief Judge. ¶1 A jury found appellant Jose Uzar raga Alvarez guilty of six c ounts of second-degree burglary and

seven counts of sexual ab use, all nondangerous off enses. The charges ar

ose from sixseparate incidents between December 1996 and March 2001. On each occasion, while selling2

tamales door-to-door in apartment complexes, Alvarez entered the apartmen t of a different fema

le

v ictim whom he then fondled and, in some cases, force d the victim to fondle him. For eac h incident, he was convicted of burgla ry, and in four of the incid ents , he was also convicted of sexual abuse. The trial court imp osed pr esump tive sentences for the three offenses committed against the first victim and aggra vated sentences for the

remainin g offenses, all to be served concurrently. The

five longest, for burglar y, are twelve-year terms. A

s the basis for imposing aggravated sentences, the court cited “multiple victims” as the sole aggravating circumstance. ¶2 On

appeal, counsel for Alva rez filed a brief pursua

nt to Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) , suggesting two arguable issues. Alvare

z did not file a supplemental brief. We address the second issue f irst. Although Alvarez did not object below, counsel contends on appeal that the trial court might hav e erred by failing at the e

nd of the evidence to repeat

some of the instructions it ha d given at the beginning of tria l “regarding

some legal principles such a s the diff erence between direc

t and circumstantial evide nce, objections, credibility, and expert opinion.” Befor e the jury began delibera ti ng, the court did repeat its instructions defining the offenses, the state’s burden of proof, and reasonable doubt, but counsel

now claims the court’s failure to repeat the other preliminary instructions cons tituted fundamental

error. ¶3 In State v. Johnson , 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992), our supreme court held thata trial court’s failure to r einstruct the jury

at the end of trial on the state’s burden of pr oof “is an error which can be waived.” But, becaus e of an erroneous, burde n-sh iftin g instruc tion

the tria l court had also given, the f ailure to reinstruct in Johnsonwas held to be reversible error des pite the lac k of an objection. Here, however, there were n o similarly1 Sentenc e enh ancement elevates the entire range of permiss ible punishment while agg ravation

and mitigation raise or lower a sentence within that range . “It is only within the [enhanced] range provided for dange rous class 2 felonies that the trial judge may c

onsider th e aggravating

andmitigating circumstance s.” State v. Bly , 127 Ariz. 370, 372, 621 P .2d 279, 281 (1980); A.R .S. § 1 3-604(A) through (K). Besides A.R.S. § 13- 702.02, other example

s of statutoryenhancements are § 13-604(A) through (D) (for prior felony convictions); § 13-604(E) (for prior misdemeanor or petty offense convictions); § 13-6 04(F) through (K) (fordangerousnatureoffenses); A.R.S . § 13-604.01 (for dangerous crimes against children); A.R.S. § 13-604.02 (for crimes committed while on release from confineme nt); and A.R.S. § 13-609 (for offenses committed in a school safety zone). 3 extenuating

circumstances, and th

e jurors were given written copies of

the court ’s preliminary instructions in the trial notebooks they took into their deliberations. We find that Alvarez waived any arguable error by not obje cting to the trial court’s omi ssion of those instructions and th at the resulting error, if any, did not approach the level of fundamental error. See State v. Gendron , 168 Ariz. 153, 812 P.2d 626

(1991) (error fundam

ental when defendant c

annot possibly have had fair trial). ¶4 We turn now to the other issue raise d on appeal. The trial court enhanced Alvarez’s sentences pursuant to A.R.S. § 13-702.02, as multiple offenses not committed on the same occasion but consolidated for trial. The enhancement provisions of that law, enacted in 1993, increase the range of sentence possible for each class of offense. 1 Fo r example, the statute increased the maximum sentence Alvarez faced for his

third and subsequent nondang erous felony conviction s from seven years to thirte en years for the class thr ee burglary convictions, §§ 13-702(A)(2), 13-702.02(B)(4), and from two years to three years for the class five sexual abuseconvictions. §§ 13-702(A) (4), 13-702.02(B)(4). Section 13-702.02(B) further provides that, subject to certain specified exceptions, a defendant must serve a sente nce imposed under § 13-702.02 day for day, without the possibility of early release.2 Aggravating and mitigating factors the court “shall consid er” are enumerated i n A.R.S. § 13-702(C) and

(D). Both subsections (C) and(D) include a final “cat ch-all” provision for “[a] ny other factor thatthe court deems appropriate to the ends of justice.” As the supreme court noted in Bly , under our “complex, mul tiple-step” sentencing

scheme, for any given

class of crimes the presumptive

sentence “is to be imposed o n the vast majority of first o ffenders who commit th

e crime.” 127 Ariz. at373, 372, 621 P.2d at 282, 281. Deviations from the presumptive sentence are intended to

reflect the particular “quality and circumstances of the act committed . . . , such as, did the manner of

using the gun put others in great fear or danger. ” Id. at 372-73, 621 P.2d at 281-82.
4 ¶5 In

addition to enhancing Alvare z’s sentences pursuant to

§ 13-702.02, the trial court also aggravated the sentences imposed on ten of the thirteen counts pursuant to § 13-702(C). 2 As its only reason for doing

so, thecourt cited Alvarez’s “m ultiple victims,” an aggrav ating factor not specifically enumerated in § 13-702(C)(1) through (18) and therefore necessarily falling under the catch-all provision of

§ 13-702(C)(19), formerly (C)(18), see2002 Ariz. Sess. Laws, ch. 267, § 3, “[a]ny other facto

r that the court deems app ropriate to the ends of justic e.” ¶6 Counsel argues it was improper for the court to aggravate Alvarez’s sentences on the basis of “multiple victims” because his multiple, single-victi m off enses had already been factored into the enhanced range o f sentencing he faced

under § 13-702.02 for committin g multiple offenses later consolidated for trial. Counsel contends the f ac t of Alvarez’s multiple offenses should not have been

used both to enhance and a ggravate his sentences, because each time he entered a victim’s apartment and committed sexual abuse, there was a single victim, and the six incidents were entirely unrelated to each other. Thus, Alvarez had “multiple victims” only in the

sensethat he committed separ ate crimes on six occasi

ons. Because

Alvarez failed to prese

nt this issue to the trial court, we review only for fundamental error. State v. Cañez , 202 Ariz. 133, 42 P.3d 564 (2002) ; Sta te v. Curry , 187 Ariz. 623, 931 P.2d 1133 (App. 1996). Whether a trial3 SeeState v. Gutierrez , 130 Ariz. 148, 634 P.2d 960 (19 81) (injury inflicted during aggravated assault with knife su pport ed sentence enhancement for dangerous-nature offense, § 13-604, and aggravate

d sentence for serious bod ily injury, § 13-702(C)(1)); State v. Tresize , 127 Ariz. 571, 623 P.2d 1 (1980) (u se of gun elevated offens

e from class four felo

ny (robbery) to class two (armed robbery) and supported sentence enhancement for dangerous-nature offense, § 13-604(G)); State v. Ritacca , 169 Ariz. 401, 819 P.2d 987 (App. 1991) (sentence both enhanced 5 court may employ a given

factor to aggravate a sentence presents a question of law w e review de

novo . State v. Tschilar , 200 Ariz. 427, 27 P.3d 331 (App. 2001). ¶7 In State

v. Bly , 127 Ariz. 370, 621 P.2d 279 (1980), our supreme court held that neither double jeopardy nor double p unishment considerations preve nt the legislature from establishinga sentencing scheme such as Arizona’s in which an element of acrime may also be used for sentence enhancement and aggr avation. Bly recognized that “the legisl ature’s power to define crime andprescribe punishment” includes the power to dictate that a given circumstance constituting an element of an offe nse—there, the use of a h

andgun, which converted a robber y into armedrobbery—may also affor d the basis for both enhanci ng and aggravati

ng the s entence imposed for that o f

fense and for “mak[in

g] probation unavailable a nd a minimum prison term mandatory.” Id . at 372, 373, 621 P.2d at 281, 282. ¶8 However, as later observed in State v. Germain , 150 Ariz. 287, 290, 723 P.2d 105, 108 (App. 1986), “ Bly permitted the use of a de adly weapon to be

used as an aggravating factor despitethe fact that it

is a necessary elemen

t of thecrime of armed robbery, only because of the legislative

mandate in A.R.S. § 13-702 ([C])(2).” True to th is observation, virtually all of the Arizona cases after Bly that have upheld using a single fact or circumstance

in multiple

ways have, indeed, involved one or more of the statutory aggravating fac tors expressly enumerate d in § 13-702(C)(1) through

(C)(18) or a specific

statutory ground for enhanc ement. 3 Thus, the chiefunder § 13-604 and aggrav ated under § 13-702(C)(11) based on prior felony convictions); State v. Olsen , 157 Ariz. 603, 760 P.2d 603 (App. 1988) (sentence for negligent homicide enhanced under § 13-604(F) for use of gun; deadly weapon not element of offense); State v. Kerr , 142 Ariz. 426, 690 P.2d

145 (App. 1984) (threate ned use of weapon

against police officers

both element of offense and aggravating factor under § 13-702(C)(2)); State v. Just , 138 Ariz. 534, 675 P.2d 1353 (App. 1983) (death of vi

ctim bo th element of offense of second-degree mu

rder and aggravating factor, § 13-702(C)(1); knif e properly used to enhanc e sentence under §

13-604 and aggravate it under § 13-702(C)(2)); State v. LeMaster , 137 Ar iz. 159, 6 69 P.2d 592 (App. 1983) (sentence enhanced and ag gravated for prior felony convictions, § 13-702(C)(11)); State v. Meador , 132 Ariz. 343, 645 P.2d 1257 (App. 1 982) (victim’s death both ele ment of offense of

second-degree murder and basis for aggravating sentence, § 13-702(C)(1)); cf. State v. Lara , 171 Ariz. 282, 284 n.1, 830 P.2d 803, 805n.1 (1992) (“‘serious physical injury’ ” necessarily, though not lite rally, includes death). 6 lesson of Bly and its progeny is tha t the legisl ature may authorize usin g the same fact or circumstance in more than one way as part of “a

complex, multiple-step process” by which trial courts determine the appropriate sentence for a particular crime, 12 7 Ariz. at 373, 621 P.2d at 282, but the authorization m ust be explicit and the speci fic factor expressly ide

ntified. ¶9 Here, in contrast to Bly , the single factor the trial court used to aggravate Alvarez’s sentences—“mul

tip le victims”—is not among the agg ravating factors specif

ically listed in § 13-702(C) and is, on thes e particular facts, es sentially the same ground u sed to enhanc e his sentences under §

13-702.02. Although we are aware of no Arizon

a case precisely on point, in Germ ain , Division One of this court considered in aggravation the degree of the defendant’ s reckless conduct, which likewise is not an enumerated aggrava ting factor in § 13-702(C) and, thus, similarly falls within the catch-all provision of the statu te. ¶10 The defendant in Germainwas convicted of tw o counts of reckless manslaughter afte r the pickup truck he had been d riving while intoxicated collid ed with an oncoming motorcycle, killing both people on the motor cycle and seriously injuring a passenger in the truck.7

The defendant claimed the trial court had erred in finding that his reckless conduct and inf liction of serious injury and death supported the imposition of aggravated s entences “because the

se are the very e lements of the crime of reckless manslaughter. ” 150 Ariz. at 290, 723 P.2d at 108

. Division One disagreed, holding tha t, if the degree of a defenda

nt’s conduct exceeds the

minimum level needed to

establish the offense, that extreme misconduct may be consi dered as an aggravating factor. ¶11 Although

the present case does not similarly entail the use of an element of the offense to enhance or aggravate Alvarez’s sentences but, rather, the useof a single factor both to enhance and aggravate the sente nces, Germainis instructive, nonetheless, in its discussion of wh en
an element of an offense that is not specifically listed as an aggravating factor in § 13-702(C) may be used under the catch-all provision of § 13-702(C)(19) to aggravate a sentence:

W ere the courts of this state perm itted to enhance punishme nt, i n the absence of

any legislative intent, by usin g the very elements of the crime as aggravating factors, the carefu lly structured statutory scheme providing for presumptive sentences would be undermined. However, this does not end our inquiry. Unlike such factors a s the use of a deadly weap on or infliction of serious injur y or death, which provide the trial court with obje ctive issues of

fact— i.e., either a deadly weapon w as used or it was n

ot—matte rs involving such factors as the defe ndant’s recklessness pr

esent the court with subjective questi

ons as to the degree of the defendant’s wrongful conduct. We believe tha t the trial court has the authority to consi der such questions. Where the degree of the defendant’s misconductrises to a level beyond that which is merely necessary to establish an element

of the underlying crime, the trial court may consider such conduct as an aggravating factor under the broad language of § 13-702[(C)(19)]. 150 Ariz. at 290, 723 P.2d at 108. Unlike Germain , in w hich the deg ree of the defendant’s recklessness

went well beyond the thresho ld necessary to establish tha t element of the offen

se, the8

trial court here

made nocomparable finding that Alvarez had done anything more on each occasion thansimply commit the offense s with which he was charged , making the presumptive sent enc e arguably appropriate for any of hi s offe nses standing alone. See Bly. In addition, because the existence of a victim was implicit in th e cluster of offenses Alvarez committed on e ach occasion, to say that he had “multiple victim s” reflectsnothing more, on these fa cts, than his commission of multiple offenses over time. ¶12 The state argues that using “multi ple victim s” as an aggravating factor is appropriate

because “[t]he multiple

offenses factored into

A.R.S. § 13-702.02

need not necessarily involvemultiple victims.” That is, § 13-702.02 cou

ld also apply to a defendant who c ommits multiplevictimless offenses or one who commits multiple offenses against a single victim, whose offenses are likewise consolidated for trial. But the fact th at “multiple victims” and “mu ltiple offenses” may not be

coextensive in every

case fails to resolve the q uestion whether, in

a particular case, they are essent

ially the same factor twi

ce applied. ¶13 Based on the particular facts of this case , we c onclude the trial court err ed in imposing aggravated sentences on the basis of “multiple victims” alone. Alvare z did not have “multiplevictims” in the sense in which that term is normally used, denoting multiple victims of

asingle act, episode, or scheme. See , e.g. , State v. Powers , 200 Ariz. 363, 26 P.3d 1134 (2001); State v. Henley , 141 Ariz. 465, 687 P.2d 1220 (1984); State v. Bruggeman , 161 Ariz. 508, 779 P.2d 823 (App. 1989); State v. White , 160 Ariz. 377, 773 P.2d 482 (App. 1989); State v. Gunter , 132 Ariz. 64, 643 P.2d 1034 (App. 1982). ¶14 Alvarez did not commit these offe nses against all six

women simultaneously or in the course of a continuous spree or rampage. Cf. State v. Rogovich , 188 Ariz. 38, 44, 932 P.2 d9

794, 800 (1997) (upholding capital sentencing under A.R.S. § 13-703(F)(8) for multiple homicides committed over a nine-

hour period

“during the

commission of the offense”); State v. Lacy , 187 Ariz. 340, 929 P.2d 1288 (1996) ( multiplehomicide victims under § 1 3-703(F)(8)). Nor did he commit them during “‘“ a relative ly short period of time in wha t can b e fairly view ed as one continuous course of criminal cond uct.”’” State v. Ramirez , 178 Ariz. 116, 130, 871 P .2d237, 251 (1994), quoting Romine v. State , 305 S.E.2d 93, 99 (Ga. 1983), quoting Peek v. State , 238 S.E.2d 12, 19 (Ga. 1977). Rather, he committe d separate crimes aga

inst separate victims on six separate, unrelated o

ccasions. ¶15 Finally, the facts of this case do not resemble thos e in Tschilar , on

which the state relies. There, Division O ne a pproved the trial court’s treating the number of victims as an aggravating

factor under the catch-al l pro vision of § 13-702(C)(19), based on the defendant’s having kidnapped and assa ulted a group of four teena gers at gunpoint. Division One s tated: While the court

could not have aggravate d the sentence based on the crimes having been c ommitted against one per son, by committing the acts against multiple victim s simultaneously, Tschilar altered the character and increased the magnitude of the off enses. Kidnapping andassaulting four teenagers at once arguably creates a greater risk of physical and emotional injur y as t o each as they see the others terrorized or injured and arguably re pr esents a

graver offense to society. 200 Ariz. 427, ¶34, 27 P.3d 331, ¶34. In Tschilar, the term “multiple victims” denoted m ultiple contemporaneous

victims in a single incident. Here, in contrast, Alv ar ez’s “multiple victims” referredto a series of widely separ ated incidents involving a dif ferent, lone vi

ctim o n each occasion.10

¶16 To justify imposing a longer sen ten ce than the presumptive u nder our “carefully stru ctu red statutory scheme,” a tria l court must point to conduct tha t somehow exceeds the eleme nts or aggr avates the circumstances of the offense. Germain , 150 Ariz. at 290, 723 P. 2d at 108. The presumptive sent ence is to be presumptive ly a pplied when the defendant’s conduct satisfies but does not surpass the definition

of the crime. See§§ 13-701(C), 13-702(A). As far

as we have determined fr om this record, appare

ntly in none of these six incide nts did either the degree of Alvarez’s misconduct, see Germain , or the quality and circumstances of his acts, s e e Bly , rise to a level beyond simple commission of the offenses charged. The existence of a victim

was intrinsic in each cluster of offenses Alvarez com

mitted and, thus, his “multipl e victims” were synonymouswith, and inextricable fr om, his “multiple offense s” under these sp eci fic circumstances. ¶17 We view § 13-702(C)(19) as reflecting both the legislature’s recognition that it is impossible

to foresee and list every conceivable aggravating ci rcum stance that might ever a rise andits desire to permit trial cou rts to rely on any appropriate aggravating factors a

particular case might present. We thus interpre t the catch-all provision of § 13-702(C)(19)

as authorizing a trial court to factor into the sentencin g equation any additional fact or c ircumstance not elsewhe re sp ecifically

provided for or incorporat ed into our “carefully struc tured statutory sche

me. ” Germain , 150 Ariz. at 290, 723 P.2d at 108. We do not view i t—and do not believe the legislature

intended it—as permission fo r a court to simpl

y cite aga in in aggravation a fact or circumstance that has already been r eckone d into the statutory scheme elsewhere, either as an element of the offense or

a basis for enhancing the range of sentence, as essentially happened here.11

¶18 Because

Alvarez’s “mu lt iple victims” were subsumed in the multiple offenses already used to enhance the sentencing range f or those offenses under § 13- 702.02 and because the legislature has not express ly included “multiple victi ms” or “ multiple offenses” as an enumerated aggravating factor unde r § 13-702, the trial court e rred byeffectively employing the

same justification already used to enhance the sentences as its reason for imposing aggr avated sentences on te n of the thirteen counts. Furthermore, “[i]mposition of an illegal sentence constitutes fundamental error,” State v. Thues , 203 Ariz. 339, ¶4, 54 P.3d 368, ¶4 (App. 2002), which is not waived by Alvare z’s failure to raise it bel

ow. ¶19 Because

it is unclear wheth

er the judge would have imposed the same sentences absent the inappropriate factor , the case must be rem anded for resentencing on all but the first three counts. See State v. Ojeda , 159 Ariz. 560, 769 P.2d 1006 (1989). Ac cordingly, we affirm the judgment of convictions on all counts an d the s entences on counts one, tw o, and three, but remand the case for r

esentencing on the rema

ining convictions.

PHILIP G. ESPINOS

A, Chief Judge CONCURRING:

WILLIAM E. DRUKE, Pr esiding Judge

JOHN PELANDER, Judge