1 

SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-09-0087-PR 

 Appellee, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) No. 1 CA-CR 07-0390 

BASILIO SOLIZ, ) 

 ) Maricopa County 

 Appellant. ) Superior Court 

 ) No. CR2006-112881-001 SE 

 )

 ) O P I N I O N

_________________________________ ) 

Appeal from the Superior Court in Maricopa County 

The Honorable Sherry K. Stephens, Judge

AFFIRMED

________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One

Filed Mar. 10, 2009

VACATED IN PART

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent E. Cattani, Chief Counsel, 

 Criminal Appeals/Capital Litigation Section 

 Michael T. O’Toole, Assistant Attorney General

 Julie A. Done, Assistant Attorney General

Attorneys for State of Arizona

SHARMILA ROY Laveen

Attorney for Basilio Soliz

________________________________________________________________

R Y A N, Justice

¶1 Article 2, Section 23 of the Arizona Constitution 

requires that “[j]uries in criminal cases in which a sentence of 
2 

. . . imprisonment for thirty years or more is authorized by law 

shall consist of twelve persons.” In this case we consider 

whether this provision is violated when a sentence of thirty 

years or more is authorized by law for the crimes charged, the 

case proceeds to verdict with a jury of less than twelve people 

without objection, and the resulting sentence is less than 

thirty years. 

I 

¶2 The State charged Basilio Soliz with possession of 

dangerous drugs for sale. During a settlement conference, the 

State offered to permit Soliz to plead guilty with a sentence of 

between five and eight years in prison. The prosecutor said 

that if Soliz opted for a trial the State would allege two 

historical prior felony convictions at sentencing. In that 

event, Soliz faced a maximum of thirty-five years in prison. 

Soliz declined the offer. 

¶3 When the case proceeded to trial, the court empanelled 

only eight jurors and one alternate. Neither Soliz nor the 

State objected. The jury found Soliz guilty of possession of 

dangerous drugs for sale. At sentencing, the State declined to 

prove Soliz’s prior convictions or any aggravating circumstance 

and requested a presumptive sentence of ten years, which the 

trial judge imposed. 

¶4 Soliz appealed, arguing that he was deprived of the 
3 

twelve-person jury required by Article 2, Section 23. The court 

of appeals reversed. State v. Soliz, 1 CA-CR 07-0390, 2009 WL 

597376, at *3 ¶ 11 (Ariz. App. Mar. 10, 2009) (mem. decision). 

The court held that the failure to empanel a twelve-person jury 

was “fundamental error” that required reversal absent evidence 

in the record that the State “withdrew its allegations and thus 

reduced Soliz’s exposure to less than thirty years.” Id. at *3 

¶ 10.1

¶5 The State petitioned for review, arguing that because 

no objection to the eight-person jury was raised at trial, our 

most recent formulation of fundamental error review in State v. 

Henderson required Soliz to prove that the error was fundamental 

and that he had been prejudiced. 210 Ariz. 561, 567 ¶¶ 19-20, 

115 P.3d 601, 607 (2005). We granted review to decide this 

recurring issue of statewide importance. We exercise 

jurisdiction under Article 6, Section 5(3) of the Arizona 

Constitution and Arizona Revised Statutes (“A.R.S.”) § 13-4031 

(2001). 

II 

A 

¶6 As originally adopted, the Arizona Constitution 

 

1

 Soliz raised another claim which the court of appeals 

summarily rejected. Id. at *1, n.1, ¶ 1. Soliz did not raise 

that claim here. 
4 

provided that the right to a jury trial “shall remain inviolate” 

and that juries of less than twelve people could be employed 

only “in courts not of record.” Ariz. Const. art. 2, § 23 

(amended 1972). In Williams v. Florida, the Supreme Court held 

that the Sixth Amendment did not require a twelve-person jury 

when a defendant faced a life sentence. 399 U.S. 78, 102-03 

(1970) (explaining that “[o]ur holding does no more than leave 

these considerations to Congress and the States, unrestrained by 

an interpretation of the Sixth Amendment that would forever 

dictate the precise number that can constitute a jury”). In 

1972, Arizona voters amended Article 2, Section 23 to require 

juries of twelve only in “criminal cases in which a sentence of 

death or imprisonment for thirty years or more is authorized by 

law.” The amended provision stated that “[i]n all other cases, 

the number of jurors, not less than six, and the number required 

to render a verdict, shall be specified by law.” 

¶7 In the same session in which it referred the amendment 

of Article 2, Section 23 to the people, the legislature 

conditionally passed a statute, now codified at A.R.S. § 21-102 

(2002), that provided for eight-person juries in all cases but 

those in which twelve jurors were mandated by the amended 

provision. See Ariz. Const. art. 2, § 23 and historical note 
5 

(acknowledging conditional enactment of parallel legislation).2

 

The legislature thus reserved the twelve-person jury only for 

the most serious offenses and measured seriousness by the 

potential sentence upon conviction. Cf. Derendal v. Griffith, 

209 Ariz. 416, 425 ¶ 37, 104 P.3d 147, 156 (2005) (holding that 

sentence authorized by the legislature indicates the seriousness 

of the offense in question). 

B 

¶8 When determining whether a sentence of thirty years or 

more is authorized and thus a twelve-member jury is required 

under Article 2, Section 23, courts take into account sentencing 

enhancements, see State v. Prince, 142 Ariz. 256, 259, 689 P.2d 

515, 518 (1984), and whether consecutive sentences can be 

imposed for multiple offenses, see State v. Henley, 141 Ariz. 

465, 468, 687 P.2d 1220, 1223 (1984). Here, the maximum prison 

sentence for the offense for which Soliz was charged, possession 

of dangerous drugs for sale, was fifteen years. However, 

 

2

 Section 21-102 provides: 

A. A jury for trial of a criminal case in which a 

sentence of death or imprisonment for thirty 

years or more is authorized by law shall 

consist of twelve persons, and the concurrence 

of all shall be necessary to render a verdict. 

B. A jury trial in any court of record of any 

other criminal case shall consist of eight 

persons, and the concurrence of all shall be 

necessary to render a verdict. 
6 

because of the State’s additional allegations, Soliz faced a 

possible maximum sentence of thirty-five years. Therefore, had 

Soliz requested a twelve-person jury, the trial court should 

have granted that request. 

III 

A 

¶9 In Henley, this Court held that, even in the absence 

of an objection by the defendant, the failure to provide a 

twelve-person jury if a sentence of more than thirty years would 

have been possible is “fundamental” error because it violated a 

constitutional provision. 141 Ariz. at 469, 687 P.2d at 1224. 

Henley found reversal was required because the Court “[could] 

[]not say beyond a reasonable doubt that the error did not 

significantly contribute to the defendant’s conviction . . . .” 

Id. The State urges us to revisit this holding in light of 

Henderson. Soliz, on the other hand, urges us to recognize 

Henley as a rule of structural error and thus presume prejudice. 

See State v. Valverde, 220 Ariz. 582, 585 ¶ 10, 208 P.3d 233, 

236 (2009) (“If error is structural, prejudice is presumed.”). 

B 

¶10 “Alleged trial court error in criminal cases may be 

subject to one of three standards of review: structural error, 

harmless error, or fundamental error.” Id. at 584 ¶ 9, 208 P.3d 

at 235. Harmless error review applies when the defendant 
7 

objects to the alleged error at trial. Id. at 585 ¶ 11, 208 

P.3d at 236. Structural error, which “deprive[s] defendants of 

basic protections without which a criminal trial cannot reliably 

serve its function as a vehicle for determination of guilt or 

innocence,” State v. Ring (Ring III), 204 Ariz. 534, 552 ¶ 45, 

65 P.3d 915, 933 (2003) (internal quotation marks omitted), 

requires no trial objection for reversal, Valverde, 220 Ariz. at 

585 ¶ 10, 208 P.3d at 236. 

¶11 In all other cases, when no objection is made at 

trial, we review only for fundamental error. Id. at ¶ 12. 

“Fundamental error is limited to ‘those rare cases that involve 

error going to the foundation of the case, error that takes from 

the defendant a right essential to his defense, and error of 

such magnitude that the defendant could not possibly have 

received a fair trial’” and places the burden on the defendant 

to show that the error was fundamental and prejudicial. Id.

(quoting Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607). 

¶12 The prerequisite to all three categories of error is 

that error indeed occurred. Because we conclude that Soliz’s 

trial to an eight-person jury removed any risk of his receiving 

a sentence of thirty years or more, no constitutional error 

occurred; therefore, the parties’ dispute over what category of 

error should be applied is irrelevant. 
8 

C 

¶13 In interpreting Article 2, Section 23, this Court has 

long held that “a criminal defendant is not ‘at risk’ in terms 

of maximum sentence until the case is submitted to the jury.” 

Prince, 142 Ariz. at 259, 689 P.2d at 518. Thus, if by the time 

the case is submitted, a sentence of thirty years or more is no 

longer “authorized by law,” Article 2, Section 23 does not 

mandate twelve jurors. Id. 

¶14 In Prince, for example, the state represented that it 

would pursue only a single prior conviction for sentencing 

purposes, rather than the multiple convictions previously 

alleged. Id. at 258, 689 P.2d at 517 (noting that the 

prosecutor told the trial court that only one prior conviction 

was alleged). This Court observed that the prosecutor’s 

statement in effect withdrew the allegation of multiple prior 

felony convictions, thus reducing the maximum sentence 

authorized by law. Id. The Court concluded that “[b]y allowing 

the trial to proceed before an eight-member jury, trial counsel 

effectively foreclosed the ability of the prosecution to prove 

that appellant had been convicted of two felonies, thereby 

reducing the maximum possible sentence of imprisonment” to less 

than thirty years. Id. at 260, 689 P.2d at 519; see also State 

v. Cook, 122 Ariz. 539, 541, 596 P.2d 374, 376 (1979) 

(permitting withdrawal of an allegation of a prior conviction in 
9 

order to lower defendant’s maximum exposure); State v. Thompson, 

139 Ariz. 133, 134, 677 P.2d 296, 297 (App. 1983) (no 

prejudicial error when judge, over objection of defendant, 

reduced charge so that any sentence would be less than thirty 

years). 

¶15 These cases are consistent with the Supreme Court’s 

approach to the Sixth Amendment. For example, in Scott v. 

Illinois, the Court held that the Sixth Amendment does not 

require appointment of counsel when the “defendant is charged 

with a statutory offense for which imprisonment upon conviction 

is authorized but not actually imposed upon the defendant.” 440 

U.S. 367, 369 (1979); see also Argersinger v. Hamlin, 407 U.S. 

25, 40 (1972) (noting that sentencing judges will be deemed 

aware of controlling right-to-counsel case law requiring counsel 

in face of imprisonment in determining in what manner to permit 

the case to proceed). Similarly, Justices Kennedy and Breyer, 

in their concurrence in Lewis v. United States, 518 U.S. 322 

(1996), concluded that a defendant did not have a right to a 

jury trial when the trial judge in the case stated that she 

would not impose a sentence of more than six months’ 

imprisonment. Id. at 338. 

¶16 In the cited Arizona cases, the prosecutor or judge 

explicitly acted to effectively reduce the defendant’s jeopardy 

before the jury began deliberations. The appellate courts 
10 

concluded that the constitutional protections applicable to the 

largest theoretical sentence that the legislature approved for 

that defendant no longer applied. We believe that what was 

explicit in those situations is implicit here. By failing to 

request a jury of twelve, the State effectively waived its 

ability to obtain a sentence of thirty years or more.3 The trial 

judge affirmed this by failing to empanel a jury of twelve. In 

such a circumstance, as long as a lesser sentence may legally be 

imposed for the crime alleged, we hold that a sentence of thirty 

years or more is no longer permitted and that the twelve-person 

guarantee of Article 2, Section 23 is not triggered. 

D 

¶17 We acknowledge that the approach we adopt departs from 

Henley and subsequent cases that relied on it,4

 particularly 

 

3

 Because the State concedes that there is no victim in this 

case we need not determine whether the State’s decision to waive 

a particular sentence implicates a crime victim’s right “[t]o be 

heard at any proceeding involving . . . sentencing.” Ariz. 

Const. art. 2, § 2.1(4); see also State v. Lamberton, 183 Ariz. 

47, 49, 899 P.2d 939, 941 (1995) (recognizing that state statute 

and court rule define criminal proceeding as “matters before the 

trial court”). 

4 See, e.g., State v. Smith, 197 Ariz. 333, 340 ¶ 21, 4 P.3d 

388, 395 (App. 1999) (reversible error when defendant’s right to 

twelve person jury waived by defense counsel’s stipulation with 

state that sentences would run concurrently, resulting in a 

sentence of less than thirty years); State v. Pope, 192 Ariz. 

119, 121 ¶¶ 10, 12, 961 P.2d 1067, 1069 (App. 1998) (judge’s 

assurance that sentences would run concurrently did not cure 

error in failing to empanel a jury of twelve); State v. Luque, 

171 Ariz. 198, 201, 829 P.2d 1244, 1247 (App. 1992) (acquittal 
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State v. Pope, which held that a defendant could not be deprived 

of a twelve-person jury by a judge’s assurance that a sentence 

of less than thirty years would be imposed. 192 Ariz. 119, 121 

¶ 10, 961 P.2d 1067, 1069 (App. 1998). Henley, however, created 

anomalous results. First, because Henley adopted, in essence, 

an automatic reversal rule, in many cases defense counsel had no 

incentive to request a twelve-person jury. Instead, counsel 

could decide to see what verdict an eight-person jury reached, 

knowing that a retrial would always result if the client faced a 

potential sentence of thirty years or more. Second, because the 

state would usually be prohibited from seeking a sentence longer 

than initially imposed after a defendant’s successful appeal, 

see Blackledge v. Perry, 417 U.S. 21, 28-29 (1974); State v. 

Noriega, 142 Ariz. 474, 483, 690 P.2d 775, 784 (1984), overruled 

on other grounds by State v. Burge, 167 Ariz. 25, 28 n.7, 804 

P.2d 754, 757 n.7 (1990), a remand after a reversal under the 

Henley approach would be conducted before an eight-person jury. 

Our holding here avoids such anomalous results while, at the 

same time, protects defendants from lengthy imprisonment in 

cases in which the jury is not comprised of twelve persons. 

¶18 Accordingly, Soliz could not, as a matter of law, 

 

on one or more charges so that maximum cumulative sentence could 

not exceed thirty years does not cure error in failing to 

empanel a twelve-member jury). 
12 

receive a sentence of thirty years or more based on the State’s 

additional allegations once a jury of less than twelve began 

deliberations. Ariz. Const. art. 2, § 23; A.R.S. § 21-102(A). 

As a result, no error occurred in this case. 

IV 

¶19 For the foregoing reasons we vacate the court of 

appeals’ determination as to Article 2, Section 23 and affirm 

the judgment of the superior court. 

_____________________________________

Michael D. Ryan, Justice

CONCURRING:

_____________________________________

Rebecca White Berch, Chief Justice

_____________________________________

Andrew D. Hurwitz, Vice Chief Justice

_____________________________________

W. Scott Bales, Justice

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A. John Pelander, Justice