State v. Figueroa ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
IVAN TINEO FIGUEROA, Appellant.
No. 1 CA-CR 16-0193
FILED 9-13-2018
Appeal from the Superior Court in Maricopa County
No. CR2014-001424-001
The Honorable Michael D. Gordon, Judge
AFFIRMED IN PART; VACATED IN PART; REMANDED FOR
RESENTENCING
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee
Mays Law Office, PLLC, Phoenix
By Wendy L. Mays
Counsel for Appellant
STATE v. FIGUEROA
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Kent E. Cattani joined.
C R U Z, Judge:
¶1 Ivan Tineo Figueroa appeals his convictions and sentences for
more than thirty criminal offenses, including multiple counts of aggravated
assault, armed robbery, burglary, attempted armed robbery, and theft of
means of transportation, and for individual counts of attempted
kidnapping, attempted theft of means of transportation, and attempted
robbery. Figueroa argues the superior court erred when it: (1) imposed
sentences in violation of his double jeopardy rights; (2) imposed
consecutive sentences for offenses that constituted a “single act;” and (3)
failed to strike a biased juror. For the following reasons, we vacate two theft
of means of transportation convictions, Counts 4 and 32, and one attempted
theft of means of transportation conviction, Count 33. We affirm the
convictions for the remaining counts. Given the nature of the offenses, we
remand for resentencing for Counts 1, 2, 7, 8, 15, 16, 17, 18, 19, 22, 23, 26, 27,
30, and 31 but otherwise affirm the prison sentences imposed.
FACTUAL BACKGROUND1
¶2 The State charged Figueroa with numerous criminal offenses
arising out of a string of events starting at around 6:20 p.m. on February 24,
2014, involving several different groups of victims. The following
summary lists those events in chronological order.
I. M.L., R.C., and O.J. (Counts 1 through 9)
¶3 While R.C. and her nephew, M.L., were placing items in her
car, Figueroa jumped over a nearby fence and pointed a gun at M.L.
Figueroa told M.L., “[i]f you don’t get into the car, I’m going to kill you,”
and tried to force him into the car. When this attempt failed, Figueroa
1 We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
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pointed the gun at R.C., repeated the same demand, and forced her into the
car.
¶4 R.C.’s husband, O.J., rushed to the car to help his wife.
Figueroa pointed the gun at O.J. and stated, “[g]et in the car. I’m going to
kill you.” O.J. refused and pulled R.C. out of the car. Figueroa jumped in
R.C.’s car and sped away, taking items belonging to all three of the victims.
II. H.H. and L.H. (Counts 10, 11, and 13)
¶5 H.H. and his wife, L.H., were pulling out of a trailer park
when they saw Figueroa driving toward them at a high rate of speed. As
Figueroa sped by H.H. and L.H., he shot twice out of his window and hit
the couple’s car with one bullet.
III. The Body Shop (Count 14)
¶6 Figueroa eventually crashed R.C.’s car and climbed the fence
of a nearby body shop. Seeing this, the owner of the body shop approached
Figueroa with a BB gun in his hand. Figueroa jumped back over the fence
and fled the area.
IV. A.T. (Counts 15 and 16)
¶7 When A.T. answered the door at her parents’ home, she saw
Figueroa with a gun in his hand and immediately tried to close the door.
Figueroa forced himself halfway through the door, waved the gun toward
her, and yelled, “[g]ive me your keys.” A.T. pushed Figueroa out of the
home and locked the door.
V. H.C. (Counts 17 through 19)
¶8 Figueroa opened the door to H.C.’s living room and
demanded his keys. H.C. took his one-year-old daughter to a back
bedroom of the home. Figueroa followed, pulled a gun from his pants, and
repeated that he wanted H.C.’s keys. H.C. shut the bedroom door and
blocked it with his feet. Before Figueroa left the home, H.C. heard him say,
“I’m going to kill someone.”
VI. G.G. and Victim B (Counts 20 through 23)
¶9 Figueroa walked into G.G.’s bedroom and demanded her
keys. When G.G. told Figueroa the car did not work, he pointed a gun at
her. G.G.’s eight-year-old son, Victim B, ran up to her and Figueroa pointed
the gun at the young boy’s face. G.G. told Victim B to run and he hid in
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another bedroom. Figueroa went to the laundry room, took clothing
belonging to G.G.’s son, and left the home.
VII. R.O. and Victim A (Counts 24 through 27)
¶10 From her bedroom window, R.O. saw Figueroa trying to open
her kitchen door and she shouted that he needed to leave. Figueroa turned
and walked through the arcadia door to R.O.’s bedroom. R.O.’s three-year-
old daughter, Victim A, was also in the bedroom. When R.O tried to block
him, Figueroa pointed a gun at Victim A’s face and demanded keys. At that
moment, R.O.’s boyfriend arrived at the home and Figueroa left through
the backyard.
VIII. J.T. and M.R. (Counts 28 through 32)
¶11 Figueroa jumped over R.O.’s fence into the adjacent backyard
of J.T. and M.R. and entered their living room. Figueroa sat down beside
M.R., placed a gun between them, and demanded her keys. As J.T. walked
into the living room, Figueroa pointed the gun at him and demanded his
keys. Figueroa retrieved the keys from J.T.’s pocket and took the couple’s
car.
IX. E.C., M.N., and Victim C (Counts 33 through 35)
¶12 Figueroa crashed J.T. and M.R.’s car into a wall, left the gun,
and fled on foot. Figueroa ran into an eleven-year-old girl, Victim C, and
pushed her from her scooter. Figueroa ran to a nearby car where E.C. was
sitting in the passenger seat. Figueroa tried to open the passenger’s side
door, but E.C.’s husband, M.N., pushed him away from the car. Figueroa
demanded M.N.’s keys, appeared to reach behind him for a gun, and
jumped into the driver’s seat. M.N. pulled Figueroa out of the car.
¶13 Shortly after, police officers arrested Figueroa. Officers found
bullets and a pair of stolen keys in Figueroa’s pockets. Although Figueroa
admitted to committing many of the offenses, he claimed he was fleeing
from people who wanted to harm him. The victims did not see anyone
chasing Figueroa.
PROCEDURAL HISTORY
¶14 The State charged Figueroa with thirteen counts of
aggravated assault, five counts of armed robbery, five counts of burglary in
the first degree, three counts of attempted armed robbery, two counts of
theft of means of transportation, one count of kidnapping, one count of
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attempted kidnapping, one count of unlawful discharge of a firearm, one
count of criminal trespass in the second degree, one count of attempted
theft of means of transportation, and one count of attempted robbery.2
¶15 The jury found Figueroa guilty of all counts except Counts 3,
29, and 35. The jury also found that Counts 1, 2, 5-11, 15-28, 30, and 31 were
dangerous offenses, Counts 21 and 25 were dangerous crimes against
children, aggravating factors applied to Counts 4 and 32, and Figueroa was
on probation at the time of the offenses. The superior court found that
Figueroa had four prior felony convictions.
¶16 The superior court sentenced Figueroa to presumptive,
consecutive prison sentences for Counts 1, 2, 9-11, 15, 19, 21, 23, 25, 27, 31,
and 33, as well as presumptive, concurrent sentences for Counts 4-8, 13, 16-
18, 20, 22, 24, 26, 28, 30, 32, and 34 to run consecutively to all other counts.
In total, the court sentenced Figueroa to 220.25 years’ imprisonment with
745 days presentence incarceration credit.3 For Count 14, the misdemeanor
offense, the court sentenced Figueroa to four months’ incarceration with
credit for time served.
¶17 Figueroa filed a timely appeal and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).
DISCUSSION
I. Double Jeopardy
¶18 Figueroa argues the superior court erred because it imposed
multiple sentences for the same offense in violation of his double jeopardy
rights under the United States Constitution.
2 The consolidated indictment represents charges from Maricopa
County Superior Court cause numbers CR2014-001424-001 and CR2014-
109338-001. Before trial, the State dismissed a misconduct involving
weapons offense in Count 12.
3 In Figueroa’s 2006 probation violation case, the superior court
revoked Figueroa’s probation and imposed a total of five years’
imprisonment with 916 days presentence incarceration credit, to run
consecutively to all counts in the 2014 case.
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¶19 Although Figueroa’s failure to object limits our review to
fundamental error, State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005), a
violation of double jeopardy constitutes fundamental error, State v. Price,
218 Ariz. 311, 313, ¶ 4 (App. 2008). We review this issue de novo. State v.
Siddle, 202 Ariz. 512, 515, ¶ 7 (App. 2002).
¶20 A person may not “be twice put in jeopardy of life or limb”
for the same offense. U.S. Const. amend. V. In Blockburger v. United States,
284 U.S. 299, 304 (1932), the United States Supreme Court recognized,
“where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires proof of a fact
which the other does not.”
¶21 The double jeopardy bar prohibits dual punishment for the
same offense unless each statutory provision applied “requires proof of a
different element.” Id. This is true even when a defendant receives
concurrent sentences. See Ball v. United States, 470 U.S. 856, 865 (1985); State
v. Brown, 217 Ariz. 617, 621, ¶ 13 (App. 2008).
A. Offenses Involving Multiple Victims
¶22 The jury convicted Figueroa of thirty-one counts involving
sixteen different victims. Of the sixteen victims, ten victims are listed in
multiple counts and six victims are listed in a single count. Although each
of the convictions arose out of conduct on a single day, each victim
represents a separate act in Figueroa’s string of offenses.
¶23 If the same offense harmed multiple victims, then multiple
punishments do not violate a defendant’s double jeopardy rights. State v.
Gunter, 132 Ariz. 64, 70 (App. 1982). As such, the superior court’s
imposition of sentences for similar offenses committed against multiple
victims did not violate Figueroa’s double jeopardy rights. We find no error
as to these sentences. We turn next to the sentences imposed in multiple
counts involving the same victim.
B. Armed Robbery and Theft of Means of Transportation
¶24 The jury convicted Figueroa of armed robbery and theft of
means of transportation in Counts 1 and 4 involving R.C. and in Counts 30
and 32 involving J.T. and/or M.R. In each set of counts, Figueroa was
convicted of taking the victim’s vehicle at gunpoint.
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¶25 In State v. Garcia, 235 Ariz. 627, 631, ¶ 11 (App. 2014), we held
that theft of means of transportation is a lesser-included offense of armed
robbery. See also A.R.S. §§ 13-1814(A)(1), -1902(A), -1904. “Because greater
and lesser-included offenses are considered the ‘same offense,’ the Double
Jeopardy Clauses forbid the imposition of a separate punishment for a
lesser offense when a defendant has been convicted and sentenced for the
greater offense.” Garcia, 235 Ariz. at 629, ¶ 5 (citations omitted). If a
defendant is convicted of both the greater and lesser offense, the conviction
and sentence for the lesser offense should be vacated. State v. Chabolla-
Hinojosa, 192 Ariz. 360, 365, ¶ 21 (App. 1998).
¶26 The imposition of sentences for both the greater offense,
armed robbery, in Counts 1 and 30, and the lesser offense, theft of means of
transportation, in Counts 4 and 32, violated Figueroa’s double jeopardy
rights. For these reasons, we vacate the convictions and sentences for the
lesser included offense of theft of means of transportation in Counts 4 and
32.
C. Attempted Robbery and Attempted Theft of Means of
Transportation
¶27 The jury convicted Figueroa of attempted robbery and
attempted theft of means of transportation committed against E.C. and/or
M.N. in Counts 33 and 34. The convictions both involved Figueroa’s
attempt to take the vehicle of E.C. and/or M.N.
¶28 In State v. Wall, 212 Ariz. 1, 4, ¶ 15 (2006), the Supreme Court
of Arizona held that attempted theft is a lesser-included offense of
attempted robbery. See also A.R.S. §§ 13-1001(A)(1)-(2), -1802(A)(1) (2013),
-1902(A). Similarly, attempted theft of means of transportation is a lesser-
included offense of attempted robbery under our statutory scheme. See
A.R.S. § 13-1814(A)(1); Garcia, 235 Ariz. at 630-31, ¶¶ 8-11. Double jeopardy
principles prohibit the imposition of dual punishment for both the greater
and lesser offense. Garcia, 235 Ariz. at 629, ¶ 5.
¶29 The imposition of sentences for both the greater offense,
attempted robbery, in Count 34, and the lesser offense, attempted theft of
means of transportation, in Count 33, violated Figueroa’s double jeopardy
rights. We, therefore, vacate Figueroa’s conviction and sentence in Count
33.
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D. Remaining Offenses
¶30 The remaining convictions that either involve the same victim
or do not involve a specified victim, include armed robbery, aggravated
assault, burglary in the first degree, kidnapping, attempted kidnapping,
attempted armed robbery, and unlawful discharge of a firearm. See A.R.S.
§§ 13-1001(A)(1)-(2), -1203(A)(2), -1204(A)(2) (2011), -1304(A)(4), -1508,
-1902(A), -1904, -3107(A) (2011).
¶31 Multiple punishments for offenses involving the same victim
do not violate the defendant’s double jeopardy rights where the statutory
provisions require proof of different facts. See e.g., Price, 218 Ariz. at 314,
¶ 9 (armed robbery and aggravated assault convictions did not violate
double jeopardy); State v. Eagle, 196 Ariz. 27, 32, ¶ 22 (App. 1998)
(kidnapping and sexual assault convictions did not violate double
jeopardy); State v. Jackson, 121 Ariz. 277, 279 (1979) (burglary and robbery
convictions did not violate double jeopardy); State v. Rabon, 115 Ariz. 45, 47
(App. 1977) (kidnapping and robbery convictions did not violate double
jeopardy). Moreover, double jeopardy principles do not bar the imposition
of multiple punishments for counts involving the same series of gunshots.
See State v. Miranda, 198 Ariz. 426, 430, ¶ 20 (App. 2000) (multiple counts of
disorderly conduct did not violate double jeopardy where the defendant
fired a series of three gunshots).
¶32 For these reasons, the imposition of sentences in the
remaining counts did not violate Figueroa’s double jeopardy rights.
II. Consecutive Sentences
¶33 Figueroa argues the superior court erred in imposing
consecutive sentences for offenses that constituted “a single act” under
A.R.S. § 13-116.
¶34 Because Figueroa failed to raise this issue with the superior
court, we review for fundamental error resulting in prejudice. Henderson,
210 Ariz. at 567-68, ¶¶ 19-20. Typically, imposition of an illegal sentence
constitutes fundamental error. State v. Martinez, 226 Ariz. 221, 224, ¶ 17
(App. 2011).
¶35 Pursuant to A.R.S. § 13-116, “[a]n act or omission which is
made punishable in different ways by different sections of the laws may be
punished under both, but in no event may sentences be other than
concurrent.” To determine whether A.R.S. § 13-116 requires concurrent
sentences, we look to the test developed in State v. Gordon, 161 Ariz. 308,
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315 (1989). Under Gordon, we first consider the facts of the underlying
crimes, subtracting the evidence needed to prove “the ultimate charge.” Id.
at 315. If what remains is sufficient to prove the secondary crime, then
A.R.S. § 13-116 may not bar consecutive sentences. Id. Second, we
determine whether “it was factually impossible to commit the ultimate
crime without also committing the secondary crime. If so, then the
likelihood will increase that the defendant committed a single act under
A.R.S. § 13-116.” Id. Third, we consider whether the secondary crime
exposed the victim to “additional risk of harm beyond that inherent in the
ultimate crime. If so, then ordinarily the court should find that the
defendant committed multiple acts and should receive consecutive
sentences.” Id.
A. Offenses Involving Multiple Victims
¶36 The superior court imposed consecutive sentences for counts
involving multiple acts committed against sixteen separate victims.
¶37 We have held that the superior court may impose consecutive
sentences for the same or similar offenses committed against different
victims. State v. Riley, 196 Ariz. 40, 46-47, ¶ 21 (App. 1999). Although the
offenses in this case shared a similar pattern, Figueroa committed a series
of offenses and caused unique harm to multiple victims. Thus, the superior
court did not err in imposing consecutive sentences for counts involving
different victims.4
¶38 As with our double jeopardy analysis, we turn next to the
imposition of consecutive sentences in counts involving the same victim or
victims.
B. Armed Robbery, Attempted Armed Robbery, and Aggravated
Assault
¶39 The superior court imposed consecutive sentences for armed
robbery and aggravated assault committed against R.C. in Counts 1 and 7
and M.L. in Counts 2 and 8. The court also imposed consecutive sentences
for attempted armed robbery and aggravated assault committed against
H.C. in Counts 17 and 18.
4 In Counts 21 and 25, the jury convicted Figueroa of dangerous crimes
against children and consecutive sentences were mandatory under A.R.S.
§ 13-705(M) (2014).
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¶40 Although armed robbery and aggravated assault are not the
same offense for double jeopardy purposes, the imposition of consecutive
sentences may still be barred by A.R.S. § 13-116. See Siddle, 202 Ariz. at 517,
¶ 17. We have found, under similar facts, that consecutive sentences for
armed robbery and aggravated assault were prohibited. See Price, 218 Ariz.
at 315-16, ¶¶ 14-20 (finding that armed robbery and aggravated assault
with a gun did not expose the victim to additional risk).
¶41 In Counts 1, 2, 7, and 8, Figueroa pointed his gun at R.C. and
M.L., told them to get in the vehicle or he would kill them, and, after a brief
struggle, drove away in R.C.’s vehicle. In Counts 17 and 18, Figueroa
waved his gun and demanded keys to H.C.’s vehicle.
¶42 As to each of the victims and their related counts, Figueroa’s
use of the gun was entwined in both the armed robbery, the attempted
armed robbery, and the aggravated assault. The basis for Figueroa’s
aggravated assault convictions in Counts 7, 8, and 17 was the “use of a
deadly weapon” to “[i]ntentionally [place] another person in reasonable
apprehension of imminent physical injury.” A.R.S. §§ 13-1203(A)(2),
-1204(A)(2). The basis for the armed robbery convictions in Counts 1 and 2
was the use of a “deadly weapon” to take the victims’ property. A.R.S.
§§ 13-1902(A), -1904. In Count 18, the conviction rested on proof that
Figueroa intentionally took a “step in a course of conduct planned to
culminate in commission” of an armed robbery. A.R.S. §§ 13-1001(A)(2),
-1902(A), -1904.
¶43 Under Gordon, the ultimate crimes are the armed robbery and
the attempted robbery. See State v. Alexander, 175 Ariz. 535, 537 (App. 1993).
The use of the gun needed to prove the ultimate crime involved the same
facts needed to prove aggravated assault. See State v. Jorgenson, 108 Ariz.
476, 477 (1972). Under the analysis directed by these cases, because the
offenses involved the same conduct, the aggravated assault did not expose
the victims to additional risk of harm. See Price, 218 Ariz. at 316, ¶ 18;
Gordon, 161 Ariz. at 315.
¶44 For these reasons, we find that the superior court erred when
it imposed consecutive sentences for armed robbery, attempted armed
robbery, and aggravated assault, as they relate to the same victim, in
violation of A.R.S. § 13-116. We remand for resentencing as to Counts 1, 2,
7, 8, 17, and 18.
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C. Armed Robbery, Attempted Armed Robbery, and Burglary in the
First Degree
¶45 The superior court imposed consecutive sentences for armed
robbery and burglary in the offenses involving the same victim in Counts
22, 23, 30, and 31. The court also imposed consecutive sentences for
attempted armed robbery and burglary in the first degree in Counts 15, 16,
18, 19, 26, and 27.
¶46 Although double jeopardy principles do not bar punishment
for such offenses, imposition of consecutive sentences for aggravated
robbery and burglary is barred by A.R.S. § 13-116. See Alexander, 175 Ariz.
at 538 (“we find that there was no time lapse between the entry and the
robbery and that the burglary and the robbery were therefore but two
crimes emanating from a single act.”).
¶47 As to Counts 15 and 16 involving A.T., Counts 18 and 19
involving H.C., and Counts 26 and 27 involving R.O., Figueroa entered
their respective homes, pointed his gun at them, and demanded keys to
their vehicles. As to Counts 22 and 23 involving G.G., Figueroa entered
G.G.’s home, pointed a gun at her, demanded keys, and left with her son’s
clothing. As to Counts 30 and 31 involving J.T. and/or M.R., Figueroa
entered their home, displayed and pointed his gun, demanded keys, and
left in their vehicle.
¶48 Once again, applying Gordon, the ultimate crimes are the
armed robbery and the attempted armed robbery. See Alexander, 175 Ariz.
at 537. Here, the basis for the armed robbery and attempted armed robbery
convictions was Figueroa’s use of a gun to take or attempt to take the
victims’ property. See A.R.S. §§ 13-1001(A)(1)-(2), -1902(A), -1904. The basis
for the burglary conviction was Figueroa’s entry into the victims’ home, use
of the gun, and intent to take the victims’ property. See A.R.S. § 13-1508.
Although the burglary requires the additional fact that Figueroa entered the
victims’ homes, this does not end our analysis. Under these facts, the
burglary and the armed robbery were so simultaneous that they did not
subject the victims to additional risks of harm.
¶49 For these reasons, the superior court erred in imposing
sentences for armed robbery or attempted armed robbery consecutive to
the sentences for burglary in the first degree, as they relate to the same
victim. We remand for resentencing as to Counts 15, 16, 18, 19, 22, 23, 26,
27, 30, and 31.
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D. Kidnapping, Attempted Kidnapping, and Armed Robbery
¶50 The superior court imposed consecutive sentences for armed
robbery and kidnapping committed against R.C. in Counts 1 and 5, as well
as consecutive sentences for armed robbery and attempted kidnapping
committed against M.L. in Counts 2 and 6.
¶51 The superior court may impose consecutive sentences for
kidnapping and another related offense if the other offense could have been
committed without restraining the victim’s movement. See e.g., State v.
Carlson, 237 Ariz. 381, 401, ¶ 83 (2015) (consecutive sentences permissible
for kidnapping and felony murder); Gordon, 161 Ariz. at 315-16 (consecutive
sentences permissible for kidnapping and sexual assault); State v. Noble, 152
Ariz. 284, 286-87 (1987) (consecutive sentences permissible for kidnapping
and child molestation).
¶52 For these counts, the ultimate crime is the armed robbery. See
Alexander, 175 Ariz. at 537. Figueroa’s armed robbery convictions were
based upon his use of a gun to take the victims’ property. See A.R.S. §§ 13-
1902(A), -1904. The kidnapping and attempted kidnapping convictions
rested upon proof that Figueroa forced, or attempted to force, R.C. and M.L.
into the vehicle. See A.R.S. § 13-1304(A)(4). Because proof of Figueroa
restraining or attempting to restrain the victims was not needed for the
armed robbery, there was sufficient evidence to prove both offenses and the
conduct exposed each victim to an additional risk of harm. The offenses
did not constitute a “single act” under A.R.S. § 13-116.
¶53 The superior court properly imposed consecutive sentences
in Counts 1 and 5, involving R.C., and in Counts 2 and 6, involving M.L.
E. Unlawful Discharge of a Firearm
¶54 The superior court imposed the sentence in Count 13,
unlawful discharge of a firearm, consecutive to the sentences in Counts 10
and 11, aggravated assaults, involving H.H. and L.H.
¶55 The evidence in this case showed that Figueroa fired two
shots out of the car window within the city limits. Although Figueroa
claimed he exchanged gunfire with people chasing him, he admitted to
firing the shots in the direction of the victims while driving through a trailer
park. See A.R.S. §§ 13-1304(A)(4), -3107(A). For the purposes of A.R.S. § 13-
116, these offenses do not constitute a “single act” because at least two shots
were fired. See Gordon, 161 Ariz. at 315. Moreover, each of the two shots
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fired by Figueroa caused a separate and unique risk of harm. See Miranda,
198 Ariz. at 430, ¶¶ 16-17.
¶56 The superior court properly imposed the sentence in Count
13 consecutive to the sentences in Counts 10 and 11.
III. Juror Bias
¶57 Figueroa argues the superior court erred when it failed to
strike a biased juror from the jury panel.
¶58 During jury selection, the court asked whether any of the
potential jurors, their family members, or close friends had ever been
involved in a case involving similar facts. Juror 37 raised her juror number
in the affirmative and explained that her sister was sexually assaulted at
gunpoint. The superior court responded, “[t]here are no allegations in this
case of any sexual assault. Does that make a difference to you in your ability
to judge this case fairly and impartially?” Juror 37 responded, “I can try.”
The superior court further asked if Juror 37 could “compartmentalize” her
personal experiences and, once again, Juror 37 responded, “I can try.”
¶59 Figueroa did not move to strike Juror 37 for cause or through
the use of a peremptory challenge. Prior to empaneling the jury, the
superior court noted that Juror 37 was still on the panel and asked whether
the parties wanted to “keep her” or “take any remedial measures.”
Figueroa did not object to keeping Juror 37 on the jury panel or suggest any
“remedial measures.”
¶60 If an appellant fails to use a peremptory challenge to strike a
potentially biased juror, the issue is waived on appeal. State v. Smith, 228
Ariz. 126, 128, ¶ 6 (App. 2011). Applying “the cure-or-waive rule,” we have
held “that a defendant is required to use an available peremptory strike to
remove an objectionable juror whom the trial court has refused to remove
for cause to preserve the issue for appeal. Failing to do so waives any
error.” State v. Rubio, 219 Ariz. 177, 181, ¶ 12 (App. 2008). Moreover, a
juror’s statements regarding impartiality need not be phrased in absolute
terms. State v. Trostle, 191 Ariz. 4, 13 (1997). The superior court is not
required to remove a juror for cause unless the challenging party establishes
that the juror cannot be fair and impartial. See Ariz. R. Crim. P. 18.4(b); State
v. Hoskins, 199 Ariz. 127, 139, ¶ 37 (2000).
¶61 Figueroa’s failure to use his available peremptory challenge
to remove Juror 37 prevents him from objecting on appeal. Figueroa has
waived any error. Further, Figueroa has failed to show that the juror could
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not be fair and impartial. Even if the issue were not waived on appeal, we
would find no error.
CONCLUSION
¶62 For the foregoing reasons, we vacate the convictions and
sentences in Counts 4, 32, and 33, affirm the convictions for the remaining
counts, and remand for resentencing in Counts 1, 2, 7, 8, 15, 16, 17, 18, 19,
22, 23, 26, 27, 30, and 31 to comply with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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