State of Arizona v. Matthew Erich Manzanedo , 210 Ariz. 292 ( 2005 )

FILED BY CLERK
IN THE COURT OF APPEALS APR 29 2005
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2003-0238
Appellee, ) DEPARTMENT B
)
v. ) OPINION
)
MATTHEW ERICH MANZANEDO, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. CR200201240
Honorable Stephen F. McCarville, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General
By Randall M. Howe and Alan L. Amann Tucson
Attorneys for Appellee
Harriette P. Levitt Tucson
Attorney for Appellant
F L Ó R E Z, Presiding Judge.
¶1 After a jury trial, Matthew Manzanedo was convicted of assault with intent to
incite a riot or participation in a riot and criminal damage. The convictions stemmed from
a prison riot at the Pinal County Detention Center in which two officers were assaulted and
the prison sustained over $23,000 in damage.1 The trial court sentenced Manzanedo to
concurrent, enhanced, aggravated prison terms of ten and twenty-two years. We affirm his
convictions and sentences.
¶2 On appeal, Manzanedo argues that there was insufficient evidence to sustain
his conviction for criminal damage and that his conviction under A.R.S. § 13-1207 is the
product of a duplicitous indictment and a jury instruction that did not separate the offenses
charged. See State v. Axley, 132 Ariz. 383, 646 P.2d 268 (1981). Manzanedo also argues
that the trial court imposed aggravated sentences based on improper aggravating factors and
in violation of Blakely v. Washington, __U.S.__, 124 S. Ct. 2531, 159 L. Ed. 2d 2531
(2004).
Criminal Damage
¶3 We view the evidence in the light most favorable to sustaining Manzanedo’s
convictions and resolve all reasonable inferences against him. See State v. Rienhardt, 190
Ariz. 579, 951 P.2d 454 (1997). “A person commits criminal damage by recklessly . . .
[d]efacing or damaging [the] property of another.” A.R.S. § 13-1602. Manzanedo argues
there was no substantial evidence to sustain his criminal damage conviction because of the
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Manzanedo was also charged with, but acquitted of, aggravated assault.
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conflicting evidence presented at trial. He concedes that one witness, Officer Glass, testified
that Manzanedo had ripped a telephone out of a wall and had thrown a food tray during the
riot, but asserts that “[n]one of the other officers testified that they [had] observed [him]
cause any other damage.” “[S]ubstantial evidence . . . is evidence that reasonable persons
could accept as adequate and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” State v. Edwards, 136 Ariz. 177, 186, 665 P.2d 59, 68
(1983). Officer Glass’s testimony was sufficient to prove that Manzanedo had damaged the
property of another. That other witnesses testified they had not seen Manzanedo damage
any property does not render Officer Glass’s testimony insubstantial, as Manzanedo
suggests. The jury was entitled to believe whichever witnesses it found credible. See State
v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App. 2004) (“Although the record contains
some conflicting evidence, it was for the jury to weigh the evidence and determine the
credibility of the witnesses.”).
¶4 To the extent Manzanedo also asserts that Officer Glass’s testimony was
insufficient to establish the amount of damage for a class four felony, see § 13-1602(B)
(criminal damage is class four felony if damage is $10,000 or more), he fails to develop any
argument on why the state could not rely on the total damages from the riot of $23,662.55,
offering only the conclusory statement that he “cannot be held accountable for the actions
of others.” Because Manzanedo’s argument does not comply with Rule 31.13(c), Ariz. R.
Crim. P., 17 A.R.S., we do not address it.
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Conviction under § 13-1207
¶5 Manzanedo next asserts that § 13-1207 “criminalizes two separate offenses in
the same statute, to-wit: (1) assault with intent to incite a riot, and (2) participation in a
riot.” Based on this assertion, he argues variously that the indictment was duplicitious, that
the court’s jury instruction failed to cure the effect of the duplicitious indictment, that the
statute itself is duplicitous, and that the jury verdict was not unanimous.
¶6 We note first that Manzanedo did not raise these issues in the trial court.
Although he objected to the instruction relating to § 13-1207, he asserted only that the
statutory provisions were unclear. Therefore, he has waived the arguments on appeal absent
fundamental error. See State v. Davis, 205 Ariz. 174, ¶ 32, 68 P.3d 127, 132 (App. 2002)
(“[A]bsent fundamental error, failure to raise issue at trial waives it on appeal.”).
Fundamental error is “‘clear, egregious, and curable only via a new trial,’” State v. Lamar,
205 Ariz. 431, ¶ 50, 72 P.3d 831, 841 (2003), quoting State v. Gendron, 168 Ariz. 153,
155, 812 P.2d 626, 628 (1991), and is error that goes “to the foundation of the case,” that
“takes from the defendant a right essential to [the] defense,” or that is “of such magnitude
that the defendant could not possibly have received a fair trial.” State v. Hunter, 142 Ariz.
88, 90, 688 P.2d 980, 982 (1984). To the extent Manzanedo has requested that we review
the issue for fundamental error, we find no such error.
¶7 We disagree with the premise common to all of Manzanedo’s arguments on
this issue—that § 13-1207 creates two separate offenses. Section 13-1207, entitled
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“Prisoners who commit assault with intent to incite to riot or participate in riot,” states in
pertinent part: “A person, while in the custody of the state department of corrections or a
county or city jail, who commits assault upon another person with the intent to incite to riot
or who participates in a riot is guilty of a class 2 felony.” We conclude that, rather than
creating two separate offenses, § 13-1207 creates a single offense that can be committed in
alternate ways.
¶8 “‘Various tests are applied in determining whether statutes are intended to
create one or more offenses.’” People v. Hathaway, 103 Cal. Rptr. 638, 643 (Ct. App.
1972), quoting Bealmear v. S. Cal. Edison Co., 139 P.2d 20, 23 (Cal. 1943). In State v.
Dixon, 127 Ariz. 554, 622 P.2d 501 (App. 1981), we relied on the tests suggested by the
Washington Supreme Court in State v. Arndt, 533 P.2d 1328 (Wash. 1976), and determined
that Arizona’s theft statute, A.R.S. § 13-1802, created a single offense that could be
committed in different ways. We considered (1) the title of the statute, (2) whether there
was “a readily perceivable connection between the various acts” listed in the statute,
(3) whether those acts were “consistent with and not repugnant to each other,” and (4)
whether those acts might “inhere in the same transaction.” Dixon, 127 Ariz. at 561, 622
P.2d at 508. We may conduct that same analysis here, but ultimately, we must determine
whether the legislature intended to create separate offenses in enacting the statute. See State
v. Fell, 209 Ariz. 77, ¶ 33, 97 P.3d 902, 911 (App. 2004) (“In interpreting a statute, we
must attempt to give effect to the legislature’s intent.”).
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¶9 We note initially that, had the legislature intended to create two separate
offenses, it could easily have done so by enacting separate statutes or, at least, separate
subsections. And, although § 13-1207 lists two conceivably separate acts—assault and
participation—these acts are connected by the central subject of the statute—prison riots.
The act of assaulting another with intent to incite a riot and the act of participating in a riot
both further a prison riot, the conduct the legislature obviously intended to discourage by
enacting § 13-1207. See Bealmear (collecting cases and considering primary purpose in
determining statute created single offense although listing multiple acts). Moreover, the
listed acts are not repugnant to each other. “The varying ways by which a crime may be
committed are not repugnant to each other unless the proof of one will disprove the other.”
Arndt, 553 P.2d at 1333. Proving either assault with intent to incite a riot or participation
in a riot does not disprove the other.
¶10 Additionally, we agree with the following reasoning by the Washington
Supreme Court:
Doubts in the construction of a penal statute will be resolved in
favor of lenity and against a construction that would produce
extremely harsh or incongruous results or impose punishments
totally disproportionate to the gravity of the offense; so in case
of ambiguity the construction will be against turning a single
transaction into multiple offenses.
Id. at 1334. It is difficult to conceive of a situation in which a prisoner could assault
someone with the intent to incite a riot, but not also participate in any ensuing riot. Under
Manzanedo’s construction of the statute, however, such behavior would constitute two
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separately punishable offenses. Given the wording of this statute, that is a result we are not
confident the legislature intended.
¶11 Moreover, we find unpersuasive Manzanedo’s reliance on State v. Lujan, 139
Ariz. 236, 677 P.2d 1344 (App. 1984). There, we found an indictment duplicitous because
the indictment had alleged in one count two actions expressly made separate offenses in the
statute. That is not the case here. Accordingly, we affirm Manzanedo’s convictions.
Sentencing Issues
¶12 Manzanedo argues the trial court illegally aggravated his sentences based on
its findings of the financial loss to the assaulted officers and the state and the presence of an
accomplice. First, Manzanedo argues that, because he was not convicted of assault, “[t]he
officers were not victims of the crimes for which [he] was convicted,” and therefore, financial
loss to the officers was an improper aggravating factor. But it is uncontested that the officers
were assaulted during the course of the riot Manzanedo incited or participated in; therefore,
the trial court properly considered them victims not only of assault, but also of Manzanedo’s
violation of § 13-1207. That section must be read in conjunction with A.R.S. § 13-2903,
which creates the offense of riot. Section 13-2903 provides that “[a] person commits riot
if, with two or more other persons acting together, such person recklessly uses force or
violence or threatens to use force or violence, if such threat is accompanied by immediate
power of execution, which disturbs the public peace.” In light of § 13-2903, it is clear that
a violation of § 13-1207 is not a victimless crime.
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¶13 In State v. Sorkhabi, 202 Ariz. 450, 46 P.3d 1071 (App. 2002), Division One
of this court held that resisting arrest is not a victimless crime based on aspects of the
applicable statute that also exist in our riot statutes. The resisting arrest statute prohibits a
person from “[u]sing or threatening to use physical force . . . or . . . any other means creating
a substantial risk of causing physical injury to [a] peace officer or another.” A.R.S. § 13-
2508. Similarly, to commit riot under § 13-2903, a person must use or threaten to use
“force or violence . . . if such threat is accompanied by immediate power of execution.” Like
the resisting arrest statute, our riot statute can include a victim—a person against whom force
is used or who is threatened with the use of force. Accordingly, the trial court properly
found the victims’ financial loss was an aggravating factor. See A.R.S. § 13-702(C)(9).
¶14 Second, Manzanedo argues that the presence of accomplices and financial loss
were essential elements of the crimes of assault with intent to incite to riot and criminal
damage and that his “actions were not so egregious as to rise to a level beyond that which
[was] merely necessary to establish” those elements. We disagree. The state presented
evidence that the riot had been a large-scale one involving many prisoners and that the
financial loss caused by the riot was more than twice the amount required for criminal
damage to be a class four felony. Moreover, because the amount of financial damage and
the presence of an accomplice are specifically enumerated aggravating factors, see § 13-
702(C)(3) and (4), the trial court was authorized to aggravate Manzanedo’s sentences based
on those facts regardless of whether they were more egregious than necessary to establish
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an element of the crimes. See State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980); State v.
Alvarez, 205 Ariz. 110, 67 P.3d 706 (App. 2003). We find no error in the trial court’s
imposition of aggravated sentences.
¶15 Next, Manzanedo contends his sentences violated the principles announced
in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and
applied in Blakely. We disagree. Although the state argues Manzanedo waived this issue
by failing to raise it below, in our discretion, we address it. See State v. Resendis-Felix, 209
Ariz. 292, 100 P.3d 457 (App. 2004).
¶16 The trial court based Manzanedo’s sentences on its finding of five aggravating
factors: (1) Manzanedo’s criminal history,2 (2) the presence of an accomplice, (3) the
financial loss to the victims, (4) Manzanedo’s “failure to benefit from past lenient
treatment,” and (5) the unprovoked and unreasoning nature of Manzanedo’s actions. At
least one of those aggravating factors was Blakely compliant, and the trial court expressly
found no mitigating factors. As we recently explained in State v. Alire, 209 Ariz. 517, 105
P.3d 163 (App. 2005), when a trial court finds no mitigating factors and one Blakely-
compliant or -exempt aggravating factor, the court may consider additional aggravating
2
We note that Manzanedo’s criminal history included multiple prior convictions. In
State v. Burdick, 209 Ariz. 452, 104 P.3d 183 (App. 2005), the trial court aggravated a
sentence based in part on the defendant’s criminal history. We found that “criminal history”
was not necessarily equivalent to prior convictions, and therefore, the trial court’s finding
was not exempt from the rule in Blakely. We need not decide here whether Manzanedo’s
criminal history is a Blakely-exempt aggravating factor, because, as explained below,
Manzanedo’s aggravated sentences are supported by another Blakely-compliant factor.
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factors if supported by reasonable evidence and impose a sentence within the aggravated
range. See also State v. Viramontes, 204 Ariz. 360, ¶ 14, 64 P.3d 188, 190 (2003) (“In
non-capital cases, aggravators need only be supported by reasonable evidence.”).
¶17 The jury found financial loss in the verdict on criminal damage. As
Manzanedo has conceded, this factor was an essential element of one of the crimes of which
he was convicted. The verdict on the criminal damage charge included the jury’s specific
finding that the “total amount of damage was . . . [m]ore than $10,000.00.” The trial court
used this express finding by the jury to aggravate both of Manzanedo’s sentences. For the
same reasons expressed in Alire, we find no Blakely error.
¶18 Affirmed.
____________________________________
M. JAN FLÓREZ, Presiding Judge
CONCURRING:
____________________________________
JOHN PELANDER, Chief Judge
E S P I N O S A, Judge, specially concurring.
¶19 I concur in the disposition and all aspects of the decision except the analysis
of the Blakely sentencing issue in ¶ 16. It is unnecessary to hinge the determination of
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whether any Blakely error occurred on whether the trial court found any mitigating factors,
when Manzanedo’s sentence was clearly authorized by his undisputed prior felony
convictions. See State v. Estrada, ___ Ariz. ___, 108 P.3d 261 (App. 2005); State v.
Chiappetta, 210 Ariz. 40, 107 P.3d 366 (App. 2005) (Espinosa, J.); see also State v.
Martinez, 209 Ariz. 280, 100 P.3d 30 (App. 2004). Because Manzanedo’s prior convictions
are exempt from the rule in Blakely, no additional fact-finding was necessary for the trial
court to constitutionally aggravate Manzanedo’s sentences to the maximum authorized by
A.R.S. § 13-702.3
¶20 As Division One of this court recently observed, “under Arizona’s statutory
scheme, [a defendant’s] criminal history constitutes an aggravating circumstance
that—without the need for any additional jury findings—expose[s] him to being sentenced
to [an aggravated term].” Estrada, 108 P.3d 261 at 264. Other aggravators, not to mention
mitigators, need not be addressed because they are “not necessary to establish the maximum
prison term that is statutorily authorized.” Chiappetta, 210 Ariz. 40, ¶ 23, 107 P.3d 366
at 374 (Espinosa, J.). Stated differently, because the elements to which constitutional
protections attach consist of “‘facts legally essential to the punishment to be inflicted,’”
3
As the majority notes, a panel of this court recently found that the trial court’s use
of the term “criminal history” during sentencing was too generalized a reference to the
defendant’s prior convictions to come under the Blakely exemption. State v. Burdick, 209
Ariz. 452, 104 P.3d 183 (App. 2005). But that view appears to unnecessarily elevate form
over substance; it does not apply here in any event because the trial court made specific
findings as to two of the defendant’s numerous convictions.
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when the maximum sentence is increased by a Blakely-compliant factor such as a prior
conviction, the defendant has no right to a lesser sentence and other factors are not essential
to the range of punishment. Estrada, 108 P.3d at 265, quoting Harris v. United States,
536 U.S. 545, 561, 122 S. Ct. 2406, 2416, 163 L. Ed. 2d 524, 540 (2002). See also
Martinez (aggravating factor was implicit in jury finding; thus, trial court’s weighing of
additional aggravating factors not violative of Blakely because jury finding expanded
sentencing range); cf. United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 750, 160
L. Ed. 2d 621, ___ (2005) (“[W]hen a trial judge exercises his discretion to select a specific
sentence within a defined range, the defendant has no right to a jury determination of the
facts that the judge deems relevant.”).
¶21 In sum, Manzanedo’s prior convictions posed no question for a jury and,
standing alone, authorized the aggravated sentences imposed, in full compliance with
Blakely.
____________________________________
PHILIP G. ESPINOSA, Judge
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