NEW LAW/POST-1993/SERIOUS OFFENSE(F)(2) FINDING UPHELD
State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)
(F)(2) finding upheld. The trial court found beyond a reasonable doubt that the defendant had previously been convicted of a crime of violence. The Court found that the trial court incorrectly applied the old (F)(2) factor, and not the new (F)(2) factor, which was amended in 1993. The murder was committed in 1995, so the new (F)(2) factor should have been used. Accordingly, the trial court should have considered whether the prior conviction for aggravated assault constituted a serious offense. The Court here found that the prior conviction fit within the definition of serious offense, and that therefore the (F)(2) aggravator properly existed.
State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
(F)(2) finding upheld without discussion.
State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999)
(F)(2) finding upheld. The defendant had previously been convicted of assault with intent to commit rape in California. The Court looked to the statutory definition of that crime in California to determine that it meets the definition of sexual assault in Arizona, and therefore, constitutes a serious offense under Arizona law. The Court found sufficient evidence that the state satisfied its burden of proof on this aggravating circumstance. The victim of that prior crime testified at the trial of this case in which she identified the defendant as the person who attacked her in California. The Court agreed with the defendant that the trial court should not have considered her testimony to establish the prior conviction, but found no reversible error.
State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999)
(F)(2) finding upheld. The defendant had previously been convicted of first degree burglary, one of the enumerated "serious" offenses. The State presented documentation of this 1981 conviction that was sufficient to prove this aggravating factor.
State v. Martinez, 196 Ariz. 451, 999 P.2d 795 (2000)
(F)(2) finding upheld. The defendant conceded that his aggravated assault conviction under A.R.S. §§13-1203(A)(2) and 1204(A)(2) qualified as a serious offense for this aggravating circumstance. However, he contested the trial court's finding that his conviction for two counts of Dangerous or Deadly Assault by a Prisoner under A.R.S. §§13-1203 and 1206 were serious offenses because that crime was not among those listed in the statute. He also argued that because one can commit that offense recklessly, they should not qualify as serious offenses. The Court agreed with the trial court that the list of offenses in former A.R.S. §13-703(H) (now A.R.S. § 13-751(I)) is not specific to statute numbers, and encompasses aggravated assault for prisoners. The second argument regarding reckless assault erroneously assumes that the old (F)(2) concepts carried over to the new (F)(2). All of these convictions satisfy (F)(2).
State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
(F)(2) finding upheld. The Court found this aggravating circumstance satisfied by the defendant’s convictions on three counts of aggravated assault, three counts of armed robbery, and two counts of first degree burglary. Because the defendant was convicted of these serious offenses before the sentencing phase, each offense provided sufficient grounds for satisfying (F)(2) for the murder offenses. The trial judge was careful not to consider the murder convictions for (F)(2) as they had already been considered in the (F)(1) determination.
State v. Canez, 202 Ariz. 133, 42 P.3d 564 (2002)
Following the jury verdicts, a bench trial was held on the defendant’s prior convictions. A separate capital sentencing hearing was held seven months later. The Court found it unnecessary for the prior convictions to be separately litigated in the capital sentencing hearing.
State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)
All of the charges arising from three separate robberies were consolidated for one trial. A murder occurred only during the third robbery. At sentencing, the trial court based its finding on the defendant’s convictions, entered before sentencing, for armed robbery, kidnapping and aggravated assault from the first and second robberies. The Court held that convictions entered simultaneously with the murder conviction but before sentencing satisfy (F)(2). Because the convictions stemming from the first and second robberies were entered before sentencing, they qualify as previous serious offenses under (F)(2).
State v. Phillips ,202 Ariz. 427, 46 P.3d 1048 (2002)
All of the charges arising from three separate robberies were consolidated for one trial. A murder occurred only during the third robbery. At sentencing, the trial court based its finding on the defendant’s convictions, entered before sentencing, for armed robbery, kidnapping and aggravated assault from the first, second and third robberies. The Court held that convictions entered simultaneously with the murder conviction but before sentencing satisfy (F)(2), so long as they do not arise from the same set of events as the murder. The trial court did not err by relying on the convictions from the first and second robberies because they were entered before sentencing. But the court did err by considering the convictions from the third robbery because, although they were also entered before sentencing, they arose from the same set of events as the murder. In addition, the court properly relied on the defendant’s 1998 convictions for armed robbery, aggravated assault, and robbery.
State v. Pandeli (II), 204 Ariz. 569, 65 P.3d 950 (2003) (Ring)
The State proved at trial that Pandeli had been convicted of second-degree murder in the killing of Teresa Humphreys Second-degree murder qualifies as a serious offense, and the defendant did not challenge the finding Court found it was proven beyond a reasonable doubt.
State v. Phillips (II), 205 Ariz. 145, 67 P.3d 1228 (2003) (Finch’s co-defendant) (Ring)
(F)(2) upheld for the same reasons set forth in Phillips I, above.
State v. (Marcus) Finch (II), 205 Ariz. 170, 68 P.3d 123 (2003) (Ring)
(F)(2) finding upheld for the same reasons set forth above in Finch I.
State v. (Arturo) Canez (II), 205 Ariz. 620, 74 P.3d 932 (2003) (Ring)
(F)(2) finding upheld. Canez had 4 prior felony convictions, which Canez did not contest were “serious offenses.”
State v. (Leroy) Cropper, 206 Ariz. 153, 76 P.3d 424 (2003) (Ring)
(F)(2) finding upheld. Cropper had been previously convicted of aggravated assault, a serious offense.
State v. (Danny) Montano, 206 Ariz. 296, 77 P.3d 1246 (2003) (Ring)
(F)(2) finding upheld. Montano had been previously convicted of conspiracy to commit first-degree murder, a serious offense. This offense was separate from the two prior armed robbery convictions which were used by the judge to support (F)(1) Jury Trial Indep. Review
State v. (Albert Martinez) Carreon, 210 Ariz. 54, 107 P.3d 900, (2005) Jury Trial/Indep. Review
There was “documentation” that Carreon had been previously convicted and sentenced for kidnapping and aggravated assault. Because the defense stipulated to this information, the State offered no further evidence. This documentation sufficed in light of the stipulation, especially because the documents provided “a sufficient basis to identify Carreon as the person referred to in the documents.”
State v. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
(F)(2) finding upheld. Ellison’s prison records showed his prior conviction for armed robbery, a statutorily defined serious felony, A.R.S. § 13-751(H)(1)(h) (1999).
State v. (Joe Clarence) Smith, 215 Ariz. 221, 159 P.3d 531 (2007) (Ring)
(F)(2) finding upheld. Smith’s prior conviction of Lee’s murder met the requirements of the F(2) aggravator in the Spencer case and vice versa.
State v. (Cory Deonn) Morris, 215 Ariz. 324, 160 P.3d 203 (2007) Jury Trial/Abuse of Discretion Review
(F)(2) finding upheld. Morris’s multiple murder convictions from the guilt phase were properly used for this aggravator because they were not committed on the same occasion.
State v. (Darrel) Pandeli (Pandeli IV), 215 Ariz. 514, 161 P.3d 557 (2007) (Ring)
(F)(2) finding upheld. Pandeli’s 1996 prior conviction for second-degree murder was a "serious offense" supporting the (F)(2) aggravator.
State v. (Juan) Velazquez, 216 Ariz. 300, 166 P.3d 91 (2007) Jury Trial/Indep. Review
Velazquez’s conviction of child abuse of the three year old met the requirements of the version of the F(2) aggravator in effect in 2001 when he committed the murder. This aggravator could not be based on convictions for serious offenses committed contemporaneously with the capital murder. However, it could be based on convictions for serious offenses that were committed separately from the murder, even if the murder serious offense convictions resulted from the same trial. This was the situation here. The child abuse of the other daughter did not arise from the same set of events as the murder.
State v. (Patrick Wade) Bearup, 221 Ariz. 163, 211 P.3d 684 (2009)
The State produced a certified copy of Bearup’s prior conviction of aggravated assault along with testimony that he was the person convicted. Bearup conceded that aggravated assault qualifies as a serious offense. Thus, the evidence established the prior serious offense aggravating circumstance.
State v. (Paul Bradley) Speer, 221 Ariz. 409, 212 P.3d 787 (2009)
(F)(2) finding upheld. The State proved that Speer was convicted of armed robbery on December 1, 1998.
State v. (Leroy D.) Cropper, 223 Ariz. 522, 225 P.3d 579 (2010)
(F)(2) finding upheld. Cropper did not contest that he had been previously convicted of aggravated assault, a serious offense.
State v. (Alfredo Lucero) Garcia, 224 Ariz. 1, 226 P.3d 370 (2010)
(F)(2) finding upheld. The State proved this aggravator beyond a reasonable doubt by introducing documents reflecting Garcia’s prior convictions for sexual assault and armed robbery.
State v. (Aaron Brian) Gunches, 225 Ariz. 22, 234 P.3d 590 (2010)
(F)(2) finding upheld. Gunches stipulated during the aggravation phase that he had previously been convicted of attempted murder, a serious offense.
State v. (Derek Don) Chappell, 225 Ariz. 229, 236 P.3d 1176 (2010)
(F)(2) finding upheld. Chappell did not contest that this aggravator was established by the jury’s contemporaneous guilty verdict on the child abuse charge.
State v. (Mike Peter) Gallardo, 225 Ariz. 560, 242 P.3d 159 (2010)
F2 finding upheld. The Supreme Court noted only that the jury properly found this aggravator based on evidence of Gallardo’s prior convictions for armed robbery and burglary.
State v. (Donald David) Delahanty, 226 Ariz. 502, 250 P.3d 1131 (2011)
F2 finding upheld. The jury’s guilty verdicts of attempted arson, conspiracy to commit first degree murder, and solicitation to commit first degree murder supported the trial court’s finding that Delahanty had been convicted of serious offenses committed on the same occasion as the homicide.
State v. (Benjamin Bernal) Cota, 229 Ariz. 136, 272 P.3d 1027 (2012)
F2 finding upheld. The jury’s guilty verdicts on two counts of first degree murder, two counts of armed robbery, one count of possession of narcotics, and one count of unlawful flight supported the jury’s finding that Cota had been convicted of serious offenses committed on the same occasion as the homicide. This issue was not contested on appeal.
*State v. (Shawn Ryan) Grell (Grell III), 231 Ariz. 153, 291 P.3d 350 (2013)
On independent review (1999 offense), the Court found that the State proved all three aggravating factors, including conviction of prior serious offense (robbery), beyond a reasonable doubt, but did not address them in detail in light of its conclusion that Grell’s mental retardation precluded imposition of the death penalty. In Grell II, 212 Ariz. 516, 519, 135 P.3d 696, 699 (2006): “The prior serious offense was a 1996 conviction for robbery. SeeA.R.S. § 13–703(H) (1999) (identifying robbery as a “serious offense” for purposes of use as a death penalty aggravator).
Cases where the death sentence was reduced have been marked with an *.
State v. (Robert) Hernandez,232, Ariz. 313, 305 P.3d 378 (2013)
After 1993 the legislature substituted “serious offense” for “violence,” broadening the scope of the (F)(2) aggravator to encompass prior serious offenses rather than limiting the factor to offenses involving violence. Armed robbery/burglary is a serious offense and supports the (F)(2) aggravator.
State v. (William Craig) Miller, 234 Ariz. 31, 316 P.3d 1219 (2013)
Miller did not contest this finding.
State v. (Shawna) Forde, 233 Ariz. 543, 315 P.3d 1200 (2014)
Defendant did not contest that the convictions for first degree burglary, aggravated assault and robbery established this aggravating factor.
State v. Israel Joseph Naranjo, 234 Ariz. 233, 321 P.3d 398 (2014)
The jury found this aggravating factor proven: Naranjo previously had been convicted of a serious offense, A.R.S. § 13–751(F)(2). Naranjo did not contest this finding; the record supports the jury's finding.
State v. Burns, 237 Ariz. 1, 344 P.3d 303, cert. denied, 136 S. Ct. 95 (2015).
The State proved that the defendant had two prior convictions for burglary, and that he was contemporaneously convicted of sexual assault and kidnapping, establishing the (F)(2) aggravator. See State v. Carreon, 210 Ariz. 54, 66 ¶ 59, 107 P.3d 900, 912 (2005).
Determination of the weight to be given the aggravator, because his two prior burglary convictions were non-violent offenses, was up to each juror to individually consider the aggravator in light of the mitigation presented.
State v. Michael Carlson, 237 Ariz. 381, 351 P.3d 1079 (2015).
The Court addressed Carlson’s argument in Forde: the (F)(2) aggravator, when based on crimes that occurred in connection with the murder, sufficiently narrows the class of defendants eligible for the death penalty. Rutledge and other cases cited by defendant, suggesting that “serious offense should not include contemporaneous crimes, address the pre-2003 (F)(2) language and do not interpret the 2003 amendment applicable to the defendant.
Not every felony murder conviction renders the defendant death-eligible, as not every predicate offense qualifies as a “serious” offense. The Court declined to find the “legislature’s implied belief,” holding that the 2003 amendment, explicitly evidencing legislative intent, permits use of predicate crimes as (F)(2) aggravating circumstances. The jurors were therefore entitled to consider the contemporaneous kidnapping convictions in finding the (F)(2) aggravator.
The Court declined to address whether the defendant’s prior conviction for aggravated robbery in Texas qualify as prior serious offenses (F)(2) aggravator, as the kidnapping offenses were sufficient to establish the aggravator.
State v. (Mark) Goudeau, 239 Ariz. 421, 372 P.3d 945 (2016).
Defendant claimed that using the same felonies three times in the sentencing calculus violated the Double Jeopardy Clause of the Fifth Amendment. This argument fails, however, because the predicate felonies to the felony-murder convictions were not the only prior convictions supporting the (F)(2) aggravator in this case. The State presented evidence of five serious offense convictions from 1989 and 1990, as well as the defendant’s prior convictions for the crimes against two sisters.
The defendant’s claim also fails on the merits. The Court has rejected the argument that double jeopardy prohibits a court from sentencing a defendant to prison for the same felonies used as felony murder predicates and capital sentencing aggravators.
State v. (Bryan Wayne) Hulsey, 243 Ariz. 367, 408 P.3d 408 (2018)
To prove the (F)(2) aggravator, the State must establish that the defendant has been “previously convicted of a serious offense, whether preparatory or completed.” This aggravating factor, conviction for the attempted murder of Officer Goitia, arose out of the gunfire that resulted in the death of Officer Holly, and that conviction was then used as an (F)(2) aggravating factor. Hulsey argued that the jury abused its discretion in imposing the death sentence because (1) “these two crimes [i.e., the murder of Officer Holly and attempted murder of Officer Goitia] are what make up the only aggravating circumstances under A.R.S. § 13-751(F)(2), (10).
The Court found that Hulsey’s argument fails “because there exists no prohibition of a crime, or crimes, concurrently constituting elements of the crime and qualifying aggravating factors.” citing State v. Burns, 237 Ariz. at 23 ¶ 88 (holding circumstances of crime at issue may concurrently be used as aggravators); and Goudeau, 239 Ariz. at 470 ¶ 220 (holding (F)(2) aggravator found through “contemporaneously committed predicate crime supporting” conviction at issue constitutional). In addition, the jury properly found (F)(2) proven based on its own finding of guilt for the attempted first degree murder of Officer Goitia.
State v. (Jose Alejandro) Acuna Valenzuela, --- Ariz. ---, --- P.3d --- (2018), 2018 WL 4568950 (Sept. 25, 2018)
To prove the (F)(2) aggravator, the State must establish that the defendant has been “previously convicted of a serious offense, whether preparatory or completed.” In its abuse of discretion review [Acuna did not allege any issues regarding the jury’s finding of (F)(2)], the Court found, “[t]he jury did not abuse its discretion in finding the (F)(2) aggravating factor based on Acuna’s attempted murder of [the surviving victim] Perla.”
NEW LAW/POST-1993/SERIOUS OFFENSE (F)(2) FINDING REVERSED
State v. (Sherman Lee) Rutledge, 206 Ariz. 172, 76 P.3d 443 (2003) (Ring)
Court upheld trial court’s refusal to find (F)(2) because the supporting convictions arose from crimes committed contemporaneously with the first-degree murder. Under the pre-2003 law, this is not permissible.
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