 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Garcia4/6/1993
Appellant, Jesse Jason Garcia ("defendant") was indicted on one count of aggravated assault and two counts of endangerment arising out of a "drive by" shooting in South Phoenix in July 1990. After the trial court directed a judgment of acquittal on the endangerment counts, a jury found defendant guilty of aggravated assault as a dangerous offense, a class 3 felony.
FACTS
Viewed in the light most favorable to sustaining the verdict, the evidence showed that initially, defendant was a passenger in a car driven by Jimmy, a juvenile who was a member of the South Side Esses gang. As he drove through his neighborhood, Jimmy spotted R.B., a member of a rival gang, the South Side Posse. Jimmy and R.B. argued, then briefly exchanged gunfire. R.B. and a companion ran to R.B.'s nearby home. R.B. warned his mother, younger brothers, and a friend, Mark, to go inside the house because Jimmy might drive by.
Meanwhile, Jimmy turned his car around so that he could travel back toward R.B.'s house. He then changed places with defendant. According to witnesses, defendant slowed the car as it passed R.B.'s house, allowing Jimmy to fire ten or more shots from his .25 caliber semi-automatic pistol. Mark, the only person still outside the house, was wounded in the knee.
Police arrested defendant and Jimmy and recovered Jimmy's weapon at defendant's apartment shortly after the shooting. In an interview with a detective , defendant stated that, after the first exchange of gunfire with R.B., he told Jimmy: "Let me drive because we gotta go back and settle this now."
The trial court sentenced defendant for a class 3 dangerous, non-repetitive felony to a mitigated prison term of five years, with credit for 181 days served. Defendant filed a timely notice of appeal.
ISSUES
Defendant raises the following issues:
1. The trial court erred in failing to instruct the jury on facilitation as a lesser included offense of aggravated assault;
2. Imposition of a mandatory prison sentence for a dangerous offense was improper because:
a. A single factor, use of a deadly weapon, was used to define the offense and enhance defendant's sentence, in violation of the prohibition against double punishment; and
b. The statutory sentencing scheme violates the separation of powers provision of the Arizona constitution.
3. The court erred in ordering restitution to victims of dismissed counts.
ANALYSIS
LESSER INCLUDED OFFENSE INSTRUCTION
Defendant requested that the jury be instructed on facilitation as a lesser included offense of aggravated assault. See Ariz.Rev.Stat.Ann. ("A.R.S.") § 13-1004 (1989). The trial court denied the request in reliance on State v. Gooch, 139 Ariz. 365, 678 P.2d 946 (1984). In Gooch, the supreme court held that facilitation was not a lesser included offense of second-degree murder, notwithstanding the state's theory that defendant acted as an accomplice by loaning his co-defendant a gun and driving him near the victim's apartment.
In State v. Politte, 136 Ariz. 117, 121, 664 P.2d 661, 665 (App.1982), Division 2 of this court held that the defendant was not entitled to an instruction on another offense such as facilitation even though he might have been charged with and convicted of that offense. The Politte court held that facilitation was not a necessary included offense of unlawful sale of a narcotic drug since the sale can be committed without necessarily
Page 1 2 3 4 5 6 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|