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State v. Lara4/2/1992
bolt, 133 Ariz. 276, 281, 650 P.2d 1258, 1263 (App.1982) (first degree burglary); State v. Meador, 132 Ariz. 343, 346, 645 P.2d 1257, 1260 (App.1982) (second degree murder); State v. Martinez, 130 Ariz. 80, 81, 634 P.2d 7, 8 (App.1981) (second degree burglary).
The Lara court, however, held that "an essential and irreducible element [of a crime] cannot serve to aggravate the crime that it defines." Lara, 170 Ariz. at 206, 823 P.2d at 73 (emphasis in original). Reaching this Conclusion, the court first discussed its prior holding in State v. Germain, 150 Ariz. 287, 723 P.2d 105 (App.1986). In Germain, the court concluded that "reckless conduct which is merely sufficient to constitute an element of reckless manslaughter . . . may not be used as an aggravating factor at sentencing" because "there is no provision under § 13-702(D) that specifically makes recklessness an aggravating factor." Id. at 290, 723 P.2d at 108. However, the court held that reckless conduct beyond that "which is merely sufficient to constitute an element of reckless manslaughter" could be considered under section 13-702's "catch all" provision, section 13-702(D)(13). Id.
Germain is inapposite because it addressed only the situation in which the legislature had not sought to specify an aggravating circumstance that was also an element of the crime. In contrast, the aggravating circumstances considered in Lara -- death of a human being and use of a dangerous instrument -- are both specifically enumerated in section 13-702(D)(1) and (2).
In addition to the Germain case, the Lara court also relied on and extended our decision in Orduno. While the court acknowledged that "the Orduno court carefully limited its holding to the interplay between the dangerous instrument provision of 13-604 and DUI cases," it nevertheless concluded that Orduno "elucidated
general principles applicable here." Lara, 170 Ariz. at 206, 823 P.2d at 73 (footnote omitted). Stated succinctly, that principle -- one the court of appeals felt to be "irreconcilable" with Bly -- is that an element of a crime cannot be used as an aggravating factor unless it "surpass the definition of the crime." Id. (citing State v. Sexton, 163 Ariz. 301, 303, 787 P.2d 1097, 1099 (App.1989)).
Were we today writing on a clean slate, we might well agree with the Lara court's extension of Orduno 's rationale. A healthy respect for stare decisis, however, and the frank recognition that Bly and similar cases have been relied upon to resolve hundreds, if not thousands, of non-DUI cases in Arizona, leads us to restate what we originally stated in Orduno: Orduno 's application is limited to DUIs. In reaffirming the rule of Bly, we also note that although the legislature has amended section 13-604 many times since Bly was decided, it has never modified or overturned the Bly rule. This confirms our original Conclusion concerning the proper interpretation of the legislative scheme concerning non-DUI felonies.
Applying Bly to the cases before us, we hold that: (1) the trial court in Lara properly considered death of the victim as an aggravating circumstance under A.R.S. § 13-702(D)(1); and (2) the trial court in Malone properly considered use of a deadly weapo
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