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State v. Lara9/20/1990
After pleading no contest to manslaughter, a class 3 dangerous felony, defendant Rosalio Perez Lara was convicted and sentenced to an aggravated term of 12 years' imprisonment. On appeal, defendant alleges that the trial court erred in considering two aggravating factors: (1) that defendant killed a human being, and (2) that defendant used a motor vehicle as a dangerous instrument. We reject the latter argument, but accept the former. Because killing another person is an essential and irreducible element of manslaughter, it cannot serve to aggravate the presumptive sentence for that crime.
FACTS AND PROCEDURAL BACKGROUND
A police officer saw defendant run a red light at Buckeye Road and 51st Avenue in Phoenix, travelling about 65 miles per hour. As the officer followed in pursuit, defendant ran a second stoplight at Buckeye Road and 43rd Avenue, where he struck and killed a motorcyclist. Defendant stopped when he collided with a chain link fence several hundred feet from the collision, then fled on foot until he was spotted by a police air unit and arrested. Defendant's blood alcohol content was .139 three to four hours after the accident.
After accepting defendant's no contest plea to the charge of manslaughter, the trial court sentenced him to an aggravated term of 12 years' imprisonment, the maximum term the plea agreement allowed. The trial court explained this sentence as follows:
Mr. Perez, what makes this even worse than it would have been is just prior to this accident, you almost hit another vehicle. At that point, you should have known that you were not controlling your vehicle. You could have stopped. You didn't do that. You kept on going at a very high rate of speed.
The Court determines the following aggravated circumstances exist: You killed a human being; you used a very dangerous instrument in doing so, that is driving a motor vehicle while you were under the influence of intoxicating liquor. You inflicted financial harm on the victim's family. But far more severe than that, you inflicted emotional damage to them from which they may never recover. You demonstrated a total disregard for the safety of the public, and you demonstrated a total disregard to the life of human beings.
Based on those aggravating circumstances, the Court determines that you should be sentenced to an aggravated term.
(Emphasis added).
DEATH CANNOT AGGRAVATE MANSLAUGHTER
A.R.S. § 13-702(D) provides in part: "For the purpose of determining the sentence . . . the court shall consider . . . (1) Infliction or threatened infliction of serious physical injury. (2) Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime."
Defendant argues that, because the infliction of death is a defining element of manslaughter, it cannot constitute an aggravating factor under A.R.S. § 13-702(D)(1).
Analysis begins with State v. Bly, in which our supreme court considered the trial court's designation of defendant's use of a deadly weapon as an aggravating factor in a sentence for armed robbery. The court pointed out that use of a deadly weapon had been included by the legislature among the aggravating factors specified in A.R.S. § 13-702(D), and the court concluded that it had been appropriately applied in Bly. 127 Ariz. 370, 372, 621 P.2d 279, 281 (1980). Armed robbery, however, may be committed with a simulated deadly weapon. A.R.S. § 13-1904(A). Thus, as the supr
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