                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                    JESUS BLAS GARCIA, Appellant.

                         No. 1 CA-CR 13-0434
                           FILED 09-30-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-135189-001
              The Honorable Karen L. O’Connor, Judge

   AFFIRMED AS MODIFIED IN PART AND VACATED IN PART


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant



                              OPINION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined.
                             STATE v. GARCIA
                             Opinion of the Court

T H U M M A, Judge:

¶1           Defendant Jesus Blas Garcia challenges his theft of means of
transportation conviction and resulting sentence. Garcia argues that
because he was convicted of armed robbery based on the same conduct, his
theft of means of transportation conviction violates his double jeopardy
rights. Based on Arizona Supreme Court precedent construing similar
offenses, and because the charges arise out of the same conduct, Garcia’s
theft of means of transportation conviction and resulting sentence are
vacated.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            In March 2011, Garcia robbed a shopkeeper at gunpoint.
Garcia then ran outside and, while still brandishing the gun, ordered a man
in the parking lot to give him the keys to his truck. When the man refused,
Garcia shot and killed him and drove away in the truck.

¶3            A jury convicted Garcia of first-degree murder, armed
robbery of the shopkeeper, armed robbery of the man with the truck, theft
of means of transportation and misconduct involving weapons. Garcia was
sentenced to concurrent prison terms, the longest of which is life in prison,
and ordered to pay restitution. This court has jurisdiction over Garcia’s
timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution
and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4033(A)
(2014).2

                                DISCUSSION

¶4            Claiming his convictions are based on the same conduct,
Garcia argues that his theft of means of transportation conviction (a Class 3
dangerous felony) is a lesser-included offense of his conviction for armed
robbery of the man with the truck (a Class 2 dangerous felony), meaning
his conviction and resulting sentence for theft of means of transportation


1 This court views the facts in the light most favorable to sustaining the
jury’s verdicts, resolving all inferences against Garcia. See State v. Fontes, 195
Ariz. 229, 230 ¶ 2, 986 P.2d 897, 898 (App. 1998).

2 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.




                                        2
                             STATE v. GARCIA
                             Opinion of the Court

violate double jeopardy.3 More specifically, Garcia argues that “when the
property being taken is a vehicle, a person cannot commit” armed robbery
without also committing theft of means of transportation. This court
reviews de novo whether a double jeopardy violation has occurred, State v.
Braidick, 231 Ariz. 357, 359 ¶ 6, 295 P.3d 455, 457 (App. 2013), and whether
an offense is a lesser-included offense, see State v. Cheramie, 218 Ariz. 447,
448 ¶ 8, 189 P.3d 374, 375 (2008). Because Garcia did not raise this argument
with the superior court, the review on appeal is for fundamental error. See
State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19–20, 115 P.3d 601, 607 (2005); Ariz.
R. Crim. P. 21.3(c) cmt. “Accordingly, [Garcia] ‘bears the burden to establish
that “(1) error exists, (2) the error is fundamental, and (3) the error caused
him prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185
(App. 2013) (citations omitted).

¶5               The Double Jeopardy Clauses of the United States and
Arizona Constitutions protect criminal defendants from multiple
prosecutions and punishments for the same offense. See U.S. Const. amend.
V; Ariz. Const. art. 2, § 10; see also State v. Eagle, 196 Ariz. 188, 190 ¶ 5, 994
P.2d 395, 397 (2000) (federal and Arizona Double Jeopardy Clauses
generally provide same protections). Because greater and lesser-included
offenses are considered the “same offense,” the Double Jeopardy Clauses
forbid the imposition of a separate punishment for a lesser offense when a
defendant has been convicted and sentenced for the greater offense. See
Illinois v. Vitale, 447 U.S. 410, 421 (1980); State v. Chabolla-Hinojosa, 192 Ariz.
360, 362–63 ¶¶ 10–13, 965 P.2d 94, 96–97 (App. 1998).

¶6              To constitute a lesser-included offense, the crime must be
“’composed solely of some but not all of the elements of the greater crime
so that it is impossible to have committed the crime charged without having
committed the lesser one.’” Chabolla-Hinojosa, 192 Ariz. at 363 ¶ 11, 965 P.2d
at 97 (quoting State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912, 913 (App.
1991)). Stated differently, the greater offense must require each element of
the lesser offense plus one or more additional elements not required by the
lesser offense. See State v. Tschilar, 200 Ariz. 427, 436 ¶ 39, 27 P.3d 331, 340




3Although Garcia also argues impermissible double punishment because
possession of the truck was incidental to taking the truck, Garcia received
concurrent sentences for armed robbery of the man with the truck and theft
of means of transportation, meaning this argument is not well taken. See
A.R.S. § 13-116.



                                        3
                            STATE v. GARCIA
                            Opinion of the Court

(App. 2001); State v. Foster, 191 Ariz. 355, 357 ¶ 6, 955 P.2d 993, 995 (App.
1998).

¶7             Resolving a lesser-included offense argument involves (1)
identifying the elements of both offenses; and (2) determining whether the
alleged lesser-included offense is a subset of the alleged greater offense,
such that commission of the greater offense constitutes commission of the
lesser offense. See Tschilar, 200 Ariz. at 435 ¶ 39, 27 P.3d at 340; Foster, 191
Ariz. at 357, 955 P.2d at 995. This typically requires a close analysis of the
elements of the two relevant offenses. See Carter v. United States, 530 U.S.
255, 260–61 (2000). Here, however, the analysis is somewhat different
because the Arizona Supreme Court has held that:

              (1)     robbery is a lesser-included offense of
              armed robbery, see State v. Henry, 176 Ariz. 569,
              582, 863 P.2d 861, 874 (1993); see also State v.
              Scott, 187 Ariz. 474, 476, 930 P.2d 551, 553 (App.
              1996);

              (2)    theft is a lesser-included offense of
              robbery, see State v. Wall, 212 Ariz. 1, 3–4 ¶ 15,
              126 P.3d 148, 150–51 (2006); State v. McNair, 141
              Ariz. 475, 482, 687 P.2d 1230, 1237 (1984); State
              v. Celaya, 135 Ariz. 248, 252, 660 P.2d 849, 853
              (1983); State v. Dugan, 125 Ariz. 194, 195, 608
              P.2d 771, 772 (1980); see also State v. Yarbrough,
              131 Ariz. 70, 72–73, 638 P.2d 737, 739–40 (App.
              1981) (“theft is always a lesser included offense
              of robbery”); and

              (3)    theft is a lesser-included offense of
              armed robbery, see State v. Kinkade, 147 Ariz.
              250, 253, 709 P.2d 884, 887 (1985); McNair, 141
              Ariz. at 482, 687 P.2d at 1237.

Given this precedent, the focus here is on the elements of theft and theft of
means of transportation.

¶8             “Arizona courts have repeatedly held that theft as defined in
A.R.S. § 13-1802 is a single unified offense,” meaning that the subsections
in that statute do not refer to separate crimes but, instead, describe different
ways to commit the same single offense. State v. Cotten, 228 Ariz. 105, 107 ¶
5, 263 P.3d 654, 656 (App. 2011) (citations omitted). Similarly, the parties
agree that theft of means of transportation is a single unified offense,


                                       4
                            STATE v. GARCIA
                            Opinion of the Court

meaning the subsections in A.R.S. § 13-1814(A) do not refer to separate
crimes but, instead, describe different ways to commit the same single
offense. Accordingly, as applicable here, a person commits theft by (1)
“without lawful authority,” (2) “knowingly . . . [c]ontrol[ling] property of
another” (3) “with the intent to deprive the other person of such property.”
See A.R.S. § 13-1802(A)(1). Similarly, and as briefed by the parties, a person
commits theft of means of transportation by (1) “without lawful authority,”
(2) “knowingly . . . [c]ontrol[ling] another person’s means of transportation”
(3) “with the intent to permanently deprive the [other] person of the means
of transportation.” See A.R.S. § 13-1814(A)(1). From this comparison, theft
of means of transportation clearly is a form of theft. See also A.R.S. Title 13
Chapter 18 (“Theft”) (A.R.S. §§ 13-1801 to -1820). Accordingly, theft of
means of transportation, like theft, is a lesser-included offense of armed
robbery.

¶9            The State argues that theft of means of transportation is not a
lesser-included offense of armed robbery because theft of means of
transportation “includes two statutory elements which are not elements of
armed robbery — the property taken must be a ‘means of transportation,’
and the defendant must possess ‘the intent to permanently deprive the
person of the means of transportation.’”4

¶10           The essence of the State’s first argument is that a “means of
transportation” is not “property.” “Property,” however, is defined as any
“thing of value, tangible or intangible, including trade secrets.” A.R.S. § 13-
1801(A)(12); see also A.R.S. § 13-105(37) (similar). There is no suggestion in
this broad definition that “property” does not include a means of
transportation. “Property of another” is defined as including “property in
which any person other than the defendant has an interest on which the
defendant is not privileged to infringe.” A.R.S. § 13-1801(A)(13). Again,

4The State notes State v. Espinoza, 233 Ariz. 176, 310 P.3d 54 (App. 2013) said
theft of means of transportation is not a lesser-included offense of
aggravated robbery. In doing so, Espinoza referenced an unpublished
decision in a prior appeal in that same case. Id. at 176 ¶ 4, 310 P.3d at 55.
The issue Espinoza decided was whether the defendant, whose theft of
means of transportation conviction had been vacated in the prior appeal,
could be retried for the original aggravated robbery charge where the State
had “not met its burden of demonstrating that the jury was truly
deadlocked” on the original charge. Id. at 178 ¶¶ 2, 4, 181 ¶ 16, 310 P.3d at
54, 57. Accordingly, Espinoza decided an issue different than, and unrelated
to, the lesser-included offense issue Garcia raises here.



                                      5
                             STATE v. GARCIA
                             Opinion of the Court

there is no suggestion that “property of another” is intended to exclude a
means of transportation, which “means any vehicle.” A.R.S. § 13-
1801(A)(9); see also A.R.S. § 13-105(41) (defining “vehicle”). Along with
these broad definitions, other cases have necessarily found that a means of
transportation is property by holding, on their facts, that unlawful use of
means of transportation is a lesser-included offense of theft. See, e.g., State
v. Griest, 196 Ariz. 213, 214–15 ¶¶ 4–6, 994 P.2d 1028, 1029–30 (App. 2000);
State v. Kamai, 184 Ariz. 620, 622–24, 911 P.2d 626, 628–30 (App. 1995).
Accordingly, this court rejects the State’s first argument.

¶11            Turning to the State’s second argument, there is no published
Arizona case supporting the proposition that an intent to deprive (required
for theft of means of transportation) is not required for armed robbery. To
the contrary, as noted, the Arizona Supreme Court has held that theft
(which requires an intent to deprive, see A.R.S. § 13-1802(A)(1)), is a lesser-
included offense of armed robbery, even though the armed robbery statute
does not expressly include a similar intent, see A.R.S. §§ 13-1902(A), -
1904(A). Given (1) Arizona Supreme Court precedent holding that robbery
is a lesser-included offense of armed robbery and that theft is a lesser-
included offense of robbery and armed robbery; (2) the statutory
similarities between theft and theft of means of transportation and (3) that
the charges in this case arise out of the same conduct, this court concludes
that theft of means of transportation is a lesser-included offense of armed
robbery.5 Accordingly, Garcia’s conviction and resulting sentence for theft
of means of transportation are vacated. See, e.g., Chabolla-Hinojosa, 192 Ariz.
at 365 ¶ 21, 965 P.2d at 99.

¶12           Finally, based on the nature of the offenses and his prior
criminal history, Garcia was sentenced to “25 years to life” for his armed
robbery convictions. As the State notes, the applicable sentence under
A.R.S. § 13-706(A) is life imprisonment without the possibility of release for

5 The intent for theft of means of transportation is “to permanently
deprive,” A.R.S. § 13-1814(A)(1), while the intent for theft is “to deprive,”
A.R.S. § 13-1802(A)(1). See also A.R.S. § 13-1801(A)(4) (defining “Deprive”);
State v. Breed, 230 Ariz. 462, 463 n.1 ¶ 5, 286 P.3d 806, 807 (App. 2012) (noting
“without the intent to permanently deprive” in unlawful use of means of
transportation statute, A.R.S. § 13-1803(A)(1), is not an element of that
offense and “simply . . ‘distinguish[es] unlawful use from auto theft’”)
(quoting Kamai, 184 Ariz. at 622, 911 P.2d at 628). In this case, however, the
State has not argued that these textual formulations create an analytical
difference — an issue this court need not address and does not resolve here.



                                       6
                            STATE v. GARCIA
                            Opinion of the Court

25 years. Accordingly, pursuant to A.R.S. § 13-4037(A), this court modifies
Garcia’s sentences for his two armed robbery convictions (Counts 2 and 3)
to reflect the appropriate prison terms. The superior court also ordered
Garcia to “pay the applicable fee for the cost of” his DNA testing. In State v.
Reyes, 232 Ariz. 468, 472 ¶ 14, 307 P.3d 35, 39 (App.2013), this court held that
A.R.S. § 13–610 does not authorize the court to impose a DNA testing fee
on a convicted defendant. Accordingly, pursuant to Reyes, which was
issued after Garcia was sentenced, his sentence is further modified to vacate
the requirement that Garcia pay for the cost of DNA testing.

                               CONCLUSION

¶13            Garcia’s theft of means of transportation conviction and
resulting sentence are vacated. Garcia’s sentences on Counts 2 and 3 are
modified to life in prison without the possibility of release for 25 years, and
the requirement that Garcia pay for the cost of his DNA testing is vacated.
In all other respects, Garcia’s convictions and sentences are affirmed.




                                    :gsh




                                       7
