                              IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                       EMILY ANN MCGUIRE,
                            Petitioner,

                                 v.

      HON. KENNETH LEE, JUDGE OF THE SUPERIOR COURT OF
     THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
                         Respondent,

                                and

                      THE STATE OF ARIZONA,
                       Real Party in Interest.

                      No. 2 CA-SA 2016-0012
                       Filed April 28, 2016


                    Special Action Proceeding
              Pima County Cause No. CR20160035001

         JURISDICTION ACCEPTED; RELIEF DENIED


                            COUNSEL

Dean Brault, Pima County Legal Defender
By Kristine Alger, Assistant Legal Defender, Tucson
Counsel for Petitioner

Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Real Party in Interest
                         McGUIRE v. LEE
                        Opinion of the Court


                             OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Judge Miller and Judge Staring concurred.


V Á S Q U E Z, Presiding Judge:

¶1           In this special action, fifteen-year-old Emily McGuire
contends the respondent judge erred by denying her motion to
dismiss the underlying armed robbery prosecution and to transfer
the matter to the juvenile court. She contends that, because a
simulated weapon was used during the alleged robbery, it is not a
violent offense and she is not, therefore, subject to mandatory
prosecution as an adult pursuant to article IV, pt. 2, § 22 of the
Arizona Constitution and A.R.S. § 13-501(A). Although we accept
jurisdiction of this special action, we deny relief because the
respondent did not abuse his discretion in concluding the plain
language of § 13-501 and A.R.S. § 13-1904, the armed robbery
statute, require that McGuire be prosecuted as an adult.

                Factual and Procedural Background

¶2           The following facts are either undisputed or are
established by the record before us, including the grand jury
testimony of a sheriff’s detective. A male with a hood over his head
and his face covered approached the victim, who was in her car in
the parking lot of a Tucson restaurant, pointed a gun at her, and
demanded that she give him her purse. The victim complied, and
the perpetrator ran from the scene with another person, whose head
and face were also covered. Pima County Sheriff’s Deputies
apprehended fourteen-year-old J.M. He initially stated his sister,
McGuire, was the robber and he had been the lookout, but he later
admitted he had approached the victim with a toy gun and
demanded her purse. Sheriff’s deputies then found McGuire, who
told them that she had been the lookout and that J.M. had robbed
the victim. J.M. also told deputies they had left the purse in the yard




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                        Opinion of the Court

of a house. Deputies found the purse and the toy gun the next day
in a yard near the area where they had found J.M. and McGuire.

¶3           A sheriff’s deputy initially took J.M. and McGuire to the
Pima County Juvenile Detention Center. Because of McGuire’s age
and the type of offense involved, however, the deputy then
transported her to the Pima County Adult Detention Center. About
two weeks later, in early 2016, McGuire was charged by indictment
with armed robbery and aggravated robbery. She filed a Motion to
Dismiss, or in the Alternative, to Transfer to Juvenile Court, arguing
she was not subject to mandatory prosecution as an adult. She
maintained that because the “plain language” of § 13-501 “reveals
two reasonably plausible interpretations, it is ambiguous.” She
contended that based on all subsections of the statute, read together,
as well as the intent behind article IV, pt. 2, § 22 of the Arizona
Constitution, a juvenile who commits armed robbery with a
simulated weapon, a toy gun in this case, has not committed a
violent offense and is not subject to mandatory prosecution as an
adult.

¶4          The respondent judge disagreed with McGuire. Based
on the language of § 13-501 and the armed robbery statute, § 13-
1904, he concluded McGuire must be prosecuted as an adult and
denied her motion. This special action followed.

                     Special-Action Jurisdiction

¶5           The order McGuire challenges is interlocutory in nature
and may not be appealed directly. See State v. Lee, 236 Ariz. 377, ¶ 9,
340 P.3d 1085, 1088-89 (App. 2014). In addition, the issues raised
involve pure questions of law regarding the interpretation and
application of statutes and an amendment to our constitution. Id.
And, the question of whether a juvenile who is fifteen years of age or
older and has been charged with armed robbery involving the use of
a simulated weapon must be charged as an adult is a question of
first impression and statewide importance. State v. Bernini, 230 Ariz.
223, ¶ 5, 282 P.3d 424, 426 (App. 2012). For these reasons, in the
exercise of our discretion, we accept jurisdiction of this special
action.



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                          Opinion of the Court

                               Discussion

¶6            We may grant special-action relief only when a
respondent judge has, inter alia, abused his discretion. See Ariz. R.
P. Spec. Actions 3(c). An abuse of discretion includes an error in
interpreting or applying the law. Sierra Tucson, Inc. v. Lee, 230 Ariz.
255, ¶ 22, 282 P.3d 1275, 1281 (App. 2012). The interpretation and
application of statutes and the constitution are questions of law,
which we review de novo. See Lee, 236 Ariz. 377, ¶ 9, 340 P.3d at
1089 (statutes); Univ. Med. Ctr. Corp. v. Dep’t of Revenue, 201 Ariz.
447, ¶ 14, 36 P.3d 1217, 1220 (App. 2001) (statutes and constitution).

¶7            In 1996, the electorate of the State of Arizona amended
the constitution, adding article IV, pt. 2, § 22 by passing the Juvenile
Justice Initiative, also known as Proposition 102. See State v. Davolt,
207 Ariz. 191, ¶ 100, 84 P.3d 456, 479 (2004). The express intent of
the amendment was “to preserve and protect the right of the people
to justice and public safety, and to ensure fairness and accountability
when juveniles engage in unlawful conduct . . . .” Ariz. Const. art.
IV, pt. 2, § 22. It was designed “to make possible more effective and
more severe responses to juvenile crime.” Davolt, 207 Ariz. 191,
¶ 100, 84 P.3d at 479. “[A]ccordingly, it required the state to
prosecute juveniles as adults in specified circumstances.” Lee, 236
Ariz. 377, ¶ 15, 340 P.3d at 1090. The amendment created two
categories of juveniles who must be prosecuted as adults: juveniles
fifteen years of age or older who are “accused of murder, forcible
sexual assault, armed robbery or other violent felony offenses as
defined by” the legislature, and chronic felony offenders, also as
defined by the legislature. Ariz. Const. art. IV, pt. 2, § 22(1). It left to
the discretion of prosecutors the decision whether to prosecute as
adults certain juveniles who are not chronic felony offenders and
who commit non-violent offenses. Ariz. Const. art. IV, pt. 2, § 22(2).

¶8            The legislature enacted § 13-501 in 1997 “in order to
effectuate and implement” the constitutional amendment. Lee, 236
Ariz. 377, ¶ 15, 340 P.3d at 1090. The statute provides, in relevant
part, as follows:

             A. The county attorney shall bring a
             criminal prosecution against a juvenile in


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                        McGUIRE v. LEE
                       Opinion of the Court

            the same manner as an adult if the juvenile
            is fifteen, sixteen or seventeen years of age
            at the time the alleged offense is committed
            and the juvenile is accused of any of the
            following offenses:

            1. First degree murder in violation of § 13-
            1105.

            2. Second degree murder in violation of
            § 13-1104.

            3. Forcible sexual assault in violation of
            § 13-1406.

            4. Armed robbery in violation of § 13-1904.

            5. Any other violent felony offense.

            6. Any felony offense committed by a
            chronic felony offender.

            7. Any offense that is properly joined to an
            offense listed in this subsection.

§ 13-501.

¶9           Section 13-1904, referred to in § 13-501(A)(4), provides
that “[a] person commits armed robbery if, in the course of
committing robbery” under A.R.S. § 13-1902, the “person or an
accomplice: 1. Is armed with a deadly weapon or a simulated
deadly weapon; or 2. Uses or threatens to use a deadly weapon or
dangerous instrument or a simulated deadly weapon.” In addition
to offenses specified in § 13-501(A)(1) through (A)(4), pursuant to
§ 13-501(A)(5) the legislature added the following “other violent
felony offense[s]” in § 13-501(H)(4): aggravated assault (serious
physical injury), aggravated assault (use of a deadly weapon or
dangerous instrument), drive-by shooting, and discharge of a
firearm at a structure.




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                          Opinion of the Court

¶10           “‘Our primary task in interpreting statutes is to give
effect to the intent of the legislature.’” Lee, 236 Ariz. 377, ¶ 16, 340
P.3d at 1090, quoting In re Estate of Winn, 214 Ariz. 149, ¶ 8, 150 P.3d
236, 238 (2007). Similarly, “[w]hen a court interprets the scope and
meaning of an amendment to Arizona’s Constitution, its primary
purpose is to achieve the intent of the electorate that adopted the
amendment.” In re Cameron T., 190 Ariz. 456, 460, 949 P.2d 545, 549
(App. 1997); see also Fields v. Elected Officials’ Ret. Plan, 234 Ariz. 214,
¶ 19, 320 P.3d 1160, 1165 (2014). The plain language of a statute or
constitutional amendment is the best indicator of the intent of the
legislature in enacting the statute, Lee, 236 Ariz. 377, ¶ 16, 340 P.3d at
1090-91, and the intent of the electorate in amending the
constitution, Soto v. Superior Court, 190 Ariz. 450, 454-55, 949 P.2d
539, 543-44 (App. 1997). “‘If the language is clear and unambiguous,
we generally must follow the text of the provision as written.’” Id.,
quoting Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430
(1994). When the terms are clear, we do not “employ principles of
statutory construction to determine the legislature’s intent.” Lee, 236
Ariz. 377, ¶ 16, 340 P.3d at 1091. Rather, we give words their plain
meaning unless the statute provides a specific definition for its terms
“‘or the context clearly indicates that a special meaning was
intended.’” Id., quoting State v. Jones, 222 Ariz. 555, ¶ 14, 218 P.3d
1012, 1016 (App. 2009).

¶11          McGuire argues that “[a]t best, the statute’s plain
language, when interpreted in context with the Arizona
Constitutional provisions, is ambiguous.” She contends the stated
purpose and language of article IV, pt. 2, § 22(1) establish it was
intended to only require adult prosecution of a child fifteen years of
age or older who has committed a violent offense. As support for
this assertion, she points to the fact that after listing the specific
offenses, the constitutional provision adds, “or other violent offenses
as defined by statute,” thereby implying that the preceding portion
refers to violent offenses. McGuire argues this interpretation is
further supported by article IV, pt. 2, § 22(2), which distinguishes the
violent offenses listed in § 22(1) from other, non-violent offenses, for
which a juvenile may be prosecuted as an adult in the prosecutor’s
discretion. McGuire asserts the statute is ambiguous because,
although armed robbery is specifically listed, that offense is not


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                         Opinion of the Court

necessarily a violent offense when, as here, the person or an
accomplice is armed with, uses, or threatens to use a simulated
deadly weapon. Under those circumstances, she insists, the juvenile
is not subject to mandatory prosecution as an adult.

¶12          Article IV, pt. 2, § 22 and § 13-501(A) plainly and
unambiguously list armed robbery among the felony offenses that
require mandatory adult prosecution.              In codifying the
constitutional amendment, the legislature included in the
subsections of § 13-501(A) the statutes that correspond to each of the
specified offenses. Thus, § 13-501(A)(4) refers to § 13-1904, the
armed robbery statute. Consistent with the constitutional provision,
the legislature did not limit the application of § 13-1904 in § 13-
501(A)(4) to robbery committed while the person or an accomplice is
armed with a deadly weapon or uses or threatens to use a deadly
weapon or dangerous instrument.

¶13           McGuire asserts the limitation on armed robbery is
implicit in the statute based on the intent behind the constitutional
provision, the statute’s language, and context in which armed
robbery is listed as an offense. She suggests this interpretation is
further supported by the legislature’s addition of aggravated assault
as another “violent felony offense” pursuant to § 13-501(A)(5). The
legislature only added aggravated assault resulting in “serious
physical injury,” A.R.S. § 13-1204(A)(1), and aggravated assault
involving the use of “a deadly weapon or dangerous instrument,”
§ 13-1204(A)(2). See § 13-501(H)(4). McGuire insists this reflects the
legislature’s intent that an actual weapon must be involved in order
for an offense to be violent for purposes of § 13-501(A).

¶14          With respect to the list of offenses that require a juvenile
to be prosecuted as an adult, we have found the constitutional
provision clear. Soto, 190 Ariz. at 455, 949 P.2d at 544 (finding
“‘forcible sexual assault’ no more vague than murder or armed
robbery”). As we previously stated, the language of § 13-501(A) is
equally clear. We presume that, when the legislature enacted § 13-
501, it was aware that under § 13-1904, armed robbery may be based
on the use or threatened use of a simulated deadly weapon. See Lee,
236 Ariz. 377, ¶ 23, 340 P.3d at 1092 (presuming legislature “was
aware of [A.R.S.] § 13-604 or its precursor . . . when it enacted” § 13-

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                         Opinion of the Court

501). Had the legislature intended to restrict armed robbery for
purposes of § 13-501(A) 1 to situations in which an actual deadly
weapon or dangerous instrument was involved, “presumably [it]
would have . . . done so” in § 13-501(A)(4). Id.; cf. Luchanski v.
Congrove, 193 Ariz. 176, ¶ 14, 971 P.2d 636, 639 (App. 1998) (“When
the legislature has specifically included a term in some places within
a statute and excluded it in other places, courts will not read that
term into the sections from which it was excluded.”). It could have
included a limitation in § 13-501(A)(4) similar to the limitation it
placed on aggravated assault but it chose not to do so.

¶15         But even assuming McGuire is correct that the intent of
both § 13-501(A) and article IV, pt. 2, § 22(1) is to require mandatory
adult prosecution of juveniles only for violent offenses, we are not
persuaded that armed robbery committed with a simulated deadly
weapon is not a violent offense. McGuire relies on A.R.S. § 13-901.03
and this court’s decision in State v. Joyner, 215 Ariz. 134, 158 P.3d 263
(App. 2007), for that proposition. Such reliance, however, is
misplaced.

¶16          Section 13-901.03 is part of the chapter of title 13
pertaining to probation. It specifically relates to A.R.S. § 13-901.01,
which codified the voter initiative entitled, “Drug Medicalization,
Prevention, and Control Act of 1996,” also known as Proposition
200. 1997 Ariz. Sess. Laws, Proposition 200, §§ 1, 10. The initiative
and the enabling legislation were designed to reduce the legal
consequences for individuals convicted of a first or second non-
violent drug offense by requiring courts to place such individuals on
probation instead of incarcerate them. See State v. Rodriguez, 200
Ariz. 105, ¶ 2, 23 P.3d 100, 101 (App. 2001). Mandatory probation,
however, is not available to individuals who have “been convicted
of or indicted for a violent crime as defined in § 13-901.03.” § 13-
901.01(B). This section, formerly numbered as A.R.S. § 13-604.04, see

      1 Given that the constitutional amendment did not limit the
circumstances in which armed robbery subjects a juvenile to
mandatory prosecution as an adult, we question whether the
legislature would have the authority to limit it, even if the
legislature had intended that result.


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                          Opinion of the Court

2008 Ariz. Sess. Laws, ch. 301, § 19, and enacted together with other
Proposition-200-enabling legislation, see 1997 Ariz. Sess. Laws, ch. 6,
§ 1, provides that, “[f]or the purpose of this section, ‘violent crime’
includes any criminal act that results in death or physical injury or
any criminal use of a deadly weapon or dangerous instrument.”
That definition by its own terms only applies in the context of
probation under § 13-901.01; it does not apply here.

¶17          Similarly, in Joyner, we were asked to decide whether
former § 13-604.04 rendered the defendant ineligible for mandatory
probation because previously he had been convicted of attempted
armed robbery and armed robbery. 215 Ariz. 134, ¶ 8, 158 P.3d at
266-67. We concluded the defendant’s “prior conviction for armed
robbery, as defined in § 13-1904, does not necessarily establish he
used a deadly weapon or dangerous instrument because armed
robbery may be committed with a simulated deadly weapon—and a
‘simulated deadly weapon’ may be neither deadly nor dangerous.”
Id. ¶ 10. But as we pointed out, we were “constrained by the plain
language of §§ 13-604.04 and 13-1904.” Id. n.4. We observed that,
based on other definitions in other contexts, armed robbery is a
“‘crime[] of violence.’” Id., quoting State v. Lee, 185 Ariz. 549, 557, 917
P.2d 692, 700 (1996).

¶18           Section 13-706, A.R.S., is an example of another context
in which armed robbery is considered a violent offense, regardless
of how it was committed. In that sentencing provision for
“[s]erious, violent or aggravated offenders,” the legislature defined
“violent or aggravated felony” by listing a number of offenses,
including, but not limited to, first-degree murder, second-degree
murder, aggravated assault resulting in serious physical injury or
involving the discharge, use, or threatening exhibition of a deadly
weapon or dangerous instrument, and armed robbery. § 13-
706(F)(2)(a)-(c), (q). Again, armed robbery is not restricted to
robbery committed with the use of a deadly weapon or dangerous
instrument. Although not applicable in this context, § 13-706
illustrates that the legislature has regarded armed robbery as a
violent offense in certain contexts, without regard to how it was
committed.




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                          McGUIRE v. LEE
                         Opinion of the Court

¶19           The history of § 13-1904 also demonstrates that the
legislature generally views armed robbery as a violent offense even
if based on a simulated weapon. Our supreme court reviewed that
history in State v. Garza-Rodriguez, 164 Ariz. 107, 109-12, 791 P.2d
633, 635-38 (1990), in which it held that a simulated weapon may be
the basis for an armed robbery conviction but the simulated weapon
must be present, not just suggested. The court observed that when
initially adopted in 1977, the robbery statutes contained gradations
of the offense in terms of its seriousness, which were reflected in
varying degrees of punishment, depending on whether a real
weapon was actually present. Id. at 109-10, 791 P.2d at 635-36; see
also 1977 Ariz. Sess. Laws, ch. 142, § 73. The court noted that the
former statutes were premised on the policy view that the person
who commits a robbery with a “‘toy gun’. . . is not nice . . . but he is
not the dangerous type for whom the greater penalty is reserved.’”
Garza-Rodriguez, 164 Ariz. at 110, 791 P.2d at 636, quoting State v.
Franklin, 130 Ariz. 291, 293, 635 P.2d 1213, 1215 (1981).

¶20          When the armed robbery statute was amended in 1983,
adding “or simulated deadly weapon,” the legislature eliminated
the distinction between an item fashioned as or appearing to be a
deadly weapon and an actual one. Id.; see also 1983 Ariz. Sess. Laws,
ch. 129, § 1. As the court in Garza-Rodriguez observed, “Both
elements reflect the policy that the greater punishment is reserved to
deter the dangerous person actually capable of inflicting death or
serious bodily harm or intending to create a life endangering
environment by carrying a deadly or simulated deadly weapon.”
164 Ariz. at 111, 791 P.2d at 637. Whether a simulated or real
weapon is present, a perpetrator has forced a victim to give up his or
her property by threatening violence that the perpetrator appears to
be capable of carrying out. Thus, the legislature intended no
distinction between armed robbery committed with an actual deadly
weapon or a simulated deadly weapon. Id.

                             Disposition

¶21        The respondent judge correctly concluded that McGuire
must be prosecuted as an adult on the charge of armed robbery
based on the plain language of §§ 13-501 and 13-1904. The
respondent did not, therefore, abuse his discretion by denying the

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                        Opinion of the Court

motion to dismiss the charge or, alternatively, to transfer the matter
to the juvenile court. Ariz. R. P. Spec. Actions 3(c). Accordingly, we
accept special-action jurisdiction but deny relief.




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