                                IN THE COURT OF APPEALS
                                    STATE OF ARIZONA
                                      DIVISION TWO


THE STATE OF ARIZONA,                           )
                                                )           2 CA-CR 2001-0379
                                  Appellee,     )           DEPARTMENT B
                                                )
                    v.                          )           OPINION
                                                )
JOSE UZARRAGA ALVAREZ,                          )
                                                )
                                  Appellant.    )
                                                )


              APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                  Cause No. CR-20010968

                             Honorable Richard Nichols, Judge

                               AFFIRMED IN PART;
                         REVERSED IN PART AND REMANDED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Diane M. Ramsey                                               Phoenix
                                                                        Attorneys for Appellee

Susan A. Kettlewell, Pima County Public Defender
 By Lisa M. Hise                                                                      Tucson
                                                                       Attorneys for Appellant


E S P I N O S A, Chief Judge.


¶1            A jury found appellant Jose Uzarraga Alvarez guilty of six counts of second-degree

burglary and seven counts of sexual abuse, all nondangerous offenses. The charges arose from

six separate incidents between December 1996 and March 2001. On each occasion, while selling
tamales door-to-door in apartment complexes, Alvarez entered the apartment of a different female

victim whom he then fondled and, in some cases, forced the victim to fondle him. For each

incident, he was convicted of burglary, and in four of the incidents, he was also convicted of

sexual abuse. The trial court imposed presumptive sentences for the three offenses committed

against the first victim and aggravated sentences for the remaining offenses, all to be served

concurrently. The five longest, for burglary, are twelve-year terms. As the basis for imposing

aggravated sentences, the court cited “multiple victims” as the sole aggravating circumstance.

¶2             On appeal, counsel for Alvarez filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), suggesting two arguable issues. Alvarez did

not file a supplemental brief. We address the second issue first. Although Alvarez did not object

below, counsel contends on appeal that the trial court might have erred by failing at the end of the

evidence to repeat some of the instructions it had given at the beginning of trial “regarding some

legal principles such as the difference between direct and circumstantial evidence, objections,

credibility, and expert opinion.” Before the jury began deliberating, the court did repeat its

instructions defining the offenses, the state’s burden of proof, and reasonable doubt, but counsel

now claims the court’s failure to repeat the other preliminary instructions constituted fundamental

error.

¶3              In State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992), our supreme

court held that a trial court’s failure to reinstruct the jury at the end of trial on the state’s burden

of proof “is an error which can be waived.” But, because of an erroneous, burden-shifting

instruction the trial court had also given, the failure to reinstruct in Johnson was held to be

reversible error despite the lack of an objection. Here, however, there were no similarly


                                                   2
extenuating circumstances, and the jurors were given written copies of the court’s preliminary

instructions in the trial notebooks they took into their deliberations. We find that Alvarez waived

any arguable error by not objecting to the trial court’s omission of those instructions and that the

resulting error, if any, did not approach the level of fundamental error. See State v. Gendron, 168

Ariz. 153, 812 P.2d 626 (1991) (error fundamental when defendant cannot possibly have had fair

trial).

¶4             We turn now to the other issue raised on appeal. The trial court enhanced Alvarez’s

sentences pursuant to A.R.S. § 13-702.02, as multiple offenses not committed on the same

occasion but consolidated for trial. The enhancement provisions of that law, enacted in 1993,

increase the range of sentence possible for each class of offense.1 For example, the statute

increased the maximum sentence Alvarez faced for his third and subsequent nondangerous felony

convictions from seven years to thirteen years for the class three burglary convictions,

§§ 13-702(A)(2), 13-702.02(B)(4), and from two years to three years for the class five sexual

abuse convictions. §§ 13-702(A)(4), 13-702.02(B)(4). Section 13-702.02(B) further provides

that, subject to certain specified exceptions, a defendant must serve a sentence imposed under

§ 13-702.02 day for day, without the possibility of early release.



          1
         Sentence enhancement elevates the entire range of permissible punishment while
aggravation and mitigation raise or lower a sentence within that range. “It is only within the
[enhanced] range provided for dangerous class 2 felonies that the trial judge may consider the
aggravating and mitigating circumstances.” State v. Bly, 127 Ariz. 370, 372, 621 P.2d 279, 281
(1980); A.R.S. § 13-604(A) through (K). Besides A.R.S. § 13-702.02, other examples of
statutory enhancements are § 13-604(A) through (D) (for prior felony convictions); § 13-604(E)
(for prior misdemeanor or petty offense convictions); § 13-604(F) through (K) (for dangerous-
nature offenses); A.R.S. § 13-604.01 (for dangerous crimes against children); A.R.S. § 13-604.02
(for crimes committed while on release from confinement); and A.R.S. § 13-609 (for offenses
committed in a school safety zone).

                                                 3
¶5             In addition to enhancing Alvarez’s sentences pursuant to § 13-702.02, the trial court

also aggravated the sentences imposed on ten of the thirteen counts pursuant to § 13-702(C). 2 As

its only reason for doing so, the court cited Alvarez’s “multiple victims,” an aggravating factor

not specifically enumerated in § 13-702(C)(1) through (18) and therefore necessarily falling under

the catch-all provision of § 13-702(C)(19), formerly (C)(18), see 2002 Ariz. Sess. Laws, ch. 267,

§ 3, “[a]ny other factor that the court deems appropriate to the ends of justice.”

¶6             Counsel argues it was improper for the court to aggravate Alvarez’s sentences on

the basis of “multiple victims” because his multiple, single-victim offenses had already been

factored into the enhanced range of sentencing he faced under § 13-702.02 for committing multiple

offenses later consolidated for trial. Counsel contends the fact of Alvarez’s multiple offenses

should not have been used both to enhance and aggravate his sentences, because each time he

entered a victim’s apartment and committed sexual abuse, there was a single victim, and the six

incidents were entirely unrelated to each other. Thus, Alvarez had “multiple victims” only in the

sense that he committed separate crimes on six occasions. Because Alvarez failed to present this

issue to the trial court, we review only for fundamental error. State v. Cañez, 202 Ariz. 133, 42

P.3d 564 (2002); State v. Curry, 187 Ariz. 623, 931 P.2d 1133 (App. 1996). Whether a trial



       2
         Aggravating and mitigating factors the court “shall consider” are enumerated in A.R.S.
§ 13-702(C) and (D). Both subsections (C) and (D) include a final “catch-all” provision for “[a]ny
other factor that the court deems appropriate to the ends of justice.” As the supreme court noted
in Bly, under our “complex, multiple-step” sentencing scheme, for any given class of crimes the
presumptive sentence “is to be imposed on the vast majority of first offenders who commit the
crime.” 127 Ariz. at 373, 372, 621 P.2d at 282, 281. Deviations from the presumptive sentence
are intended to reflect the particular “quality and circumstances of the act committed . . . , such
as, did the manner of using the gun put others in great fear or danger.” Id. at 372-73, 621 P.2d
at 281-82.


                                                 4
court may employ a given factor to aggravate a sentence presents a question of law we review de

novo. State v. Tschilar, 200 Ariz. 427, 27 P.3d 331 (App. 2001).

¶7             In State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980), our supreme court held that

neither double jeopardy nor double punishment considerations prevent the legislature from

establishing a sentencing scheme such as Arizona’s in which an element of a crime may also be

used for sentence enhancement and aggravation. Bly recognized that “the legislature’s power to

define crime and prescribe punishment” includes the power to dictate that a given circumstance

constituting an element of an offense—there, the use of a handgun, which converted a robbery into

armed robbery—may also afford the basis for both enhancing and aggravating the sentence

imposed for that offense and for “mak[ing] probation unavailable and a minimum prison term

mandatory.” Id. at 372, 373, 621 P.2d at 281, 282.

¶8             However, as later observed in State v. Germain, 150 Ariz. 287, 290, 723 P.2d 105,

108 (App. 1986), “Bly permitted the use of a deadly weapon to be used as an aggravating factor

despite the fact that it is a necessary element of the crime of armed robbery, only because of the

legislative mandate in A.R.S. § 13-702([C])(2).” True to this observation, virtually all of the

Arizona cases after Bly that have upheld using a single fact or circumstance in multiple ways have,

indeed, involved one or more of the statutory aggravating factors expressly enumerated in

§ 13-702(C)(1) through (C)(18) or a specific statutory ground for enhancement.3 Thus, the chief


       3
        See State v. Gutierrez, 130 Ariz. 148, 634 P.2d 960 (1981) (injury inflicted during
aggravated assault with knife supported sentence enhancement for dangerous-nature offense,
§ 13-604, and aggravated sentence for serious bodily injury, § 13-702(C)(1)); State v. Tresize, 127
Ariz. 571, 623 P.2d 1 (1980) (use of gun elevated offense from class four felony (robbery) to class
two (armed robbery) and supported sentence enhancement for dangerous-nature offense,
§ 13-604(G)); State v. Ritacca, 169 Ariz. 401, 819 P.2d 987 (App. 1991) (sentence both enhanced

                                                5
lesson of Bly and its progeny is that the legislature may authorize using the same fact or

circumstance in more than one way as part of “a complex, multiple-step process” by which trial

courts determine the appropriate sentence for a particular crime, 127 Ariz. at 373, 621 P.2d at

282, but the authorization must be explicit and the specific factor expressly identified.

¶9             Here, in contrast to Bly, the single factor the trial court used to aggravate Alvarez’s

sentences—“multiple victims”—is not among the aggravating factors specifically listed in

§ 13-702(C) and is, on these particular facts, essentially the same ground used to enhance his

sentences under § 13-702.02. Although we are aware of no Arizona case precisely on point, in

Germain, Division One of this court considered in aggravation the degree of the defendant’s

reckless conduct, which likewise is not an enumerated aggravating factor in § 13-702(C) and, thus,

similarly falls within the catch-all provision of the statute.

¶10            The defendant in Germain was convicted of two counts of reckless manslaughter

after the pickup truck he had been driving while intoxicated collided with an oncoming

motorcycle, killing both people on the motorcycle and seriously injuring a passenger in the truck.



under § 13-604 and aggravated under § 13-702(C)(11) based on prior felony convictions); State
v. Olsen, 157 Ariz. 603, 760 P.2d 603 (App. 1988) (sentence for negligent homicide enhanced
under § 13-604(F) for use of gun; deadly weapon not element of offense); State v. Kerr, 142 Ariz.
426, 690 P.2d 145 (App. 1984) (threatened use of weapon against police officers both element of
offense and aggravating factor under § 13-702(C)(2)); State v. Just, 138 Ariz. 534, 675 P.2d 1353
(App. 1983) (death of victim both element of offense of second-degree murder and aggravating
factor, § 13-702(C)(1); knife properly used to enhance sentence under § 13-604 and aggravate it
under § 13-702(C)(2)); State v. LeMaster, 137 Ariz. 159, 669 P.2d 592 (App. 1983) (sentence
enhanced and aggravated for prior felony convictions, § 13-702(C)(11)); State v. Meador, 132
Ariz. 343, 645 P.2d 1257 (App. 1982) (victim’s death both element of offense of second-degree
murder and basis for aggravating sentence, § 13-702(C)(1)); cf. State v. Lara, 171 Ariz. 282, 284
n.1, 830 P.2d 803, 805 n.1 (1992) (“‘serious physical injury’” necessarily, though not literally,
includes death).

                                                  6
The defendant claimed the trial court had erred in finding that his reckless conduct and infliction

of serious injury and death supported the imposition of aggravated sentences “because these are

the very elements of the crime of reckless manslaughter.” 150 Ariz. at 290, 723 P.2d at 108.

Division One disagreed, holding that, if the degree of a defendant’s conduct exceeds the minimum

level needed to establish the offense, that extreme misconduct may be considered as an aggravating

factor.

¶11            Although the present case does not similarly entail the use of an element of the

offense to enhance or aggravate Alvarez’s sentences but, rather, the use of a single factor both to

enhance and aggravate the sentences, Germain is instructive, nonetheless, in its discussion of when

an element of an offense that is not specifically listed as an aggravating factor in § 13-702(C) may

be used under the catch-all provision of § 13-702(C)(19) to aggravate a sentence:

               Were the courts of this state permitted to enhance punishment, in
               the absence of any legislative intent, by using the very elements of
               the crime as aggravating factors, the carefully structured statutory
               scheme providing for presumptive sentences would be undermined.

                       However, this does not end our inquiry. Unlike such factors
               as the use of a deadly weapon or infliction of serious injury or
               death, which provide the trial court with objective issues of fact—
               i.e., either a deadly weapon was used or it was not—matters
               involving such factors as the defendant’s recklessness present the
               court with subjective questions as to the degree of the defendant’s
               wrongful conduct. We believe that the trial court has the authority
               to consider such questions. Where the degree of the defendant’s
               misconduct rises to a level beyond that which is merely necessary
               to establish an element of the underlying crime, the trial court may
               consider such conduct as an aggravating factor under the broad
               language of § 13-702[(C)(19)].

150 Ariz. at 290, 723 P.2d at 108. Unlike Germain, in which the degree of the defendant’s

recklessness went well beyond the threshold necessary to establish that element of the offense, the

                                                 7
trial court here made no comparable finding that Alvarez had done anything more on each occasion

than simply commit the offenses with which he was charged, making the presumptive sentence

arguably appropriate for any of his offenses standing alone. See Bly. In addition, because the

existence of a victim was implicit in the cluster of offenses Alvarez committed on each occasion,

to say that he had “multiple victims” reflects nothing more, on these facts, than his commission

of multiple offenses over time.

¶12            The state argues that using “multiple victims” as an aggravating factor is

appropriate because “[t]he multiple offenses factored into A.R.S. § 13-702.02 need not necessarily

involve multiple victims.” That is, § 13-702.02 could also apply to a defendant who commits

multiple victimless offenses or one who commits multiple offenses against a single victim, whose

offenses are likewise consolidated for trial. But the fact that “multiple victims” and “multiple

offenses” may not be coextensive in every case fails to resolve the question whether, in a particular

case, they are essentially the same factor twice applied.

¶13            Based on the particular facts of this case, we conclude the trial court erred in

imposing aggravated sentences on the basis of “multiple victims” alone. Alvarez did not have

“multiple victims” in the sense in which that term is normally used, denoting multiple victims of

a single act, episode, or scheme. See, e.g., State v. Powers, 200 Ariz. 363, 26 P.3d 1134 (2001);

State v. Henley, 141 Ariz. 465, 687 P.2d 1220 (1984); State v. Bruggeman, 161 Ariz. 508, 779

P.2d 823 (App. 1989); State v. White, 160 Ariz. 377, 773 P.2d 482 (App. 1989); State v. Gunter,

132 Ariz. 64, 643 P.2d 1034 (App. 1982).

¶14            Alvarez did not commit these offenses against all six women simultaneously or in

the course of a continuous spree or rampage. Cf. State v. Rogovich, 188 Ariz. 38, 44, 932 P.2d

                                                 8
794, 800 (1997) (upholding capital sentencing under A.R.S. § 13-703(F)(8) for multiple homicides

committed over a nine-hour period “during the commission of the offense”); State v. Lacy, 187

Ariz. 340, 929 P.2d 1288 (1996) (multiple homicide victims under § 13-703(F)(8)). Nor did he

commit them during “‘“ a relatively short period of time in what can be fairly viewed as one

continuous course of criminal conduct.”’” State v. Ramirez, 178 Ariz. 116, 130, 871 P.2d 237,

251 (1994), quoting Romine v. State, 305 S.E.2d 93, 99 (Ga. 1983), quoting Peek v. State, 238

S.E.2d 12, 19 (Ga. 1977). Rather, he committed separate crimes against separate victims on six

separate, unrelated occasions.

¶15           Finally, the facts of this case do not resemble those in Tschilar, on which the state

relies. There, Division One approved the trial court’s treating the number of victims as an

aggravating factor under the catch-all provision of § 13-702(C)(19), based on the defendant’s

having kidnapped and assaulted a group of four teenagers at gunpoint. Division One stated:

              While the court could not have aggravated the sentence based on the
              crimes having been committed against one person, by committing
              the acts against multiple victims simultaneously, Tschilar altered the
              character and increased the magnitude of the offenses. Kidnapping
              and assaulting four teenagers at once arguably creates a greater risk
              of physical and emotional injury as to each as they see the others
              terrorized or injured and arguably represents a graver offense to
              society.

200 Ariz. 427, ¶34, 27 P.3d 331, ¶34. In Tschilar, the term “multiple victims” denoted multiple

contemporaneous victims in a single incident. Here, in contrast, Alvarez’s “multiple victims”

referred to a series of widely separated incidents involving a different, lone victim on each

occasion.




                                                9
¶16            To justify imposing a longer sentence than the presumptive under our “carefully

structured statutory scheme,” a trial court must point to conduct that somehow exceeds the

elements or aggravates the circumstances of the offense. Germain, 150 Ariz. at 290, 723 P.2d

at 108. The presumptive sentence is to be presumptively applied when the defendant’s conduct

satisfies but does not surpass the definition of the crime. See §§ 13-701(C), 13-702(A). As far

as we have determined from this record, apparently in none of these six incidents did either the

degree of Alvarez’s misconduct, see Germain, or the quality and circumstances of his acts, see

Bly, rise to a level beyond simple commission of the offenses charged. The existence of a victim

was intrinsic in each cluster of offenses Alvarez committed and, thus, his “multiple victims” were

synonymous with, and inextricable from, his “multiple offenses” under these specific

circumstances.

¶17            We view § 13-702(C)(19) as reflecting both the legislature’s recognition that it is

impossible to foresee and list every conceivable aggravating circumstance that might ever arise

and its desire to permit trial courts to rely on any appropriate aggravating factors a particular case

might present. We thus interpret the catch-all provision of § 13-702(C)(19) as authorizing a trial

court to factor into the sentencing equation any additional fact or circumstance not elsewhere

specifically provided for or incorporated into our “carefully structured statutory scheme.”

Germain, 150 Ariz. at 290, 723 P.2d at 108. We do not view it—and do not believe the

legislature intended it—as permission for a court to simply cite again in aggravation a fact or

circumstance that has already been reckoned into the statutory scheme elsewhere, either as an

element of the offense or a basis for enhancing the range of sentence, as essentially happened here.



                                                 10
¶18           Because Alvarez’s “multiple victims” were subsumed in the multiple offenses

already used to enhance the sentencing range for those offenses under § 13-702.02 and because

the legislature has not expressly included “multiple victims” or “multiple offenses” as an

enumerated aggravating factor under § 13-702, the trial court erred by effectively employing the

same justification already used to enhance the sentences as its reason for imposing aggravated

sentences on ten of the thirteen counts. Furthermore, “[i]mposition of an illegal sentence

constitutes fundamental error,” State v. Thues, 203 Ariz. 339, ¶4, 54 P.3d 368, ¶4 (App. 2002),

which is not waived by Alvarez’s failure to raise it below.

¶19           Because it is unclear whether the judge would have imposed the same sentences

absent the inappropriate factor, the case must be remanded for resentencing on all but the first

three counts. See State v. Ojeda, 159 Ariz. 560, 769 P.2d 1006 (1989). Accordingly, we affirm

the judgment of convictions on all counts and the sentences on counts one, two, and three, but

remand the case for resentencing on the remaining convictions.




                                                PHILIP G. ESPINOSA, Chief Judge

CONCURRING:




WILLIAM E. DRUKE, Presiding Judge




JOHN PELANDER, Judge


                                               11
