                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

               MANUEL CONTRERAS VILLELA, Appellant.

                             No. 1 CA-CR 15-0103
                               FILED 5-10-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-432174-001
                The Honorable Karen A. Mullins, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

The Heath Law Firm, PLLC, Mesa
By Mark Heath
Counsel for Appellant
                           STATE v. VILLELA
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia A. Norris joined.


P O R T L E Y, Judge:

¶1            Defendant Manuel Contreras Villela challenges his combined
sentence for armed robbery, kidnapping, aggravated assault, conspiracy to
commit burglary, theft of means of transportation, and misconduct
involving weapons. He argues the combined sentence constitutes cruel and
unusual punishment in violation of the federal and Arizona constitutions
and, alternatively, argues the court should exercise its statutory right to
reduce his sentences. For the following reasons, we affirm.

            FACTS1 AND PROCEDURAL BACKGROUND

¶2            Villela orchestrated the armed robbery of a GameStop with
his friend, Herbert Branch (“Branch”), and his brother-in-law, Dalon
Bolden (“Bolden”), on July 9, 2013. Specifically, he told Branch and Bolden
about the plan; gave Bolden a gun; drove Branch and Bolden to a store,
where they shoplifted screwdrivers which they used to steal a parked
vehicle to serve as the get-away car.

¶3            When their plan to rob the first GameStop store failed because
Bolden “got scared,” the group instead agreed to meet at a different
GameStop, and, while Villela waited in his wife’s car, Branch and Bolden
went into the store. Branch pulled out the gun, pointed it at the employees,
and told the customers to move to the back of the store and hand over their
possessions, while Bolden gathered merchandise, money from the register,
and personal property from the store patrons and employees. They then
ran out of the store carrying the bags of stolen property to the getaway car.

¶4          The stolen get-away car failed to start, and the duo started
running with the stolen property. Villela saw them and picked them up
behind a Walmart. Noticing that a police cruiser had started following


1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).

                                     2
                           STATE v. VILLELA
                           Decision of the Court

them, Villela stopped the car in an alley, and he, and the others, got out of
the car and ran in different directions. They were subsequently caught and
taken into custody.

¶5            Villela was indicted for six counts of armed robbery, seven
counts of kidnapping, seven counts of aggravated assault, conspiracy to
commit burglary, car theft (collectively the “substantive offenses”), and
misconduct involving weapons. The indictment also alleged all the
substantive offenses were dangerous because a gun was used, and alleged
four offenses were dangerous crimes against children under the age of
fifteen. The State also alleged he had two historical prior felony convictions
and other aggravating circumstances.2 Villela turned down two different
plea offers, went to trial, testified, and the jury found him guilty on all
counts, but did not find the car theft to be a dangerous offense. The jury
also found a number of aggravating factors for each substantive offense,
and found the four offenses against two children were dangerous crimes
against children.

¶6           At the sentencing hearing, after the presentation of evidence,
the court found Villela had a prior felony conviction. Villela was then
sentenced to terms which totaled 81 years in prison, and given 97 days of
presentence incarceration credit. We have jurisdiction over his appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (“A.R.S.”) sections 12–120.21(A)(1), 13–4031, and
–4033(A).3

                               DISCUSSION

¶7            Villela argues the sentences for his convictions are excessive
under the federal and Arizona constitutional proscriptions against cruel
and unusual punishment. He also argues that even if we find the sentences
constitutional, we should exercise our discretion under A.R.S. § 13-4037(B)
to reduce his sentences to the minimum of 47 years.




2 The charging decision is within the sole discretion of the County
Attorney’s office. State v. Hankins, 141 Ariz. 217, 221, 686 P.2d 740, 744
(1984).
3 We cite the current version of the applicable statutes unless otherwise

noted.

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                            STATE v. VILLELA
                            Decision of the Court

I.     Cruel and Unusual Punishment

       A. Proportionality Review

¶8          Villela argues his “[f]our flat, consecutive sentences” violate
the Eighth Amendment prohibition of cruel and unusual punishment.4 We
disagree.

¶9            Although, as a general rule, we do not consider constitutional
issues raised for the first time on appeal, Englert v. Carondelet Health
Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000), we may address
those issues that do not “turn on resolution of disputed facts,” are “of
statewide importance . . . raised in the context of a fully developed record,”
and have been “fully briefed by the parties.” Larsen v. Nissan Motor Corp. in
U.S.A., 194 Ariz. 142, 147, ¶ 12, 978 P.2d 119, 124 (App. 1998) (citations
omitted). Given that both parties have fully briefed the issues, and
fundamental rights are implicated, we exercise our discretion to address
these arguments. See State v. Politte, 136 Ariz. 117, 123, 664 P.2d 661, 667
(App. 1982) (addressing issue raised for first time on appeal when it
involved “substantial rights of a fundamental nature . . . which could have
resulted in severe prejudice to the appellant.”).

¶10          We review constitutional issues de novo. Fragoso v. Fell, 210
Ariz. 427, 432, ¶ 13, 111 P.3d 1027, 1032 (App. 2005). Both the Eighth
Amendment to the United States Constitution and Article 2, Section 15, of
the Arizona constitution prohibit the infliction of “cruel and unusual”
punishment. U.S. Const. amend. VIII; Ariz. Const. art. 2, § 15.5 The
prohibition proscribes sentences that are disproportionate to the crime
committed. Ewing v. California, 538 U.S. 11, 20 (2003). If a crime and the

4 Villela also argues that the lower sentences his co-defendants received
after accepting plea offers are indicative of injustice. Villela, however, was
offered and rejected a plea of 17 years flat-time after a Donald hearing. State
v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000). He also rejected the
State’s revised plea offer of 10.5 years to 15.75 years, requiring him to serve
85 percent of the sentence, after a Donald advisement, and stated that he
understood the potential penalties. Because he took the risk of a very
lengthy sentence by rejecting the plea offers, he cannot assert that his
aggregate sentence, when compared to his co-defendants’, is indicative of
injustice.
5 We interpret Arizona’s cruel-and-unusual-punishment constitutional

provision like the federal constitutional provision. See State v. Davis, 206
Ariz. 377, 381, ¶ 12, 79 P.3d 64, 68 (2003).

                                      4
                             STATE v. VILLELA
                             Decision of the Court

sentence imposed appear to be grossly disproportionate, the court “must
carefully examine the facts of the case and the circumstances of the offender
to see whether the sentence is cruel and unusual.” State v. Davis, 206 Ariz.
377, 384, ¶ 34, 79 P.3d 64, 71 (2003); see Ewing, 538 U.S. 11; Lockyer v. Andrade,
538 U.S. 63 (2003). The court must assess:

       (i) the gravity of the offense and the harshness of the penalty;
       (ii) the sentences imposed on other criminals in the same
       jurisdiction; and (iii) the sentences imposed for commission
       of the same crime in other jurisdictions.

Solem v. Helm, 463 U.S. 277, 292 (1983).

   1. Gross Disproportionality

¶11           The threshold inquiry is whether a comparison of the crime
to the sentence imposed demonstrates an appearance of gross
disproportionality. Ewing, 538 U.S. at 30 (citation omitted); Harmelin v.
Michigan, 501 U.S. 957, 1005 (1991). A sentence will not be found to be
disproportionate merely because it “seems too long.” Davis, 206 Ariz. at
388, ¶ 49, 79 P.3d at 75. Our supreme court has held that because Eighth
Amendment analysis focuses on the sentence imposed for each specific
crime, and not on the cumulative sentence:

       [I]f the sentence for a particular offense is not
       disproportionately long, it does not become so merely
       because it is consecutive to another sentence for a separate
       offense or because the consecutive sentences are lengthy in
       aggregate. This proposition holds true even if a defendant
       faces a total sentence exceeding a normal life expectancy as a
       result of consecutive sentences.

State v. Berger, 212 Ariz. 473, 479, ¶ 28, 134 P.3d 378, 384 (2006) (citations
omitted).

¶12          We find no appearance of gross disproportionality. Villela is
an adult with two prior felony convictions, one for burglary, and was not
found to lack normal intelligence. He planned and arranged for his co-
defendants to rob a game-store during the afternoon, a time when children
would be expected to be in or entering the store. He was a prohibited
possessor and gave his accomplices a handgun, with bullets in the chamber
and magazine, which they used to threaten the store’s employees and




                                        5
                           STATE v. VILLELA
                           Decision of the Court

patrons, which included two children.6 He also stole a car so that his co-
defendants could make their getaway, which may have occurred but for the
fact that the stolen car would not run, forcing Villela to pick up his co-
defendants. Although the crimes presented a danger to store employees
and patrons, the trial court was troubled that the aggregate sentence it was
required to impose was “clearly excessive.” There is no evidence, however,
that the individual sentences for each offense were excessive. The trial
court, given the aggravating factors, sentenced Villela to a term slightly
greater than the presumptive sentence on all but two of the offenses, and
none of the individual sentences imposed were independently
disproportionate to the crimes charged even though the aggregate sentence
was 81 years.

¶13            Although Villela relies on Davis, it is distinguishable. In
Davis, the defendant was charged and convicted of four counts of sexual
misconduct with a minor, all dangerous crimes against children, and
sentenced to four flat, consecutive thirteen-year sentences. Davis, 206 Ariz.
at 380, ¶¶ 7, 9, 11, 79 P.3d at 67. Our supreme court found the sentences
grossly disproportionate to the offenses, noting: 1) Davis’s sexual conduct
with the girls was consensual and involved neither threatened nor actual
violence, 2) he had no adult criminal record and had not committed any
previous crimes against children, 3) post-pubescent sexual conduct was
common, 4) his intelligence and maturity were below that of a normal
young adult, and 5) he had been caught up in the broad sweep of the statute
which criminalized the “benign boyfriend-girlfriend situation in which one
party is older than eighteen and the other younger than fifteen,” with rape-
incest and pedophilia. Id. at 384-85, ¶ 36, 79 P.3d at 71-72.


6 Villela contends that because he merely assisted in and encouraged a
robbery during which nobody was injured, his sentence is unconstitutional.
However, one of the youngsters testified that as she entered the store
approximately five minutes before the robbery, she saw Bolden and Branch
outside the store talking to a third man. And there was testimony that the
child-victims were emotionally traumatized by the experience. Regardless
of whether Villela was unaware that children were inside the store, he, as
an accomplice to the offenses committed by his co-defendants, is still be
liable for dangerous crimes against children. See State v. Gurrola, 219 Ariz.
438, 440, ¶ 8, 199 P.3d 693, 695 (App. 2008) (stating that requirement that
conduct be focused against child may be fulfilled by reckless conduct,
where conduct “manifests a conscious disregard of a risk to children, as
opposed to the general public, even if harm to a child was not intended.”)
(internal quotes and citations omitted).

                                     6
                            STATE v. VILLELA
                            Decision of the Court

¶14          Under A.R.S. § 13-705(D), a defendant convicted of a
dangerous crime against children involving aggravated assault or
kidnapping shall be sentenced to a minimum prison term of 10 years, a
presumptive term of 17 years, or a maximum term of 24 years. If more than
once victim was involved, the sentences must be “consecutive to any other
sentence imposed on the person at any time.” A.R.S. § 13-705(M).

¶15           Villela was sentenced to terms only slightly above the
presumptive, including 17.5 years for each of the four dangerous crimes
against children, which were consecutive to the concurrent prison terms for
the other convictions. His sentences to “a term greater than the
presumptive” were intended “to hold [him] accountable for his criminal
conduct, enhance public safety, and deter any future criminal behavior,”
and were within the sentencing scheme set by the Arizona Legislature. See
Ewing, 538 U.S. at 29-30 (giving deference to legislative judgment that
defendants who commit serious felonies and continue to do so should be
incapacitated, and noting state has legitimate “public-safety interest in
incapacitating and deterring recidivist felons”); Berger, 212 Ariz. at 476,
¶ 13, 134 P.3d at 381 (“courts must accord substantial deference to the
legislature and its policy judgments as reflected in statutorily mandated
sentences”); Davis, 206 Ariz. at 388, ¶ 47, 79 P.3d at 75 (recognizing
legislature’s right to impose “a thirteen-year minimum sentence for
dangerous crimes against children, require that the sentences be served
completely,” and “require consecutive sentences for this type of offense”).

¶16            In light of the specific facts leading to the sentences, we do not
find any of the individual sentences, or the aggregate sentence, “so severe
as to shock the conscience of society.” See Davis, 206 Ariz. at 388, ¶ 49, 79
P.3d at 75 (citing State v. Davis (Randal), 108 Ariz. 335, 337, 498 P.2d 202, 204
(1972)). Consequently, we find that Villela’s sentences, individually and
collectively, were not disproportionate to the crimes he was convicted of
committing, and do not violate the Eighth Amendment or Arizona
constitutional prohibitions against cruel and unusual punishment.7

II.    Reduction of Sentence under A.R.S. § 13-4037(B)

¶17           Villela urges this court to exercise its authority to reduce his
sentence upon appeal, pursuant to A.R.S. § 13-4037(B). Because, however,
this statutory power must be exercised with great caution, State v. Fillmore,


7Because we find no inference of gross disproportionality, we need not
proceed to the intra-jurisdictional or inter-jurisdictional assessments. See
Davis, 206 Ariz. at 385, ¶ 38, 79 P.3d at 72.

                                       7
                           STATE v. VILLELA
                           Decision of the Court

187 Ariz. 174, 185, 927 P.2d 1303, 1314 (App. 1996) (citation omitted), even
if we have the statutory authority, we decline to exercise that authority to
reduce the aggregate sentence.

                             CONCLUSION

¶18          For the foregoing reasons, we affirm Villela’s convictions and
sentences.




                                  :ama




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