                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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,
                                 Appellant,

                                        v.

                     JOSHUA BRANDEN LANGSTON,
                               Appellee.

                             No. 1 CA-CR 15-0258
                              FILED 4-7-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-003561-001
                  The Honorable Jose S. Padilla, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Jamaar A. Williams, Tennie B. Martin
Counsel for Appellee
                         STATE v. LANGSTON
                          Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in
which Judge Lawrence F. Winthrop joined. Judge Donn Kessler specially
concurred.


S W A N N, Judge:

¶1            Defendant Joshua Branden Langston pled guilty to
dangerous drive-by shooting. Years later, the shooting victim died and
the state charged Defendant with dangerous second degree murder. The
superior court dismissed the murder prosecution as barred by double
jeopardy. We reverse and remand. Under the Blockburger test, the
successive charges describe different offenses and do not implicate double
jeopardy. Further, even if the charges did describe the same offense, the
murder prosecution would not be barred because that offense could not
have existed until the victim died.

                FACTS AND PROCEDURAL HISTORY

¶2           Defendant pled guilty in 2007 to one count of dangerous
drive-by shooting, arising from a 2006 incident where he fired a gun at
E.W.’s vehicle and caused her to sustain a gunshot wound. The court
accepted Defendant’s plea, adjudged him guilty of dangerous drive-by
shooting, dismissed a companion aggravated assault charge, and
sentenced him to a seven-year prison term.

¶3          In 2012, while Defendant was serving his prison sentence,
E.W. died. A medical examiner concluded that E.W.’s death was caused
by complications from the 2006 gunshot wound; accordingly, the state
charged Defendant with dangerous second degree murder.

¶4            Defendant moved to dismiss the murder indictment under
A.R.S. § 13-116. The court granted dismissal with prejudice, concluding
that the prosecution was barred by double jeopardy because both the
drive-by shooting indictment and the second degree murder indictment
described the discharge of a handgun and the infliction of serious physical
injury upon E.W.

¶5           The state appeals.




                                    2
                           STATE v. LANGSTON
                            Decision of the Court
                               DISCUSSION

¶6            The state contends that dismissal was not warranted under
double jeopardy principles or A.R.S. § 13-116. These are questions of law
that that we review de novo. State v. Ortega, 202 Ariz. 320, 323, ¶ 8 (App.
2008).

¶7            The double jeopardy clauses of the federal and Arizona
constitutions (U.S. Const. amend. V and Ariz. Const. art. II, § 10) protect
criminal defendants from successive prosecutions and punishments for
the same offense. State v. Sherrill, 168 Ariz. 469, 474 (1991). The analysis is
the same under both the federal and the state provisions. State v. Eagle,
196 Ariz. 188, 190, ¶ 5 (2000).

¶8             The double jeopardy bar applies when “the two offenses for
which the defendant is punished or tried cannot survive the ‘same-
elements’ test . . . sometimes referred to as the ‘Blockburger’ test.” United
States v. Dixon, 509 U.S. 688, 696 (1993). Under the Blockburger test, two
offenses are the same offense unless “each offense contains an element not
contained in the other.” Id. The test is purely element-based -- it involves
no inquiry into whether the offenses are predicated on the same conduct.
See id. at 704, 711 (overruling “same-conduct” test established by Grady v.
Corbin, 495 U.S. 508 (1990)); see also Ortega, 202 Ariz. at 325, ¶ 14. “[W]e
analyze the elements of the offenses, not the facts of the case,” State v.
Price, 218 Ariz. 311, 313, ¶ 5 (App. 2008), and are “prohibit[ed from]
consider[ing] . . . the underlying facts or conduct,” Ortega, 202 Ariz. at 325,
¶ 14. We may “consider[ ] . . . the offense as it has been charged in
determining the elements of an offense and whether two offenses are the
same.” Id. But alleged sentence enhancers do not constitute offense
elements. See State v. Olsen, 157 Ariz. 603, 607 (App. 1988).

¶9            Defendant was convicted of drive-by shooting under A.R.S.
§ 13-1209, and charged with second degree murder under A.R.S. § 13-
1104.1 Section 13-1209 provides that “[a] person commits drive by
shooting by intentionally discharging a weapon from a motor vehicle at a
person, another occupied motor vehicle or an occupied structure.”
Section 13-1104 provides that “[a] person commits second degree murder
if without premeditation . . . [he] intentionally causes the death of another

1      Contrary to Defendant’s contention, the aggravated assault charge
dismissed in the initial prosecution has no bearing on the double-jeopardy
analysis. Jeopardy does not attach to a dismissal pursuant to a plea
agreement. Lewis v. Warner, 166 Ariz. 354, 356-57 (App. 1990).



                                      3
                           STATE v. LANGSTON
                            Decision of the Court
person . . . or . . . [k]nowing that [his] conduct will cause death or serious
physical injury, [he] causes the death of another person . . . or . . . [u]nder
circumstances manifesting extreme indifference to human life, [he]
recklessly engages in conduct that creates a grave risk of death and
thereby causes the death of another person.” These statutes do not
describe the same offense under the Blockburger test. For example, drive-
by shooting requires proof that the defendant intentionally discharged a
weapon, but second degree murder does not. And conversely, second
degree murder requires proof that the defendant caused the death of
another person, but drive-by shooting does not. And because the
Blockburger comparison is limited to the elements of the offenses and not
the manner in which they were committed, Defendant’s drive-by shooting
conviction cannot bar his prosecution for second degree murder. Further,
even if drive-by shooting and second degree murder did constitute the
same offense under Blockburger, double jeopardy still would not bar the
murder prosecution -- a victim’s post-trial death creates a new offense.
See State v. Wilson, 85 Ariz. 213 (1959).

¶10         Further, the prosecution is not precluded by A.R.S. § 13-116,
which provides:

       An act or omission which is made punishable in different
       ways by different sections of the laws may be punished
       under both, but in no event may sentences be other than
       concurrent. An acquittal or conviction and sentence under
       either one bars a prosecution for the same act or omission
       under any other, to the extent the Constitution of the United
       States or of this state require.

Though the second sentence of the statute describes a conduct-based
analysis, it applies only to the extent of the double jeopardy clauses.
Hernandez v. Superior Court (State), 179 Ariz. 515, 522 (App. 1994). And
because double jeopardy does not bar Defendant’s prosecution, neither
does the statute.

                              CONCLUSION

¶11         We reverse the superior court’s order dismissing the
prosecution   and      remand     for     further    proceedings.




                                      4
                         STATE v. LANGSTON
                     Kessler, J., Specially Concurring



KESSLER, J., specially concurring:

¶12           I concur with the majority on its analysis of the double
jeopardy clauses of both the United States and Arizona constitutions. In
addition, I concur with the result on the effect of A.R.S. § 13-116 for the
reasons I stated in my concurrence in State v. Williams, 232 Ariz. 158, 164,
¶¶ 22-23 (App. 2013).




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