Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20113655001 Honorable Teresa Godoy, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Amy M. Thorson Tucson Attorneys for Appellee.
Sidney F. Wolitzky Tucson Attorney for Appellant.
VIRGINIA C. KELLY, Presiding Judge
¶1 Damaso Alavez appeals from his convictions and sentences for one count each of second-degree murder, criminal damage, endangerment, driving under the influence of an intoxicant, driving with an alcohol concentration of .08 or more, and driving while under the extreme influence of liquor. He argues the trial court erred in seating less than twelve jurors, and in denying two of his requested jury instructions. We affirm.
¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In October 2011, while "racing" with another car, Alavez drove through a red light and collided with a vehicle, killing the driver, S.L. At the time of the collision, Alavez was traveling over ninety miles per hour. A test of his blood showed trace amounts of marijuana and a metabolite of cocaine, and established his alcohol concentration had been approximately .198 an hour after the collision. Alavez was arrested and convicted as above and sentenced to a combination of concurrent and consecutive, presumptive terms totaling 18.25 years' imprisonment.
¶3 Alavez argues the trial court erred in seating a jury of only eight persons because, based upon article II, § 23 of the Arizona Constitution, he was entitled to a twelve-person jury. Article II, § 23 provides that, "Juries in criminal cases in which a sentence of . . . imprisonment for thirty years or more is authorized by law shall consist of twelve persons." See also A.R.S. § 21-102(A).
¶4 As the parties agree, at the time the jury began deliberating Alavez faced a maximum sentence of thirty years. See State v. Kuck, 212 Ariz. 232, ¶ 11, 129 P.3d 954, 955 (App. 2006) (whether defendant faced potential sentence of thirty or more years determined at beginning of jury deliberations). However, the state argues that even though Alavez faced a maximum sentence of thirty years, his right to a twelve-person jury "was not violated" because the court imposed a total sentence of less than thirty years.
¶5 Our supreme court resolved this issue in State v. Soliz, 223 Ariz. 116, 219 P.3d 1045 (2009). In that case, Soliz faced a maximum sentence of thirty-five years' imprisonment. Id. ¶ 2. The trial court empanelled an eight-person jury and neither party objected. Id. ¶ 3. At sentencing the state requested, and the court imposed, a presumptive, ten-year sentence. Id. On review, the supreme court noted that "[b]y failing to request a jury of twelve, the State effectively waived its ability to obtain a sentence of thirty years or more [and] [t]he trial judge affirmed this by failing to empanel a jury of twelve." Id. ¶ 16. The court held that "[i]n such a circumstance, as long as a lesser sentence may legally be imposed . . . a sentence of thirty years or more is no longer permitted and . . . the twelve-person guarantee of Article [II], Section 23 is not triggered." Id. ¶ 16. Therefore, even if the defendant faces a maximum sentence of thirty or more years, there is no error, structural or otherwise, when "the case proceeds to verdict with a jury of less than twelve people without objection, and the resulting sentence is less than thirty years." Id. . ¶¶ 1, 18.
¶6 Alavez argues Soliz is distinguishable from his case. He claims that, "[u]nlike the defendant in Soliz, [he] did not have any prior convictions" and therefore "a sentence in excess of thirty years would be based on the jury's finding of guilt on multiple charges, not the State's additional allegations of prior convictions." But Alavez does not explain the significance of this distinction, and he has not established that the method by which a sentence is obtained is relevant. Instead, our supreme court has made clear that if a jury of less than twelve persons is ...