STATE OF ARIZONA v. JAMES BYRON BACA

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Appellee, v. JAMES BYRON BACA, Appellant. No. 2 CA-CR 2016-0314 Filed July 24, 2017 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pima County No. CR20150929002 The Honorable Teresa Godoy, Judge Pro Tempore AFFIRMED COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee STATE v. BACA Decision of the Court Robert A. Kerry, Tucson Counsel for Appellant MEMORANDUM DECISION Presiding Judge Vásquez authored the decision of the Court, in which Judge Staring and Judge Kelly1 concurred. V Á S Q U E Z, Presiding Judge: ¶1 After a jury trial, James Baca was convicted of firstdegree trafficking in stolen property, theft of a means of transportation, theft of property or services, third-degree burglary, and possession of burglary tools. Baca’s convictions stem from his February 2015 theft of a van that contained tools and equipment valued at more than $4,000. The trial court sentenced him to concurrent prison terms, the longest of which was a 15.75-year term for trafficking in stolen property, a class two felony. A.R.S. § 132307(B)–(C). Baca’s sentences were enhanced based on Baca’s four historical prior felony convictions. See A.R.S. § 13-703(C), (J). Baca argues on appeal that his 15.75-year sentence constitutes cruel and unusual punishment and thus violates the United States and Arizona constitutions.2 We affirm. 1 The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court. 2 Baca acknowledges he did not raise this claim below and therefore has forfeited the right to relief for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). An unconstitutional sentence, however, constitutes fundamental error. See State v. Price, 217 Ariz. 182, ¶ 21, 171 P.3d 1223, 1227-28 (2007). 2 STATE v. BACA Decision of the Court ¶2 “Both the United States and Arizona constitutions prohibit cruel and unusual punishment.”3 State v. Florez, 241 Ariz. 121, ¶ 22, 384 P.3d 335, 341 (App. 2016); see also U.S. Const. amend. VIII; Ariz. Const. art. II, § 15. The length of a sentence can render it unconstitutional if the sentence is “grossly disproportionate to the crime.” Florez, 241 Ariz. 121, ¶ 22, 384 P.3d at 342, quoting State v. Berger, 212 Ariz. 473, ¶ 10, 134 P.3d 378, 380 (2006). In analyzing a sentence under the Eighth Amendment, we first determine whether the defendant has made “a threshold showing of gross disproportionality by comparing the gravity of the offense [and] the harshness of the penalty.” Id. ¶ 23, quoting Berger, 212 Ariz. 473, ¶ 12, 134 P.3d at 381 (alteration in Berger). In doing so, we defer to the legislature’s policy judgment, as reflected by the governing sentencing statutes. Id. A sentence “is not grossly disproportionate to the crime if it ‘arguably furthers the State’s penological goals’ and ‘reflects a rational legislative judgment’ to which the court owes deference.” Id., quoting Berger, 212 Ariz. 473, ¶ 17, 134 P.3d at 382. If there is an “inference of gross disproportionality,” we will then “test that inference by conducting inter-jurisdictional and intrajurisdictional comparative analyses.”4 Id. ¶3 Baca argues his sentence has no legitimate penological goal because it is similar to the sentence a person convicted of seconddegree murder could receive. See A.R.S. § 13-710(A). In support, he cites the United States Supreme Court’s observation in Solem v. Helm, 463 U.S. 277, 291 (1983), that if the penalty is the same for a more serious crime, “that is some indication that the punishment at issue 3Although Baca raises this claim in the context of both the United States and Arizona constitutions, he does not develop a separate argument regarding the Arizona Constitution. It is thus waived on appeal. See Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995). 4Additionally, in extremely rare cases, “the specific application” of an otherwise constitutional sentencing scheme “to the facts of a defendant’s case may result in an unconstitutionally disproportionate sentence.” Florez, 241 Ariz. 121, ¶ 23, 384 P.3d at 342. Baca does not assert that he falls into this category of cases. 3 STATE v. BACA Decision of the Court may be excessive.” But Baca seems to conflate the first step of our analysis—determining whether the sentence serves some reasonable penological interest—with the second step of conducting a proportionality analysis. As the Supreme Court has also recognized, increased sentences for recidivists like Baca support the reasonable “public-safety interest in incapacitating and deterring recidivist felons.” Ewing v. California, 538 U.S. 11, 29 (2003). The mere fact the sentence may be equivalent to that of a person convicted of seconddegree murder does not render that interest improper or Baca’s sentence disproportionate. In fact, the Supreme Court has held a substantially longer sentence for a less serious property crime does not violate the Eighth Amendment. Id. at 28-29 (affirming “sentence of 25 years to life” for recidivist convicted of “felony grand theft for stealing nearly $1,200 worth of merchandise”). Baca has offered no basis to distinguish Ewing, and we find none. Because he has not made the required threshold showing that his sentence is grossly disproportionate, his claim fails. ¶4 We affirm Baca’s convictions and sentences. 4

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