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This case arose from Defendant Diego Morales Peregrina’s conviction on two counts of aggravated battery and two firearm enhancements; one for each battery. Peregrina argued on appeal of his sentence that there was insufficient evidence to support the district court’s "implicit" finding that the crimes arose out of divisible courses of conduct, and that even if there was, the State had the burden to submit the issue of divisibility to the jury and prove it beyond a reasonable doubt. Upon review of the trial court record, the Supreme Court found that no instruction was requested by either Peregrina or the State regarding I.C. 19-2520E, which states that when two crimes "arise out of the same indivisible course of conduct," the defendant "may only be subject to one (1) enhanced penalty." The district court sentenced Peregrina as follows: ten years fixed for the first count of aggravated battery; ten years fixed for the second count of aggravated battery consecutive to the first count; ten years indeterminate enhancing the sentence in the first count; and ten years indeterminate enhancing the sentence in the second count, both consecutive to the previous counts. Peregrina was also sentenced to five years fixed for his conviction for unlawful possession of a firearm, to run concurrent with the other sentences, with credit for two hundred days served. The Supreme Court found that the State's failure to submit the issue of divisibility to the jury and to prove it beyond a reasonable doubt. The Court remanded the case back to the district court for further proceedings.
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37900
STATE OF IDAHO,
DIEGO MORALES PEREGRINA,
Boise May 2011 Term
2011 Opinion No. 96
Filed: September 7, 2011
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Fourth Judicial District of the State
of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.
District court ruling on divisibility, remanded.
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Jason C. Pintler
Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. John C. McKinney
BURDICK, Chief Justice
This case arises out of Diego Morales Peregrina’s conviction for two counts of aggravated
battery and two firearm enhancements; one for each battery. Peregrina argues that there was
insufficient evidence to support the district court’s “implicit” finding that the crimes arose out of
divisible courses of conduct, and that even if there was, the State had the burden to submit the issue
of divisibility to the jury and prove it beyond a reasonable doubt. We remand to the district court
for proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2007, Peregrina attended a child’s birthday party and was in a verbal confrontation
with two men. Peregrina returned later that night and continued the exchange, which culminated in
Peregrina shooting Alfred Ramirez in the chest and Juan Garcia in the face. Peregrina was charged
by information and convicted, after a jury trial, of two counts of aggravated battery under I.C. §§
18-903(a) and -907(1)(b), and two enhancements for the use of a firearm during the commission of
those batteries under I.C. § 19-2520. He was also charged and convicted of unlawful possession of
a firearm under I.C. § 18-3316. No instruction was requested by either Peregrina or the State
regarding I.C. § 19-2520E, which states that when two crimes “arise out of the same indivisible
course of conduct,” the defendant “may only be subject to one (1) enhanced penalty.”
The district court sentenced Peregrina as follows: ten years fixed for the first count of
aggravated battery; ten years fixed for the second count of aggravated battery consecutive to the
first count; ten years indeterminate enhancing the sentence in the first count; and ten years
indeterminate enhancing the sentence in the second count, both consecutive to the previous counts.
Peregrina was also sentenced to five years fixed for his conviction for unlawful possession of a
firearm, to run concurrent with the other sentences, with credit for two hundred days served.
Peregrina appealed his Judgment and Sentence to the Court of Appeals, which affirmed. Peregrina
petitioned for review, and this Court granted the petition.
ISSUES ON APPEAL
1. Whether the fact of divisibility increases the maximum authorized statutory penalty under
Apprendi such that there was error in the State’s failure to submit it to the jury and prove it
beyond a reasonable doubt.
2. Whether the alleged Apprendi error was fundamental and reversible.
STANDARD OF REVIEW
This Court gives “serious consideration to the Court of Appeals when considering a case
already reviewed by our intermediate appellate court.” State v. Kerrigan, 143 Idaho 185, 187, 141
P.3d 1054, 1056 (2006) (internal quotation marks omitted). However, this Court reviews the
decision of the district court directly, as if the case were on direct appeal from the district judge’s
decision. Id. Statutory interpretation is a question of law over which this Court exercises free
review. Fields v. State, 149 Idaho 399, 400, 234 P.3d 723, 724 (2010).
This case revolves around a single question: Who can make a finding of fact with regard to
the divisibility of conduct under I.C. § 19-2520E? Idaho law allows for certain crimes to be
punished more severely when they are committed using a firearm. Idaho Code § 19-2520.
Aggravated battery is one of those crimes. Id. If a jury finds that a defendant used a firearm in the
commission of a battery, his sentence may be increased by a maximum fifteen years. Id. The
legislature used “shall” in the statute, making this a mandatory increase to the maximum penalty.
However, this statute is not without limitation. Another section of the code provides that a
defendant can only be subject to one increased penalty if the “crimes arose out of the same
indivisible course of conduct . . . .” Idaho Code § 19-2520E. Thus, if two crimes are committed
using a firearm, but those crimes were committed in the same indivisible course of conduct, a
defendant can only be sentenced with one enhancement penalty.
It is undisputed that the question of divisibility is one of fact. State v. Johns, 112 Idaho 873,
882, 736 P.2d 1327, 1336 (1987). Under Apprendi, “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). The question, then, is whether a finding of divisibility or indivisibility increases the
penalty for the crime beyond the statutory maximum. Unless it does, it does not fall under Apprendi
and the jury is not required to find that fact.
Under I.C. § 19-2520, the State must prove beyond a reasonable doubt to a jury: (1) the
defendant was convicted of one or more of the delineated crimes; (2) the defendant displayed, used,
threatened, or attempted to use a firearm or other deadly weapon during the commission of these
crimes; and (3) if the deadly weapon at issue is a firearm, it has (a) the capability of propelling
projectiles; and (b) if the firearm was not operable, it could readily have been rendered operable.
Once these facts are found, I.C. § 19-2520 mandates an increase to the maximum penalty allowed
for the enumerated crime by fifteen years. It is important to note that the jury found these predicate
elements beyond a reasonable doubt, subjecting Peregrina to the mandatory sentence increase.
Section 19-2520E acts as a limitation to this mandatory sentence increase. Johns, 112 Idaho
at 882, 736 P.2d at 1336. Johns stated that § 19-2520E “by its wording, limits the otherwise
mandatory duty of the district court to enhance ‘multiple’ sentences under I.C. § 19-2520.” Id.
Because I.C. § 19-2520E operates to limit the otherwise mandatory nature of the increase, finding
divisibility or indivisibility is not a fact that increases the penalty for the crime. Rather finding of
indivisibility, I.C. § 19-2520E is a mitigating factor that acts to reduce the penalty for the crime. As
such, it is not subject to Apprendi and is a fact that can be found by the court.
Here, the jury found that Peregrina committed two acts of aggravated battery while using a
firearm. Therefore, the statutory maximum for each crime is thirty years. Idaho Code §§ 18-907 and
19-2520. Idaho Code § 19-2520E would decrease the statutory maximum penalty as to one of
Peregrina’s convictions if both of his crimes “arose out of the same divisible course of conduct.”
Thus, § 19-2520E would operate to reduce Peregrina’s maximum sentence for one of his
convictions, not to increase it. As a result, it was well within the inherent authority of the trial judge
to make a finding regarding the divisibility or indivisibility of Peregrina’s crimes. However, there
was no such finding made, and the matter must be remanded to the district court for a finding on the
issue of indivisibility pursuant to I.C. § 19-2520E. Because a finding of divisibility or indivisibility
is not subject to Apprendi this Court does not need to address the second issue raised on appeal.
A finding of indivisibility can only act to reduce the statutory maximum penalty for multiple
crimes subject to enhanced penalties under I.C. § 19-2520. As a result, that finding is not subject to
Apprendi, and can be found by the trial judge. We remand to the district court for a finding of
divisibility or indivisibility of Peregrina’s conduct, followed by sentencing consistent with that
Justices EISMANN and J. JONES, CONCUR.
Justice W. Jones, dissenting:
The Majority holds that there was no error under the U.S. Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), because I.C. § 19-2520E only
reduces the punishment authorized. I respectfully dissent.
Because the Fact of Divisibility Increases the Maximum Authorized Statutory Penalty
By Authorizing a Second Enhancement, There Was Apprendi Error in the State’s
Failure to Submit the Issue to the Jury.
It is undisputed that the question of divisibility or indivisibility under I.C. § 19-2520E is one
of fact. State v. Johns, 112 Idaho 873, 882, 736 P.2d 1327, 1336 (1987). Under Apprendi, “any
fact (other than the fact of a prior conviction) that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63 (2000). This is because “[i]t
is unconstitutional . . . to remove from the jury the assessment of facts that increase the prescribed
range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must
be established by proof beyond a reasonable doubt.” Id., 120 S. Ct. at 2363. The first question that
must be resolved, then, is whether the fact of indivisibility or divisibility in I.C. § 19-2520E
increases the penalty for a crime beyond the authorized statutory maximum. If it does, the burden
of proof was on the prosecution to raise it, prove it beyond a reasonable doubt and submit it to the
jury under Apprendi; and the failure to do all of those acts was error. The Court must then
determine whether that unobjected-to error was fundamental under State v. Perry, 150 Idaho 209,
245 P.3d 961 (2010). The Majority holds that the § 19-2520E does not increase the penalty but
rather only reduces the penalty and thus Apprendi does not apply. Justice Eismann concurs. Justice
Horton believes that § 19-2520E is an affirmative defense that was waived by Peregrina’s failure to
The prosecution did not attempt to prove divisibility of the two aggravated batteries, and did
not submit the issue to the jury. The State contends it did not have the burden to do so. Justice
Horton, in his dissent, agrees. The State relies on dicta in this Court’s decision in State v. Clements,
148 Idaho 82, 218 P.3d 1143 (2009), wherein the Court stated that “[b]y pleading guilty to both
firearm enhancements, Clements waived the statutory, fact-based defense that the murder and
attempted murder arose out of the same indivisible course of conduct under I.C. § 19-2520E.” 148
Idaho at 86, 218 P.3d at 1147. In that case, Clements brought an I.C.R. 35 motion to correct his
sentence based on the allegation that the court did not have the authority to impose two firearm
enhancements for second-degree murder and attempted second-degree murder, because the crimes
arose out of the same indivisible course of conduct. Id. at 83, 218 P.3d at 1144. Clements had pled
guilty to both the underlying offenses as well as the firearm enhancements. Id. He did not raise the
issue of indivisibility until his Rule 35 motion, and at that time, the district court reviewed the
transcript of the preliminary hearing and found that both crimes had arisen out of the same
indivisible course of conduct. Id. at 84, 218 P.3d at 1145. This Court stated that because Clements’
plea of guilty to the firearm enhancements waived all non-jurisdictional defects and defenses to
those enhancements, he had waived the statutory, fact-based defense of indivisibility under I.C. §
19-2520E, and could not raise it for the first time at his I.C.R. 35 motion. Id. at 86, 218 P.3d at
1147. The Court eventually rested its holding on the proposition that the district court may not
review the facts underlying an alleged “illegal” sentence at a Rule 35 hearing, and the Court’s
statement that Clements had waived his defense under § 19-2520E by pleading guilty to the
enhancements was dictum that did not affect the holding. Id. at 87, 218 P.3d at 1148.
Here, unlike in Clements, Peregrina pled not guilty to the firearm enhancements, and thus he
did not waive his non-jurisdictional challenges to the enhancements. Rather, by pleading not guilty,
“every material allegation of the indictment, information or complaint” was put in issue. I.C. § 191715. Peregrina did not “waive” his right to have a jury determine the issue of divisibility by
failing to raise it. By failing to raise the issue or object to it below, Peregrina may have “forfeited”
the issue under § 19-2520E, but he did not “waive” it. United States v. Olano, 507 U.S. 725, 733,
113 S. Ct. 1770, 1777 (1993) (distinguishing “forfeiture” of a claim, which results from a failure to
assert the claim in a timely fashion, and which does not prevent an appellate court from reviewing
the claim for plain error, from “waiver,” which is the “intentional relinquishment or abandonment
of a known right,” and which permanently extinguishes the right to raise the claim). As set forth in
this Court’s decision in Perry, an asserted error in a criminal trial raised for the first time on appeal
is still reviewable under the fundamental error analysis even if it may have been “forfeited”
below. Perry, 150 Idaho at 225, 245 P.3d at 977. Therefore it is not appropriate to apply the
dictum in Clements characterizing the determination of the facts in § 19-2520E as waived here,
where no “intentional relinquishment” of the determination on divisibility occurred. United States
v. Polouizzi, 564 F.3d 142, 152 (2d Cir. 2009) (holding that the defendant waived his right to
challenge the jury instructions because in response to the judge’s proposed alternative instruction,
the defendant indicated that the original instruction was satisfactory).
It is also noted that while I.C.R. 30(b) normally prohibits a defendant from challenging a
jury instruction for the first time on appeal, “even absent a timely objection to the trial court, claims
of instructional error are reviewable for the first time on appeal under the fundamental error
doctrine.” State v. Hansen, 148 Idaho 442, 444, 224 P.3d 509, 511 (Ct. App. 2009) (citing State v.
Anderson, 144 Idaho 743, 748, 170 P.3d 886, 891 (2007)). Therefore, Peregrina’s failure to ask for
an instruction on divisibility did not waive his right to challenge whether the lack of an instruction
on the issue was error.
Both the State and the Majority conclude that § 19-2520E only reduces the penalty for the
underlying crimes rather than increasing it and is thus not subject to Apprendi. Peregrina contends
that this argument was already made by Arizona and rejected by the U.S. Supreme Court in Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). At issue in Ring was a statutory scheme in Arizona
in which a judge was required to find the presence of an aggravating factor in order to sentence a
defendant convicted of first-degree murder to death. 536 U.S. at 604, 122 S. Ct. at 2440. Arizona
law specified that “death or life imprisonment” were the only sentencing options for first-degree
murder, but that same statute explicitly cross-referenced another statute that required the finding of
an aggravated circumstance by a judge before imposition of the death penalty. Id. at 604, 122 S. Ct.
at 2440–41. Ring argued that under Apprendi, he had the right to have a jury determine the
presence of the aggravating factor beyond a reasonable doubt. Arizona argued that “death” was
already the statutory maximum penalty for the jury’s verdict for first-degree murder under the
language of the statute, and therefore the aggravating factor required to impose the death penalty
did not increase the maximum penalty (beyond “death”) under Apprendi. Id. at 603–04, 122 S. Ct.
The Supreme Court noted that “[i]f a State makes an increase in a defendant’s authorized
punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must
be found by a jury beyond a reasonable doubt.” Id. at 602, 122 S. Ct. at 2439. It reiterated that “the
dispositive question . . . is not one of form, but of effect.” Id. It found that even though the
language of the statute stated that “death or life imprisonment” were the punishments for firstdegree murder, Arizona’s interpretation that the aggravating factor only reduced the sentence under
the statute would render the rule of Apprendi “meaningless and formalistic.” Id. at 604, 122 S. Ct.
at 2441. The Court held that the statute required that another fact had to be found in order to
sentence the defendant to death, and therefore the maximum penalty authorized by the jury verdict
was only life imprisonment. Id., 122 S. Ct. at 2440. Thus, it concluded that the required finding of
an aggravating factor exposed the defendant to a greater punishment, the death penalty, than that
authorized by the jury verdict without the finding of an aggravating factor, life imprisonment, and
thus under Apprendi, the facts underlying the aggravating factor were required to be determined by
a jury beyond a reasonable doubt. Id. at 609, 122 S. Ct. at 2443.
The Supreme Court reiterated this principle in Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531 (2004), holding that
[w]hether the judge’s authority to impose an enhanced sentence depends on finding a
specified fact (as in Apprendi), one of several specified facts (as in Ring), or any
aggravating fact (as here), it remains the case that the jury’s verdict alone does not
authorize the sentence. The judge acquires that authority only upon finding some
542 U.S. at 305; 124 S. Ct. at 2538. It acknowledged that in both Apprendi and Ring, “the
defendant’s constitutional rights had been violated because the judge had imposed a sentence
greater than the maximum he could have imposed under state law without the challenged factual
Id. at 303, 124 S. Ct. at 2537.
It also clarified that “the ‘statutory maximum’
for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” Id. (emphasis in original). It noted the
difference between factors that a judge has discretion to consider in imposing a lesser sentence
within a statutorily defined range and facts that “pertain to whether the defendant has a legal right to
a lesser sentence,” the latter of which is within “the traditional role of the jury,” and thus “must be
found by a jury” under the Sixth Amendment. Id. at 309, 124 S. Ct. at 2540.
A recent case decided by the U.S. Supreme Court under Apprendi tackled a similar but
distinguishable issue to the one here. At issue in Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711
(2009) was Oregon’s statutory scheme for imposing consecutive, rather than concurrent, sentences
when a defendant had been convicted of more than one crime. 555 U.S. at ---, 129 S. Ct. at 715.
Under the Oregon statute, sentences were required to run concurrently unless the judge found that
the offenses did not “arise from the same continuous and uninterrupted course of conduct,” in
which case the judge had the discretion to impose the sentences consecutively. Id. The Supreme
Court found that the discretion to impose consecutive sentences rather than concurrent ones
historically rested with the judge, not the jury. Id. at ---, 129 S. Ct. at 717. It also noted that States
have an interest in the development of their penal systems, and thus the Court should defer to
Oregon’s decision to place discretion for imposing consecutive sentences with the judge absent a
compelling reason not to do so. Id. at ---, 129 S. Ct. at 718–19. The Court found that the Sixth
Amendment did not inhibit States from assigning to judges, rather than juries, the finding of facts
necessary to justify the imposition of consecutive, rather than concurrent sentences for multiple
offenses. Id. at ---, 129 S. Ct. at 716–20.
Here, I find that the fact of divisibility increases the maximum authorized sentence on the
defendant when that defendant has been charged with multiple enhancements. The decision in Ice
is not analogous. It revolved around whether a judge or a jury should have the discretion to decide
if two imposed sentences should be served consecutively. The case here revolves around whether
the judge has the authority to impose an additional enhanced sentence at all, not just whether a
judge may determine the facts necessary to decide whether to impose the sentence consecutively to
the other sentences instead of concurrently. Ice thus concerned a “sentencing function in which the
jury traditionally played no part,” i.e., the discretion to impose a consecutive rather than a
concurrent sentence. Ice, 555 U.S. at ---, 129 S. Ct. at 714.
On the other hand, here it seems clear that § 19-2520E was intended by the Legislature to
prohibit imposition of more than one enhanced sentence if indivisibility is found, not to place
discretion of whether or not to impose the multiple enhanced sentences in the hands of a judge
rather than a jury. Act of April 9, 1983, ch. 183, 1983 Sess. Laws. 496, 496 (stating that § 192520E was enacted “to provide that multiple enhancement penalties are prohibited.”) The intent of
the statute is important in the determination of whether a fact is one that must be submitted to the
jury by the State under Apprendi. United States v. O’Brien, 130 S. Ct. 2169, 2180 (2010); see also
State v. Stover, 140 Idaho 927, 931–32, 104 P.3d 969, 973–74 (2005) (looking to legislative
purpose in holding that I.C. § 19-2521 was intended to give discretion to the judge to decide, based
on the factors it lists, whether to place a defendant on probation or sentence him within a statutory
prescribed range, and therefore Apprendi did not render it unconstitutional).
This Court has stated before that § 19-2520E “by its wording, limits the otherwise
mandatory duty of the district court to enhance ‘multiple’ sentences under I.C. § 19-2520.” Johns,
112 Idaho at 882, 736 P.2d at 1336. However, I do not believe as the Majority does, that it provides
a sentencing factor that “reduces” the punishment for the crime. Rather, I believe that it limits the
authority of the sentencing court. If the crimes occur during an indivisible course of conduct, a
second sentence is not authorized under any circumstances under the statute.
This is in contrast to the factors listed in I.C. § 19-2521, which “do nothing to infringe
upon the sentencing court’s inherent power to impose or suspend a sentence.” Stover, 140 Idaho at
932, 104 P.3d at 974. The language of § 19-2520E expressly references the enhancement statutes,
stating that it applies “[n]otwithstanding the enhanced penalty provisions in sections 19-2520,
[listing other enhancement statutes].” Black’s Law Dictionary defines “notwithstanding” to mean
“despite; in spite of.” Black’s Law Dictionary 1168 (9th ed. 2009). Accordingly, unlike in Ice,
where the Oregon statute clearly intended discretion to decide the facts necessary to impose a
consecutive sentence to rest with the judge instead of the jury, or Stover, where the statute clearly
intended discretion to weigh a list of factors to lay with the judge, § 19-2520E is intended to limit
the inherent authority of the court to actually impose the multiple enhancements charged under §
19-2520 and the other sections listed in § 19-2520E.
In other words, “despite” the enhancements that a defendant may be subject to under § 192520, only one enhancement may be imposed if the crimes occurred in an indivisible course of
If multiple enhancements are charged, then a finding on divisibility becomes a
prerequisite to the authority of the judge to impose more than one of them. Without that fact, the
judge is not authorized to impose the second enhanced sentence. Blakely, 542 U.S. at 305; 124 S.
Ct. at 2538 (“The judge acquires that authority [to impose an enhanced sentence] only upon finding
some additional fact.” (emphasis added)); Ring, 536 U.S. at 602, 122 S. Ct. at 2439 (“If a State
makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that
fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.”
(emphasis added)). As a result, the fact of divisibility increases the maximum authorized statutory
penalty a defendant will be exposed to by authorizing the second enhanced sentence. Ice’s second
“twin-consideration,” the respect for a state’s sovereignty in enacting its own penal system, would
thus also be furthered by interpreting § 19-2520E in the way it was clearly intended by the
Legislature: to limit the authority to impose multiple enhancements when the underlying crimes
occur in an indivisible course of conduct. Ice, 555 U.S. 160, ---, 129 S. Ct. 711, 717.
Further, I fail to see how the absence of authority to impose a second enhancement can
possibly “reduce” a sentence. By definition, a sentencing enhancement increases the maximum
penalty. Black’s Law Dictionary defines “enhancement” as “[t]he act of augmenting.” Black’s
Law Dictionary 609 (9th ed. 2009). A finding that the crimes occurred during an indivisible course
of conduct simply means that the court does not have the authority to increase or augment the
sentence. That finding does not itself “reduce” the sentence. Failure to augment is not equivalent
The Majority’s interpretation of indivisibility as a fact that only reduces the sentence falls
into the same “formalistic” argument that Arizona attempted to put forth in Ring, merely focusing
on the form of the words in the statute rather than their obvious effect to limit the authority of the
sentencing court to impose multiple enhancements. By the State’s and the Majority’s logic, the
Legislature could simply rewrite facts that have the effect of authorizing an increase in the
maximum penalty on the defendant by phrasing them in the negative and then declaring that they
only “reduce” the penalty in order to circumvent the protections of Apprendi. For example, the
Legislature could choose to say that every aggravated assault carries a maximum penalty of thirty
years, but if the defendant did not use a firearm during the commission of the assault, he can only
be sentenced for fifteen years. Thus, under the logic of the State and the Majority, the fact that a
defendant used a firearm would not be a fact that increases the maximum penalty because a
formalistic reading of the words would lead to the conclusion that “not carrying a firearm” only
decreases the penalty. This ignores the obvious purpose and effect of a statute such as that
hypothetical one, just as interpreting indivisibility as a fact that merely “reduces” the maximum
penalty ignores that the purpose of § 19-2520E is to limit the authority of the sentencing court to
impose a second enhancement.
To take this hypothetical a logical step further, under this rationale the Legislature could
pass a statute where the crime of causing death was subject to a maximum penalty of life in prison,
but the judge could reduce that maximum penalty if the defendant did not intend to kill or killed in
the heat of passion. By the State’s argument, not having the intent to kill, or killing in the heat of
passion, would merely be facts that would reduce the penalty for the crime. In Apprendi, the
Supreme Court specifically stated that such a statute would unconstitutionally allow state
legislatures to “circumvent” constitutional protections “merely by ‘redefin[ing] the elements that
constitute different crimes, characterizing them as factors that bear solely on the extent of
punishment.’” Apprendi, 530 U.S. at 485, 120 S. Ct. at 2360 (quoting In re Winship, 397 U.S. 358,
398, 90 S. Ct. 1068, 1881 (1970) (brackets in original)). Interpreting the fact of indivisibility as one
that only decreases the maximum penalty focuses on form rather than effect, and would allow the
State to circumvent the protections of Apprendi.
Carrying a firearm is a fact that authorizes a sentence enhancement because the Legislature
has deemed that act one that increases the defendant’s culpability for the crime. Committing a
murder with the intent to kill rather than in the heat of passion similarly increases a defendant’s
culpability, thus authorizing a greater punishment for that more culpable crime of murder rather
than the less culpable crime of manslaughter. Just the same, committing two crimes in divisible
courses of conduct has been deemed by the Legislature to be more egregious than committing those
crimes in one indivisible course of conduct. The district court does not have the authority to impose
a second enhancement if the crimes were committed in one indivisible course of conduct. The
district court may only impose the second enhancement if the crimes were committed in divisible
courses of conduct, thereby increasing the defendant’s culpability in the same way that carrying a
firearm or acting with the intent to kill would.
The Supreme Court has addressed that these types of facts, ones that go to the way the
offense itself was committed, are exactly the type of facts that Apprendi requires to be found by a
jury, in contrast to facts that focus on the characteristics of the offender. In its recent decision in
United States v. O’Brien, --- U.S. ---, 130 S. Ct. 2169 (2010) the Court noted the important
difference between a fact that constitutes a “sentencing factor” which does not implicate Apprendi,
and a fact that must be considered an element of the offense under Apprendi. In interpreting a
federal statute in which carrying a firearm during an offense was a crime punishable by a minimum
of five years, but the mandatory minimum was increased to thirty years if the firearm was a
machinegun, the Court stated:
Sentencing factors traditionally involve characteristics of the offender—such as
recidivism, cooperation with law enforcement, or acceptance of
responsibility. [Castillo v. United States, 530 U.S. 120, 126, 120 S. Ct. 2090, 2093–
94 (2000)]. Characteristics of the offense itself are traditionally treated as elements,
and the use of a machinegun under § 924(c) lies “closest to the heart of the crime at
issue.” Id., at 127, 120 S. Ct. [at 2094].
--- U.S. at ---, 130 S. Ct. at 2176 (emphasis added). Divisibility and indivisibility have nothing to
do with the offender and are also a “characteristic of the offense itself” because they go straight to
the way in which the offense was committed. In contrast, the Court in Apprendi, and Justice
Eismann in his concurrence, noted that a fact such as whether the defendant is a “war veteran”
would be a typical mitigating sentencing factor that does not implicate the Apprendi rule. This is
directly in line with the Court’s later authority in O’Brien, because the fact that a defendant is a war
veteran is clearly a characteristic of the offender and not of the offense. Divisibility of the crimes is
a characteristic of the offense that increases the sentence on a defendant by authorizing a second
enhancement. Under Apprendi, it was a fact that should have been raised by the State, submitted to
the jury, and proved beyond a reasonable doubt.
Thus, I would find error in the State’s failure to submit the fact of divisibility to the jury.
The Failure to Submit the Issue of Divisibility to the Jury Was Fundamental Error.
Under State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), if an alleged error was not
followed by a contemporaneous objection, it will only be reviewed by this Court under the
fundamental error doctrine. Id. at 228, 245 P.3d at 980. This doctrine involves a three prong
inquiry by which the defendant must persuade the appellate court that the alleged error: (1) violates
one of the defendant’s unwaived constitutional rights; (2) plainly exists, without the need for
additional information not contained within the appellate record; and (3) was not harmless. Id.
Because I believe the fact of divisibility increases the maximum authorized statutory penalty for
multiple enhancements, then under Apprendi, I believe Peregrina’s Sixth Amendment rights were
violated by the State’s failure to submit the issue to the jury. Apprendi, 530 U.S. at 476, 120 S. Ct.
As stated in the section above, Peregrina did not waive these rights by intentionally
The error also plainly exists because it is clear from the record that a determination on
divisibility was not submitted to the jury.
Finally, the error was not harmless. In order for an error to be deemed harmless, this Court
must declare a belief beyond a reasonable doubt that the error did not affect the verdict. Perry, 150
Idaho at 227, 245 P.3d at 979. Here, because I believe that the jury was not instructed on an issue
that should have been submitted to it under Apprendi, the error was not harmless unless, pursuant to
Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999), “the reviewing court concludes beyond
a reasonable doubt that the omitted element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same absent the error.” Perry, 150 Idaho
at 223, 245 P.2d at 975 (quoting Neder, 527 U.S. at 17, 119 S. Ct. at 1837). Here, the State did not
provide “overwhelming evidence” that indicated the two batteries occurred in divisible courses of
conduct. United States v. Cotton, 535 U.S. 625, 634, 122 S. Ct. 1781, 1787 (2002) (Apprendi error
was harmless because there was “overwhelming and uncontroverted evidence” of the fact that
should have been charged and submitted to the jury). In fact, a review of the record shows that the
evidence, if anything, indicated that the crimes likely did occur in the same indivisible course of
conduct, although no determination either way was made by the jury. 1 The error was not harmless.
I believe that the State was required to prove divisibility beyond a reasonable doubt and
submit the issue to the jury before the district court had the authority to impose a second
enhancement. It did not do so. Therefore, I would vacate his sentence and remand to the district
court for a jury determination as to whether the crimes occurred during divisible courses of conduct,
followed by resentencing consistent with that jury determination.
HORTON, J., dissenting.
In addition to the debate between the majority and Justice Warren Jones, I believe that there
is a second, related question that merits discussion. The first debate is whether the “indivisible
course of conduct” question presented by I.C. § 19-2520E, is an element of a second sentence
enhancement. Justice Jones believes that it is. I join the majority in concluding that it is not. The
second question, in my view, is whether application of I.C. § 19-2520E is a factual question for the
jury. Both the majority and Justice Jones believe that it is not. In this regard, I part company from
all my colleagues, as I would hold that I.C. § 19-2520E is an affirmative defense, to be raised by the
Mr. Ramirez testified that right after he felt Mr. Garcia fall down and hit the back of his legs, he turned around and
saw Peregrina pointing the gun down at Mr. Garcia. Once Mr. Ramirez saw Peregrina pointing down at Mr. Garcia,
Mr. Ramirez took a step toward Peregrina and was shot by him. Jay Cogle, an eyewitness, testified that he saw
Peregrina strike Mr. Garcia, “br[ing] his hand down towards [Mr. Garcia]” and when Mr. Ramirez lunged at Peregrina;
he saw Peregrina shoot Mr. Ramirez in the chest. Frances Garcia, another eyewitness, testified that she saw Mr. Garcia
fall down, saw Mr. Ramirez rush to him and saw Mr. Ramirez get shot in the chest.
defendant and which, having been raised, requires that a jury make the factual determination
whether the two substantive crimes “arose out of the same indivisible course of conduct.” Where,
as in this case, the issue has not been raised, the defense is waived.
I recognize at the outset of this discussion that neither the statutes nor our prior caselaw
addressing I.C. § 19-2520E are particularly helpful.
Idaho Code § 19-2520 provides for an
enhanced penalty of fifteen years where the defendant “displayed, used, threatened, or attempted to
use a firearm or other deadly weapon while committing or attempting to commit” a variety of
felonies. The statute requires that the firearm enhancement be charged in the indictment and that
the use or attempted use of the firearm be found to be true by the trier of fact. I.C. § 19-2520.
However, I.C. § 19-2520E states:
Notwithstanding the enhanced penalty provisions in sections 19-2520, 19-2520A,
19-2520B and 19-2520C, Idaho Code, any person convicted of two (2) or more
substantive crimes provided for in the above code sections, which crimes arose out
of the same indivisible course of conduct, may only be subject to one (1) enhanced
Section 19-2520E does not specify that the “indivisible course of conduct” is to be found at
sentencing or by the trier of fact. Nor is it labeled as an element of a second enhancement, a
defense, or a mitigating circumstance.
None of our prior caselaw addresses whether the U.S. Supreme Court’s holding in Apprendi
v. New Jersey, 530 U.S. 466 (2000), applies to I.C. § 19-2520E. Indeed, the caselaw is somewhat
inconsistent. The majority places great weight on this Court’s earlier statement that § 19-2520E
“limits the otherwise mandatory duty of the district court to enhance “multiple” sentences under
I.C. § 19-2520.” State v. Johns, 112 Idaho 873, 882, 736 P.2d 1327, 1336 (1987). Johns described
the resolution of the question whether the substantive crimes are divisible as a “factual
determination.” Id. The Court continued, describing the facts of the offenses, before concluding
that the district court “was amply justified in sentencing Johns upon the premise that the acts of
murder and robbery were divisible, rather than indivisible.” Id.
However, at no point in Johns did the Court consider why I.C. § 19-1902, providing for a
trial by jury on all issues of fact, was inapplicable. In State v. McLeskey, 138 Idaho 691, 697, 69
P.3d 111, 117 (2003), the Court stated that I.C. § 19-2520E:
prohibits imposing more than one enhanced penalty where a person is convicted of
two or more substantive crimes that arose out of the same indivisible course of
conduct. It does not prohibit charging more than one enhanced penalty even if the
crimes charged all arose out of the same indivisible course of conduct. If, in that
circumstance, a defendant is convicted of more than one crime for which an
enhanced penalty is charged, then at sentencing the court may only impose one
While this statement tends to support the majority’s view that the finding of an “indivisible course
of conduct” is to occur at sentencing, it provides no rationale for reaching that conclusion.
The only explicit description of the nature of I.C. § 19-2520E comes in State v. Clements,
148 Idaho 82, 218 P.3d 1143 (2009), which describes it as providing a “statutory, fact-based
defense.” 2 Nevertheless, both this Court and the Idaho Court of Appeals have felt free to review
whether two enhancements were, in fact, the result of an indivisible course of conduct. E.g., Johns,
112 Idaho at 882, 736 P.2d at 1336; 3 State v. Custodio, 136 Idaho 197, 207-08, 30 P.3d 975, 985-86
(Ct. App. 2001).
In my view, we are thus left with unanswered questions regarding the nature of I.C. § 192520E and the constitutional and statutory requirements regarding the burdens of production and
proof. While the majority believes that I.C. § 19-2520E is a mitigating circumstance and Justice
Jones believes that it is an element of a second sentence enhancement, I read the statute as an
affirmative defense. I would therefore hold that Mr. Peregrina bore the burden of raising that
defense and, by failing to raise the defense before the trial court, waived it.
Is “divisibility” an element of the offense?
I begin with Justice Jones’ dissent, as the constitutional basis for his dissent is the first
hurdle for any interpretation of the statute. Admittedly, the text of I.C. § 19-2520E does not
explicitly state whether it is an element, a defense, or a mitigating circumstance. However, to the
extent that it does indicate the Legislature’s intent, the statute’s text certainly leans against reading
the statute as creating an element of some “second enhanced penalty” provision. The statute
provides an exception from liability premised on the indivisibility of the course of conduct. That is,
it is the lack of divisibility that precludes imposition of a second enhancement, rather than
divisibility that permits imposition of the second enhancement. I therefore agree with the majority
that I.C. § 19-2520E does not increase the potential penalty but, instead, reduces the penalty upon a
Despite Justice Jones’ concurrence in that case, he now describes that statement as dictum. While that statement may
qualify as dictum, it is, as I argue below, the best description of the nature of I.C. § 19-2520E.
The opinion in Johns is unclear as to the standard of review that the Court was applying. The Court’s language that
the “trial court was amply justified in sentencing Johns upon the premise that the acts of murder and robbery were
divisible, rather than indivisible,” Johns, 112 Idaho at 882, 736 P.2d at 1336, can be read as an application of the
substantial, competent evidence standard typically applied to questions of fact. However, the Court’s statement that the
question of divisibility “is a factual question which requires us to review the record” and the lengthy discussion of the
underlying facts may also be interpreted as de novo review.
showing that the substantive offenses arose out of the same indivisible course of conduct.
“[T]he Due Process clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364 (1970). However, the same is not true of defenses.
Traditionally, due process has required that only the most basic procedural
safeguards be observed; more subtle balancing of society’s interest against those of
the accused have been left to the legislative branch. We therefore will not disturb the
balance struck in previous cases holding that the Due Process Clause requires the
prosecution to prove beyond a reasonable doubt all of the elements included in the
definition of the offense of which the defendant is charged. Proof of the
nonexistence of all affirmative defenses has never been constitutionally required;
and we perceive no reason to fashion such a rule in this case and apply it to the
statutory defense at issue here.
Patterson v. New York, 432 U.S. 197, 210 (1977). See also State v. Mubita, 145 Idaho 925, 942,
188 P.3d 867, 884 (2008) (requiring a defendant to bear the burden of proving an affirmative
defense does not violate due process) (citing Martin v. Ohio, 480 U.S. 228, 235-36 (1987);
Montana v. Egelhoff, 518 U.S. 37, 42, 56 (1996)).
While this Court has not discussed the distinction between elements of a crime and
mitigating factors, it has discussed the distinction between elements and defenses:
the general rule is that the burden is upon the state in a criminal case to negative any
exception or proviso appearing in that part of the statute which defines the crime if
the exception is ‘so incorporated with the language describing and defining the
offense that the ingredients of the offense cannot be accurately and clearly described
if the exception is omitted * * *.’
State v. Segovia, 93 Idaho 208, 210, 457 P.2d 905, 907 (1969) (quoting 41 Am. Jur. 2d Indictments
and Informations § 98). In State v. Huggins, 105 Idaho 43, 665 P.2d 1053 (1983), the Court
considered an appeal from a judgment of acquittal on a charge of assault to commit rape entered
because the State had failed to present evidence of the lack of marital relationship between Huggins
and the victim. This Court considered that the rape statute, I.C. § 18-6101, had been amended to
eliminate reference to a marital relationship. It also considered a separate statute, I.C. § 18-6107,
which provided that one could not be convicted of raping a spouse except in instances where
divorce or legal separation proceedings had been initiated or the parties had lived apart for more
than six months. The Court determined that the latter statute was an exception to the rape statute,
and that the absence of a marital relationship was not an element of the crime of rape. Accordingly,
the Court held that the defendant bore the burden of presenting and proving the existence of a
marital relationship as an affirmative defense. Id. at 45, 665 P.2d at 1055. See also State v. Nab,
113 Idaho 168, 175, 742 P.2d 423, 430 (Ct. App. 1987) (distinguishing between elements of an
offense and exceptions to liability based upon whether they are found or referenced in the statute
defining the offense).
Nothing about the text or structure of I.C. §§ 19-2520 and 19-2520E is distinguishable from
the statutes considered in Huggins. Just as there is no indication that the Legislature intended the
parties’ non-marital status to be an element of rape in Huggins, so too, there is no textual or
structural suggestion that divisibility was intended to be an element of a second enhancement.
Idaho Code § 19-2520 provides the requirements for a firearm sentence enhancement and makes no
reference to I.C. § 19-2520E. I therefore concur with the majority that the divisibility of the course
of conduct giving rise to the two underlying substantive offenses is not an element of a second
firearm enhancement under I.C. § 19-2520E.
Does I.C. § 19-2025E provide a defense or a mitigating circumstance?
However, even if I.C. § 19-2520E is not an element of some “second firearm enhancement”
that still does not resolve the question of whether the statute provides a fact-based defense to a
second enhancement or whether it is a mitigating circumstance for consideration by the trial judge
at sentencing. 4 As noted above, I.C. § 19-2520E does not label itself a mitigating circumstance or a
defense to be decided by the jury. Nor does it assign the duty of applying I.C. § 19-2520E to the
judge or to the jury. As likewise noted above, our prior caselaw may reasonably be read to support
Superficially, the majority’s position, that I.C. § 19-2520E is a mitigating circumstance to
be considered by the trial court, is somewhat attractive. Idaho Code § 19-2520 provides for an
“extended term of imprisonment” rather than defining an altogether new offense. The fact giving
rise to that extended term is, therefore, an aggravating circumstance. Logically, a factor that would
reduce the punishment for one found guilty of using a firearm in one of the felonies specified in I.C.
§ 19-2520 may be considered to be a mitigating circumstance.
Mitigating circumstances are
usually considered by the trial judge as part of sentencing. State v. Moore, 93 Idaho 14, 17, 454
P.2d 51, 54 (1969) (describing the trial court’s role in weighing mitigating evidence). That I.C.
§ 19-1902 requires that all issues of fact be tried by a jury does not change this as I.C. § 19-1901
There is a third possibility, that I.C. § 19-2520E is a mitigating circumstance, albeit one to be found by the jury. As
this reading is indistinguishable in practical terms from viewing it as a defense, I do not discuss that possibility
defines issues of fact as those concerning guilt or innocence to be decided at trial. Idaho Code § 192520E is solely concerned with sentencing. The mitigating factors included in I.C. § 19-2521, such
as whether the defendant acted under strong provocation, also require a factual finding by the court
in sentencing but they do not fall under the scope of issues delegated to the jury by I.C. § 19-1901.
However, despite this logic, I would nevertheless hold that I.C. § 19-2520E is a defense to
be raised by the party asserting it. There are two main reasons for this position.
First, mitigating circumstances are generally factors to be weighed by the party making the
sentencing determination as part of the discretionary determination of the sentence. E.g., State v.
Cobler, 148 Idaho 769, 773, 229 P.3d 374, 378 (2010) (finding no abuse of discretion upon a
weighing of mitigating and aggravating factors in sentencing); State v. Stover, 140 Idaho 927, 932,
104 P.3d 969, 974 (2005) (emphasizing the discretionary nature of weighing mitigating and
aggravating factors). Even in death penalty cases where there is only a binary choice between life
without parole and a sentence of death, the jury weighs the mitigating factors to determine whether
those mitigating circumstances render the death penalty unjust. I.C. § 19-2515(3)(b). See also
State v. Dunlap, 125 Idaho 530, 537, 873 P.2d 784, 791 (1993) (describing the weighing process).
In contrast, I.C. § 19-2520E allows for no exercise of discretion. If two aggravated felonies are the
result of a single, indivisible course of conduct, the defendant is subject to only one fifteen-year
sentence enhancement. If those two aggravated felonies are divisible, the defendant is subject to
both. There is simply no weighing or discretion involved. As a result, the assumption that I.C.
§ 19-2520E defines a mitigating circumstance simply because it concerns sentencing does not
An affirmative defense is defined as a “defendant’s assertion of facts and arguments that, if
true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are
true.” Black’s Law Dictionary 482 (9th ed. 2009). Under I.C. § 19-2520E, a defendant may defeat
a count advancing a second sentencing enhancement upon a showing that the underlying offenses
arose from an indivisible course of conduct.
Finding that I.C. § 19-2520E is an affirmative defense which must be presented to, and
decided by, a jury is consistent with I.C. § 19-1902, which provides that “[i]ssues of fact must be
tried by jury.” This statute gives effect to the related guarantees of trial by jury and resolution of
factual questions by juries found in art. 1, § 7 and art. V, § 1 of the Idaho Constitution. A question
of fact is triggered upon a plea of not guilty. I.C. § 19-1901(1). Mr. Peregrina was charged with
two sentence enhancements; when he pled not guilty to the charges against him, the factual issues
were at issue.
Second, even if I.C. § 19-2520E were viewed as a mitigating circumstance, that does not
automatically mean that it would be a finding for the judge. Not all mitigating circumstances are
weighed by the judge, for example in the weighing of mitigating and aggravating circumstances in
determining a sentence of death. I.C. § 19-2515. The death penalty statute also indicates that,
where the law sets forth both aggravating and mitigating circumstances, it generally charges the
same decision-maker with assessing those circumstances. Idaho Code § 19-2515 commits the
assessment of aggravating and mitigating circumstances to the jury, while I.C. § 19-2521 commits
that assessment to the judge. Based upon that parallel structure within chapter 25, Title 19, I would
hold that the Legislature intended that the jury find both the existence of the aggravating
circumstance (the use of a firearm) and the mitigating circumstance (the indivisibility of the
Statutory construction . . . is a holistic endeavor. A provision that may seem
ambiguous in isolation is often clarified by the remainder of the statutory schemebecause the same terminology is used elsewhere in a context that makes its meaning
clear, or because only one of the permissible meanings produces a substantive effect
that is compatible with the rest of the law . . . .
United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Ass’n, Ltd., 484 U.S. 365, 371 (1988).
Given the parallel structure for other aggravating and mitigating circumstances within this chapter, I
do not believe that the Legislature intended to abandon that structure in this instance without
indicating to the courts tasked with applying the statutes that it was doing so.
Given this combination of factors: the absence of any statement by the Legislature in
defining I.C. § 19-2520E or assigning the role of finding the relevant facts; the fact that the results
of that finding are not discretionary; and the fact that in considering mitigating factors, Idaho
statutes generally commit aggravating and mitigating factors to the same party, I would find that
I.C. § 19-2520E is a defense which, when properly raised, is to be decided by the jury.
Because I.C. § 19-2520E is an affirmative defense, Peregrina waived that defense by
failing to raise it before the trial court.
There is no dispute that Mr. Peregrina never requested a jury instruction on the question of
whether his actions constituted an “indivisible course of conduct.” Nor was that part of his defense.
“As to a defense, a defendant is generally required to put the defense in issue by some means
himself, as, for example, by introducing evidence or by specially pleading.” Huggins, 105 Idaho at
45, 665 P.2d at 1055 (quoting Rogers v. State, 373 N.E.2d 125, 127 (Ind. 1978)). Having failed to
do that, Mr. Peregrina waived his defense that his two enhanced convictions were part of an
indivisible course of conduct.
Because I would hold that Mr. Peregrina waived the defense provided by I.C. § 19-2025E, I
would affirm the trial court’s decision. I therefore respectfully dissent from the majority’s direction
that this matter be remanded to the district court for further proceedings.