State v. Lebario

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUAN JESUS LEBARIO, Appellant.

Nos. 1 CA-CR 13-0797
1 CA-CR 14-0007
(Consolidated)
FILED 3-31-2015

Appeal from the Superior Court in Maricopa County
No. CR2010-005401-001
The Honorable Peter C. Reinstein, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Arizona Attorney General's Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
 STATE v. LEBARIO
Decision of the Court

MEMORANDUM DECISION

Chief Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.

J O H N S E N, Judge:

¶1 A jury convicted Juan Jesus Lebario of theft of means of
transportation for stealing a vehicle at gunpoint. A few years later, another
jury convicted Lebario of armed robbery and aggravated assault in
connection with the same series of events. For the following reasons, we
vacate the armed robbery conviction and sentence but affirm the
aggravated assault conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

¶2 Lebario stole a bank teller's truck at gunpoint from the
parking lot of a Peoria bank.1 A woman who saw the theft followed Lebario
as he drove away in the truck. Lebario noticed the woman tailing him and
tried to elude her. Unsuccessful, he pulled over and stopped the truck. As
the woman stopped behind him, Lebario got out of the truck and aimed a
gun at her, causing her to flee.

¶3 Still at large the next day, Lebario drove past a police officer
on a highway near Tucson. The officer signaled Lebario to pull over, but
he kept driving. Eventually Lebario fired several gunshots at the officer
and drove away. A high-speed chase ensued, ending with Lebario's arrest
after his truck hit a row of spike strips.

¶4 A Pima County superior court jury convicted Lebario of
attempted first-degree murder, aggravated assault, drive-by shooting, theft
of means of transportation, fleeing from law enforcement vehicle and
criminal damage. All of the convictions were based on acts occurring near
Tucson, with the exception of theft of means of transportation, which was

1 Upon review, we view the facts in the light most favorable to
sustaining the jury verdicts and resolve all inferences against Lebario. See
State v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007).

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Decision of the Court

based on the theft of the bank teller's truck in Peoria. The Pima County
superior court sentenced Lebario to a total of 50 years' incarceration.

¶5 A few years later, Lebario was tried on additional charges in
Maricopa County arising from events surrounding the theft of the truck. A
jury convicted him of armed robbery and aggravated assault, and the court
imposed concurrent sentences of 15.75 years for armed robbery and 11.25
years for aggravated assault, to be served consecutively to the Pima County
sentences. The armed robbery conviction, like the Pima County conviction
of theft of means of transportation, was based on Lebario's theft of the bank
teller's truck at gunpoint.

¶6 Lebario filed a timely appeal from the Maricopa County
convictions. He does not dispute his conviction and sentence for
aggravated assault, but argues that his armed robbery conviction should be
vacated because, among other reasons, it violates the prohibition against
double jeopardy. This court has jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution, and Arizona Revised Statutes sections 12-
120.21(A)(1), 13-4031, -4033(A) (2015).2

DISCUSSION

¶7 This court "review[s] claims of double jeopardy de novo."
State v. Braidick, 231 Ariz. 357, 359, ¶ 6 (App. 2013). The double jeopardy
provisions of the United States and Arizona constitutions prohibit
subsequent prosecution for a greater offense once a defendant has been
tried on a lesser-included offense. State v. Mounce, 150 Ariz. 3, 5 (App. 1986).
In State v. Garcia, 235 Ariz. 627, 631, ¶ 11 (App. 2014), issued after the
Maricopa County superior court sentenced Lebario in this case, this court
held that theft of means of transportation is a lesser-included offense of
armed robbery. Under Garcia, because Lebario first was convicted in Pima
County of the lesser-included offense of theft of means of transportation,
his subsequent armed robbery conviction in Maricopa County – based on
the same incident – violates the prohibition against double jeopardy.

¶8 The State concedes that, pursuant to Garcia, this court should
vacate Lebario's armed robbery conviction and sentence. It argues,
however, that this court should vacate and remand the sentence imposed
in the Maricopa County matter on the aggravated assault conviction. The
State contends that absent the armed robbery conviction, the court might

2 Absent material revisions after the date of an alleged offense, we cite
a statute's current version.

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have imposed a greater sentence for the aggravated assault. But during the
sentencing hearing, the superior court described what it had considered in
imposing the respective sentences, and nothing in the record suggests its
imposition of one sentence was influenced by the other. See State v. Burns, 231 Ariz. 563, 565-66, ¶¶ 11-15 (App. 2013) (declining to remand for
resentencing on companion charge where record did not indicate that
court's sentencing decision on one charge was related to its decision on the
other). The superior court weighed aggravating and mitigating factors and
imposed a presumptive sentence for the aggravated assault, which is what
the State requested. Accordingly, this court will not grant the State's
request to vacate and remand that sentence.

CONCLUSION

¶9 For the foregoing reasons, Lebario's armed robbery
conviction and sentence are vacated, but his Maricopa County aggravated
assault conviction and sentence are affirmed.

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