State v. Viramontes

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Supreme Court
) No. CR-01-0296-PR
Appellee, )
) Court of Appeals
v. ) No. 2 CA-CR 00-0227
)
SAMUEL PHILLIP VIRAMONTES, ) Pima County
) Superior Court
) No. CR-67216
Appellant. )
) Consolidated with
___________________________________)
)
STATE OF ARIZONA, ) Supreme Court
) No. CR-01-0414-PR
Appellee, )
) Court of Appeals
v. ) No. 2 CA-CR 99-0373
)
) Pima County
JASON JARED BECK, ) Superior Court
) No. CR-60232
Appellant. )
) O P I N I O N
___________________________________)
VIRAMONTES

Appeal from Superior Court of Pima County
The Honorable Michael Cruikshank, Judge
REMANDED FOR RESENTENCING

Court of Appeals, Division Two
200 Ariz. 452, 27 P.3d 809 (2001)
VACATED
_______________________________________

BECK

Appeal from Superior Court of Pima County
The Honorable Michael Brown, Judge
REMANDED FOR RESENTENCING

Court of Appeals, Division Two
Memorandum Decision Dated September 25, 2001
VACATED
VIRAMONTES
Isabel G. Garcia, Pima County Legal Defender Tucson
By Robb P. Holmes

Attorneys for Appellant

Janet Napolitano, Arizona Attorney General Phoenix
By Randall M. Howe Phoenix
Cynthia Ryan Tucson
Attorneys for Appellee

BECK

Isabel G. Garcia, Pima County Legal Defender Tucson
By Joy Athena
Attorneys for Appellant

Janet Napolitano, Arizona Attorney General Phoenix
By Randall M. Howe Phoenix
Diane M. Acosta Tucson
Attorneys for Appellee

_________________________________________________________________

Z L A K E T, Justice (Retired)

¶1 Samuel Viramontes and Jason Beck were separately
convicted of first degree murder and each received a natural life

sentence. We consolidated their cases and granted review without

oral argument to decide whether a trial court, in a first degree

murder case where the state has not sought the death penalty, may

consider in sentencing those aggravating factors provided for by

Arizona Revised Statutes section 13-702. We have jurisdiction

pursuant to Arizona Constitution, Article VI, Section 5(3) and

Arizona Rule of Criminal Procedure 31.19.

¶2 Viramontes was convicted of killing Kevin Stratton. The

state did not seek the death penalty and the trial court sentenced

him to natural life in prison, having found four aggravating

factors: 1) the presence of an accomplice, 2) the defendant’s
failure to avail himself of past rehabilitative efforts, 3) his

juvenile history, and 4) a prior conviction. The court of appeals

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affirmed the sentence, holding that it was permissible for the

trial court to utilize the aggravating factors set forth in

section 13-702. State v. Viramontes, 200 Ariz. 452, 455, 27 P.3d

809, 812 (App. 2001).

¶3 Beck was convicted of kidnapping and killing David
Nickell. The state did not seek the death penalty. The trial

court relied on the following factors in handing down a natural

life sentence: 1) Beck’s 34 point I.Q. advantage over his co-

defendant, 2) his lack of remorse, 3) the cruelty involved in the

killing, 4) the significant emotional harm to the victim, 5) the

use of a deadly weapon, 6) Beck’s temperament and personality, and

7) the presence of an accomplice. In a memorandum decision, the

court of appeals affirmed the sentence based on its previous

opinion in Viramontes.
ANALYSIS

¶4 We review issues of statutory construction de novo.

Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230

(1996).

¶5 Arizona Revised Statutes section 13-1105(C) states that
"[f]irst degree murder is a class 1 felony and is punishable by

death or life imprisonment as provided by § 13-703." Section 13-

703(A), as it was in effect at all times pertinent to this case,1

1
After these defendants were sentenced, section 13-703 was
amended by Laws 2001, Ch. 260, § 1. The legislature inserted a new
subsection B, redesignated existing subsections B to H as C to I,
and modified internal subsection references to conform to the
reorganization of the section. The wording of the relevant
sections remained the same. Additionally, on August 1, 2002 the

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reads in part as follows: "A person guilty of first degree murder

as defined in § 13-1105 shall suffer death or imprisonment . . . in

accordance with the procedures provided in subsections B through G

of this section." Subsection (A) further specifies that a person

convicted of first degree murder is subject to 1) death, 2) natural
life in prison, or 3) life in prison with the possibility of

parole.

¶6 Section 13-702, on the other hand, explicitly limits its

reach to classes 2 through 6 felonies. Moreover, subsection F

states: "Nothing in this section affects any provision of law that

imposes the death penalty, [or] that expressly provides for

imprisonment for life." A.R.S. § 13-702(F).

¶7 Viramontes and Beck argue that the plain language of

section 13-703(A) requires the application of its aggravators and
sentencing procedures in all first degree murder convictions. The

state, on the other hand, contends that the statute is implicated

only if the death penalty has been sought--that is, where the trial

court must choose either life or death. It does not apply, says

the state, where the only choice is between 1) natural life and 2)
life with the possibility of parole.

¶8 "[W]hen the language [of a statute] is clear and

unequivocal, it is determinative of the statute’s construction."

Arizona Legislature passed Senate Bill 1001, which further amended
section 13-703, renumbered section 13-703.01 as 13-703.04, added
new sections 13-703.01 and -703.05, and amended section 13-1105.
Most of these changes related to death sentences, in response to
Ring v. Arizona, 122 S. Ct. 2428 (2002).

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Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223

(1991). In the absence of ambiguity, we must give effect to that

language and may not employ other means of statutory

interpretation. Id. See also Canon School Dist. No. 50 v. W.E.S.

Constr. Co., Inc., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994).
¶9 We believe that sections 13-702, 13-703, and 13-1105 are

clear. Section 13-1105 provides that any person guilty of first

degree murder must be sentenced pursuant to section 13-703.

Section 13-703(A) expressly states that a person guilty of first

degree murder shall suffer death or imprisonment pursuant to its

terms. And, section 13-702 expressly applies only to class 2

through class 6 felonies, with subsection (F) thereof stating that

the statute has no effect on first degree murder sentencings.

¶10 The state tries to make much of the disjunctive language
in subsections 13-703(A) and (E). Both speak in terms of death or

life imprisonment. Thus, the state argues, the statute applies

only in cases where the actual choice to be made is between death

and life. We believe that such an interpretation is too

restrictive and overlooks the clear language mandating that a
sentencing determination for first degree murder be made pursuant

to section 13-703. Nothing in the statutes expresses or implies

that the procedures and aggravators of section 13-703 apply only to

cases in which the state has sought the death penalty. Rather, it

is clearly the nature and classification of the crime that

determines the appropriate sentencing statute.

¶11 The state argues that we should examine legislative

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history to properly construe the statute. While helpful under some

circumstances, a review of legislative history is generally

unnecessary and inappropriate where statutory language is without

ambiguity. Although we recognize that the impetus for significant

revision of section 13-703 was the United States Supreme Court
decision in a capital case, Furman v. Georgia, 408 U.S. 238, 92 S.

Ct. 2726 (1972), we cannot ignore the plain wording of our

statutes.

¶12 We agree with the court of appeals’ observation that

trial judges impose consecutive sentences every day amounting to

natural life in prison without the special sentencing procedures of

section 13-703. That fact, however, does not inform our decision

here. The statutes limit sentencing procedures in a non-capital

first degree murder case to those set forth in section 13-703. It
is not our place to pass on the wisdom of such limits; that is a

decision for the legislature.

¶13 Moreover, nothing presented to us indicates that the

legislature intended for non-capital first degree murder defendants

to be sentenced using those aggravators listed in section 13-702.
The court of appeals and the state rely on State v. Sproule, 188

Ariz. 439, 937 P.2d 361 (App. 1996), and State v. Guytan, 192 Ariz.

514, 968 P.2d 587 (App. 1998). But that reliance is misplaced.

First, neither of those cases is binding on this court. Second,

they are both easily distinguishable. In Sproule, the state sought

the death penalty. Following a hearing pursuant to section 13-703,

the trial judge determined that death was not warranted and ordered

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a natural life sentence. In Guytan, the defendant claimed that the

trial court had double counted factors from sections 13-702 and 13-

703 in sentencing him to natural life. The Guytan court did not

explicitly approve of the use of aggravators from both statutes; it

simply rejected the defendant’s claim, relying on Sproule.
¶14 Finally, the court of appeals here rejected Viramontes’

claim that the aggravators must be proven beyond a reasonable

doubt. Viramontes, 200 Ariz. at 455, 27 P.3d at 811. We agree.

Section 13-703, as it was in effect at all times pertinent hereto,

makes no mention of an evidentiary standard of proof.

Nevertheless, we have consistently required aggravators to be

proven beyond a reasonable doubt in capital cases. See, e.g.,

State v. Jordan, 126 Ariz. 283, 286, 614 P.2d 825, 828 (1980); see

also State v. Brewer, 170 Ariz. 486, 500, 826 P.2d 783, 797 (1992);
State v. Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67 (1983). In

non-capital cases, aggravators need only be supported by reasonable

evidence. See State v. Meador, 132 Ariz. 343, 347, 645 P.2d 1257,

1261 (App. 1982); Matter of Varbel, 182 Ariz. 451, 455 n.7, 897

P.2d 1337, 1341 n.7 (1995). This would include aggravators in non-
capital first degree murder cases.

DISPOSITION

¶15 Because the aggravators in section 13-703 are the only

ones permitted in a first degree murder prosecution where the state

has not sought the death penalty, these cases are remanded for

resentencing. The court of appeals’ decisions are vacated.

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____________________________________
THOMAS A. ZLAKET, Justice (Retired)
CONCURRING:

____________________________________
CHARLES E. JONES, Chief Justice

____________________________________
RUTH V. MCGREGOR, Vice Chief Justice

____________________________________
STANLEY G. FELDMAN, Justice

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