State v. Diego-Domingo
Not Reported in P.3d, 2009 WL 2382133
Ariz.App. Div. 1,2009.
August 04, 2009 (Approx. 3 pages)
Not Reported in P.3d, 2009 WL 2382133 (Ariz.App. Div. 1)
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Only the Westlaw citation is currently available.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP
28(c); Ariz. R.Crim. P. 31.24
Court of Appeals of Arizona,
Division 1, Department C.
STATE of Arizona, Appellee,
v.
Gilberto DIEGO-DOMINGO, Appellant.
No. 1 CA-CR 08-0527.
Aug. 4, 2009.
West KeySummary
48A Automobiles
48AVII Offenses
48AVII(A) In General
48Ak332 k. Driving While Intoxicated. Most Cited Cases
135H Double Jeopardy
135HV Offenses, Elements, and Issues Foreclosed
135HV(A) In General
135Hk139 Particular Offenses, Identity of
135Hk142 k. Motor Vehicle and Traffic Offenses. Most Cited Cases
The offenses were not the same under the governing same elements test, so the defendant's
prosecution and conviction for aggravated driving under the influence (DUI), after he plead guilty
to driving on a suspended license, was not barred by double jeopardy. The misdemeanor offense
of driving on a suspended license required that the State prove that the defendant was driving
on a public highway, an element not found in aggravated DUI, whereas the offense of
aggravated DUI required the State prove that the defendant was driving or in actual physical
control of a vehicle while impaired by alcohol. A.R.S. § 28-3473(A); A.R.S. § 28-1381(A)(1), (2).
Appeal from the Superior Court in Maricopa County; Cause No. CR2007-030335-001 SE; The
Honorable Carolyn K. Passamonte, Judge Pro Tempore. AFFIRMED.
Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital
Litigation Section, Sarah E. Heckathorne, Assistant Attorney General, Phoenix, Attorneys for
Appellee.
James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defendant,
Phoenix, Attorneys for Appellant.
MEMORANDUM DECISION
JOHNSEN, Judge.
*1 ¶ 1 Gilberto Diego-Domingo appeals his convictions and sentences on two counts of
aggravated driving under the influence of alcohol. For the reasons that follow, we find no error
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 2 Diego-Domingo pled guilty in Mesa Municipal Court to driving on a suspended license,
leaving the scene of an accident and having no proof of insurance. Five months later, the State
charged Diego-Domingo by information filed in Maricopa County Superior Court with two felony
counts of aggravated driving under the influence of alcohol (“DUI”) in the same incident that
resulted in the guilty pleas in municipal court.
¶ 3 Before trial on the aggravated DUI counts, DiegoDomingo filed a motion to dismiss the
charges with prejudice on the ground that his guilty plea to the misdemeanor offense of driving
on a suspended license constituted a bar to a trial on the felony aggravated DUI charges,
pursuant to his constitutional right against double jeopardy. He argued that the charge of driving
on a suspended license under Arizona Revised Statutes (“A.R.S.”) section 28-3473(A) (2004)
was the same offense for double jeopardy purposes as aggravated DUI pursuant to A.R.S. § 281383(A)(1) (Supp.2008), because the former offense was a lesser-included of the latter.FN1 The
superior court denied the motion and Diego-Domingo's subsequent motion to reconsider.
FN1. Although some of the relevant statutes were amended after the date of Diego-Domingo's
offense, the revisions are immaterial to the disposition of this appeal. Thus, we cite to the
current published version of the statutes.
¶ 4 Diego-Domingo waived his right to a jury trial and submitted the matter for a bench trial.
The judge found DiegoDomingo guilty of the two counts of aggravated DUI, finding the evidence
proved beyond a reasonable doubt that Diego-Domingo had been driving a motor vehicle while
impaired by alcohol and with a blood alcohol level in excess of .08 percent within two hours of
the conduct, both while his driver's license was suspended. The judge suspended sentence and
imposed a three-year term of probation on each count, to be served concurrently, and ordered
Diego-Domingo to serve four months' incarceration. DiegoDomingo timely appealed.
DISCUSSION
A. Multiple Convictions.
¶ 5 Diego-Domingo first argues the superior court violated his federal constitutional right to
protection against double jeopardy by convicting him of aggravated DUI after he had pled guilty
to driving on a suspended license. We review claims of double jeopardy de novo. State v. Welch,
198 Ariz. 554, 555, ¶ 5, 12 P.3d 229, 230 (App.2000).
¶ 6 The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
provides that a person may not “be subject for the same offence to be twice put in jeopardy of
life or limb.” Double jeopardy bars multiple prosecutions and punishments for the same offense.
North Carolina v. Pearce, 395 U.S. 711, 717 (1969). In deciding whether a defendant has been
tried and punished twice for the same offense, we apply the “same-elements” test from
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in which we
inquire “whether each offense contains an element not contained in the other.” United States v.
Dixon, 509 U.S. 688, 696, 703-04, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (“same-elements”
test is the only test for double jeopardy bar, overruling the “same-conduct” test adopted by
Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)); see also State v.
Eagle, 196 Ariz. 188, 190, 994 P.2d 395, SI 6, 196 Ariz. 188, 994 P.2d 395, 397 (2000) (citing
Blockburger test). Under the Blockburger test, if each offense contains an element not present in
the other, they are not the same offense, and double jeopardy does not bar additional
punishment and successive prosecution. Dixon, 509 U.S. at 696; Eagle, 196 Ariz. at 192-93, ¶
18, 994 P.2d at 399-400.
*2 ¶ 7 In evaluating Diego-Domingo's argument, we must decide whether the driving on a
suspended license and aggravated DUI statutes each contain an element not present in the
other. See Eagle, 196 Ariz. at 190, ¶ 6, 994 P.2d at 397. We focus “on the statutory elements of
the two crimes charged, not on the factual proof that is offered or relied upon to secure a
conviction.” State v. Cook, 185 Ariz. 358, 361, 916 P.2d 1074, 1077 (App.1995).
¶ 8 Because each statute contains an element not found in the other, the offenses were not
the same for purposes of the double jeopardy bar. The misdemeanor offense of driving on a
suspended license, to which Diego-Domingo pled guilty in Mesa Municipal Court, has as its
elements: (1) driving a motor vehicle; (2) on a public highway; (3) on a suspended, revoked,
canceled or refused license or when a person is disqualified from driving. A.R.S. § 28-3473(A).
The felony offenses of aggravated DUI, of which Diego-Domingo was convicted in Maricopa
County Superior Court, have as their elements: (1) driving or being in actual physical control of a
vehicle; (2) while under the influence of and impaired by liquor or drugs, or with an alcohol
concentration of 0.08 or more within two hours of driving or being in actual physical control; (3)
while the person's driver's license or privilege to drive is suspended, canceled, revoked, refused,
or under specified restrictions. A.R.S. §§ 28-1381(A)(1), (2) (Supp.2008), -1383(A)(1).
¶ 9 Thus, the misdemeanor offense of driving on a suspended license requires that the State
prove that the person was driving on a public highway, an element not found in the felony
offense of aggravated DUI. A.R.S. § 28-3473(A). And the offense of aggravated DUI requires
that the State prove that the person was driving or in actual physical control of a vehicle while
impaired by alcohol or with an alcohol level of .08 or more within two hours of such conduct,
elements not found in the misdemeanor offense of driving on a suspended license. A.R.S. § 281381(A)(1), (2). The two offenses accordingly are not the same, and the double jeopardy bar
does not apply. See Cook, 185 Ariz. at 361, 916 P.2d at 1077; cf. State v. Robles, 213 Ariz. 268,
270-72, ¶¶ 4-10, 141 P.3d 748, 750-52 (App.2006); State v. Brown, 195 Ariz. 206, 208-09, ¶¶
6-9, 986 P.2d 239, 241-42 (App.1999).
¶ 10 Diego-Domingo relies on dicta in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65
L.Ed.2d 228 (1980), for the proposition that because he was convicted of aggravated DUI for
driving a vehicle, and not for being in actual physical control of the vehicle, his claim of double
jeopardy is “substantial.” See id. at 420.
¶ 11 Diego-Domingo's argument fails because it relies on the “same-conduct” test, a test that
has been overruled by the Supreme Court. The dicta in Vitale on which Diego-Domingo relies
formed the basis for the “same-conduct” test for double jeopardy adopted by Grady v. Corbin,
495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). See id. at 510, 515-16 (noting that
Vitale had “suggested” same-conduct test). In Dixon, the United States Supreme Court expressly
overruled the “same-conduct” test, finding it was “wholly inconsistent with earlier Supreme Court
precedent and with the clear common-law understanding of double jeopardy.” 509 U.S. at 704,
711-12. Because Diego-Domingo's offenses were not the same under the governing Blockburger
“same-elements” test, his prosecution and convictions for aggravated DUI was not barred by
double jeopardy.
B. Double Punishment.
*3 ¶ 12 Diego-Domingo next argues that, even if double jeopardy did not bar his convictions
on the aggravated DUI charges, the punishment imposed violated the statutory prohibition
against consecutive sentences found in A.R.S. § 13-116 (2001). Because Diego-Domingo failed
to raise this issue at sentencing, we review only for fundamental error. State v. Henderson, 210
Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Diego-Domingo bears the burden of establishing
error, that the error was fundamental, and that the error caused him prejudice. Id. at 568, ¶ 22,
115 P.3d at 608. Interpretation of statutes is a question of law we review de novo. State v. Getz,
189 Ariz. 561, 563, 944 P.2d 503, 505 (1997).
¶ 13 We find no error, much less fundamental error, in the court's imposition of fines and
penalties on the aggravated DUI convictions. The municipal court imposed on Diego-Domingo a
$650.50 fine, including surcharges. In sentencing Diego-Domingo on the aggravated DUI
convictions, the court imposed a $1,350 fine, including surcharges, an assessment of $250 to the
DUI Abatement Fund and an assessment of $1,500 to the Prison Construction and Operation
Fund.
¶ 14 Diego-Domingo argues the fines for the aggravated DUI convictions were illegal
consecutive sentences based on A.R.S. § 13-116, which provides that “[a]n act or omission
which is made punishable in different ways by different sections of the laws may be punished
under both, but in no event may sentences be other than concurrent.” This court long ago
interpreted A.R.S. § 13-116 as prohibiting the imposition of two felony penalty assessments
under former A.R.S. § 13-812 for a single act of driving in violation of two DUI statutes. See
State v. Sheaves, 155 Ariz. 538, 543, 747 P.2d 1237, 1242 (App.1987).
¶ 15 The mandatory fine and assessments on the felony convictions in this case were
imposed, however, pursuant to the authority of A.R.S. § 28-1383(J), while the surcharge on the
fine was imposed pursuant to §§ 12-116.01 (2003) and -116.02 (2003). The imposition of the
fine, assessments and surcharge, thus, was governed by A.R.S. § 28-1389 (2004), which
provides that “ [n]otwithstanding any other law, the court shall not waive a fine or assessment
imposed pursuant to this article or a surcharge imposed pursuant to §§ 12-116.01 or 12-116.02
for a conviction of an offense listed in this article.” (Emphasis added). The emphasized language
provides that the statute overrides any other provision of the criminal code, including A.R.S. §
13-116. See State v. Arbolida, 206 Ariz. 306, 307-09, ¶¶ 3-11, 78 P.3d 275, 276-78 (App.2003)
(same language elsewhere in sentencing statutes clearly provides that it overrides any other
provision of Title 13); see also State v. Garcia, 219 Ariz. 104, 108, ¶ 15 n. 4, 193 P.3d 798, 802
n. 4 (App.2008) (same). Accordingly, A.R.S. § 13-116 does not preclude application of the fine
and penalties imposed in this case.
CONCLUSION
*4 ¶ 16 For the foregoing reasons, we affirm Diego-Domingo's convictions and sentences.
CONCURRING: DONN KESSLER and LAWRENCE F. WINTHROP, Judges.
Ariz.App. Div. 1,2009.
State v. Diego-Domingo
Not Reported in P.3d, 2009 WL 2382133 (Ariz.App. Div. 1)
Briefs and Other Related Documents (Back to top)
• 2009 WL 1348370 (Appellate Brief) Appellant's Reply Brief (Apr. 14, 2009)
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• 2009 WL 1093839 (Appellate Brief) Appellee's Answering Brief (Mar. 25, 2009)
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• 2008 WL 5324797 (Appellate Brief) Appellant's Opening Brief (Nov. 24, 2008)
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of this Document (PDF)
Judges and Attorneys (Back to top)
Judges | Attorneys
Judges
 Johnsen, Hon. Diane M.
State of Arizona Court of Appeals, 1st Division
Arizona
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
 Kessler, Hon. Donn
State of Arizona Court of Appeals, 1st Division
Arizona
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
 Winthrop, Hon. Lawrence F.
State of Arizona Court of Appeals, 1st Division
Arizona
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Attorneys
Attorneys for Appellee
 Goddard, Terry
Terry Goddard
Phoenix, Arizona
Litigation History Report | Profiler
Attorneys for Defendant
 Haas, James J.
Maricopa County Public Defender Criminal Appellate Div.
Phoenix, Arizona
Litigation History Report | Profiler
 Petroff., Kathryn L.
Kathryn L. Petroff
Phoenix, Arizona
Litigation History Report | Profiler
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