STATE of Arizona, Appellee, v. Jose Alfredo SAMANO, Appellant, 198 Ariz. 506

OPINION BERCH, Judge. ¶ 1 Jose Alfredo Samano (“Defendant”) was convicted of burglary, armed robbery, theft, and two counts of kidnapping. One of the kidnapping counts was designated a dangerous crime against a child. Defendant appeals his sentence on this count, contending that the trial court erred in applying the sentence enhancement for dangerous crimes against children because he did not prey upon or “target” the child; the child was only incidentally present with his mother during the commission of the burglary, robbery, and theft offenses that constituted the focus of the crime.

Because we conclude that the kidnapping statute already contains an enhancement based on the child’s young age and the trial court made no separate finding to support a second enhancement, we vacate the Defendant’s sentence on this count and remand for resentencing. ¶ 2 The material facts are undisputed. On December 16, 1997, Florencia Blancas returned home from grocery shopping with her two-year-old son, Javier. She carried Javier and a plant into her apartment and left the door open, intending to return to her truck to carry in the groceries.

Defendant and an accomplice, each brandishing a gun, entered the apartment behind her and closed the door. ¶ 3 The men told Florencia to “shut up” and “sit down,” and later told her to hold little Javier, who had been wandering about the apartment. For this act, Defendant was charged with kidnapping, a dangerous crime against a child.

The men took several items from the apartment, then left, taking Floren-cia’s truck, which, Defendant testified, they intended to hold until Florencia’s boyfriend repaid money allegedly owed to Defendant’s accomplice. ¶ 4 Defendant was convicted after a jury trial, and the trial court sentenced him to concurrent terms of ten and one-half years on all counts, except for Count II, the kidnapping count stemming from the restraint of Javier, On that count, the court applied the dangerous crimes against children sentencing enhancement and therefore imposed the presumptive term of seventeen years, which it ordered to be served consecutively to the other sentences.

See Ariz.Rev.Stat. Ann. (“A.R.S.”) § 13-604.01(D), (K) (Supp. 1999-2000) (requiring seventeen-year presumptive sentence); A.R.S. § 13-1304(B) (1989) (requiring consecutive sentence). Defendant timely appealed. ¶ 5 On appeal, Defendant does not challenge his conviction for kidnapping Javier. He contends only that the “kidnapping” of Javier was purely incidental to the burglary and robbery and was not based on or related to Javier’s status as a child. Citing State v. Williams, 175 Ariz. 98, 854 P.2d 131 (1993), and State v.

Jansing, 186 Ariz. 63, 918 P.2d 1081 (App.1996), Defendant contends that, because he is not a “predator” who poses “a direct and continuing threat to the children of Arizona,”

section 13-604.01, the dangerous crimes against children sentencing enhancement, does not apply to him. ¶ 6 Defendant challenges the trial court’s

interpretation of a statute, an issue we review de novo. State v. Jensen, 193 Ariz. 105, 107, ¶ 16, 970 P.2d 937, 939 (App.1998) (citing U.S. Parking Sys. v. City of Phoenix, 160 Ariz. 210, 211, 772 P.2d 33, 34 (App.1989)). While we must attempt to discern and effectuate the legislature’s intent, State v. Reynolds, 170 Ariz. 233, 234, 823 P.2d 681, 682 (1992), we look to “[t]he language of [the] statute [as] the most reliable evidence of its intent.” Walker v. City of Scottsdale, 163 Ariz. 206, 209, 786 P.2d 1057, 1060 (App.1989). If the language of the statute is plain and unambiguous, we give the words their ordinary meaning, without resorting to other forms of statutory

interpretation. State ex rel. Udall v. Super. Ct., 183 Ariz. 462, 464, 904 P.2d 1286, 1288 (App.1995); Reynolds, 170 Ariz. at 234, 823 P.2d at 682; A.R.S. § 1-213 (1994). ¶ 7 The statute at issue defines dangerous crimes against children as any of several listed crimes, including kidnapping, if “committed against a minor under fifteen years of age.” A.R.S. § 13-604.01(L)(l)(i) (Supp. 1999-2000) (formerly A.R.S. § 13-604.01(J)(l)(i) (1996-1997)).

The statute contains no prerequisite to its application that one be a “predator” or pose a continuing threat to the children of Arizona. ¶ 8 Although the language of the statute appears clear, our supreme court has determined that the “language is not so plain that it admits of no other

interpretation.” Williams, 175 Ariz. at 102, 854 P.2d at 135. In Williams, the defendant was convicted of aggravated assault of a person under the age of fifteen because he drove his truck while intoxicated and hit a station wagon, injuring a fourteen-year-old passenger in the car. Id. at 99, 854 P.2d at 132. Despite the fact that the statute included aggravated assault as a qualifying offense, the supreme court held that the defendant’s sentence should not have been enhanced pursuant to A.R.S.

section 13-604.01 because the State had presented “no evidence that [defendant’s] behavior was directed at or focused upon the victim, or that he was even aware of the minor’s presence in the station wagon.” Williams, 175 Ariz. at 104, 854 P.2d at 137. After reviewing the legislative history of the dangerous crimes provision and analyzing its spirit and purpose, the court construed the language “committed against a minor” as conduct a defendant “aims at, targets or focuses on a victim under the age of fifteen.” Id. at 102, 854 P.2d at 135.

It concluded that the legislature was “attempting to respond effectively to those predators who pose a direct and continuing threat to the children of Arizona.” Id. It found the enhancement’s purpose to be to punish predators severely, to incarcerate them for long terms so that they do not pose a threat to children, and to require them to give notice of the conviction when applying for certain types of employments.

See id. at 100, 102-03, 854 P.2d at 133, 135-36. ¶ 9 In concluding that the dangerous crimes against children enhancement did not apply to the aggravated assault at issue in Williams, the court focused on two factors: that the defendant did not select the injured child to be a victim and that the aggravated assault statute itself contains a provision increasing the felony classification, and therefore the presumptive sentence, if the victim is younger than fifteen years of age.

The court explained that if “an enumerated offense can be committed by unfocused actions,” then the defendant has not targeted any person, including the minor, and therefore the offense cannot be a crime “committed against a minor” within the meaning of A.R.S.

section 13-604.01. Williams, 175 Ariz. at 104, 854 P.2d at 137. ¶ 10 Jansing involved a similar drunk driving accident, the only difference being that the defendant in Jansing injured a child in her own vehicle rather than one riding in another vehicle. 186 Ariz. at 65, 918 P.2d at 1084. This Court rejected the State’s argument that the defendant’s mere awareness of the child’s presence in the vehicle allowed a conclusion that the aggravated assault was “directed against or aimed at” the child. Id. at 70, 918 P.2d at 1088.

Rather, as in Williams, the defendant’s actions were “reckless and unfocused,” creating a “risk to everyone around [her].” Id. Thus, Williams and Jansing hold that if a defendant’s conduct is not “focused on, directed against, aimed at, or targeted at]” any specific victim, it cannot be a crime against a minor within the meaning of A.R.S.

section 13-604.01. Williams, 175 Ariz. at 103, 854 P.2d at 136; Jansing, 186 Ariz. at 70, 918 P.2d at 1088. ¶ 11 The question before us is more difficult because the crime at issue — kidnapping — requires an intent to restrain a particular individual,

an act that would seem necessarily to focus on or be aimed at its intended victim. See A.R.S. § 13-1304 (“A person commits kidnapping by knowingly restraining another person” for various enumerated purposes.). But Defendant asserts that he told Florencia to restrain Javier not because Javier was a child, but only because he happened to be present in and wandering about the apartment. He claims that he did not “target” the child or commit a crime against the “child as a child or in the capacity of a child.” See Williams, 175 Ariz. at 101, 854 P.2d at 134.

Defendant therefore maintains that he is not the type of predator the legislature intended to deter and punish by the dangerous crimes against children enhancement. ¶ 12 The State, on the other hand, contends that Defendant was properly convicted of kidnapping because either he or his co-defendant told the mother to pick Javier up, thereby specifically targeting the child.

By knowingly having the mother restrain her child, the State contends and the Dissent agrees, Defendant directed or targeted his conduct at the child in a way that merits a dramatically enhanced sentence. ¶ 13 The State and the Dissent rely upon dictum from Williams to support their position. In discussing the requirement that a defendant target or focus on a child victim, the court observed in passing that “[i]t is impossible to imagine how ... kidnapping ... could be committed without targeting persons.” Id. at 104, 854 P.2d at 137; Dissent, ¶ 29. This appears to be one such case.

The defendants intended a burglary or armed robbery. The age of anyone present, or even if anyone at all was present, was incidental to them.

Thus, this case provides an example of a situation in which “[o]ne could commit an intentional crime and still not target a child as the victim.” Id. at 101, 854 P.2d at 134. ¶ 14 In analyzing whether the dangerous crimes against children provision should apply to enhance the aggravated assault charge in Williams, the court found important that the underlying aggravated assault statute already contained a provision that enhanced the sentence for the assault if the victim were younger than fifteen. Id. at 100-01, 854 P.2d at 133-34.

It noted that if nothing more were meant by including the reference to children under fifteen in both statutes, then the language of the assault statute increasing the offense from a class 3 to a class 2 felony would be rendered meaningless, because “when § 13-604.01 applies, the degree of the felony is irrelevant”: “the penalties prescribed by § 13-604.01 replace the usual sentencing scheme based upon the degree of the felony.” Id. at 102, 854 P.2d at 135.

In order to “enhance[ ] the crime a second time whenever the victim is under fifteen,” the court concluded, “something more than the age of the victim is required by § 13-604.01.” Id. at 101-02, 854 P.2d at 134-35. ¶ 15 A similar situation arises from the statutes now before us. Like the assault statute, the kidnapping statute contains a provision that increases the sentence “[i]f the victim is under fifteen years of age.” A.R.S. § 13-1304(B). In such a case, the kidnapping is a class 2 felony, on which the presumptive ten and one-half year sentence must be consecutive to any other sentence imposed.

See A.R.S. § 13-604(1) (Supp. 1999-2000).

Section 13-604.01(D), on the other hand, requires a presumptive sentence of seventeen years. To justify the difference, something more than the mere age of the victim must have been contemplated by the. legislature. ¶ 16 That “something more” has been clearly identified: “The legislative history indicates quite clearly that the enactment of § 13-604.01 was calculated to reach criminals who prey specifically on children.” Williams, 175 Ariz. at 102, 854 P.2d at 135.

The legislature was concerned about the high recidivism rates of those who sexually exploit children or commit other crimes such as kidnapping and assault that might facilitate the exploitation of children. Id. The essence of Defendant’s offense, however, was not any form of sexual or drug-related exploitation of a minor, but rather a theft and robbery directed at the child’s mother’s boyfriend. Although very serious crimes, they are not the high-recidivism offenses about which the legislature was concerned when it enacted

section 13-604.01. See id. ¶ 17 We find further support from this Court’s opinion in State v. Carlisle, 198 Ariz. 203, 8 P.3d 391, 329 Ariz.Adv.Rep. 5 (App. 2000). In determining that the dangerous crimes enhancement applied to a defendant who solicited sex over the Internet from a person whom he believed to be fourteen years old, and again solicited sex acts when he met an adult actor who portrayed the fourteen-year-old, the Court focused upon the fact that the defendant “intentionally took steps to lure his intended victim into prohibited sexual conduct.

In other words, [defendant] specifically targeted a victim he believed to be under the age of fifteen and then attempted a crime.” Id. at ¶ 18. It found such luring, targeting conduct to be “precisely the type of conduct that the legislature addressed in A.R.S.

section 13-604.01.” Id. (citing Williams, 175 Ariz. at 102, 854 P.2d at 135, for the proposition that “[t]he legislative history indicates quite clearly that the enactment of § 13-604.01 was calculated to reach criminals who prey specifically upon children.”); cf. State v.

DePiano, 187 Ariz. 27, 31-32, 39, 926 P.2d 494, 498-99, 506 (1996) (reducing consecutive seventeen-year sentences of depressed mother whose attempted suicide-infanticide did not evidence an “evil,” “wicked” intent to harm children, but rather evidenced crime directed against herself; noting that sentence did not serve legislative purpose of “responding] effectively to those predators who pose a direct and continuing threat to the children of Arizona”) (citing Williams, 175 Ariz. at 102, 854 P.2d at 135).

We agree with this reasoning and conclude that the element of preying on a child is conspicuously absent here as well. ¶ 18 Our dissenting colleague claims that the Majority’s holding “vitiates the clear language of

section 13-604.01(L).” Dissent, ¶ 25. Our supreme court has found, though, that while the statutory language is clear, its meaning is not. Williams, 175 Ariz. at 102-03, 854 P.2d at 135-36. The Dissent would apply the more stringent of two sentence enhancements to the kidnapping in this ease, and presumably to every kidnapping of a child younger than fifteen, without attempting to distinguish when the legislature might have intended one rather than the other to apply. Nothing in the Dissent tells us when, if ever, to apply the more serious enhancement of

section 13-604.01. If the more serious seventeen-year enhancement applies all the time, as the Dissent suggests, then the lesser, consecutive sentence enhancement must be surplusage. But we are constrained to interpret statutes so that statutory provisions are not rendered superfluous. See State v. Johnson, 171 Ariz. 39, 42, 827 P.2d 1134, 1137 (App.1992) (quoting State v. Arthur, 125 Ariz. 153, 155, 608 P.2d 90, 92 (App.1980)). Our supreme court has suggested a meaningful way to determine when the greater enhancement of

section 13-604.01 should apply: The dangerous crimes enhancement applies when a defendant preys upon or focuses on or targets a child as a child. Williams, 175 Ariz. at 103, 854 P.2d at 136. We do not find that additional element present in this case. ¶ 19 Because the legislature has “elsewhere created severe penalties based solely on the age of the victim,” the “spirit and purpose of § 13-604.01 are not well served by applying it to people like [Defendant] who do not prey upon helpless children.” Id, at 103, 854 P.2d at 136.

Moreover, we conclude that applying the statute in this case would not further the legislature’s intent that the statute should apply only to “criminals who prey specifically on children,” who are “peculiarly dangerous to children,” or who “pose a direct and continuing threat to the children of Arizona.” See id. at 102-03, 854 P.2d at 135-36. ¶ 20 The trial judge must state on the record factual findings and reasons that support the imposition of an enhanced sentence. See State v. Harrison, 195 Ariz. 1, 3-4, ¶¶ 10-11, 5, ¶ 16, 985 P.2d 486, 489, 490 (App.1999) (requiring articulation of aggravating factors); cf.

State v. Quinonez, 194 Ariz. 18, 20, ¶ 12, 976 P.2d 267, 269 (App.1999) (regarding enhancement for historical prior felony convictions). Because the trial court did not do so here, we vacate that portion of the sentence imposing the dangerous crimes against children enhancement and remand for resentencing to allow the trial judge to consider, in light of the proper legal standard, whether to impose the enhancement. CONCURRING: RUDOLPH J. GERBER, Judge. . Formerly A.R.S. § 13~604.01(B), (I) (Supp. 1996-1997). . See discussion of statutory enhancement, infra ¶¶ 14-16. .

The Dissent maintains that the Majority focuses on whether the crime that is alleged to be the dangerous crime against a child was "incidental” to another crime and quotes the last three sentences of this paragraph as the "holding" of the case. Dissent, ¶ 22 and n. 8. That the kidnapping was incidental to the robbery was the Defendant's claim. See supra ¶¶ 1, 5. Our analysis turns instead upon whether a defendant preys upon or targets a child for the commission of a crime at least in part because the child is a child. See infra ¶ 19. We find that element lacking here. .

Both statutes make the felony "a class 2 felony punishable pursuant to A.R.S. § 13-604.01.” A.R.S. §§ 13-1204(B) (Supp. 1999-2000) (aggravated assault), -1304(B) (kidnapping). The phrase is confusing because, as the supreme court observed in Williams, the class of the felony is irrelevant for purposes of sentencing pursuant to A.R.S.

section 13-604.01. See supra ¶ 14 (quoting Williams). Regardless of the class of felony, both aggravated assault and kidnapping carry a seventeen-year presumptive sentence if found to be dangerous crimes against children. A.R.S. § 13-604.01(D). . The sentence was aggravated because the State alleged and the jury found the use or exhibition of a weapon. . The Dissent posits that the differentiating factor might be found in the fact that "Defendant could have decided to forego his planned robbery once he knew of Javier’s presence in the apartment.” Dissent, ¶ 29.

In Jansing, 186 Ariz. at 70, 918 P.2d at 1088, however, this Court rejected the argument that a defendant’s mere awareness and conscious disregard of a child’s presence would subject the defendant to the dangerous crimes against children enhancement.