STATE of Arizona, Appellee, v. Adam Matthew COX, Appellant, 201 Ariz. 464

OPINION NOYES, Judge. ¶ 1 Adam Matthew Cox (“Appellant”) appeals his convictions and sentences for kidnaping with intent to promote, further, or assist criminal conduct by a criminal street gang, a class two felony, and aggravated assault with intent to promote, further, or assist criminal conduct by a criminal street gang, a class six felony. The victim was kidnaped and assaulted because he wanted to end his membership in the gang.

Appellant argues that the court erred by (1) precluding cross-examination of the victim regarding the nature of his prior felony conviction, (2) incorrectly defining “criminal street gang,” (3) finding that Appellant committed the offenses while released from confinement within the meaning of Arizona Revised Statutes (“A.R.S.”)

section 13-604.02(B) (2001), and (4) fading to grant a jury trial on the § 13-604.02(

B) allegation. Because we find reversible error only on issue (3), we affirm the convictions, vacate the sentences, and remand for re-sentencing. We also hold that a jury trial is not required on the § 13-604.02(

B) allegation. DISCUSSION 1. Limitation of Cross-Examination of the Victim ¶2 Appellant asserts that the trial court erred because it did not permit him to cross-examine the victim regarding the specific nature of the victim’s prior felony conviction. ¶ 3 The victim was the State’s first witness. He appeared in “jail clothes,” and the State established that he was a former gang member and that he had a prior felony conviction.

The State did not question the victim about the nature of his prior conviction, and it moved to preclude cross-examination on that subject. ¶ 4 Appellant’s counsel argued that he should be allowed to establish that the victim’s prior conviction was for aggravated robbery, because the nature of the conviction would tend to show that the victim was not out of the gang “like he claims that he was or wanted to be.” The State responded that the conviction was for a robbery that occurred in March 1999, when the victim admitted being a gang member.

The trial court ruled that Appellant could riot “get into the nature of the offense itself’ when cross-examining the victim. ¶5 A trial court’s decision to limit, cross-examination is reviewed for a clear abuse of discretion. See State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997); State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982). “Although the right to cross-examine a witness is vital to the right of confrontation, the trial court reserves discretion to curtail the scope of cross-examination to within reasonable limits.” State v. Doody, 187 Ariz. 363, 374, 930 P.2d 440, 451 (App.1996).

We review restriction of the “scope of cross-examination on a case-by-ease basis to determine whether the court unduly inhibited the defendant’s ability to present information bearing on issues or on the credibility of witnesses.” Id. “[W]e will not disturb the court’s ruling absent a clear showing of prejudice.” Id. ¶ 6 Rule 609(

a) of the Arizona Rules of Evidence provides that, for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect. Here, the trial court made that determination and admitted that evidence.

That the court did not admit evidence of the nature of the prior conviction did not damage Appellant’s ability to argue that the victim was a convicted felon who was less worthy of belief for that reason, and it did not prevent Appellant from arguing that the victim was a gang member in March 1999, for the victim admitted as much. We find no abuse of discretion in the trial court’s ruling on this issue. 2.

The ‘Criminal Street Gang” Instruction ¶ 7 Appellant argues that the trial court erred by giving the jury the following instruction: “Criminal Street Gang” means an ongoing formal or informal association of persons whose members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any criminal act including the offenses charged in this ease and which has at least one individual who is a criminal street gang member. ¶ 8 We review de novo whether a jury instruction properly stated the law. State v.

Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). “The failure to object to an instruction either before or at the time it is given waives any error, absent fundamental error.” State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986). Appellant did not object to this instruction. ¶ 9 We agree that the instruction contained an error.

The law defines “criminal street gang” as “an ongoing formal or informal association of persons whose members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act and who has at least one individual who is a criminal street gang member.” A.R.S. § 13-105(7) (2001) (emphasis added). The trial court’s instruction said “any criminal act” when it should have said “any felony act.” This error was harmless. ¶ 10 An error is harmless if we can say beyond a reasonable doubt that it did not affect the verdict. State v.

Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). The jury found that Appellant committed the two charged felonies, kidnaping and aggravated assault, “with the [specific] intent to promote, further or assist any criminal conduct by a criminal street gang.” The State does not have to prove a “criminal street gang” allegation with felonious activity other than the charged offenses. The offenses on which Appellant was found guilty at trial proved the “any felony act” element of § 13-105(7), and this trial contained no evidence of crimes other than felonies.

No reasonable possibility exists that this jury might have based its “criminal street gang” decision on crimes other than felonies. 3. The State’s § 13-60I.02(

B) Allegation ¶ 11 The trial court found that Appellant committed the present offenses while on parole from conviction of a felony offense, and it sentenced him according to A.R.S. § 13-604.02(B), which provides that a person convicted of any felony offense while on any sort of release from confinement for a felony offense shall be sentenced to a term of not less than the presumptive sentence authorized for the current offense. Because Appellant did not object in the trial court to being sentenced pursuant to § 13-604.02(B), we review the issue only for fundamental error. See State v.

Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). ¶ 12 We conclude that the trial court clearly erred when it found the § 13-604.02(

B) allegation proved, for the record reflects no evidence to support the allegation. On appeal, the State “concedes that the record is unclear” as to Appellant’s release status at the time of the present offenses. The record is therefore equally unclear as to why the State filed a pretrial allegation that Appellant was an “offender on parole” when he committed the present offenses. The record, however, does reflect that Appellant’s probation in the prior case was revoked on February 1,1999, and he was sentenced to a prison term of .75 years (273.75 days), with credit for 188 days of pre-sentence incarceration.

The sentence was ordered to begin on February 1, 1999, which means that it expired on April 27, 1999, before Appellant committed his present offenses in August 1999. ¶ 13 Appellant was convicted of offenses for which the legislature has mandated sentencing ranges that include mitigated sentences. The trial court, however, sentenced Appellant pursuant to § 13-604.02(B), which does not allow mitigated sentences.

Appellant’s sentences did not exceed the maximum permitted by law for his offenses, but the sentencing process was fundamentally flawed because the trial court used sentencing ranges other than those mandated for the offenses in question. “The failure to impose a sentence in conformity with mandatory sentencing statutes makes the resulting sentence illegal.” State v. Carbajal, 184 Ariz. 117, 118, 907 P.2d 503, 504 (App.1995). An illegal sentence constitutes fundamental error, State v.

Bouchier, 159 Ariz. 346, 347, 767 P.2d 233, 234 (App.1989), that will be reversed on appeal despite a lack of objection in the trial court. State v. Canion, 199 Ariz. 227, 230, ¶ 10, 16 P.3d 788, 791 (App.2000) (review denied Apr. 24, 2001). ¶ 14 Assuming without deciding that this fundamental error in the sentencing process is subject to a harmless error analysis, we conclude that the error was not harmless in this case. Both the court and the prosecutor seemed to think that the minimum sentence allowed by § 13-604.02(

B) was inappropriately harsh on Appellant. At sentencing, the trial court commented several times that it had no discretion to impose less than the presumptive sentences, and the prosecutor at one point stated, “I know that the Court felt that a lesser sentence was appropriate. And if that were available, I don’t think that I would disagree completely that a lesser sentence would be appropriate in this case.” The court then sentenced Appellant to 12.25 years in prison on Count 1 and a concurrent term of 4.75 years on Count 2. ¶ 15 On remand, the State may retry its § 13-604.02(

B) allegation if it has any evidence to support it. State v. Sowards, 147 Ariz. 156, 159, 709 P.2d 513, 516 (1985); State v. Martinez, 172 Ariz. 437, 440, 837 P.2d 1172, 1175 (App.1992). Ip. Right to Jury Trial on the §13-601p.02(

B) Allegation ¶ 16 Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Appellant argues that he is entitled to a jury trial on the § 13-604.02(

B) allegation. We will decide this issue because the parties have briefed it, and it might arise on remand. See State v. Donald, 198 Ariz. 406, 415, ¶ 29, 10 P.3d 1193, 1202 (App.2000) (review denied Mar. 20, 2001), cert. denied by Arizona v. Donald, — U.S. —, 122 S.Ct. 63, 151 L.Ed.2d 30 (2001). We hold that a jury trial is not required on the § 13-604.02(

B) allegation. ¶ 17 The relevant principle is stated in Apprendi, as follows: Other 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in [Jones v.

United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) ]: “[I]t is unconstitutional for a legislature 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.” 526 U.S. at 252-253, 119 S.Ct. 1215 (opinion of STEVENS, J.); see also id., at 253, 119 S.Ct. 1215 (opinion of SCALIA, J.). 530 U.S. at 490, 120 S.Ct. 2348 (footnote omitted). The Apprendi Court advised that it was not overruling McMillan v.

Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which upheld a statute that permitted a trial judge to find, by a preponderance of the evidence, a fact triggering a mandatory minimum sentence. Apprendi 530 U.S. at 485-86 & 487 n. 13, 120 S.Ct. 2348 (citing McMillan, 477 U.S. at 86-88, 106 S.Ct. 2411).

The Court stated, “We limit [McMillan’s] holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — a limitation identified in the McMillan opinion itself.” Id. at 487 n. 13, 120 S.Ct. 2348. ¶ 18 Because proof of a § 13-604.02(

B) allegation increases the statutory minimum penalty but not the statutory maximum, Apprendi does not require that the allegation be decided by a jury beyond a reasonable doubt; rather, the trial judge can decide the § 13-604.02(

B) allegation by clear and convincing evidence. Our holding is consistent with existing Arizona law on the “release status” issue. In State v. Hurley, 154 Ariz. 124, 132, 741 P.2d 257, 265 (1987), the supreme court held that “[t]he [release] status is a sentencing factor which may be found by the court at the sentencing hearing.” CONCLUSION ¶ 19 The convictions are affirmed, the sentences are vacated, and the matter is remanded for re-sentencing. CONCURRING: PHILIP HALL, Judge. .

In Appellant’s case, the minimum sentence for each offense, with one prior felony conviction, was the presumptive term plus three years for promoting, furthering, or assisting criminal conduct by a criminal street gang. See A.R.S. § 13-604(T) (2001). . See United States v. Sanchez, 269 F.3d 1250, 1262 (11th Cir.2001) ("Because Apprendi only addresses facts that increase the penalty for a crime beyond the statutory maximum, it does not apply to those findings that merely cause the [Sentencing Gjuideline range to shift within the statutory range.”); United States v.

Ellis, 241 F.3d 1096, 1104 (9th Cir.2001) ("[Appellant] fails to satisfy the threshold condition of Apprendi that the actual sentence imposed be longer than the maximum sentence for the crime for which a defendant has been validly convicted.”). . In Hurley, the State alleged, pursuant to § 13-604.02(A), that the defendant committed a dangerous offense while on release following a felony conviction. Id. at 126, 741 P.2d at 259. That allegation increased the statutory maximum penalty to mandatory life imprisonment without possibility of parole for twenty-five years. Id.

Hurley, which was decided before Apprendi, held that the allegation was a sentencing factor that could be decided by the judge by clear and convincing evidence. Id. at 130, 741 P.2d at 263. The Arizona Supreme Court reached a different conclusion in State v. Powers, 154 Ariz. 291, 742 P.2d 792 (1987), which involved the same increased statutory maximum penalty as in Hurley. In Powers, however, the § 13-604.02(

A) allegation was that defendant committed the current offense while on "escape from confinement.” 154 Ariz. at 292, 742 P.2d at 793. The court concluded that, because "escape" was a separate crime and not just a release status, defendant was entitled to a trial by jury on that allegation under the reasonable doubt standard. Id. at 294, 742 P.2d at 795. The court based its decision on "independent state grounds” and the Arizona Constitution. Id. at 294 — 95, 742 P.2d at 795-96. How to reconcile Hurley, Powers, and Apprendi is a problem we need not try to resolve here, for they do not conflict on the facts in the present case; they all support the result reached here.