Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.
The opinion of the court was delivered by: Melanson, Judge
Judgment of conviction for two counts of aggravated battery, both enhanced for the use of a firearm, affirmed.
Diego Morales Peregrina appeals from his judgment of conviction for two counts of aggravated battery, both with enhancements for the use of a firearm during the commission of aggravated battery. For the reasons set forth below, we affirm.
Peregrina engaged in a verbal confrontation with two men at a child's birthday party. Later that night, Peregrina returned and continued the exchange, eventually pulling a gun and shooting one man in the face and another in the chest in rapid succession. Both victims survived. Peregrina fled and was later apprehended by police and charged with two counts of aggravated battery, I.C. §§ 18-903(a) and 18-907(b), with each count enhanced for use of a firearm or deadly weapon during the commission of a felony, I.C. § 19-2520, as well as unlawful possession of a firearm, I.C. § 18-3316. After a jury trial, Peregrina was found guilty of all charges. The district court sentenced Peregrina to consecutive, fixed terms of ten years for each count of aggravated battery enhanced by an indeterminate term of ten years for each count for the use of a firearm during the commission of a felony. The district court also sentenced Peregrina to concurrent fixed terms of five years for unlawful possession of a firearm.*fn1 Peregrina filed an I.C.R. 35 motion for reduction of his sentences, which was denied by the district court. Peregrina appeals.
Peregrina argues that the district court erred by applying two enhancements for use of a firearm during the commission of a felony. He contends that I.C. § 19-2520E prohibits the application of two enhancements because both aggravated batteries arose out of an indivisible course of conduct.*fn2 Peregrina argues that the state provided insufficient evidence at trial to support a finding that the aggravated batteries arose out of a divisible course of conduct and, furthermore, the factual determination of whether the crimes arose out of an indivisible course of conduct should have been submitted to the jury. The state responds that I.C. § 19-2520E provides an affirmative defense that Peregrina waived by failing to raise it prior to sentencing.
First, we consider Peregrina's argument that the district court made an implicit finding that the crimes arose out of a divisible course of conduct when it applied both sentence enhancements. The district court made no such factual determination. Furthermore, neither party raised the issue of the divisibility of Peregrina's conduct or requested a jury instruction on that issue. It does not appear to have been addressed at all. Therefore, the issue to be determined is a legal question of whether Peregrina or the state bore the burden of raising the issue in the district court and requesting an appropriate jury instruction. Over questions of law, we exercise free review. State v. O'Neill, 118 Idaho 244, 245, 796 P.2d 121, 122 (1990).
Peregrina was charged under I.C. §§ 18-903(a) and 18-907(b) with two enhancements under I.C. § 19-2520. Idaho Code Section 18-903(a) defines a battery as the "willful and unlawful use of force or violence upon the person of another." Idaho Code Section 18-907(b) provides that aggravated battery occurs when a perpetrator "uses a deadly weapon or instrument." Idaho Code Section 19-2520 provides, in pertinent part:
Any person convicted of a violation of . . . 18-907 (aggravated battery defined), . . . Idaho Code, who displayed, used, threatened, or attempted to use a firearm or other deadly weapon while committing or attempting to commit the crime, shall be sentenced to an extended term of imprisonment. The extended term of imprisonment authorized in this section shall be computed by increasing the maximum sentence authorized for the crime for which the person was convicted by fifteen (15) years.
Pursuant to the information, the state had to prove that Peregrina committed two aggravated batteries and that, while committing such crimes or attempting to do so, he used a firearm. Under these sections, the state is not required to prove to the jury that the crimes arose out of a divisible course of conduct.
Peregrina relies on I.C. § 19-2520E which provides that defendants may only be subject to one enhancement when multiple crimes arose out of an indivisible course of conduct. Peregrina argues that imposing two sentence enhancements under this statute without a jury finding that the crimes arose out of a divisible course of conduct violates the holding of the Supreme Court of the United States in Apprendi v. New Jersey, 530 U.S. 466 (2000). In that case, the Court held that any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Id. at 476. See also State v. McLeskey, 138 Idaho 691, 698, 69 P.3d 111, 118 (2003).
Whether crimes arose out of an indivisible course of conduct is a factual question. State v. Johns, 112 Idaho 873, 882, 736 P.2d 1327, 1336 (1987). Where two crimes are committed, a finding that the crimes did not arise from an indivisible course of conduct would increase the maximum penalty for one of the crimes. Therefore, we hold that Apprendi requires that a defendant charged with two or more enhancements under I.C. § 19-2520 is ...