State v. Sisneros

2020 UT App 60

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
LANDON COLE SISNEROS,
Appellant.

Opinion
No. 20181002-CA
Filed April 9, 2020

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 171901921

Emily Adams and Cherise M. Bacalski, Attorneys
for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Appellant Landon Cole Sisneros challenges his conviction
for aggravated robbery, arguing that the district court should
have dismissed the charge as part of a single criminal episode
because a different district court had already convicted him for
theft by receiving stolen property arising from the same incident.
We agree and vacate Sisneros’s conviction for aggravated
robbery.
 State v. Sisneros

BACKGROUND

¶2 In August 2017, a seller (Son) advertised his car for sale in
North Ogden, located in Weber County. After Son posted the
advertisement, Sisneros began “blowing up [Son’s] phone to
come and test drive it right then,” telling Son he “had the money
and wanted to buy a car right then.” Son explained that he was
out of town and could not show him the car that day, but
Sisneros persisted, so Son arranged for his father (Father) to
show Sisneros the car and take him on a test drive.

¶3 At the conclusion of the test drive, both Sisneros and
Father exited the car, but Sisneros left the car running with the
driver’s door open. Father and Sisneros walked around to the
front of the car and Father heard Sisneros talking “on his phone
saying how much he wanted the car.” “[T]he next thing [Father
knew, Sisneros] jumped back in the car and proceeded to leave.”
Father “ran out in the road,” “got on the hood,” and “yelled at
him ‘don’t do it.’” Father then got off the hood and stood in front
of the car and Sisneros “rev-ed it up and bumped [Father],”
“leaving some bruising on [his] knee.” At this point, Father got
out of the way and let Sisneros leave because he decided it was
not “worth it.” Father subsequently called the North Ogden
Police Department, which broadcast an alert that Son’s car had
been stolen “so that officers throughout any city or county
[could] be on the lookout for the vehicle.” As soon as Father told
him what had happened, Son also posted notices on social media
that his car had been stolen.

¶4 Sisneros drove the car over 70 miles, through Weber,
Davis, and Salt Lake counties, to his home in Utah County,
where he met up with friends “and told them to look at his new
car.” Fortuitously, one of these friends had seen Son’s social
media post and recognized Sisneros’s “new car” as the one that
had been stolen. This friend then called the local police. The
following day, officers from the Orem Police Department in

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Utah County found Son’s car abandoned in Orem, and they later
located and arrested Sisneros.

¶5 In the probable cause statement justifying Sisneros’s
arrest in Utah County, the Orem police officer who arrested
Sisneros stated that Sisneros confessed that he had stolen the car
and that while “talking to [Father in front of the car] he noticed
the door was open, jumped in and drove away . . . [and Father]
attempted to grab the door but was unable to because the door
was locked.” Sisneros also told the officer “that he had thrown
the keys out the window on 800 North near the overpass.” The
police recovered the keys at that location.

¶6 On August 16, 2017, the Utah County Attorney’s Office
charged Sisneros in fourth district court with theft by receiving
stolen property and obstruction of justice. The probable cause
statement on the charging document detailed, among other
things, that Sisneros “admitted that he had gone to North Ogden
to test drive a car that was for sale, and that when the test drive
was over, he jumped back in the car and drove away.” Sisneros
made his initial appearance the next day.

¶7 Five days later, on August 22, the Weber County
Attorney’s Office charged Sisneros in second district court with
aggravated robbery for “intentionally tak[ing] or attempt[ing] to
take personal property in the possession [of Father] from his . . .
person . . . against his . . . will, by means of force or fear, and
with a purpose or intent to deprive [Father] permanently or
temporarily of the personal property.”

¶8 Nine days later, on August 31, Sisneros pled guilty to
theft by receiving stolen property and obstruction of justice in
fourth district court. And two weeks after that, on September 15,
Sisneros made his initial appearance in second district court on
the aggravated robbery charge. Sisneros moved to have his
charge in second district court dismissed. He argued that Utah
Code section 76-1-403 prohibited the charge for aggravated

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robbery in second district court because the statute “bars
multiple prosecutions of offenses that arise out of the same
criminal episode.” The district court denied the motion, ruling
that

the crime of Theft by Receiving Stolen Property . . .
is a separate and distinct offense from Robbery . . .
and was not part of a single criminal episode.
[Sisneros] committed the robbery in Weber
County, demonstrated an intent to retain
possession of the property where he transported
the property across two counties and represented
to others that he owned the vehicle. Furthermore,
there were two separate victims, [Father] (robbery)
and [Son] (theft by receiving).

The state is not prohibited from prosecuting
[Sisneros] for the separate and distinct crime of
robbery as a separate criminal act during a separate
criminal episode.

¶9 Following this ruling, Sisneros entered into a conditional
plea agreement in which he pled guilty to the aggravated
robbery charge but reserved his right to appeal the district
court’s denial of his motion to dismiss. See generally Utah R.
Crim. P. 11(j). Sisneros now exercises that right.

ISSUE AND STANDARD OF REVIEW

¶10 Sisneros raises one issue on appeal. He contends that the
second district court erroneously denied his motion to dismiss
the aggravated robbery charge under Utah Code section
76-1-403. “A trial court’s decision to grant or deny a motion to
dismiss presents a question of law, which we review for
correctness.” State v. Selzer, 2013 UT App 3, ¶ 14, 294 P.3d 617
(quotation simplified).

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 State v. Sisneros

ANALYSIS

¶11 “The Double Jeopardy Clause of the U.S. Constitution
insulates a defendant from multiple prosecutions or multiple
sentences for the same offense.” State v. Ririe, 2015 UT 37, ¶ 6,
345 P.3d 1261. Utah Code section 76-1-403, however, “takes the
matter a step further” and “adopts a species of res judicata or
claim preclusion for criminal cases—barring prosecutions for
different offenses committed as part of a single criminal episode
and otherwise meeting the terms of the statute.” Id. (emphasis in
original). Section 403(1) states, in relevant part, as follows:

If a defendant has been prosecuted for one or more
offenses arising out of a single criminal episode, a
subsequent prosecution for the same or a different
offense arising out of the same criminal episode is
barred if:

(a) the subsequent prosecution is for an offense
that was or should have been tried under
Subsection 76-1-402(2) in the former prosecution;
and

(b) the former prosecution

...

(ii) resulted in conviction.

Utah Code Ann. § 76-1-403(1) (LexisNexis 2017). Section 402(2),
in turn, provides:

Whenever conduct may establish separate offenses
under a single criminal episode, . . . a defendant
shall not be subject to separate trials for multiple
offenses when:

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(a) The offenses are within the jurisdiction of a
single court; and

(b) The offenses are known to the prosecuting
attorney at the time the defendant is arraigned on
the first information or indictment.

Id. § 76-1-402(2). Finally, a single criminal episode is defined as
“all conduct which is closely related in time and is incident to an
attempt or an accomplishment of a single criminal objective.”
Id. § 76-1-401.

¶12 Overall, this statutory scheme “impose[s] a
one-bite-at-the-apple rule for multiple offenses arising out of a
single criminal episode,” Ririe, 2015 UT 37, ¶ 8, the purpose of
which is “(1) to protect a defendant from the governmental
harassment of being subjected to successive trials for offenses
stemming from the same criminal episode; and (2) to ensure
finality without unduly burdening the judicial process by
repetitious litigation,” State v. Selzer, 2013 UT App 3, ¶ 22, 294
P.3d 617 (quotation simplified).

¶13 In summary, for Sisneros to prevail, he must prove that
four conditions are satisfied: (1) the prior charge and the
subsequent charge arose from “a single criminal episode,” Utah
Code Ann. § 76-1-401; (2) the prior charge and subsequent
charge were “within the jurisdiction of a single court,”
id. § 76-1-402(2)(a); (3) at the time of his arraignment on the prior
charge, the prosecuting attorney knew of the other potential
charge, id. § 76-1-402(2)(b); and (4) under the facts of this case,
the prior charge resulted in a conviction, id. § 76-1-403(1)(b)(ii).

¶14 In the present case, it is undisputed that Sisneros was
convicted of the prior charge—theft by receiving—as a result of
his plea in fourth district court, and thus the final condition has
been met. We now consider the first three conditions.

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I. Single Criminal Episode

¶15 For two or more offenses to be considered part of a single
criminal episode, they must be (1) “closely related in time” and
(2) “incident to an attempt or an accomplishment of a single
criminal objective.” Utah Code Ann. § 76-1-401 (LexisNexis
2017). In determining whether multiple offenses were part of a
single criminal episode, courts undertake a “totality of the
circumstances” analysis, viewing the “facts and circumstances
. . . objectively.” State v. Strader, 902 P.2d 638, 642 (Utah Ct. App.
1995).

A. Time

¶16 The State argues that the two offenses “were not close in
time” because Sisneros “committed aggravated robbery in
Weber County” and “then committed his theft by receiving
stolen property in Utah County when he drove 74 miles” to his
home in Orem. The State then likens this case to State v. Ireland,
570 P.2d 1206 (Utah 1977). In that case, the defendant committed
robbery by forcibly taking a revolver from a police officer and
then locking the police officer in the trunk of his patrol car. Id. at
1206. The defendant then drove 65 miles in his own vehicle,
where he committed a kidnapping offense against two
hitchhikers in a different county. Id. Our Supreme Court held
that these two crimes were not part of a single criminal episode
because they were “totally disconnected in time” due to the fact
that the “robbery conviction was based on the theft of a revolver
which was a completed offense at the time it was taken from the
patrolman.” Id.

¶17 The State insists that this case is on the same legal footing
as Ireland. We disagree. Unlike in Ireland, there was not a distinct
difference in time between the two offenses at issue in this case.
In Ireland, the defendant committed the crime of robbery against
one victim by taking the victim’s revolver and then driving 65
miles, in his own vehicle, to another county where he committed

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the crime of kidnapping against completely unrelated victims.
Id. The State argues that because Sisneros formed the intent to
deprive Son of the car only in Utah County, these crimes are
separate in time, akin to the crimes in Ireland. The State contends
that Sisneros formed the intent to deprive Son of the car and
committed the crime of theft by receiving only when he told his
friends in Utah County to come look at his “new car.” We are
not persuaded.

¶18 While Sisneros’s statement to his friends in Utah County
is certainly evidence of his intent and thus of where he could
have committed the theft crime, there is also clear evidence that
he intended to deprive Son of the car the moment he took it from
Father in Weber County. When Father and Sisneros ended the
test drive, and right before Sisneros took the car, Sisneros was
“on his phone saying how much he wanted the car.” He then
proceeded to take the car and drive it away from Father, who
attempted to stop him, and in so doing Sisneros committed
aggravated robbery. See Utah Code Ann. § 76-6-302(1)(c)
(LexisNexis 2017) (“A person commits aggravated robbery if in
the course of committing robbery, he . . . takes or attempts to
take an operable motor vehicle.”). But this evidence also shows
that Sisneros, at that moment, had formed the intent to deprive
Son of the car, thereby committing the offense of theft by
receiving. See id. § 76-6-408(2) (Supp. 2019) (stating that a person
commits the crime of theft by receiving when he receives stolen
goods “intending to deprive the owner of the property”).1 There
is no suggestion in the record that Sisneros was merely going for
a joy ride, intending to return the car.

1. Because the relevant portions of the current version of Utah
Code section 76-6-408(2) have not been materially altered from
the version in effect at the time of Sisneros’s actions, we cite the
current code for convenience.

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 State v. Sisneros

¶19 Unlike the offenses in Ireland, these offenses were not
disconnected in time. The factual nexus of both crimes was in
Weber County, and there was no “pause in events between” the
two crimes. See State v. Selzer, 2013 UT App 3, ¶ 25, 294 P.3d 617.
And, unlike in Ireland, where the defendant committed two
distinct crimes separated by time, the crimes here were
interwoven and committed at virtually the same time, i.e., when
Sisneros took the car from Father and drove away. Therefore,
Sisneros’s offenses of aggravated robbery and theft by receiving
were “closely related in time” for purposes of Utah Code section
76-1-401.

B. Single Criminal Objective

¶20 When analyzing whether the crimes were part of a single
criminal objective, courts “consider, among other things, the
location where the crimes were committed, the nature of the
offenses (both the similarity in conduct and the extent to which
one offense advances the accomplishment of another), whether
the crimes involved different victims, and whether the defendant
had the opportunity to deliberately engage in the next-in-time
offense.” State v. Rushton, 2017 UT 21, ¶ 35, 395 P.3d 92.
Generally, none of these factors alone are dispositive, but “if any
one of the factors has a strong presence, it can dispositively
segregate an extended criminal enterprise into a series of
separate and distinct episodes.” Id. ¶¶ 36, 40 (quotation
simplified).

1. Location

¶21 “First, we consider whether the offenses arose in different
geographic locations.” Id. ¶ 36 (quotation simplified). The State
again argues that the locations of the crimes were different.
However, as discussed above, the aggravated robbery was
committed in Weber County at essentially the same time that the
crime of theft by receiving was first committed. See Utah Code
Ann. §§ 76-6-301, -302 (LexisNexis 2017); id. § 76-6-408 (Supp.

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2019). Thus, Sisneros began the theft at the same location as the
aggravated robbery when he took the car, and the two crimes
did not necessarily “occur[] in different places,” as the State
argues. That Sisneros may also have committed theft by
receiving in Salt Lake, Davis, and Utah counties should not
obscure the fact that he first committed that crime in Weber
County, where he stole the car. Thus, this factor weighs in favor
of concluding that the two offenses were part of a single criminal
episode.

2. Nature of the Offenses

¶22 “Second, we consider whether the nature of the offenses
was substantively different.” Rushton, 2017 UT 21, ¶ 37
(quotation simplified). When examining this factor, we consider
whether the offenses have different “bodies of proof,” whether
they entail different concepts, and the defendant’s conduct for
each offense. Id.

¶23 The State argues that Sisneros’s “theft by receiving
offense involved different criminal objectives, concepts,
conduct, and proof.” Objectively viewing the evidence
underlying the offenses, we disagree. Sisneros’s end goal in
committing the robbery was not to harm Father; it was to take
the car from Father’s possession with the “intent to deprive
[Father] permanently or temporarily of the [car],” see Utah Code
Ann. § 76-6-301(a) (2017), and the end goal of the theft by
receiving was to “receive[], retain[], or dispose[] of the [car]”
with the “inten[t] to deprive [Son] of the [car],” see
id. § 76-6-408(2) (Supp. 2019). Therefore, Sisneros’s overarching
criminal purpose in committing both offenses was to steal the
car. And while aggravated robbery and theft by receiving have
some different elements, the main body of proof is still the
same—the State had to prove that Sisneros unlawfully took and
retained the car. Furthermore, Sisneros’s conduct in committing
both crimes overlapped. As previously discussed, the crimes of

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 State v. Sisneros

aggravated robbery and theft by receiving began at essentially
the same moment when Sisneros took the car from Father after
the test drive had ended. Given that both crimes were
committed through substantially similar conduct and furthered
Sisneros’s criminal objective—to unlawfully gain possession of
the car—we conclude that Sisneros’s theft by receiving and
aggravated robbery crimes were not substantively different from
each other. Therefore, this factor also weighs in favor of
concluding that the two offenses were part of a single
criminal episode.

3. Victims

¶24 “Third, we consider whether each offense involved
different victims.” Rushton, 2017 UT 21, ¶ 38 (quotation
simplified). Sisneros argues that the district court incorrectly
ruled that the victim of the robbery was Father and the victim of
the theft by receiving was Son. He argues that Son was also a
victim of the robbery “because the stolen car was his” and under
the Crime Victim’s Restitution Act, “[h]e could recover
‘pecuniary damages’ for the loss of his car.” See Utah Code Ann.
§ 77-38a-102(6), (14)(a) (LexisNexis 2017).

¶25 A strict reading of the robbery statute would indicate that
Sisneros is incorrect in this proposition because the statute
“requires that the victim suffer force or fear,” and thus “it
follows that only [Father], and not [Son], could be a robbery
victim” because Son was not present to experience force or fear.
See State v. Irvin, 2007 UT App 319, ¶ 17, 169 P.3d 798. See also id.
(“The fear constituting an element of robbery is the fear of
present personal peril from violence offered or impending.”)
(quotation simplified). But in analyzing whether his crimes were
part of a single criminal episode, Sisneros is correct that Son was
also a victim of the aggravated robbery because it was his car
that was stolen and he would have been able to recover financial
restitution for loss of, or damage to, the car as a “victim” under

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 State v. Sisneros

the Crime Victim’s Restitution Act. See Utah Code Ann.
§ 77-38a-102(6), (14)(a). Thus, while only Son was a victim of the
theft offense, both Father and Son were victims of the
aggravated robbery, and this factor, too, points to a single
criminal episode.

4. Next-In-Time Offense

¶26 “The final factor we consider is whether [Sisneros]
had the opportunity to make a conscious and knowing
decision to engage in the next-in-time offense.” See Rushton,
2017 UT 21, ¶ 39 (quotation simplified). Here, Sisneros did
not have the opportunity to make a conscious and knowing
decision to engage in the next-in-time offense because both
the aggravated robbery and theft by receiving offenses
were committed at, or nearly at, the same time. When Father
and Sisneros ended the test drive, and right before he took
the car, Sisneros was “on his phone saying how much he
wanted the car.” Sisneros then proceeded to take the car
and drive it away from Father, who attempted to stop him.
This evidence shows that at this moment Sisneros (1)
committed aggravated robbery because he stole a motor
vehicle in the presence of Father, see Utah Code Ann. §§ 76-6-301,
-302 (LexisNexis 2017), and (2) committed theft by receiving
because he retained the car and displayed an intent to deprive
Son of the car, i.e., by saying that he wanted the car and then
driving off in the car, see id. § 76-6-408 (Supp. 2019). Therefore,
Sisneros did not have time to make a conscious and knowing
decision to commit the next offense—there was not a distinct
break in time between the two offenses—because both offenses
were committed nearly simultaneously. Cf. Rushton, 2017 UT 21,
¶ 39 (holding that the defendant “would have had the
opportunity to make a conscious and knowing decision to
engage in the next-in-time offense” because the two offenses
were “committed at a different point in time”) (quotation
simplified).

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 State v. Sisneros

¶27 In conclusion, Sisneros’s crimes were part of a single
criminal episode because they were (1) “closely related in time”
and (2) “incident to an attempt or an accomplishment of a single
criminal objective,” Utah Code Ann. § 76-1-401 (2017), due to the
fact that the crimes were committed in the same location, the
nature of the offenses was similar, both Father and Son were
victims of the aggravated robbery, and Sisneros did not have
“the opportunity to deliberately engage in the next-in-time
offense,” see Rushton, 2017 UT 21, ¶ 35.

II. Within the Jurisdiction of a Single Court

¶28 Next, Sisneros must show that both offenses were “within
the jurisdiction of a single court,” see Utah Code Ann.
§ 76-1-402(2)(a) (LexisNexis 2017), i.e., that both charges could
have been brought in the same district court. Every “district
court [in the state of Utah] has original jurisdiction in all matters
civil and criminal, not excepted in the Utah Constitution and not
prohibited by law.” Id. § 78A-5-102(1) (2018). Therefore, both the
second and fourth district courts technically had original
jurisdiction over both offenses in this case. However, this is not
the end of the analysis. Utah Code section 78A-5-102(1) gives
any district court original jurisdiction only when it is otherwise
“not prohibited by law.” Id. In that regard, Utah Code section
76-1-202, titled “Venue of actions,” gives further guidance on
what cases a district court can hear. It states, “Criminal actions
shall be tried in the county, district, or precinct where the offense
is alleged to have been committed.” Id. § 76-1-202(1) (2017)
(emphasis added). It continues, in relevant part, that “[i]n
determining the proper place of trial, the following provisions
shall apply”:

(b) When conduct constituting elements of an
offense or results that constitute elements, whether
the conduct or result constituting elements is in
itself unlawful, shall occur in two or more counties,

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 State v. Sisneros

trial of the offense may be held in any of the
counties concerned.

....

(g) When an offense is committed within this state
and it cannot be readily determined in which
county or district the offense occurred, the
following provisions shall be applicable:

....

(iii) A person who commits theft may be tried in
any county in which he exerts control over the
property affected.

Id. § 76-1-202(1)(b), (g) (emphases added). We therefore read the
jurisdictional statute in conjunction with the venue statute to
determine whether the offenses were “within the jurisdiction of
a single court.” Id. § 76-1-402(2)(a). 2

2. “When interpreting statutes, our object is to evince the will of
the Legislature. And we start with the statute’s plain language.”
Mackin v. State, 2016 UT 47, ¶ 25, 387 P.3d 986. But in doing so,
“we should read the plain language in a fashion that prevents
other statutory language from becoming inoperative.” Id. If we
were to read the language of “within the jurisdiction of a single
court,” Utah Code Ann. § 76-1-402(2)(a) (LexisNexis 2017), to
simply entail that the district court need only have the original
jurisdiction granted to it by Utah Code section 78A-5-102(1) to
establish that both offenses occurred within the jurisdiction of a
single court, then it would eviscerate the requirement that both
offenses occur “within the jurisdiction of a single court,” id. This
is so because a single district court would then have jurisdiction
over every offense committed in Utah regardless of its particular
(continued…)

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 State v. Sisneros

¶29 Citing Utah Code section 76-1-202(1), the State argues that
“criminal actions are ‘tried in the county, district, or precinct
where the offense’ was allegedly committed” and thus, it argues,
the second “district court did not have jurisdiction over the theft
by receiving stolen property [offense]” and the fourth “district
court did not have jurisdiction over the aggravated robbery
[offense].”

¶30 But the second district court did have jurisdiction over the
theft offense. Under Utah Code section 76-1-202(1)(g)(iii), both
district courts were appropriate venues and had jurisdiction
over the theft offense. Sisneros “commit[ted] theft” and
“exert[ed] control over” the stolen car in Weber County when he
stole it and continued to exert control over it in Utah County
when he drove it to his home in Orem. See Utah Code Ann.
§ 76-1-202(1)(g)(iii). Thus, Sisneros could have been tried for that
offense in the district court of “any county in which he exert[ed]
control over the [car],” including both Weber and Utah counties.
See id.

¶31 And Weber County could also have charged—and did
charge—Sisneros for aggravated robbery, because that crime
was committed and completed entirely within Weber County.
Thus, because Sisneros could have been charged for both crimes
in the second district court, both crimes were “within the
jurisdiction of a single court.” See id. § 76-1-402(2)(a).

(…continued)
location because every district court “has original jurisdiction in
all matters civil and criminal.” Id. § 78A-5-102(1) (2018). Thus,
the language requiring both offenses to be “within the
jurisdiction of a single court,” id. § 76-1-402(2)(a) (2017), must
also take into account the venue provisions found in Utah Code
section 76-1-202, or this statutory requirement would be
rendered meaningless.

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 State v. Sisneros

III. Prosecutor’s Knowledge of the Subsequent Offense

¶32 Finally, “[w]hether the single criminal episode statute
applies depends on whether the first prosecuting attorney knew,
at the time of the first arraignment, about the conduct
underlying the charges that were later brought in the second
prosecution.” Salt Lake City v. Josephson, 2019 UT 6, ¶ 22, 435 P.3d
255. See Utah Code Ann. § 76-1-402(2)(b) (LexisNexis 2017).

¶33 Here, the relevant question is whether the prosecutor in
Utah County knew about the conduct underlying the subsequent
charge of aggravated robbery at the time Sisneros was arraigned
in Utah County. The State argues that “the Utah County
prosecutor was not aware of all the conduct underlying
[Sisneros’s] Weber County aggravated robbery charge,” because
the prosecutor “only knew . . . that [Sisneros] committed a theft
in Weber County, not an aggravated robbery.” Sisneros counters
that “[w]hen the Utah County Attorney filed his Information
against [him], he knew from the police officer’s probable cause
statement that [he] had stolen a car from Father . . . with some
sort of force.”

¶34 In the probable cause statement justifying the arrest,
which the Utah County prosecutor had in his possession, the
Orem police officer who arrested Sisneros stated that Sisneros
confessed that he had stolen the car and that while “talking to
[Father in front of the car, Sisneros] noticed the door was open,
jumped in and drove away . . . [and Father] attempted to grab
the door but was unable to because the door was locked.” A
robbery is committed when a person “unlawfully and
intentionally takes or attempts to take personal property in the
possession of another from his person, or immediate presence,
against his will, by means of force or fear, and with a purpose or
intent to deprive the person permanently or temporarily of the
personal property,” or “the person intentionally . . . uses force or
fear of immediate force against another in the course of

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committing a theft.” Utah Code Ann. § 76-6-301(1). And relevant
here, to be guilty of aggravated robbery, a person only has to
“take[] or attempt[] to take an operable motor vehicle.” Id.
§ 76-6-302(1)(c).

¶35 From the probable cause statement, the Utah County
prosecutor “knew about . . . the conduct underlying” the charge
of aggravated robbery “that [was] later brought in the second
prosecution.” Josephson, 2019 UT 6, ¶ 22. The statement informed
the prosecutor that Sisneros’s conduct constituted aggravated
robbery because (1) Sisneros “unlawfully and intentionally
[took] . . . [the car] in the possession of [Father] from his person,
or immediate presence,” (2) it was “against [Father’s] will,”
(3) Sisneros used “force or fear,” (4) Sisneros had the “intent to
deprive [Father] permanently or temporarily of the [car]” by
driving off with it, Utah Code Ann. § 76-6-301(1)(a), and (5) the
robbery involved the taking of “an operable motor vehicle,”
id. § 76-6-302(1). The fact that the Utah County prosecutor may
not have known that Sisneros bumped Father with the car and
bruised his knee is inconsequential because injury is not an
element of aggravated robbery when a vehicle is taken. 3 Because

3. Sisneros was not arraigned in fourth district court until
August 31, 2017. Before that date—which is the relevant date for
purposes of determining what the Utah County prosecutor
knew, see Salt Lake City v. Josephson, 2019 UT 6, ¶ 22, 435 P.3d
255—Sisneros had already been charged by the Weber County
Attorney’s office in second district court with aggravated
robbery. In the probable cause statement filed in second district
court, the Weber County prosecutor alleged that Sisneros had
threatened to “run [Father] over” and that Sisneros “accelerated
quickly almost hitting [Father] such that [Father] had to jump
out of the way to avoid being struck.” Thus, by the time Sisneros
was arraigned in fourth district court, it is entirely possible that
the Utah County prosecutor actually did know the full extent of
(continued…)

20181002-CA 17 2020 UT App 60
 State v. Sisneros

Sisneros took the car in Father’s presence while Father attempted
to open the door to stop him, the Utah County prosecutor knew
that Sisneros’s conduct satisfied the element of using force or
fear to take the vehicle. See State v. Featherhat, 2011 UT App 154,
¶¶ 30, 32, 257 P.3d 445 (holding that regardless of the
defendant’s use of a shotgun in stealing the car, he committed
aggravated robbery “because he took an operable motor vehicle”
in the presence of the victim); State v. Irvin, 2007 UT App 319,
¶ 20 n.4, 169 P.3d 798 (stating that an “operable motor vehicle . . .
taken from the victim's person or immediate presence . . .
constitute[s] an aggravated robbery”).

¶36 Thus, as of Sisneros’s arraignment in fourth district court,
the Utah County prosecutor knew of the conduct underlying the
charge of aggravated robbery that had been brought in second
district court.

CONCLUSION

¶37 The State was barred from bringing a charge of
aggravated robbery against Sisneros in second district court
because that charge and the previously charged theft by
receiving arose out of a single criminal episode; the offenses
were both within the jurisdiction of second district court; the
Utah County prosecutor knew about the conduct underlying the
subsequently charged aggravated robbery; and Sisneros was
convicted of the prior charge of theft by receiving in fourth
district court, foreclosing the Weber County prosecutor from
pursuing another charge arising from the same criminal episode.
We therefore vacate Sisneros’s conviction for aggravated
robbery.

(…continued)
the actions Sisneros was alleged to have committed at the time
he stole the car.

20181002-CA 18 2020 UT App 60