dissenting:
¶ 16 I respectfully dissent. The superior court’s determination that there is probable cause supporting the allegation of two prior convictions as aggravating circumstances under AR.S. § 13-752(F)(2) is supported by the record and was properly made after the court conducted a Chronis hearing. Accordingly, I would deny relief.
¶ 17 The majority concludes that the superior court contravened the Arizona Supreme Court’s holding in Sanchez v. Ainley, 234 Ariz. 250, 321 P.3d 415 (2014), that a grand jury deteimination of aggravating circumstances cannot be used as a basis for denying a capital defendant’s request for a Chronis hearing. But the grand jury in this case did not make the aggravating circumstances determination, and instead only determined probable cause for public offenses (child abuse counts that will be tried contemporaneously with the first-degree murder charge), precisely the grand jury’s proper role. Moreover, the superior court conducted a Chronis hearing and found probable cause for the (F)(2) aggravating circumstance based on the fact of (potential) prior convictions, together with the serious nature of the prior convictions. Accordingly, there was no error under Arizona Rule of Criminal Procedure 13.5, and the superior court’s ruling did not contravene—and in fact scrupulously complied with—Sanchez.
¶ 18 As the majority notes, under § 13-751(F)(2), the State may allege as an aggravating circumstance in a capital ease the fact that the defendant “has been or was previously convicted of a serious offense, whether preparatory or completed,” and the statute expressly recognizes that the previous convictions may be “for serious offenses committed on the same occasion as the homicide, or not committed on the same occasion but consolidated for trial with the homicide.” Under § 13—751(J), a “serious offense” is defined to include certain enumerated offenses, including as relevant here, “[a]ny dangerous crime against children.”
¶ 19 The (F)(2) aggravating circumstance thus requires two findings: (1) the existence of a prior conviction, and (2) that the conviction involves a “serious offense.” Under this statutory scheme, the mere fact of a grand jury indictment regarding a child abuse offense does not establish probable cause for an aggravating circumstance any more than the mere fact of a previous criminal conviction. To find probable cause for the aggravating circumstance, the superior court must also determine whether the previous conviction (or the offense consolidated for trial with the homicide) is a serious offense under § 13-75KJ).
¶ 20 In Sanchez, after the grand jury made probable cause findings regarding aggravating circumstances, the superior court declined as unnecessary a requested Chronis hearing. The Arizona Supreme Court rejected that approach, noting that “[sjince it is the duty of a grand jury to charge only public offenses, they have no authority to add allegations to the indictment which are concerned with punishment, and do not charge a public offense.” 234 Ariz. at 253, ¶ 11, 321 P.3d 415 (quoting State v. Birdsall, 116 Ariz. 112, 113-14, 568 P.2d 419 (1977)). The supreme court thus ruled that the superior court cannot abdicate its responsibility to the grand jury to determine whether the State has established probable cause for an alleged aggravating circumstance. Id. at 253-54, ¶ 13, 321 P.3d 415.
*366¶ 21 Here, unlike in Sanchez, the superior court conducted a Chronis hearing. Nevertheless, the majority concludes that Sanchez required the court to disregard the grand jury’s finding of probable cause for the child abuse counts, and to instead conduct an independent assessment of the conduct underlying the child abuse counts. But Sanchez involved grand jury findings that went beyond the scope of the grand jury’s authority. In contrast, the grand jury here did not exceed its authority and did not determine probable cause to assert an aggravating circumstance. Instead, the grand jury simply found probable cause to charge public offenses, which was clearly within the scope of its authority. See id. at 253, ¶ 11, 321 P.3d 415.
¶ 22 The superior court appropriately conducted the required analysis for an alleged (F)(2) aggravating circumstance. The court noted that the “grand jury’s finding of probable cause respecting [the child abuse offenses] of the Indictment is sufficient to establish probable cause respecting those charges,” and went on to state, “and because they are ‘serious offenses’ under the statute, the Court finds there is probable cause to proceed on the aggravating factor of a ‘prior serious offense.’ ” (Emphasis added.) Thus, the grand jury did what it was authorized to do—find probable cause for public offenses— and the court did what it was authorized and required to do—determine if there was probable cause for an aggravating circumstance under § 13-751(F)(2).
¶ 23 The Allens do not suggest any impropriety in the grand jury’s determination of probable cause for the child abuse offenses. And just as there is no reason for a superior court to revisit or “re-try” the facts underlying a “previous” conviction before considering whether the conviction is a “serious offense,” there is no reason to revisit the facts underlying offenses “consolidated for trial with the homicide.” Under both scenarios, the conviction/offense can only be used as an aggravating circumstance for sentencing purposes after it becomes a conviction based on a verdict of guilt beyond a reasonable doubt. Thus, the relevant inquiry for the superior court at a Chronis hearing on an (F)(2) aggravating circumstance simply addresses (1) the fact of a previous conviction or the fact of an indictment on another offense, coupled with (2) a determination of whether the conviction/offense qualifies as a serious offense under § 13—751(J).
¶ 24 Finally, the majority posits that a Chronis hearing on an (F)(2) aggravating circumstance must address the facts underlying the prior conviction, suggesting that the defendant would otherwise be denied the right “to cross-examine witnesses and present rebuttal evidence” as required by Sanchez. But the (F)(2) aggravating circumstance inherently includes even greater procedural protections because, as noted above, a prior conviction cannot be used as an aggravating factor until it is in fact a conviction, which requires a finding not just of probable cause (as at a Chronis hearing), but of guilt beyond a reasonable doubt. And the right to cross-examine witnesses and to present rebuttal evidence regarding the facts underlying the prior conviction is secured through the right to a jury trial on the prior offense.
¶ 25 In sum, the trial court did not err under Sanchez or otherwise. The grand jury did not exceed its authority when it found probable cause for “public offenses,” and the superior court conducted a Chronis hearing and found the existence of indicted offenses, and that the offenses were “serious.” That finding was sufficient to permit the State to move forward with the allegation of the (F)(2) aggravating circumstance, contingent on a future jury finding of guilt of the underlying public offenses beyond a reasonable doubt. Accordingly, in my view, the Allens are not entitled to relief.