153 Ill. App.3d 417 (1987)
505 N.E.2d 1107
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DISBY SEALS, Defendant-Appellant.
No. 84-3041.
Illinois Appellate Court  First District (2nd Division).
Opinion filed February 24, 1987.
Rehearing denied March 30, 1987.
*418 *419 *420 James J. Doherty, Public Defender, of Chicago (Nicolette Katsivalis and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
Richard M. Daley, State's Attorney, of Chicago (Thomas V. Gainer, Jr., Paula M. Carstensen, and Kathryn A. Gallanis, Assistant State's Attorneys, of counsel), for the People.
Judgment affirmed in part and cause remanded.
JUSTICE HARTMAN delivered the opinion of the court:
Defendant appeals his convictions for voluntary manslaughter and aggravated battery and his concurrent sentences of 15 years' imprisonment for manslaughter and 5 years' imprisonment for aggravated battery. He raises as issues whether: (1) the circuit court erred in not finding that the State's use of peremptory challenges improperly excluded black jurors because of their race; (2) the circuit court erred in admitting certain demonstrative evidence; (3) the circuit court erred in refusing to admit into evidence a certified copy of the homicide victim's aggravated-battery conviction; (4) defendant's due process rights were violated by improper argument by the prosecutor; (5) the juvenile court abused its discretion by transferring the case for prosecution under the criminal code; and (6) the circuit court abused its discretion by considering improper factors at sentencing.
On November 17, 1983, defendant Disby Seals, then age 14, a member of the Puerto Rican Stones gang, fired five shots from a.45-caliber semi-automatic pistol that killed Ricky Perez, age 19, a member of the Latin Eagles, and wounded Johnny Nieves, age 17, another Latin Eagle. Defendant had been walking with two female friends, Gloria Galvan, age 17, and Kathy Curtis, age 16, near Blaine School when they met three members of the Latin Eagles: Edwin Villariny, age 17, Perez, and Nieves. Nieves told Galvan that she should not wear the sweater she was wearing, and Galvan replied she would wear what she pleased. Perez then asked Nieves, "Who is that punk?" referring to defendant. Two different versions of what happened next were given at trial.
According to Nieves and Villariny, Nieves told Perez that defendant had fired shots at them four weeks earlier. Perez then turned to look at defendant, who drew a pistol from his waistband, causing Perez, Villariny, and Nieves to start running away. Defendant chased them, shouted "Stone Love," and fired shots which hit *421 Perez and Villariny.
Defendant and his two companions asserted that Nieves, in addition to talking to Galvan, had reached out and tried to grab her sweater and a struggle began. According to defendant, Perez asked defendant what gang he belonged to. After defendant did not reply, Villariny put his hand in the front waistband of his pants as if to pull out a gun and Perez, holding his hands closed and chest high, started towards defendant. Defendant asserts he believed Villariny would shoot him and Perez would hit him. Defendant took one step back, pulled out his gun, and fired five times. According to defendant he did not aim the gun, had never used a gun before, had heard of Nieves and Villariny's having guns, and believed the three Latin Eagles were going to kill him.
After the shooting, defendant and his companions ran away. He returned the gun to Jose Rivera, leader of the Puerto Rican Stones. Defendant then went to 1137 West Belmont, where he was arrested. Perez, Villariny, and Nieves were taken to Illinois Masonic Hospital. Villariny had a bullet removed from his leg which had entered from the back. Villariny also had a bullet bruise to his hip. Perez died at the hospital of massive internal bleeding caused by a bullet that entered through his back and lacerated his lung, bronchus, and aorta.
Defendant claimed to have had three previous hostile encounters with Nieves. On the last day of school in June 1982, while walking home with his younger sister he had been punched by Nieves and Villariny when he denied being a gang member. A third Latin Eagle present kicked defendant in the stomach. As defendant and his sister ran away, Nieves followed and shouted that he would kill defendant the next time they met. Defendant believed he saw a gun in Nieves' hands. In September 1982, defendant and a friend came across Nieves, who ripped a jacket of his friend and reminded defendant of their past meeting. In October of 1983, Nieves hit another friend of defendant's with a crowbar and took a swing at defendant. Defendant further stated he had been given the gun he used on November 17 earlier that day by Jose Rivera for protection against Latin Eagles.
Defendant was indicted on two counts of attempted murder, one count of murder, and one count of aggravated battery. (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 9-1, 12-4.) After a hearing, the juvenile court ordered defendant to be tried as an adult. A jury convicted defendant of voluntary manslaughter and aggravated battery on October 26, 1984. The circuit court sentenced defendant as previously noted. Defendant appeals.

*422 I
Defendant contends that the prosecution improperly used peremptory challenges to disproportionately exclude black jurors from his jury. The United States Supreme Court's recent decision on this subject (Batson v. Kentucky (1986), 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712) supports defendant's theory. The State asserts that the Batson analysis should not be used and, in any case, no purposeful discrimination took place.
 1, 2 Prosecutors may not purposefully discriminate against a racial group in selecting a petit jury in a trial of a defendant belonging to that group. To establish a prima facie case of discrimination, a defendant must demonstrate that he is a member of a recognizable racial group and that the prosecutor used peremptory challenges to remove members of his race from the jury panel. (Batson v. Kentucky (1986), 476 U.S. 79, ___, 90 L.Ed.2d 69, 88, 106 S.Ct. 1712, 1723.) The defendant must then show the relevant facts and circumstances of the case raise an inference of discrimination. After this prima facie case is made, the State has the burden of putting forward a neutral explanation for its challenges. The circuit court must then determine whether defendant has proved purposeful discrimination. 476 U.S. 79, ___, 90 L.Ed.2d 69, 88-90, 106 S.Ct. 1712, 1723-24.
 3 The State contends Batson should not be applied retroactively, citing the views of four Supreme Court justices in Batson (476 U.S. 79, ___, ___, ___, 90 L.Ed.2d 69, 91, 97, 110-11, 106 S.Ct. 1712, 1726, 1731, 1741-42) and an even more recent case barring Batson relief for cases on collateral review (Allen v. Hardy (1986), 478 U.S. ___, 92 L.Ed.2d 199, 106 S.Ct. 2878). The Supreme Court has now decided this issue adversely to the State's position in Griffith v. Kentucky (1987), 479 U.S. ___, 93 L.Ed.2d 649, 107 S.Ct. 708. There the Supreme Court retroactively applied Batson to all cases pending on direct review, such as the present case.
The next question to be considered is whether the facts in this case demonstrate a prima facie case of discrimination. In Batson, the prosecutors excluded four black jurors. The resulting jury was all white. (Batson v. Kentucky (1986), 476 U.S. 79, ___, 90 L.Ed.2d 69, 78, 106 S.Ct. 1712, 1715.) In the instant case, the record indicates the prosecutors used 10 peremptory challenges to exclude 6 blacks, 1 Latino, and 3 whites, one of the blacks being excluded from becoming an alternate juror. Defendant, the child of a racially mixed marriage, was described by the defense as having the appearance of a black. Only one black served on the actual jury that convicted him. Notwithstanding the fact that one black juror did serve, Batson does *423 not require complete exclusion of a racial group to prove discrimination. (See Fleming v. Kemp (11th Cir.1986), 794 F.2d 1478, 1483 (pointing out that otherwise prosecutors could allow one or two black jurors to serve to immunize their other challenges).) In pre-Batson decisions, made under State constitutions, several courts found discrimination when one black juror served, even in cases when that juror was jury foreman. State v. Neil (Fla. 1984), 457 So.2d 481, 482-83, 487; Commonwealth v. Soares (1979), 377 Mass. 461, 473, 387 N.E.2d 499, 508, cert. denied (1979), 444 U.S. 881, 62 L.Ed.2d 110, 100 S.Ct. 170. See also United States v. McDaniels (E.D. La. 1974), 379 F. Supp. 1243, 1244.
 4 Here, the prosecutors excluded twice as many black jurors as white jurors, with the result that only one black juror and one Hispanic juror served. The voir dire is preserved and the reasons for exclusion, other than race, are not apparent. This disproportionate use of peremptory challenges establishes a prima facie case of discrimination requiring a neutral explanation by the prosecutors or a new trial. The cause therefore must be remanded to the circuit court for reconsideration of defendant's motion for a mistrial based upon the exclusion of potential minority jurors from the jury.
Because we sustain defendant's conviction and sentencing otherwise, as the following discussion reveals, the cause will be deemed affirmed in the event no systematic exclusion based upon race is found by the circuit court after reconsideration and there is no further review sought here. In the event such impermissible exclusion of potential jurors is found by the circuit court, a mistrial shall be declared and defendant shall be granted a new trial.

II
Defendant asserts that the circuit court erred in admitting a.45-caliber handgun into evidence because the State failed during discovery to disclose its intent to use the weapon, claiming the prejudicial impact of the weapon outweighed its probative value. The State replies that defendant was not prejudiced by the use of the gun, which helped Sergeant Vincent Lamoro testify regarding the casings found at the crime site.
 5 Demonstrative evidence can be used to make other testimony more understandable. (People v. Chatman (1981), 102 Ill. App.3d 692, 701, 430 N.E.2d 257.) If it provides a visual aid for the jury, it should be used for factual explanation, not dramatic effect. (Smith v. Ohio Oil Co. (1956), 10 Ill. App.2d 67, 75, 77, 134 N.E.2d 516.) The use of demonstrative evidence is within the discretion of the trial court. (10 Ill. App.2d 67, *424 76-77, 134 N.E.2d 526.) It should be observed that defendant in the present case admitted firing the gun that caused the injuries and death, his defense having been based upon the theory of self-defense. The jury was told that the gun demonstrated was not the gun used in the shootings, since that weapon was never recovered.
 6 In the case sub judice, the gun was used only briefly during Sergeant Lamoro's testimony, but was not permitted to go to the jury. It may have helped explain Sergeant Lamoro's testimony. When original objects are unavailable, similar or identical physical objects have been allowed into evidence. See People v. Chatman (1981), 102 Ill. App.3d 692, 701-02, 430 N.E.2d 257; see also Fedt v. Oak Lawn Lodge, Inc. (1985), 132 Ill. App.3d 1061, 1069, 478 N.E.2d 469, appeal denied (1985), 108 Ill.2d 561.
 7 Defendant's discovery motion had requested a description of any tangible objects which the prosecution intended to use. A gun is a tangible object. Accordingly, the State should have disclosed its intent to use the gun. In view of the limited use of the gun, however, this error in discovery response did not prejudice defendant. People v. Greer (1980), 79 Ill.2d 103, 117, 120, 402 N.E.2d 203.

III
Defendant also contends that he was prejudiced by the court's failure to admit into evidence a certified copy of the homicide victim's prior conviction for aggravated battery because the State tried to minimize that incident when a defense witness testified to the battery. The State responds that such evidence would have been cumulative and that even defendant's version of the facts asserts Villariny, not Perez, was the aggressor.
 8 A defendant claiming self-defense has the right to present evidence of a victim's aggressive and violent behavior which can be relevant to indicate which party was the aggressor. (People v. Lynch (1984), 104 Ill.2d 194, 199-200, 470 N.E.2d 1018.) Battery convictions are fairly reliable evidence of a violent character. (104 Ill.2d 194, 201, 203, 470 N.E.2d 1018; People v. Trimble (1985), 131 Ill. App.3d 474, 477, 475 N.E.2d 971.) Before a court admits evidence of a victim's character, a defendant must provide some evidence that the victim was the aggressor. (People v. Lynch (1984), 104 Ill.2d 194, 204, 470 N.E.2d 1018.) Here, defendant testified that he saw Villariny reach into his pants, thought he was going to pull out a gun and kill him, and therefore pulled out the gun given him by Rivera for protection and began shooting at the victims. The only potential aggressor at that point was Villariny, not Perez, whose criminal record was at issue. *425 Although defendant claimed that Perez advanced closely upon him at the same time that Villariny allegedly reached for a gun, both shooting victims were shot from the back.
 9 The record also discloses that substantial evidence of the specific prior incident had been presented. Therefore, failure to permit additional evidence of that same incident may be deemed harmless error. (People v. Cleveland (1986), 140 Ill. App.3d 462, 471-72, 488 N.E.2d 1276.) Daniel Greer was involved in that altercation and testified in detail with respect to Perez' role in the battery which was the subject of the criminal record sought to be admitted. Any error in its exclusion from evidence, therefore, was harmless.

IV
Defendant asserts improper and prejudicial remarks of the prosecutors both separately and cumulatively denied him a fair trial. The State contends that these remarks are proper comment or, alternatively, were harmless error.

A
In closing rebuttal the prosecutor urged the jury not to find a verdict of voluntary manslaughter because "[t]o get to that point, however, you have to believe Disby Seals. You have to believe the defense case." Defense counsel's objection to shifting the burden was overruled and the prosecutor continued, stating, "because the minute he puts a case on, that case is subject to the same scrutiny that the People's case is."
 10, 11 An accused is presumed innocent until a jury finds otherwise beyond a reasonable doubt. (People v. Ray (1984), 126 Ill. App.3d 656, 661, 467 N.E.2d 1078.) It is improper to argue that the defendant has to provide evidence to create a reasonable doubt. (People v. Weinstein (1966), 35 Ill.2d 467, 469-70, 220 N.E.2d 432.) Although the prosecutor's argument, that the jury had to believe defendant to find voluntary manslaughter, not murder, may have been improper, this error was harmless since the jury convicted defendant of voluntary manslaughter, not murder.
 12 Defendant's claimed error in the prosecutor's characterization of the burden of proof as not overwhelming and the same in every jurisdiction cannot be sustained. Such remarks are not improper. People v. Bryant (1983), 94 Ill.2d 514, 523, 447 N.E.2d 301; People v. Calhoun (1986), 144 Ill. App.3d 829, 834, 494 N.E.2d 498.

*426 B
 13 Defendant urges error in the prosecutor's assertedly unfair arguments that defendant had run away from home and was living with gang members. One of the prosecutors asserted that defendant was living with the Puerto Rican Stones; he did not state that defendant ran away from home. Defendant testified that he considered the gang very important in his life, but that he lived elsewhere with a friend who was not a gang member. Although the prosecution may not assert a fact not based on the record, it was harmless in these circumstances since defendant's gang membership was admitted.

C
Defendant asserts that other improper prosecutorial remarks prejudiced him, particularly by their cumulative effect; however, none of these remarks, either separately or cumulatively, rises to the level of prejudicial error.

V
Defendant contends that the juvenile court abused its discretion by ordering a transfer for defendant's prosecution as an adult, overemphasizing that a life was lost. By statute, six factors must be considered in making such a decision (Ill. Rev. Stat. 1983, ch. 37, par. 702-7(3)(a)), which include whether: (1) there is sufficient evidence for a grand jury indictment; (2) there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the minor's age; (4) his previous history; (5) facilities are available to the juvenile court for the minor's treatment and rehabilitation; and (6) his best interest and the public's security require that he continue in custody or under supervision for a period extending beyond his minority.
 14 The juvenile court gave attention to all these factors, together with the evaluations of a probation officer, psychiatrist, and psychologist. Defendant was just two months short of age 15 when he shot his victims and had two pending charges against him. There is no evidence to justify a finding of abuse of the court's discretion. People v. Clark (1986), 144 Ill. App.3d 420, 427-28, 494 N.E.2d 551; see People v. Taylor (1979), 76 Ill.2d 289, 300-01, 391 N.E.2d 366.

VI
As his final argument, defendant insists there was an abuse of discretion in his sentencing. Defendant received the maximum sentence on both counts, 15 years' imprisonment for voluntary manslaughter *427 and a concurrent term of 5 years' imprisonment for aggravated battery. (Ill. Rev. Stat. 1983, ch. 38, pars. 9-2(c), 12-4(e), 1005-8-1(4) and (6).) The court emphasized that one victim had died and that shooting people in the back was a "cowardly act." It also stated: "I will never understand the jury's verdict * * *."
The court heard testimony in both aggravation and mitigation. A teacher at Oak Park-River Forest High School testified that six months after the shooting, he and defendant had an argument during which defendant threatened to get a .45-caliber gun and kill him. In mitigation, a minister testified to defendant's improvement since the shooting and defendant's uncle testified to his lack of a father image and his recent living free of gang influence.
 15 The trial court is best suited to determine the most appropriate sentence. (People v. Hicks (1984), 101 Ill.2d 366, 375, 462 N.E.2d 473; People v. Staten (1986), 143 Ill. App.3d 1039, 1058, 1060, 493 N.E.2d 1157.) The sentence should contemplate both the seriousness of the offense and defendant's potential for rehabilitation. (Ill. Const. 1970, art. I, sec. 11.) Here the teacher's testimony raised a serious doubt concerning defendant's potential for rehabilitation. The comment of the judge about not understanding the jury verdict is similar to another comment by a sentencing judge recently held not improper. (People v. Russell (1986), 143 Ill. App.3d 296, 304-05, 492 N.E.2d 960.) We find no abuse of discretion.
In consideration of the foregoing, we affirm and remand for consideration by the circuit court of defendant's claim of juror selection discrimination. In the absence of such a finding, the conviction and sentence stand affirmed. Should the circuit court find an improper use of the State's peremptory challenges, it is directed to vacate the conviction and sentencing and grant defendant a new trial.
Affirmed in part and remanded with directions.
SCARIANO, P.J., and STAMOS, J., concur.


61 F.3d 900
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Milton MCCRAY, Plaintiff--Appellant,andThe McCray Family, Plaintiff,v.M.J. GARBIS, Judge;  A.D. Eason, Assistant Attorney General;Rosenblatt, Assistant Attorney General;  R. Kastendier,Assistant Attorney General;  Clerk, United States DistrictCourt For Maryland, Individually And professionally,Defendants--Appellees.
No. 95-6688.
United States Court of Appeals, Fourth Circuit.
Submitted:  June 22, 1995Decided:  July 18, 1995

Milton McCray, Appellant Pro Se.
Before HALL, MURNAGHAN, and LUTTIG, Circuit Judges.
PER CURIAM:

1
Appellant appeals from the district court's order denying his motion to reconsider the court's denial of relief on his 42 U.S.C. Sec. 1983 (1988) complaint.  We have reviewed the record and the district court's opinion and find no reversible error.  Accordingly, we affirm on the reasoning of the district court.  McCray v. Garbis, No. CA-95-248-PJM (D.Md. Apr. 1, 1995).  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED


                                                                                F I L E D
                                                                           United States Court of Appeals
                                                                                Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                JUN 23 1997
                                     TENTH CIRCUIT
                                                                               PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                             No. 96-5225
 LARRY KEITH PFEIL,                                       (D.C. No. 96-CR-60-C)
                                                                (N.D. Okla.)
           Defendant-Appellant.

                                  ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and LUCERO, Circuit Judges.**

       Defendant Larry Pfeil pleaded guilty to possession of firearms and ammunition by

a felon in violation of 18 U.S.C. §§ 922(g)(1), 921(a)(3), and 924(a)(2). He was

subsequently sentenced to 41 months imprisonment. We have jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The only issue presented

by this direct appeal is whether the district court abused its discretion by failing to

       *
                This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
             After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. 34.1.9. The case is therefore ordered
submitted without oral argument.
consider a concurrent or partially concurrent sentence under § 5G1.3(c) of the Sentencing

Guidelines. Finding that the district court did consider the potential imposition of a

concurrent or partially concurrent sentence, we find no abuse of discretion and affirm.

       It is well settled that a district court “retains discretion in choosing whether to

impose a consecutive or concurrent sentence.” United States v. McCarty, 82 F.3d 943,

951 (10th Cir. 1996), cert. denied, 117 S. Ct. 257. However, this discretion is

circumscribed by 18 U.S.C. § 3553(a) and U.S.S.G. §5G1.3. Id. at 950. Thus, our review

is for an abuse of discretion. See id. at 951.

       After examining the record, briefs, Pre-Sentence Report, and all other materials

before us, it becomes obvious that the district court was fully aware of his sentencing

options under U.S.S.G. § 5G1.3(c) and exercised his discretion in imposing a consecutive

sentence upon the defendant. Accordingly, we find no reversible error.

       AFFIRMED.

                                                     Entered for the Court,

                                                     Bobby R. Baldock
                                                     Circuit Judge

                                                 2


42 Cal.App.4th 1546 (1996)
50 Cal. Rptr.2d 216
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 347, Plaintiff and Appellant,
v.
CITY OF LOS ANGELES et al., Defendants and Respondents.
Docket No. B081819.
Court of Appeals of California, Second District, Division Four.
February 28, 1996.
*1548 COUNSEL
Robert F. Hunt, Posner & Rosen and Howard Z. Rosen for Plaintiff and Appellant.
*1549 James K. Hahn, City Attorney, Frederick N. Merkin, Assistant City Attorney, and George R. Lomeli, Deputy City Attorney, for Defendants and Respondents.
OPINION
VOGEL (C.S.), P.J.
Appellant Service Employees International Union, Local 347 (the Union) appeals from the judgment and order denying a petition to compel arbitration of a grievance between one of its members and the City of Los Angeles and Department of Public Works of the City of Los Angeles (the City). Denial of the petition was based on the ground that the dispute was not arbitrable under the provisions of the parties' agreement. After independent review of the agreement, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND
Paul G. Fowler is an employee of the Department of Public Works of the City of Los Angeles. He is represented by the Union, an employee organization which is recognized by the City of Los Angeles as the bargaining representative for City employees in the "Equipment Operation and Labor Employees Representation Unit." The Union and City are parties to a memorandum of understanding (MOU) dated July 17, 1990.
In March of 1992, Mr. Fowler filed a grievance on his own behalf, and on behalf of similarly situated employees, because he believed he was entitled to receive premium pay under note K of the Los Angeles City Administrative Code. Section 4.61 of the Administrative Code contains a listing of all job titles, with their respective salary ranges designated at schedule A. Attached to schedule A is a series of salary "notes" providing for various adjustments to an employee's base rate of pay. Note K states: "A person employed in this class of position, when regularly assigned as said term is defined in Section 4.75 of this Code, to duties consisting of doing maintenance of or servicing or repairing of Motor Sweepers or of sewage disposal facilities and equipment or cleaning catch basins or transporting sewage or catch basin debris; or consisting of working in an area where the noise level is 85 decibels or higher; or when required to perform such duties more than 50% of his time in any one day, shall receive salary at (1) the corresponding step of the second salary schedule higher than the schedule prescribed for this class, or (2) the second premium level rate above the appropriate step *1550 rate of the salary range prescribed for this class." Mr. Fowler contended that he regularly works in an area where the noise level is 85 decibels or higher.
The parties completed all stages of the grievance procedure. In the end, the Fowler grievance was denied on the ground that the note K bonus applied only to a temporary, short-term noise problem which could not be sufficiently mitigated by hearing protection. The Union submitted a request for arbitration pursuant to article 3.1 of the MOU. The City refused to submit the matter to arbitration because "the issue of Note K under the Los Angeles [City] Administrative Code § 4.61, is one that lies outside the Memorandum of Understanding and thus, outside the jurisdiction of an arbitrator."
On October 6, 1993, the Union filed a verified petition to compel arbitration. The City opposed the petition on the grounds that although the Los Angeles City Charter gives to the city council power to set salaries for all City employees and the council could permit the bringing of grievances concerning salary and require unresolved grievances be sent to arbitration, it did not do so in either the MOU or the Employee Relations Ordinance of the City of Los Angeles.[1] The City contended that the resolution of the issue presented by the grievance would intrude into the economic domain reserved under the Employee Relations Ordinance to the city council. Denying the petition to compel arbitration, the trial court ruled that "the resolution of the underlying grievance through arbitration could have a substantial economic impact on City government and, thus, falls within the exclusive province of the Los Angeles City Council to act as the final and unfettered arbiter of such issues on behalf of the City" and that "[t]here was no delegation of the Council's plenary authority over salaries through the establishment of the grievance procedures set forth in the applicable MOU's." At the hearing, the court explained the basis for its ruling: "[I]f there is any ambiguity, ... it should be construed against the Union.... [¶] [T]he only proper reading of the ERO's [Employee Relations Ordinances] in context is to reject the [Union's] interpretation and to construe the ERO's as leaving in the [Council] the ultimate responsibility and authority for setting terms and conditions of employment to the extent that they involve the payment of wages and terms of that employment." The Union appealed from the denial.

*1551 I
(1a) On appeal, the Union contends that a dispute over the interpretation of note K is a dispute over "`the interpretation or application of this written MOU'" as described in the definition of grievance contained in article 3 of the MOU and section 4.865(a)(4) of the Employee Relations Ordinance. Article 3 of the MOU defines a grievance as "any dispute concerning the interpretation or application of this written MOU or departmental rules and regulations governing personnel practices or working conditions applicable to employees covered by this MOU. An impasse in meeting and conferring upon the terms of a proposed MOU is not a grievance." "Grievance" is similarly defined in the Employee Relations Ordinance as "[a]ny dispute concerning the interpretation or application of a written memorandum of understanding or of departmental rules and regulations governing personnel practices or working conditions. An impasse in meeting and conferring upon the terms of a proposed memorandum of understanding is not a grievance." (L.A. Employee Relations Ord., § 4.801.)
According to the Union, note K is incorporated into the MOU by virtue of article 1.9, which states: "The parties agree that this MOU is subject to all applicable Federal and State laws, the City Charter, City ordinances, and any lawful rules and regulations enacted by the Civil Service Commission, ERB, or similar independent commissions of the City." Therefore, the Union contends, disputes concerning its interpretation are subject to the grievance and arbitration procedures outlined in the MOU and the Employee Relations Ordinance.
The Employee Relations Ordinance requires "[t]he management representative principally responsible for meeting and conferring with a recognized employee organization" to "meet and confer with the representatives of such employee organization to develop a grievance procedure for employees in the representation unit, to be incorporated into any memorandum of understanding reached by the parties." (L.A. Employment Relations Ord., § 4.865(a).) "Such grievance procedure shall apply to all grievances, as defined in Section 4.801 of this code, shall provide for arbitration of all grievances not resolved in the grievance procedure, and shall conform to the following standards: ... [¶] (1) Provision shall be made for discussion of the grievance first with the employee's immediate supervisor on an informal basis; [¶] (2) Provision shall be made for the filing of a formal grievance in writing, and for the processing of the unresolved grievance through not more than four, nor less than two, levels of review with written notice of the *1552 results of each such review to the employee and to his representative, if any; [¶] ... [¶] (4) If the grievance is not resolved in the grievance procedure, either party may submit the grievance to arbitration by written notice to the other party of its desire to arbitrate.... With respect to grievances involving the Department of Airports, Harbor, Water and Power, Library, Recreation and Parks, Pensions and City Employees' Retirement System, the decision of the arbitrator shall be advisory only. [¶] With respect to grievances involving all other City departments, the decision of the arbitrator shall be final and binding on the parties." (L.A. Employment Relations Ord., § 4.865(a).)
The MOU's grievance procedures conform to the standards of the Employee Relations Ordinance. Under the procedures set forth in the MOU, first an informal discussion is held, and then three levels of review. If none of these proceedings succeed in resolving the grievance, there is an optional provision for mediation. If the mediation is unsuccessful or the parties opt not to mediate, and the Union and the grievant agree that they desire arbitration, "the Union shall serve upon the head of the department, office or bureau a copy of the request for arbitration at the same time that the original is filed with [the Employee Relations Board]." The arbitrator's decision "shall be binding upon the parties concerned, except for grievances involving the Department of Airports, Harbor, Water and Power, Library, Recreation and Parks, Pensions, and CERS [City Employees' Retirement System], which shall be advisory only."
(2) Under section 1281.2 of the Code of Civil Procedure, the trial court "determines if there is a duty to arbitrate the particular controversy which has arisen between the parties. [Citation.]" (United Transportation Union v. Southern Cal. Rapid Transit Dist. (1992) 7 Cal. App.4th 804, 808 [9 Cal. Rptr.2d 702].) "In performing its duty to determine if the parties have agreed to arbitrate that type of controversy, the court is necessarily required `to examine and, to a limited extent, construe the underlying agreement.'" (Ibid., quoting Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 480 [121 Cal. Rptr. 477, 535 P.2d 341]; accord, Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal. App.4th 809, 816-817 [30 Cal. Rptr.2d 785].)
(3) "An appellate court is not bound by the trial court's construction of a contract based solely upon the terms of the written instrument where there is no conflict in the evidence. In such a case, the interpretation of the contract becomes a question of law and we must make an independent *1553 determination of its meaning. [Citation.]" (Valsan Partners Limited Partnership v. Calcor Space Facility, Inc., supra, 25 Cal. App.4th at p. 817.) (1b) Here the trial court, looking at the provisions of the MOU without resort to extrinsic evidence, ruled that there was an ambiguity in the grievance and arbitration provisions and that it should be construed against the party seeking arbitration because the agreement involved the terms and conditions of City employment for which the city council had ultimate responsibility.
The trial court incorrectly stated the applicable rule. (4) Even where an arbitration provision is contained in an agreement which has a bearing on the duties of a governmental entity, a construction favoring arbitration is preferred. (Taylor v. Crane (1979) 24 Cal.3d 442, 452 [155 Cal. Rptr. 695, 595 P.2d 129].) "`Doubts as to whether the arbitration clause applies are to be resolved in favor of coverage.'" (United Transportation Union v. Southern Cal. Rapid Transit Dist., supra, 7 Cal. App.4th at p. 809.)
(1c) Here, the MOU states that after the applicable grievance mechanisms are exhausted, the Union is entitled to arbitrate disputes "concerning the interpretation or application of this written MOU or departmental rules and regulations governing personnel practices or working conditions applicable to employees covered by this MOU." The MOU is "subject to ... the City Charter, City ordinances, and any lawful rules and regulations enacted by the Civil Service Commission, ERB, or similar independent commissions of the City." Although not specifically discussed in the MOU, there is no dispute that employees covered by the MOU are also covered by the Los Angeles City Administrative Code and note K. The only dispute is over whether to interpret note K to apply to Mr. Fowler or employees in his situation. This dispute is subject to arbitration.

II
(5) The City suggests that allowing an arbitrator to determine an employee's eligibility for the note K premium would be an improper delegation of the city council's authority over economic matters. The City relies on section 66 of the Los Angeles City Charter which provides: "The City Council shall, by ordinance, fix the salaries of all officers and employees of the City, including those officers and employees provided for in departments having control of their own definite revenues and funds, whose salaries are not fixed or otherwise provided for by this Charter." (L.A. City Charter, § 66.)
*1554 A similar argument was made in Taylor v. Crane, supra, The employee there was a police inspector who had been discharged for improper use of firearms. The City had enacted a set of procedures under which discharged employees were to appeal to the personnel board. In addition, the MOU between the city and police association, ratified by the city council, provided for grievance and arbitration of disputes concerning discipline. (24 Cal.3d at pp. 448-449.) The employee invoked the grievance procedures contained in the MOU. The grievance was arbitrated, and the arbitrator concluded that in view of all the facts, the employee should have been suspended, not discharged. The police association filed suit seeking judicial confirmation of the arbitrator's award, and the city sought declaratory judgment that the award was void. Ruling in favor of the city, the trial court found that under the city charter, the city manager had the exclusive power to discipline or remove city employees, and that the findings and award of the arbitrator were in conflict with this power. (Id. at p. 446.) On appeal, the city argued that its charter did not permit arbitration of the question of the proper penalty for an employee who violated city rules, and that discretion over such decisions was reserved by the charter to the city manager, who could not assign it to another party. (Id. at p. 450.) The Supreme Court rejected the city's position because "[a] city charter is construed to permit the exercise of all powers not expressly limited by the charter or by superior state or federal law. [Citation.]" (Ibid.) Therefore, "unless the charter expressly prohibits the city from agreeing to arbitrate whether [the employee's] conduct was sufficient cause for his discharge, the city retains the power to do so." (Id. at p. 451.) Applying the principle that "where a city charter or ordinance may be construed to authorize grievance arbitration of broad scope, that construction is preferred," (id. at p. 452) the court concluded that the provision outlining the city manager's power to determine the proper penalty for an employee who violated the rules "vests in the city manager the initial discretion to determine the proper sanction for violation of city rules." (Id. at p. 451, italics in original.) "Such a grant of initial control to one officer may not be read to limit his authority to agree to subject his disciplinary decisions to review by an arbitrator." (Id. at p. 452.)
As the court in Taylor pointed out: "Grievance arbitration does not involve the making of general public policy. Instead, the arbitrator's role is confined to interpreting and applying terms which the employer itself has created or agreed to and which it is capable of making more or less precise. [Citation.]" (24 Cal.3d at p. 453.) Here the city council exercised its initial discretion to fix salaries for all employees by enacting note K. The only task left to the arbitrator is to "interpret[] and appl[y] terms which the [city council] itself has created or agreed to and which it is capable of making more or less *1555 precise. [Citation.]" (Ibid.) Under Taylor, this does not constitute an impermissible delegation of authority.

DISPOSITION
The judgment and order denying the Union's petition to compel arbitration is reversed. The trial court is instructed to enter an order granting the petition. The Union is to have its costs on appeal.
Hastings, J., and Rubin, J.,[*] concurred.
NOTES
[1]  The purpose of the Employee Relations Ordinance is "to establish policies and procedures for the administration of employer-employee relations in [C]ity government, the formal recognition of employee organizations and the resolution of disputes regarding wages, hours and other terms and conditions of employment." (L.A. Employee Relations Ord., § 4.800.)
[*]   Judge of the Municipal Court for the Santa Monica Judicial District sitting under assignment by the Chairperson of the Judicial Council.


                               IN THE

   SUPREME COURT OF THE STATE OF ARIZONA
  SIRRAH ENTERPRISES, LLC, AN ARIZONA LIMITED LIABILITY COMPANY,
                Plaintiff/Counterdefendant/Appellant,

                                  v.

      WAYNE AND JACQUELINE WUNDERLICH, HUSBAND AND WIFE,
              Defendants/Counterclaimants/Appellees.

                         No. CV-16-0156-PR
                         Filed August 9, 2017

           Appeal from the Superior Court in Yavapai County
               The Honorable David L. Mackey, Judge
                           No. CV 20070399
                             AFFIRMED

             Opinion of the Court of Appeals, Division One
                       240 Ariz. 163 (App. 2016)
                              VACATED

COUNSEL:

John J. Belanger (argued), Bremer Whyte Brown & O’Meara, Tempe,
Attorneys for Sirrah Enterprises, LLC

Jeffrey R. Adams (argued), The Adams Law Firm, PLLC, Prescott,
Attorneys for Wayne and Jacqueline Wunderlich

Stephen E. Richman (argued), Vail C. Cloar, Dickinson Wright PLLC,
Phoenix, Attorneys for Amicus Curiae Home Builders Association of
Central Arizona

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL, BOLICK, GOULD, and LOPEZ joined.
     SIRRAH ENTERPRISES, LLC V. WAYNE WUNDERLICH, ET UX.
                     Opinion of the Court

JUSTICE TIMMER, opinion of the Court:

¶1            The law implies a warranty of workmanship and habitability
into every residential construction contract. This Court has wrestled with
application of this warranty on several occasions. We reenter the fray and
here decide whether the successful party on a claim for breach of the
warranty qualifies for an attorney-fee award under either a contractual fee
provision or A.R.S. § 12-341.01. Because the warranty is imputed into the
construction contract, it is a term of the contract. Any claim for breach of
that term arises from the contract. The successful party therefore qualifies
for fees under a controlling contractual fee provision or, barring that, § 12-
341.01.
                               BACKGROUND

¶2            Wayne and Jacqueline Wunderlich contracted with Sirrah
Enterprises, LLC to build “a basement through exterior walls” at the
Wunderlichs’ home. Sirrah performed the work. The Wunderlichs
partially paid Sirrah but refused to pay the full contract amount, claiming
construction defects.

¶3             Sirrah sued for the unpaid contract amount. The Wunderlichs
counterclaimed for breach of the implied warranty of workmanship and
habitability (the “Implied Warranty” or “Warranty”) and other claims. A
jury found in Sirrah’s favor on its claim and awarded it $31,374. The jury
further found in Sirrah’s favor on the Wunderlichs’ claims for breach of
contract and breach of the covenant of good faith and fair dealing. But the
jury found in the Wunderlichs’ favor on their claim for breach of the
Implied Warranty and awarded them $297,782.

¶4            The trial court determined that the Wunderlichs were the
prevailing parties and awarded them attorney fees pursuant to a
contractual fee provision and § 12-341.01. The court of appeals affirmed the
award as authorized by the contractual fee provision. Sirrah Enters., LLC v.
Wunderlich, 240 Ariz. 163, 171 ¶ 25 (App. 2016). (The court variously stated
that § 12-341.01 did and did not apply here, but ultimately rested its
decision on the contractual fee provision. Id. at 168–69 ¶¶ 11, 15, 171 ¶ 24.)

                                      2
     SIRRAH ENTERPRISES, LLC V. WAYNE WUNDERLICH, ET UX.
                     Opinion of the Court

¶5            We granted review because the recovery of fees under a
contractual fee provision or § 12-341.01 for an Implied Warranty claim is a
recurring legal issue of statewide importance. This Court has jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. §
12-120.24.
                               DISCUSSION

¶6             The parties’ contract provides that if either party “is required
to retain the services of an attorney to enforce any term or provision of this
Agreement, the prevailing party shall be entitled to and the losing party
shall pay all expenses and costs including reasonable attorney’s fees
incurred by the prevailing party.” Sirrah argues that the Implied Warranty
was not a “term or provision” of the contract but was imposed by law
regardless of the contract’s existence, and therefore the Wunderlichs’
success on only their warranty claim did not trigger the fee provision. The
Wunderlichs respond, and the trial and appellate courts agreed, that the
law imputed the Implied Warranty into the parties’ contract, making the
Warranty a “term or provision” of the contract, and fees were properly
awarded. See Sirrah, 240 Ariz. at 167–68 ¶¶ 9, 12.

¶7            We review de novo the courts’ interpretation of the parties’
contractual fee provision as applying to Implied Warranty claims. See
Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124, 133 ¶ 31 (App. 2012).

              I.     The Implied Warranty is a contract term

¶8              Under the Implied Warranty, a residential builder warrants
that its work is performed in a workmanlike manner and that the structure
is habitable. See Lofts at Fillmore Condo. Ass’n v. Reliance Commercial Constr.,
Inc. (Lofts), 218 Ariz. 574, 575 ¶ 5 (2008). The Warranty “is imposed by law”
and serves “to protect innocent purchasers and hold builders accountable
for their work.” Richards v. Powercraft Homes, Inc., 139 Ariz. 242, 244-45
(1984) (citation and internal quotation marks omitted). A homeowner is not
required to have privity of contract with the builder to sue it for breach of
the Implied Warranty. See Lofts, 218 Ariz. at 577 ¶ 15; Richards, 139 Ariz. at
245. Rather, the Implied Warranty “arises from construction of the home,”
and therefore runs to subsequent purchasers. Lofts, 218 Ariz. at 577 ¶¶ 13–
14 (reasoning that Richards and other cases “make clear that an implied

                                       3
     SIRRAH ENTERPRISES, LLC V. WAYNE WUNDERLICH, ET UX.
                     Opinion of the Court

warranty arises from construction of the home, without regard to the
identity of the vendor”).

¶9           Sirrah argues that because the Implied Warranty “arises from
construction of the home,” it neither constitutes a contract term nor arises
from a contract. We disagree.

¶10            Woodward v. Chirco Construction Co., Inc., 141 Ariz. 514 (1984),
directs our decision. The homebuilder there, Chirco Construction, argued
that the six-year statute of limitations applicable for contract claims, A.R.S.
§ 12-548(A), did not apply to preserve the purchasing homeowners’ claim
for breach of the Implied Warranty. Id. at 515–16. Relying on Richards’s
pronouncement that the Implied Warranty “is imposed by law,” Chirco
Construction asserted that the Warranty could not arise from the parties’
contract and, even if it did, breach of the Warranty only created a tort claim.
Id. at 515. This Court disagreed. We decided that negligent construction of
a residence can simultaneously support contract damages for breach of the
Implied Warranty and tort damages for any personal injury or damaged
personal property caused by the contractor’s negligence. Id. at 515–16. The
Court recognized that the Implied Warranty “arises from the contractual
relation between the builder and the purchaser.” Id. at 516 (citation and
internal quotation marks omitted). Significantly, we also clarified Richards:

       Our statement in Richards, supra, that the implied warranty of
       workmanlike performance and habitability “is imposed by
       law” was not meant to transform the duty arising out of the
       contract into one based on tort principles alone; instead, it was
       meant to inform buyers and sellers that the law imputes the
       warranty into the contact for the construction and sale of the
       residence. We then held that the warranty runs to subsequent
       purchasers of the residence. If the warranty did not arise out
       of the contract and provide for a cause of action in contract,
       we would have had no cause to be concerned about the
       absence of privity between Richards and Powercraft Homes,
       Inc.

Id. The Court concluded that the court of appeals properly applied the six-
year statute of limitations to the Implied Warranty claim at issue. Id.

                                      4
     SIRRAH ENTERPRISES, LLC V. WAYNE WUNDERLICH, ET UX.
                     Opinion of the Court

¶11           In Lofts, the Court did not retreat from its position in
Woodward that the Implied Warranty is imputed into a construction contract
and runs to subsequent purchasers. Indeed, the Court cited Woodward for
the principle that “[a] claim for breach of the implied warranty sounds in
contract.” Lofts, 218 Ariz. at 575 ¶ 5. Also consistent with Woodward, the
Court held that a subsequent homebuyer who lacked contractual privity
with a non-vendor builder could nevertheless sue the builder for breach of
the Warranty. See id. at 577–78 ¶¶ 13–19. The only reason for addressing
privity was because the Court treated the Implied Warranty as a contract
term.

¶12           Finally, since deciding Lofts, we have reiterated Woodward’s
characterization of the Implied Warranty as a contract term. See Sullivan v.
Pulte Home Corp. (Sullivan II), 232 Ariz. 344, 346 ¶ 13 (2013) (“[The] law
imputes [the] warranty into [a] construction contract and allows
subsequent purchasers a cause of action.” (citing Woodward, 141 Ariz. at
516)). We again confirm that description here.

              II.    Barmat does not apply

¶13           Citing Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519
(1987), Sirrah argues that because the Implied Warranty is imposed by law,
breach of the Warranty cannot give rise to a contract-based fee award. We
disagree.

¶14           Barmat addressed whether a legal malpractice claim “arises
out of a contract” for purposes of awarding fees under § 12-341.01(A). Id.
at 520. The clients there argued that § 12-341.01(A) applied because the law
implies a contract between lawyer and client, which includes a covenant of
competent and ethical representation. Id. at 521. After noting that the law
implies contracts in several professional relationships and some
nonprofessional ones, such as innkeeper-guest and common carrier-
passenger, the Court concluded that the legislature did not intend § 12-
341.01(A) to reach tort claims arising from these relationships. Id.

¶15              The Court labeled a contract implied in law as a “legal
fiction,” id. at 522, created “without regard to expressions of assent by either
words or acts,” id. at 521 (citation and internal quotation marks omitted).
Such contracts “aris[e] from relationships between professionals and their

                                       5
     SIRRAH ENTERPRISES, LLC V. WAYNE WUNDERLICH, ET UX.
                     Opinion of the Court

clients and from other special relationships” and “the law imposes special
duties [owed] to all within the foreseeable range of harm as a matter of
public policy.” Id. at 522. Because “[t]he essential nature of actions to
recover for the breach of such duties” is one arising from tort rather than
contract, § 12-341.01(A) does not apply. Id. at 523.

¶16            Barmat does not apply here. First, breach of the Implied
Warranty is a contract claim, not a tort claim. See Woodward, 141 Ariz. at
515-16; cf. A.R.S. § 12-552(A), (C) (providing a statute of repose for suits
“based in contract” including “any action based on implied warranty
arising out of the contract or the construction, including implied warranties
of habitability, fitness or workmanship”). Barmat applies to determine
whether a tort claim arising from a relationship characterized by an implied-
in-law contract can authorize a fee award; it does not apply to contract
claims.

¶17           Second, Barmat did not address whether § 12-341.01(A)
authorizes fees on a claim for breach of a duty imputed by law as a term of
an express contract. Rather, the case concerned the proper interpretation of
“implied contract” as used in § 12-341.01(A). Barmat, 155 Ariz. at 522
(“[T]he oft-used statutory phrase ‘contract express or implied’ has no single
meaning and ‘requires interpretation and definition.’” (citation omitted)).
And Barmat did not suggest that fees are unavailable on claims for breach
of an implied-in-law term of an express contract. Cf. id. (approving decision
in Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529 (1982), that claim for
breach of the implied-in-law covenant of good faith and fair dealing
imputed into an insurance contract “arises out of a contract” under § 12-
341.01(A)).

¶18           Third, the Implied Warranty does not arise from a
professional relationship or other special relationship like those discussed
in Barmat. Although implied by law, the Warranty is imputed into an
express contract for home construction. See Woodward, 141 Ariz. at 516. As
with the duty of good faith and fair dealing, also imputed by law into all
express contracts, the Warranty is “as much a part of a contract as are the
express terms.” See Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement
Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 490 ¶ 59 (2002).

                                      6
     SIRRAH ENTERPRISES, LLC V. WAYNE WUNDERLICH, ET UX.
                     Opinion of the Court

¶19           The court of appeals has taken a different standpoint on
Barmat’s impact on claims for breach of the Implied Warranty. In Sullivan
v. Pulte Home Corp. (Sullivan I), 231 Ariz. 53, 62 ¶ 48 (App. 2012), vacated in
part on other grounds, 232 Ariz. 344 (2013), the court found that because
Barmat decided that § 12-341.01(A) does not apply to implied-in-law
contracts, and the Implied Warranty is implied by law, § 12-341.01(A) does
not apply to Implied Warranty claims. See also N. Peak Constr., LLC v.
Architecture Plus, Ltd., 227 Ariz. 165, 167, ¶ 7, 170 ¶ 26 (App. 2011) (applying
the same analysis to deny a fee award on a claim for breach of an implied
warranty of reasonable skill and diligence given by a design professional to
a construction contractor). In the case now before us, the court of appeals
reaffirmed the Sullivan I analysis but distinguished that case because, unlike
the situation here, the builder and homeowners in Sullivan I lacked privity
of contract. Sirrah, 240 Ariz. at 168 ¶¶ 14–15.

¶20           The flaw in the court of appeals’ analysis is that the Implied
Warranty does not create an implied-in-law contract between a builder and
a homeowner. See id. ¶ 14 (describing the Sullivan I homeowners’ claim for
breach of the Implied Warranty as “based solely on a contract implied-in-
law”). The Warranty is a term imputed by law into an express contract and
can be enforced by subsequent homeowners. See Woodward, 141 Ariz. at
516. Section 12-341.01(A) therefore authorizes a fee award for the successful
party on a claim for breach of the Implied Warranty because the claim
“arises out of” an express contract.

¶21           We disapprove Sullivan I and North Peak Construction, LLC to
the extent they conflict with our decision.

¶22           Sirrah asserts that our stance will result in dissimilar
treatment of attorney fee applications depending on whether the claim for
breach of the Implied Warranty was brought by an original or subsequent
homeowner. Not so. Section 12-341.01(A) does not have a privity
requirement for claims “arising out of” a contract. (In contrast, the parties
must be in privity to enforce a contractual fee provision.) Cf. Lacer v. Navajo
Cty., 141 Ariz. 392, 394 (App. 1984) (determining a party was entitled to fees
“if judgment in its favor is based upon the absence of the contract sued
upon”). The Implied Warranty arises out of the construction contract; that
characteristic does not change simply because the law effectively assigns
the Warranty to subsequent homeowners. Just as a claim asserted by an

                                       7
     SIRRAH ENTERPRISES, LLC V. WAYNE WUNDERLICH, ET UX.
                     Opinion of the Court

original homeowner in privity with a builder can arise from contract, so too
can a claim asserted by a subsequent homeowner.

              III.   The propriety of fees on review

¶23            We agree with the court of appeals that the trial court
properly awarded attorney fees to the Wunderlichs. The parties’ contract
requires a fee award to the successful party on a claim “to enforce any term
or provision.” Section 12-341.01(A), a discretionary fee provision, does not
alter the parties’ mandatory fee provision. See A.R.S. § 12-341.01(A) (stating
that the provision “shall not be construed as altering, prohibiting or
restricting present or future contracts . . . that may provide for attorney
fees”). As we have stated, the Implied Warranty is a term of the contract.
As the successful party in the claim to enforce the Warranty, the
Wunderlichs were entitled to their reasonable attorney fees. The trial court
did not err in awarding them fees.

                              CONCLUSION

¶24         We vacate the court of appeals’ opinion and affirm the trial
court judgment. Upon compliance with ARCAP 21(b), we award the
Wunderlichs their reasonable attorney fees on appeal.

                                      8


               IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE FIFTH CIRCUIT
                                                 _______________

                                                   m 99-40159
                                                 _______________

                                        UNITED STATES OF AMERICA,

                                                                     Plaintiff-Appellee,

                                                       VERSUS

                                         EUFEMIO MORENO-GARCIA,

                                                                     Defendant-Appellant.

                                          _________________________

                                 Appeal from the United States District Court
                                     for the Southern District of Texas
                                              (L-98-CR-380-2)
                                      _________________________
                                               August 9, 2000

Before SMITH and DENNIS, Circuit                            JERRY E. SMITH, Circuit Judge:**
  Judges, and ROETTGER, District Judge.*
                                                               Eufemio Moreno-Garcia appeals, on
                                                            grounds of insufficient evidence, his conviction

                                                                **
                                                                  Pursuant to 5TH CIR. R. 47.5, the court has
                                                            determined that this opinion should not be published
   *
      District Judge of the Southern District of Florida,   and is not precedent except under the limited
sitting by designation.                                     circumstances set forth in 5TH CIR. R. 47.5.4.
of conspiracy and possession with intent to               Serna then changed his story,
distribute marihuana. Because he did not re-           acknowledging that he knew there was
new his motion for acquittal at the close of all       marihuana in the truck and stating that he was
evidence, we review only for plain error.              being paid $1500 to deliver it to Rogelio in
Finding none, we AFFIRM.                               Dallas and then drive back to Nuevo Laredo
                                                       with an unknown amount of currency. When
                       I.                              he arrived in Dallas, he was to call Rogelio at
   Moreno-Garcia (“Moreno”), Juan Serna-               the number on the paper.
Arrambide (“Serna”), and Carlos Rios were
charged in a two-count indictment with                     The agents and Serna proceeded to Dallas
conspiracy and possession with intent to               with the truck and attempted a controlled de-
distribute marijuana, in violation of 21 U.S.C.        livery. Before noon on April 4, the agents
§ 841(a)(1), 21 U.S.C. § 841(b)(1)(D), and             parked the loaded truck outside of Grandy’s
18 U.S.C. § 2. Serna and Rios pleaded guilty           Restaurant, and Serna called the number for
to the possession count, and the government            Rogelio, saying that he had arrived in Dallas
dismissed the conspiracy count as to them. A           and needed someone to pick him up because
jury found Moreno guilty on both counts.               he did not know his way around Dallas. They
                                                       agreed to meet at Grandy’s.
   On April 3, 1998, Serna was attempting to
enter the United States from Nuevo Laredo,                Meanwhile, agents conducted surveillance
Mexico, when Customs agents discovered ap-             of a residence at 702 Ely Street, Dallas, to
proximately fifty pounds of marihuana secreted         which the phone number on the slip of paper
in a hidden compartment under the driver’s             was assigned. Shortly after Serna’s phone call,
seat of the truck he was driving. The                  three Hispanic males left 702 Ely Street in a
inspectors had noticed a zipper in the seat that       white car with yellow license plates. The
opened from the driver’s side. The seat was            group included Moreno, a 20-year-old man,
hard as a rock and unusually high. They                and a 40-year-old man who drove the car.
opened the zipper on the seat and found a tray
containing foam, baby powder, and vacuum-                 Rios had met Rogelio at the bus stop in Nu-
sealed plastic packages of marihuana.                  evo Laredo, in December 1997. At about
                                                       2:30 p.m. on April 4, he received a call on his
   Serna indicated his desire to cooperate and         cellular telephone from Rogelio, who offered
gave the inspectors a slip of paper with the           to pay him $500 to deliver marihuana to
name “Rogelio” and “331-0438” written on it.           another person. Rogelio told Rios to meet him
Serna said that he had been approached by a            at a gas station, where Rios would pick up
man he did not know, who gave him $177 to              someone who would know whom to contact at
cover expenses and asked him to drive the              Grandy’s Restaurant.
truck to Dallas and to call the phone number
upon arrival. Serna told Special Agents Dami-             Rios drove a gold car to a gas station near
en Vega and Eric Wilson that he did not know           Grandy’s. Rogelio arrived, driving a white car
what was in the truck, but that he was being           with yellow license plates, which Rios
paid $250 to drive it either just across the           previously had seen Rogelio driving in Nuevo
border or to Dallas.                                   Laredo. Moreno exited Rogelio’s car and
                                                       entered Rios’s car.

                                                   2
    Rios drove Moreno to Grandy’s. Rios tes-           driver’s seat of the load truck.
tified that when they arrived in the Grandy’s
parking lot, Moreno said, “That’s the pickup.”            The agents testified that there were twenty
Moreno entered the restaurant and came out a           people inside the garage but that only the three
short time later with Serna. Rios testified that       defendants were arrested. Agents spoke to ev-
he had not seen the truck or Serna before.             eryone inside the garage, and apparently no
                                                       one had information about the transfer of the
   Rios told the pair to follow him. Serna             marihuana or about Moreno’s actions inside
drove the load vehicle, and Moreno rode as a           the garage.
passenger. Rios drove on Highway 35, then
exited and pulled into the parking lot of the              Vega testified that he believed Moreno’s
Elms Apartments. He waited there for a call            role in the conspiracy was that of a middleman
from Rogelio, who instructed him to go to an           between Rogelio and Serna and as a “lookout”
auto shop at 200 North Marcella Street. Ac-            at the garage. Vega stated that it is unusual
cording to Rios’s testimony, Moreno walked             for participants in a drug conspiracy to
up to Rios’s car but said nothing. Rios told           associate with persons not participating in the
Moreno to follow him.                                  conspiracy when they are doing acts in
                                                       furtherance of the conspiracy. Another agent
   Vega testified that Rios first told him that        testified that Moreno’s actions were
Moreno had gotten into his car at the                  characteristic of an individual involved as a
apartments and that Moreno called Rogelio.             lookout.
Rios changed his story and told Vega that
Rogelio had called Rios and that Moreno had               Rios testified that he did not know More-
merely asked why they had stopped.                     no’s role in the conspiracy, but only that Mo-
                                                       reno would know the person at the restaurant.
   Serna and Moreno then followed Rios to              Rios testified that only he, Serna, and Rogelio
200 North Marcella Street. The car and truck           knew that marihuana was being transferred
pulled into the garage of an auto tint shop.           from the truck to his car at the auto shop.
Rios testified that when the truck got near his
car inside the garage, Moreno was no longer in            Moreno testified that he worked as a
the truck. The last time he saw Moreno, Mo-            mechanic’s assistant making about $40 to $50
reno had been close to the front door. Rios            a week. He had known Serna, who lived
testified that Serna placed the marihuana into         around the corner from him, for about five
the trunk of Rios’s car.                               years. He saw Serna on April 2, 1998, driving
                                                       the brown truck that was the load truck.
   After about five to ten minutes, as the             Serna offered to pay Moreno $100 to drive a
agents prepared to enter the garage and arrest         truck to Nuevo Laredo that Serna was going
the participants, the gold car exited. An agent        to buy in Dallas.
pulled in behind the car and blocked it, and
other agents secured the garage. Agents re-               Serna planned to leave for Dallas on April 3
covered nine bundles of marihuana from Rios’s          and said that someone was going to come get
trunk, the same marihuana that had been in the         Moreno. On April 3, Rogelio, whom Moreno
load truck and seized by Customs the previous          had not met before, arrived at Moreno’s
day. Moreno was arrested while seated in the           house, said that Serna had sent him, and asked

                                                   3
whether Moreno was going to Dallas to help             told him to get back into the truck because
drive the pickup.                                      they were going to keep going.

   Moreno rode with Rogelio and Rogelio’s                 When they arrived at the auto tint shop,
wife and son to the bridge at the border. Ro-          Serna told Moreno to wait for him near the
gelio told Moreno to cross into the United             door, and Serna proceeded inside the garage
States and wait for him at the H.E.B. grocery          with the truck. Moreno testified that he was in
store in downtown Laredo. Rogelio, his wife,           the driver’s seat of the truck when he was ar-
and son picked Moreno up from the store at             rested, because Serna said he was tired and
about noon, and they traveled to Dallas in the         asked whether Moreno would drive the truck
same car that later delivered Moreno to the            out of the garage. Moreno testified that he did
gas station near Grandy’s.                             not know who transferred the marihuana from
                                                       the pickup to Rios’s car, did not use marihua-
   They arrived in Dallas at about 8 p.m. and          na, had never participated in the distribution of
spent the night at the Ely Street home of peo-         marihuana or other drugs, and did not know
ple Moreno did not know. Moreno testified              that Serna was taking marihuana to Dallas.
that he did not ask when he was going to meet
up with Serna and that he did not have a phone                                II.
number or any way to contact Serna.                        Moreno argues that the evidence was insuf-
                                                       ficient to support his convictions and that the
    The next morning, after Rogelio received a         court erroneously denied his motion for
phone call, Moreno, Rogelio, and his son left          judgment of acquittal. He argues that the
the house and drove to the gas station. Roge-          government did not prove that he was a willing
lio told Moreno to get into a gold car with Ri-        and knowing conspirator doing his part to
os and that Rios would take him to meet Serna          further the conspiracy. He contends that the
at a restaurant. Moreno testified that this was        evidence showed only that he associated with
the first time he met Rios.                            individuals who were engaged in the
                                                       transportation of marihuana and that he was
    Rios drove Moreno to Grandy’s but did not          merely present during the transportation of the
tell Moreno anything. Moreno recognized the            drugs from Grandy’s to Marcella Street.
brown truck in the parking lot as the one he
had seen Serna driving in Nuevo Laredo. Mo-               Only “[p]lain errors or defects affecting
reno found Serna inside Grandy’s and told              substantial rights may be noticed although they
Serna, “They’re looking for you outside.”              were not brought to the attention of the
They exited the restaurant, and Moreno got             court.” FED. R. CRIM. P. 52(b). Because Mo-
into the passenger side of the truck with Serna.       reno failed to renew his motion for judgment
Moreno stated that he did not know where               of acquittal after the close of all the evidence,
Serna was going.                                       we are limited to a review for plain error. See
                                                       United States v. McCarty, 36 F.3d 1349, 1358
   Moreno testified that he did not know why           (5th Cir. 1994).
Rios stopped at the apartments. Moreno
asserted that he got out of the truck at the              It is not enough, therefore, for us merely to
apartments to look for a place to get a drink of       find that the district court would have erred
water. When he walked up to Rios’s car, Rios           had it denied a motion for judgment of

                                                   4
acquittal at the close of evidence. See United          be proved by direct evidence. Moreover,
States v. Olano, 507 U.S. 725, 732 (1993).              “[o]nly slight evidence is needed to connect an
Rather, the error is reversible “only if it is          individual to an illegal conspiracy once the
‘plain’ and ‘affect[s] substantial rights.’” Id.        United States has produced evidence of that
“‘Plain’ is synonymous with ‘clear’ or,                 conspiracy.” United States v. Vaquero, 997
equivalently, ‘obvious.’” Id. at 734 (citations         F.2d 78, 82 (5th Cir. 1993).
omitted).
                                                           Thus, while mere presence and association
   Rule 52(b) was intended to afford a                  with conspirators, alone, will not support an
   means for the prompt redress of                      inference of participation in the conspiracy, see
   miscarriages of justice. By its terms,               Maltos, 985 F.2d at 746, evidence of concert-
   recourse may be had to the Rule only on              ed action can indicate both agreement and vol-
   appeal from a trial infected with error so           untary participation in the conspiracy. See
   “plain” the trial judge and prosecutor               United States v. Quiroz-Hernandez, 48 F.3d
   were derelict in countenancing it, even              858, 866 (5th Cir. 1995). A jury may infer
   absent the defendant’s timely assistance             participation and membership in a conspiracy
   in detecting it. The Rule thus reflects a            when the facts make it unlikely that
   careful balancing of our need to                     conspirators would permit an innocent person
   encourage all trial participants to seek a           to be present or act. See United States v.
   fair and accurate trial the first time               Martinez-Moncivais, 14 F.3d 1030, 1034-35
   around against our insistence that                   (5th Cir. 1994).
   obvious injustice be promptly redressed.
                                                           While Moreno’s plea of innocence and ig-
                                                        norant acquiescence is not wholly lacking in
United States v. Frady, 456 U.S. 152, 163               plausibility, it is not sufficiently supported in
(1982).                                                 the record to call for plain error reversal. He
                                                        was not only present and associating with the
   Thus, for Moreno to prevail, he must do              co-conspirators, but played an active role in
more than show t hat the evidence was                   effecting the goals of the established
insufficient; he must also show that                    conspiracy. While it is not impossible that
insufficiency was “so ‘plain’ the trial judge and       Moreno did so blindly, without knowledge that
prosecutor were derelict in countenancing it.”          he was participating in criminal activity, it was
Id. Moreno cannot meet that high standard               not plain error to al low the jury to conclude
with respect to either count.                           otherwise.

                      A.                                                     B.
   A defendant is guilty of conspiracy if                  “Conviction for possession with intent to
(1) there is agreement between two or more              distribute requires proof of (1) knowing
persons to commit a crime and the defendant             (2) possession (3) with intent to distribute.”
(2) knew of the agreement, and (3) voluntarily          United States v. Anchondo-Sandoval, 910
participated in the agreement. See United               F.2d 1234, 1236 (5th Cir. 1990). Possession
States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.          of contraband may be either “actual or
1994); United States v. Maltos, 985 F.2d 743,           constructive and may be joint among several
746 (5th Cir. 1992). These elements need not            defendants.      This court has defined

                                                    5
‘constructive possession’ as ‘the knowing
exercise of, or the knowing power or right to
exercise dominion and control over the
proscribed substance.’” United States v.
Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993)
(citations omitted).

    When the contraband is hidden in a
compartment within a vehicle, “[p]ossession of
or control over a vehicle does not, standing
alone, suffice to prove guilty knowledge.” An-
chondo-Sandoval, 910 F.2d at 1236. But,
“knowing possession can be inferred from the
defendant’s control over the vehicle in which
the illicit substance is contained if there exists
other circumstantial evidence that is suspicious
in nature or demonstrates guilty knowledge.”
Id.

   For the same reasons that Moreno’s
conspiracy conviction survives plain error
review, there is sufficient circumstantial
evidence to support an inference of knowing
possession of marihuana. The suspicious
surrounding circumstances supporting
Moreno’s knowing participation in the
conspiracy can serve double duty and establish
his constructive possession of the seized
contraband.

    Possession of an amount of marihuana larg-
er than is necessary for personal consumption
supports a finding that the defendant intended
to distribute the drug. See United States v.
Williams-Hendricks, 805 F.2d 496, 501-02
(5th Cir. 1986). The fifty-one pounds seized
here falls squarely within that inference. It
therefore was not plain error to allow the jury
to convict Moreno for possession with intent
to distribute marihuana.

   AFFIRMED.

                                                     6


                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                              No. 13-1427

RUSSELL F. WALKER,

                       Plaintiff – Appellant,

          v.

SOCIAL SECURITY ADMINISTRATION,

                       Defendant - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:09-cv-00811-CCE-JEP)

Submitted:   May 23, 2013                        Decided:   May 28, 2013

Before MOTZ and      AGEE,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Russell F. Walker, Appellant Pro Se. Gill Paul Beck, Sr.,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Russell F. Walker appeals the district court’s order

accepting the recommendation of the magistrate judge and denying

relief on Walker’s complaint challenging a tax levy assessed

against him.     We have reviewed the record and find no reversible

error.   Accordingly, although we grant leave to proceed in forma

pauperis,   we   affirm   for   the   reasons   stated   by    the   district

court.   Walker v. Soc. Sec. Admin., No. 1:09-cv-00811-CCE-JEP

(M.D.N.C.   Mar.   25,    2013).      We   dispense   with    oral   argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                                     AFFIRMED

                                      2


                            NUMBER 13-13-00683-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ABEL ISAAC LONGINOS,                                                       Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.

                    On Appeal from the 197th District Court
                         of Cameron County, Texas.

                          MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Longoria
                    Memorandum Opinion Per Curiam

      Appellant, Abel Isaac Longinos, attempts to appeal his conviction for indecency

with a child.   The trial court has certified that this “is a plea-bargain case, and the

defendant has NO right of appeal,” and “the defendant has waived the right of appeal.”

See TEX. R. APP. P. 25.2(a)(2).
       On March 7, 2014, this Court notified appellant’s counsel of the trial court’s

certification and ordered counsel to: (1) review the record; (2) determine whether

appellant has a right to appeal; and (3) forward to this Court, by letter, counsel’s findings

as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the

existence of any amended certification.

       On April 14, 2014, counsel filed an Anders brief with this Court and a motion for

leave to file brief. Appellant’s motion for leave to file brief is GRANTED. Counsel’s

Anders brief does not establish that the certification currently on file with this Court is

incorrect or that appellant otherwise has a right to appeal.

       The Texas Rules of Appellate Procedure provide that an appeal must be dismissed

if the trial court’s certification does not show that the defendant has the right of appeal.

TEX. R. APP. P. 25.2(d); see TEX. R. APP. P. 37.1, 44.3, 44.4. Accordingly, this appeal is

DISMISSED. Any other pending motions are dismissed as moot.

                                                                       PER CURIAM

Do not publish.
See TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of May, 2014.

                                             2