HOWARD, Chief Judge.
¶ 1 The State of Arizona petitions this court for special action review of the respondent judge's order dismissing its allegation that real-party-in-interest Joel Lopez is not eligible for probation pursuant to A.R.S. § 13-901.01, commonly known as Proposition 200. See State v. Estrada, 201 Ariz. 247, ¶ 2, 34 P.3d 356, 358 (2001). For the reasons that follow, we accept jurisdiction and grant relief.
¶ 2 Lopez was indicted for possession of a narcotic drug and possession of drug paraphernalia. The state filed an allegation that he was ineligible for probation under Proposition 200 because he previously had been convicted of aggravated assault on a peace officer. Lopez moved to dismiss that allegation, asserting that, pursuant to State v. Joyner, 215 Ariz. 134, 158 P.3d 263 (App.2007), the determination of whether a prior conviction was a violent crime was limited to the elements of the offense and that aggravated assault on a peace officer was not necessarily a violent crime as contemplated by A.R.S. §§ 13-901.01 and 13-901.03 because it could be committed without using a weapon or causing physical injury.
¶ 3 The state responded that Lopez previously had pled guilty to aggravated assault on a peace officer as a class five felony. The state pointed out that, pursuant to the aggravated assault statute in effect at the time of that offense, A.R.S. § 13-1204,
¶ 4 "Whether to accept special action jurisdiction is for this court to decide in the exercise of our discretion." Potter v. Vanderpool, 225 Ariz. 495, ¶ 6, 240 P.3d 1257, 1260 (App.2010). Special action review is not available "where there is an equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Actions 1(a). We agree with the state that, given the current status of the law, it is not clear whether it has a remedy by appeal. Specifically, although A.R.S. § 13-4032(5) permits the state to appeal from an illegal sentence or a "sentence imposed... other than the presumptive," a trial court's incorrect decision to strike a sentencing allegation before trial does not result in an illegal sentence, see State ex rel. McDougall v. Crawford, 159 Ariz. 339, 339-42, 767 P.2d 226, 226-29 (App.1989), and it is not clear whether the imposition of probation would constitute a "sentence" as contemplated by § 13-4032(5), compare Pickett v. Boykin, 118 Ariz. 261, 262, 576 P.2d 120, 121 (1978) ("Probation is not a sentence but rather a feature of the suspension of imposition of sentence.") and State v. Hensley, 201 Ariz. 74, ¶ 20, 31 P.3d 848, 853 (App.2001) (trial court's termination of Proposition 200 probation "illegal sentence" permitting appellate court to address issue sua sponte) with State v. Falco, 162 Ariz. 319, 321, 783 P.2d 258, 260 (App.1989) ("[W]hen used in the context of [the rules governing post-verdict proceedings]..., the term `sentence' does include probation.").
¶ 5 But we ultimately need not resolve that question. "[T]he availability of an appeal does not foreclose the exercise of this court's discretion to accept jurisdiction." Ariz. Dep't of Pub. Safety v. Superior Court, 190 Ariz. 490, 493, 949 P.2d 983, 986 (App. 1997). That the state's remedy by appeal is not "equally plain" compared to its remedy by special action justifies our discretionary decision to accept jurisdiction here. Ariz. R.P. Spec. Actions 1(a). Further, the question presented here is purely legal, and the state asserts without contradiction by Lopez that "this issue has arisen at least twice in the last several months." See State ex rel. Romley v. Martin, 203 Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App.2002) ("Special action jurisdiction is appropriate in matters of statewide importance, issues of first impression, cases involving purely legal questions, or issues that are likely to arise again."), aff'd, 205 Ariz. 279, 69 P.3d 1000 (2003). Accordingly, in our discretion, we accept jurisdiction of the state's special action.
¶ 6 Special action relief is appropriate if the respondent judge has abused her discretion by committing an error of law or proceeding in excess of her legal authority. See Ariz. R.P. Spec. Actions 3; Potter, 225 Ariz. 495, ¶¶ 5-6, 240 P.3d at 1259-60.
¶ 7 Pursuant to § 13-901.01, "any person who is convicted of the personal possession or use of a controlled substance or drug paraphernalia is eligible for probation" unless that person "has been convicted of or indicted for a violent crime as defined in § 13-901.03." Section 13-901.03(B) defines a "violent crime" as "any criminal act that results in death or physical injury or any criminal use of a deadly weapon or dangerous instrument." In State v. Joyner, this court concluded that the determination whether a previous conviction constituted a violent crime under § 13-901.01 should be based on the elements of that offense and that consideration of the offense's underlying facts generally is improper.
¶ 8 We agree with the state that, in light of its allegation that Lopez's previous conviction for aggravated assault on a peace officer was a class five felony,
¶ 9 Lopez argues, however, that Joyner "requires the court to look to th[e] statutory elements, and no further," arguing that § 13-1204(C) does not describe an element of an offense, but instead "enumerates additional facts that would subject the defendant to an enhanced sentence if found." Lopez cites no authority supporting his position that a statutory subsection that changes an offense's felony classification based on proof of some additional fact or facts is not an element of the offense as contemplated by Joyner. Nor do we find that approach to be consistent with Arizona law.
¶ 10 Generally speaking, an element of a crime is "a constituent part of a crime that must be proven by the prosecution in order to sustain a conviction of the crime charged." Robbins v. Darrow, 214 Ariz. 91, n. 2, 148 P.3d 1164, 1166 n. 2 (App.2006). In the context of determining whether multiple convictions violate double jeopardy, courts apply an elements-only test similar to that described in Joyner. See State v. Ortega, 220 Ariz. 320, ¶ 9, 206 P.3d 769, 772-73 (App.2008).
¶ 11 In Ortega, this court determined the victim's age is an element of sexual conduct with a minor because "the specific age of a victim is the type of fact usually treated as
¶ 12 Applying the reasoning in Ortega here, whether an offense causes or risks injury is typically an element of an offense. See, e.g., A.R.S. §§ 13-1201(A) (unlawful to endanger person causing "substantial risk of... physical injury"); 13-1203(A)(1) (unlawful to cause "any physical injury to another person"); 13-1204(A)(1) (aggravated assault when "person causes serious physical injury to another"); 13-2308.01(A)(10) (unlawful to "[c]ause injury to another person by means of an infectious biological substance or a radiological agent"); 13-2910(A)(3) (unlawful to "inflict[] unnecessary physical injury to any animal"). And, in the context of aggravated assault on a peace officer, causing injury increases the punishment by changing the felony classification.
¶ 13 Finally, we observe that even if § 13-1204(C) technically did not define an element of the offense, considering it in determining whether Lopez's previous conviction was for a violent crime for the purposes of § 13-901.01 does not present any of the evils that Joyner sought to avoid. There is no reason for the trial court to engage in additional fact-finding that could jeopardize a defendant's due process rights. See Joyner, 215 Ariz. 134, ¶¶ 12, 15, 158 P.3d at 268-69.
¶ 14 For the reasons stated, the respondent judge erred as a matter of law in striking the state's allegation that Lopez is not eligible for probation under § 13-901.01. Thus, we accept jurisdiction and grant relief.
CONCURRING: PETER J. ECKERSTROM Presiding Judge and J. WILLIAM BRAMMER, JR., Judge.