State v. Avina

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) Appellee, ) ) v. ) ) DOMINIC EMILIO AVINA, ) ) Appellant. ) ___________________________________) DIVISION ONE FILED: 12/15/09 PHILIP G. URRY,CLERK BY: DN STATE OF ARIZONA, 1 CA-CR 09-0193 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR 2008-030536-001 SE The Honorable Silvia R. Arellano, Judge (Retired) AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals Section Attorneys for Appellee Phoenix James Haas, Maricopa County Public Defender by Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix W E I S B E R G, Judge ¶1 Dominic Emilio Avina ("Defendant") appeals from his convictions and sentences imposed after a jury trial. Defendant's counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738, 744 (1967), and State v. Leon, 104 Ariz. 297, 299, 451 P.2d 878, 880 (1969), advising this court that after a search of the entire record on appeal, she finds no arguable ground for reversal. This court granted Defendant an opportunity to file a supplemental brief, but none was filed. Counsel now requests that we search the record for fundamental error. Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶2 We have jurisdiction pursuant to Arizona Revised Statutes (AA.R.S.@) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 134033 (A) (2001). Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY ¶3 We review the facts in the light most favorable to sustaining the verdict. See State v. Stroud, 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005). On December 12, 2007, C.O. was working as a cashier and taking orders at a fast food restaurant. She saw a man, later identified as Defendant, standing behind other customers. it. Defendant approached her, placed an order, and paid for As C.O. was giving Defendant change, he reached over the counter and pushed and shoved C.O. in an effort to get into the cash register drawer. C.O. attempted to close the drawer, but Defendant forcibly kept it open. register and fled. Defendant took money out of the Other restaurant employees as well as some customers witnessed the robbery. 2 ¶4 C.O. did not see Defendant with a weapon. Other witnesses, however, thought they saw Defendant with something that could have been a weapon. The night manager reported that before he fled, Defendant lifted up his sweater and displayed a gun. Some witnesses reported that as Defendant was leaving the restaurant, he yelled, "do you want to follow me outside, I got a gun." The night manager determined that $76.67 was missing. A surveillance tape in the restaurant recorded the incident. ¶5 The photographic detective lineup surveillance tape. for investigating C.O. after the case viewing a prepared copy of a the C.O. positively identified Defendant as the person who committed the robbery. Defendant's probation officer indicated that because Defendant was on probation at the time the offenses were committed, he was a prohibited possessor. ¶6 Defendant was indicted for robbery, a class 4 felony, misconduct involving weapons, a class 4 felony and aggravated assault, a class 3 dangerous felony. The State filed allegations (1) of historical prior felony convictions for armed robbery, theft of means of transportation, and burglary; (2) of aggravating circumstances other than prior felony convictions; (3) that the offenses were committed while on release from confinement; and (4) of multiple offenses not committed on the same occasion pursuant to A.R.S. § 13-702.02. Defendant rejected the State's plea offer and the matter proceeded to trial. The jury found Defendant guilty of robbery and of the lesser-included offense of assault, a class 2 3 misdemeanor. weapons. It found him not guilty of misconduct involving The jury also found the State proved five aggravating factors, namely, that the offenses were committed as consideration for the receipt of pecuniary gain, the offenses caused physical, emotional or financial harm to the victims or witnesses, that Defendant was on felony probation at the time of the offenses, had multiple prior felony offenses and had a prior felony for a similar offense. ¶7 At sentencing, the court founded four mitigating factors but determined the aggravating factors outweighed the mitigating factors. The court sentenced Defendant to an aggravated term of imprisonment of thirteen years for robbery, pursuant to A.R.S. § 13-702.02, (non-dangerous, presentence incarceration assault. 1 non-repetitive) and to time with served 420 for days of misdemeanor Defendant timely appealed. CONCLUSION ¶8 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. We find none. See Leon, 104 All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Defendant was represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits and that there was 1 At sentencing, the court imposed sentences in four other cases that are not the subject of this appeal. 4 sufficient evidence for the jury to find that Defendant had committed the offenses. ¶9 After the filing of this decision, counsel=s obligations pertaining to Defendant=s representation in this appeal have ended. Counsel need do no more than inform Defendant of the status of the appeal and of Defendant=s future options, unless counsel=s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a motion for reconsideration or petition for review in propria persona. ¶10 Accordingly, we affirm Defendant's conviction and sentence. _/S/___________________________ SHELDON H. WEISBERG, Judge CONCURRING: /S/___________________________________ PATRICIA K. NORRIS,Presiding Judge /S/___________________________________ MARGARET H. DOWNIE, Judge 5

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