State v. Vasquez
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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 STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. JOVANNI VASQUEZ, Appellant. No. DIVISION ONE FILED: 04-13-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-1056 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-005177-001 DT The Honorable Margaret R. Mahoney, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals Section Attorney for Appellee Phoenix Kimerer & Derrick Clark Derrick Amy Nguyen Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Jovanni convictions and Vasquez sentences ( Vasquez ) for one count appeals of from his manslaughter, a class-two felony, and one count of endangerment, a class-six felony. Vasquez s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Smith v. Robbins, 528 U.S. 259 (2000). See Vasquez was afforded the opportunity to file a supplemental brief in propria persona but did not do so. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We therefrom view the in the light convictions. and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 facts The record reveals the following facts. On July 22, 2007, at around ten at night, Vasquez fired sixteen bullets into a trailer home near his house. Four individuals were inside the trailer home at the time of the shooting: Desiree, Camille, Angel, and killed almost instantly, damage because one of and the Camille bullets Danielle. now Danielle was suffers struck her in from brain the head. Vasquez shot at the trailer home because Angel, who lived at the trailer home, had allegedly stolen a magnum revolver from him. ¶4 Joshua Prior that to Angel the had shooting, stolen a 2 Vasquez informed magnum revolver his from friend him. Vasquez and Joshua then met up with Andrew at the big park to further discuss what had happened. The big park is located near the victim s trailer home. Andrew arrived at the big park with three Rudy, other individuals: Dominic, and Oscar. Rudy, Oscar, and Joshua all testified that Vasquez said he wanted to do a drive by of Angel s trailer home because Angel had stolen a revolver from him.1 ¶5 Joshua walked home after Vasquez informed the group that he wanted to do a drive by on Angel s trailer home. The rest of the group told Vasquez that they did not want to do a drive by, and everyone, including Vasquez, got into Rudy s car and drove to another park referred to as the little park. little park is located approximately distance from the big park. ten minutes The walking Oscar testified that while they were all hanging out at the little park, he again heard Vasquez tell the group that he wanted to do a drive by of Angel s trailer home. After Rudy stated that he would not allow Vasquez to use his car to do a drive by, Vasquez told the group that he was going home, and he started walking north toward his house. ¶6 next. toward There was conflicting testimony about what happened Oscar testified that Vasquez and Dominic started walking the big park together. 1 Dominic s brother, Rudy, Andrew did not testify, and Dominic testified that he was not paying attention to what Vasquez said that night because he was playing with the car radio. 3 testified that Dominic walked by himself toward a ditch to urinate. It was undisputed that Andrew, Rudy, and Oscar all heard approximately sixteen to twenty gunshots while Dominic and Vasquez were out of their sight. ¶7 There was also conflicting testimony on whether Dominic and Vasquez returned to the little park together. Oscar indicated that Dominic and Vasquez returned to the little park together. Rudy testified that there was a minute or two-minute space between when Dominic and Vasquez returned to the little park. Rudy further testified that Dominic returned to the little park from a different direction than Vasquez. ¶8 After Vasquez and Dominic drove everyone to Oscar s house. rejoined the group, Rudy While in Rudy s car, Vasquez told everyone that he unloaded the whole gun at the trailer. Oscar testified that he saw a gun on Vasquez s waist while he was in the car. Oscar further testified that Vasquez opened the . . . [car] seat and threw [the gun] in the trunk and that Vasquez removed the gun from the trunk as soon as he arrived at his house. ¶9 Rudy dropped Oscar, Vasquez, and Andrew off at Oscar s house and drove home with his brother Dominic. While standing outside of Oscar s house, Vasquez asked Oscar if he would hide the gun at his house. Oscar agreed and placed the gun inside a pair of boxers and tucked the weapon inside his closet. 4 Vasquez also asked Oscar if he could borrow a shirt and a pair of his shoes. Oscar gave Vasquez a pair of shoes, but Vasquez did not borrow a shirt from Oscar because Oscar s shirts were too small. Oscar heard Vasquez say that he wondered whether he hit somebody in the trailer home. ¶10 Vasquez and little while later. Andrew eventually left Oscar s house a Vasquez returned to Oscar s house that same night and asked Oscar to lie to the police about what happened. Police while officers Vasquez arrived was at still Oscar s at house Oscar s at house. around midnight Although Oscar initially lied to the police about what happened that night, he eventually told police detectives everything he knew. ¶11 Oscar s girlfriend, Cecilia, arrived at Oscar s house as Oscar was being arrested. Cecilia testified that police officers would not allow her to enter Oscar s house because they were searching Oscar s house to find, among other things, the gun that was used in the shooting. Police officers ultimately unable to locate a gun in Oscar s house. were Cecilia testified that she went inside Oscar s house after the police left, and while she was cleaning Oscar s room, she found a nine millimeter handgun inside Oscar s closet. Cecilia eventually delivered the gun to the police. ¶12 Crime technicians determined that eleven of the sixteen bullet cartridges found in or near the victims trailer 5 home were likely fired from the nine millimeter handgun found in Oscar s closet. It was determined that the remaining five bullets could have been fired from the same handgun, but the test results were inconclusive. Police detectives determined that all of the bullets penetrated through the south wall of the trailer home. Police also found the magnum revolver that Vasquez claimed Angel had stolen from him located inside the victims trailer home. ¶13 The jury found Vasquez guilty of one count of manslaughter for causing the death of Danielle and one count of endangerment of Desiree. The jury made a separate finding that both offenses were dangerous offenses. not guilty of the remaining three counts: The jury found Vasquez aggravated assault of Camille, discharging a firearm at a structure, and aggravated assault of Angel. ¶14 The State had not alleged any aggravating factors, and Vasquez was sentenced to the presumptive term on both counts. Vasquez was sentenced to 10.5 years for the manslaughter conviction and 2.25 years for the endangerment conviction. The court ordered the sentences to be served consecutively because there were two victims. The court also imposed a consecutive term of community supervision equal to one day for every seven days of his prison sentence. Vasquez was awarded 409 days of presentence incarceration credit. 6 ¶15 Vasquez timely appeals his convictions and sentences. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (Supp. 2010).2 DISCUSSION ¶16 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The sentences imposed fall within the range permitted by law, and the evidence presented supports the convictions. As far as the record reveals, Vasquez was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶17 The jury verdicts in this case appear inconsistent. The jury found Vasquez guilty of manslaughter for causing the death of Danielle, yet the jury found Vasquez not guilty of discharging a firearm at a structure. These verdicts appear inconsistent because the evidence indicates that Danielle was inside the trailer home when she was shot and killed. Even if we were to conclude that the verdicts were inconsistent, Arizona 2 We cite the current version of the applicable statutes because no revisions material to this decision have since occurred. 7 does not require that verdicts on all counts be consistent. State v. Zakhar, 105 Ariz. 31, 32, 459 P.2d 83, 84 (1969). Inconsistent compromise verdicts amongst may the simply on this basis. be jury, the and result reversal of is leniency not or warranted See State v. Garza, 196 Ariz. 210, 212, ¶ 7, 994 P.2d 1025, 1027 (App. 1999). We discern no reversible error on the basis that the verdicts may have been inconsistent. ¶18 Pursuant to Arizona Rules of Criminal Procedure 24.1(c)(4) (Supp. 2009), a court may grant a new trial if the court has erred in the instruction of the jury on a matter of law to the substantial prejudice of a party. Defense counsel filed a motion for a new trial pursuant to Arizona Rules of Criminal Procedure 24.1(c)(4), contending that the trial court incorrectly instructed the jury on a matter of law and/or the jurors were manslaughter. confused about the causation requirement for Defense counsel stated in his motion that he spoke with a juror after the trial, and the juror indicated that some of the jurors were not convinced beyond a reasonable doubt that Vasquez shot the victims trailer. The juror reportedly stated that the jury convicted Vasquez of manslaughter because they all agreed that Vasquez was somehow indirectly involved by starting the chain of events that resulted in the death of the victim. ¶19 We find no reversible error in the jury instructions. 8 The final jury instructions stated that [t]he manslaughter requires proof that the defendant: death of another person and (2) was aware crime of (1) caused the of and showed a conscious disregard of a substantial and unjustifiable risk of death. Defense counsel did not object to the final instructions on manslaughter, and the trial court s instructions were identical to the Revised Arizona Jury Instructions ( RAJI ) on manslaughter. ¶20 See RAJI (Criminal) Ch. 11.03A1 (3d ed. 2008). We also agree with the trial court that Vasquez is not entitled to a new trial on the asserted basis that the jury may have misunderstood unsubstantiated juror s law. statements comments manslaughter the would verdict to not because, Even defense be taking counsel admissible pursuant to the as to juror s true, the impeach the Arizona Rules of Criminal Procedure 24.1(d), [n]o testimony or affidavit shall be received which inquires into the subjective motives or mental processes verdict. which led a juror to assent or dissent from the See also State v. Childs, 113 Ariz. 318, 324, 553 P.2d 1192, 1198 (1976) (holding that the [t]he general rule is that a jury verdict cannot be impeached by the affidavit of a juror who has agreed to the verdict in open court. ); State v. Mauro, 159 Ariz. 186, 206, 766 P.2d 59, 79 (1988) (holding that [j]uror misunderstanding of instructions is not grounds of misconduct listed in rule 24.1(c)(3) ). 9 one of the ¶21 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Vasquez of the disposition of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Vasquez has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶22 The convictions and sentences are affirmed. ___/s/____________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ___/s/______________________________ JON W. THOMPSON, Judge ___/s/______________________________ PATRICK IRVINE, Judge 10
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