STATE v. BARELA

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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, v. ADRIAN BARELA, ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) DIVISION ONE FILED: 08/21/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0351 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-139638-001DT The Honorable Warren J. Granville, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 Adrian Barela ( Appellant ) appeals his convictions and sentences for assault, aggravated assault, and threatening or intimidating. Appellant s counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Although this court granted Appellant the opportunity to file a supplemental brief in propria persona, he has not done so. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 1 13-4031, and 13-4033(A). Finding no reversible error, we affirm. I. ¶3 On FACTS AND PROCEDURAL HISTORY 2 August 5, 2010, the State charged Appellant by information with Counts I and II, aggravated assault, each a class three dangerous felony, in violation of A.R.S. §§ 13-1203 and 13-1204; Count III, aggravated assault, a class six 1 We cite the current Westlaw version of the applicable statutes because no revisions material to this decision have since occurred. 2 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 dangerous felony, in violation of A.R.S. §§ 13-1203 and 13-1204; Count IV, threatening or intimidating, a class three felony, in violation of A.R.S. § 13-1202; and Count V, threatening or intimidating, a class six felony, in violation of A.R.S. § 131202. In pertinent part, the State alleged that Appellant, a criminal street gang member, used a gun, deadly weapon, or dangerous instrument to threaten or intimidate and cause serious physical injury to the victim in order to promote, further, or assist the interests of a criminal street gang. The State later alleged several aggravating factors, including the presence of an accomplice and the infliction or threatened infliction of serious physical injury. ¶4 At trial, the State presented the following evidence: At approximately 4:00 or 5:00 p.m. on July 28, 2010, the victim was walking home with relatives when Appellant and his parents drove by, and Appellant shouted MIC to the victim. The victim shouted an expletive in response, and then returned to his home. The victim testified that he understood MIC to mean Mexicans in Control and that other criminal street gangs, including Most Hated and Rapping Phoenix were affiliated with MIC. ¶5 Approximately fifteen minutes after the victim arrived home, cars pulled up to his house and several males emerged, one wielding a shotgun. The victim heard a window in his home break, and he rushed outside to confront the group. 3 Several members of the group grabbed the victim, restrained him, and pistol-whipped him. Appellant was one of the attackers. During the attack, the group members yelled out West side MIC hood. The victim attacked estimated him, that punching at and least kicking ten or him as eleven well persons as pistol- whipping him. ¶6 Family members of the victim rushed outside to assist him during the attack, but they were held at gunpoint. The victim testified that the beating ended only after his attackers noticed he was bleeding profusely. Afterward, he was taken to the hospital and needed six stitches. ¶7 A detective from the Phoenix Police Department testified that several of Appellant s tattoos demonstrated his gang affiliation. For example, the detective stated that Appellant s 55 tattoo demonstrated that his gang claimed the area around Appellant s 55th Avenue. tattoo The depicting a detective also testified skeleton with a bandana that was another common gang motif. ¶8 Another detective, who was a member of the gang enforcement unit, testified that Appellant met six of the seven statutory criteria for criminal street gang membership, including self-proclamation when he shouted MIC to the victim, and the presence of gang-related tattoos. 105(9)(a), (e). See A.R.S. § 13- The detective further testified that Mexicans 4 in Control affiliated is a with documented other criminal Phoenix street street gangs, gang closely including Most Hated. ¶9 Appellant did not testify at trial. Before the case was submitted to the jury, the court directed a judgment of acquittal as to Counts I and IV. See Ariz. R. Crim. P. 20(a). The of jury found Appellant guilty Counts III, V, and the lesser-included charge of assault, as a class one misdemeanor, as to Count II. The jury also found that Count III was a dangerous offense and that Counts III and V had been committed to promote, further, or assist a criminal street gang. Appellant waived his right to a jury verdict as to the alleged aggravating factors, and pursuant to stipulation, the court found two such factors the presence of an accomplice and the threat of serious physical injury. ¶10 The trial court sentenced Appellant to concurrent, presumptive terms of 5.25 years imprisonment in the Arizona Department of Corrections imprisonment for Count V. 3 for Count Appellant to and four years The court also credited Appellant for 284 days of presentence incarceration. sentenced III a concurrent Additionally, the court term of six months incarceration in the county jail for Count II, which the court 3 Both sentences included a three-year increase based on the jury s finding that the offenses were gang-related. See A.R.S. § 13-714. 5 offset with his credit for presentence incarceration. Appellant filed a timely notice of appeal. II. ¶11 We have reviewed error and find none. ANALYSIS the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdicts, and the sentences were within the statutory limits. Appellant was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the filing of this Arizona Rules of Criminal Procedure. ¶12 After obligations appeal have pertaining ended. to decision, Appellant s Counsel need do defense counsel s representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a reconsideration or petition for review. 6 pro per motion for III. ¶13 CONCLUSION Appellant s convictions and sentences are affirmed. _______________/S/_______________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ________________/S/________________ MARGARET H. DOWNIE, Judge _______________/S/_________________ JOHN C. GEMMILL, Judge 7

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