STATE v. CARBAJAL

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NOTE: 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. JOSEPH CARBAJAL, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/18/2012 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 11-0825 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-155739-001 The Honorable Edward Bassett, Judge CONVICTION AND SENTENCE AFFIRMED; INCARCERATION CREDIT MODIFIED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Matthew H. Binford, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Cory Engle, Deputy Public Defender Attorney for Appellant Phoenix T H U M M A, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Joseph Carbajal s conviction of one count of burglary in the second degree, a Class 3 felony. Carbajal s counsel advised this court that after a diligent search of the entire record he found no arguable question of law, and asked this court to review the record for fundamental error. Carbajal filed a supplemental brief raising several issues, including the question of whether the superior court properly found that the prior felony convictions to which Carbajal admitted fell within the definition of historical prior felony convictions for sentence enhancement purposes. This court ordered additional briefing on that issue pursuant to Penson v. Ohio, 488 U.S. 75 (1988). After considering the parties Penson briefs and reviewing the entire record for fundamental error, Carbajal s conviction and sentence are affirmed, but his presentence incarceration is modified to reflect credit for 94 days served. 2 FACTS AND PROCEDURAL HISTORY 1 ¶2 Just after noon on October 17, 2010, Carbajal looked into an open residential garage in Phoenix while riding past on his bicycle. Carbajal immediately returned on foot, entered the garage and carried out a full black bag. After leaving the black bag a few houses away, Carbajal went back into the garage and carried out two sets of golf clubs. A witness observed these actions and carrying a called black 911. bag, Police near detained the Carbajal, scene. After who the was victim identified the contents of the bag as her property, Carbajal was arrested and charged with burglary of a residential structure. ¶3 During Carbajal s initial trial, three witnesses overheard another witness s testimony in violation of the rule of exclusion of witnesses. Carbajal moved for a mistrial and, without objection from the State, the court granted a mistrial not to be interpreted as any wrongdoing by the state and set the case for retrial. ¶4 Upon retrial, a jury found Carbajal guilty as charged. Pursuant to the terms of a plea agreement in a separate case, Carbajal formally admitted two prior felony convictions: a Class 1 Upon review, this court considers the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Carbajal. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 3 5 felony committed May 16, 2003 and a Class 4 felony committed February 6, 2006. The superior court sentenced Carbajal as a category 3 repetitive offender to a presumptive term of 11.25 years incarceration, with credit for 93 days served. ¶5 Carbajal timely appealed. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033. 2 DISCUSSION I. Historical Prior Felony Convictions ¶6 his Carbajal argues the superior court improperly enhanced sentence because the 2003 Class 5 felony to which he admitted is too remote in time to be a historical prior felony conviction. Under A.R.S. § 13-105(22)(c), a Class 5 felony qualifies as a historical prior felony conviction if committed within present the five years offense, immediately excluding time preceding spent the date incarcerated. of the Carbajal admitted to committing the 2003 felony on May 16, 2003. Carbajal committed the current offense on October 17, 2010, seven years, five months and one day after the prior offense. Given the fiveyear requirement of § 13-105(22)(c), the 2003 conviction does not qualify as a historical prior 2 felony conviction unless Absent material revision after the relevant dates, statutes cited refer to the current version unless otherwise indicated. 4 Carbajal was incarcerated for at least two years, five months and one day in the interim. ¶7 Because Carbajal failed to object before the superior court, Carbajal bears the burden on appeal to prove fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Although misusing a conviction as a historical prior felony conviction for sentence enhancement is fundamental error, to prevail on appeal Carbajal must demonstrate that he was not incarcerated for the two years, five months and one day necessary to bring the 2003 felony within the five years preceding the current offense. State v. Avila, 217 Ariz. 97, 99, ¶¶ 8, 10, 170 P.3d 706, 708 (App. 2007). ¶8 As presentence the State report points reflecting out, that the court Carbajal was considered a sentenced on February 20, 2004 to one year in prison and on November 28, 2006 to three years in prison. These four years well exceed the two years, five offense to months within and five one day years necessary preceding to the bring present the 2003 offense. Although the record does not include Carbajal s actual release dates for a precise calculation of time incarcerated, the presentence report reasonably supports a finding that the 2003 offense qualified as a historical prior felony conviction. Id. at 100, ¶ 12, 170 P.3d at 709. Carbajal has thus failed to establish that the superior court 5 fundamentally erred by considering the 2003 conviction a historical prior felony conviction to enhance Carbajal s sentence. II. Issues Raised By Carbajal A. Prosecutorial Misconduct ¶9 Carbajal constitutional argues the to fair right a prosecutor trial by violated (1) his expressing a personal belief in Carbajal s guilt during opening statements, (2) shifting the burden of proof during rebuttal closing by improperly attacking defense witnesses with evidence of prior bad acts, (3) using a presentence report as evidence during the guilt phase of the trial and (4) ambush[ing] [Carbajal] with a theory of culpability that was never defined in advance. A claim of prosecutorial misconduct warrants reversal only if (1) misconduct is indeed present[,] and (2) a reasonable likelihood exists that verdict, the thereby misconduct denying could defendant have a affected fair the trial. jury s State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004). ¶10 Here, the prosecutor expressed no personal belief in Carbajal s guilt, but rather indicated the State would, at the close of evidence, ask you [the jury] to find the defendant guilty of burglary. ¶11 Similarly, the prosecutor did not shift the burden of proof in rebuttal closing by arguing that defense witnesses prior convictions impeached their 6 credibility. Certain prior convictions are admissible to attack a witness s credibility. Ariz. R. Evid. 609(a), (b). The court here properly allowed the defense witnesses convictions in sanitized form, the prosecutor complied with that order and the court further instructed the jury to consider this witness believability. defense witnesses evidence The prior only as it prosecutor s may affect the that the argument convictions undermined their credibility was not improper. ¶12 Next, the record reflects no use of a presentence report as evidence at trial. Indeed, no presentence report was prepared until after the jury returned a guilty verdict. ¶13 Finally, the record provides no support for Carbajal s argument that the State ambush[ed] him with a never-beforedefined theory of culpability. The State never amended the initial charge against Carbajal -- burglary in the second degree (residential structure) -- and at trial the State argued, the court instructed and the jury convicted Carbajal as charged. None of these actions by the prosecutor constitute misconduct. B. ¶14 Jury Instructions Carbajal next argues the court incorrectly instructed the jury on the elements of the offense and that the court s failure to give unspecified Revised Arizona Jury Instructions (RAJIs) lessened the State s burden of proof. Contrary to Carbajal s claim, the court properly instructed the jury that 7 The crime of burglary in the second degree requires proof that the defendant: One. Entered or remained unlawfully in or on a residential structure; and Two. Did so with the intent to commit any theft therein. See A.R.S. § 13-1507(A) ( A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein. ). Additionally, the court properly instructed the jury that Carbajal is presumed innocent, that Carbajal need neither testify nor produce evidence of any kind, and on the State s burden of proof and the definition of reasonable doubt. The court did not err in instructing the jury. C. Sentencing Issues ¶15 Carbajal argues that the State failed to prove his prior felony Carbajal s own convictions, testimony contending admitting the specifically prior that convictions was immaterial and irrelevant and that the State improperly used Carbajal s guilty plea in a separate case to delimit the nature of a prior conviction. Carbajal s admission to having been convicted of the 2003 felony and the 2006 felony is relevant to establishing his prior felony convictions (and historical prior felony convictions) for sentencing purposes. Additionally, it was not the documents accompanying Carbajal s plea deal in a separate case that established 8 the nature of his prior convictions; Carbajal s admission through testimony in open court as to the cause number, class, date of commission and date of conviction of his prior felonies establish their nature. ¶16 Carbajal next argues the court failed to conduct a proper colloquy pursuant to Arizona Rule of Criminal Procedure 17.6 before accepting Carbajal s admission of two prior felony convictions. The court, however, properly advise[d] [Carbajal] of the nature of the allegation, the effect of admitting the allegation on [Carbajal s] sentence, and [Carbajal s] right to proceed to trial and require the State to prove the allegation. State v. Anderson, 199 Ariz. 187, 194, ¶ 36, 16 P.3d 214, 221 (App. 2000); see also Ariz. R. Crim. P. 17.2, 17.6. ¶17 Carbajal also argues the superior court impermissibly double counted [the admitted prior convictions] to sustain concurrent terms of imprisonment imposed in this case and the different case Carbajal was pursuant to Carbajal by in which sentenced the plea pleading Carbajal to entered concurrent agreement guilty in waived terms the his a guilty of imprisonment separate right to plea. case, and appeal. See A.R.S. § 13-4033(B); Ariz. R. Crim. P. 17.1(e). In any event, the imposition of concurrent (as opposed to consecutive) sentences is beneficial rather than prejudicial to Carbajal. ¶18 Carbajal further argues that, because he presented evidence of mitigating circumstances, the court erred by failing 9 to find mitigating circumstances. [A] sentencing court is not required because to find that mitigating required to give mitigating evidence the is circumstances presented; evidence due the exist court consideration. merely is only State v. Cazares, 205 Ariz. 425, 427, ¶ 8, 72 P.3d 355, 357 (App. 2003). Here, the Carbajal s court heard behalf the but evidence in nevertheless mitigation offered on explicitly found no mitigating circumstances. The court did not err. ¶19 A defendant is entitled to presentence incarceration credit for all time spent in custody pursuant to an offense. A.R.S. § 13-712(B). Carbajal was in custody from October 17, 2010 to November 2, 2010 and again from August 17, 2011 until sentencing on November 2, 2011. He therefore is entitled to 94 days of presentence incarceration credit, and the judgment is modified accordingly. III. Fundamental Error Review ¶20 The record reflects Carbajal received a fair trial. The proceedings against him were conducted in compliance with the Arizona Rules of Criminal Procedure, Carbajal was present and represented by counsel at all stages of the proceedings against him, the State presented both direct and circumstantial evidence sufficient to allow the jury to convict sentence imposed was within the statutory limits. 10 and the ¶21 Upon the filing of this decision, defense counsel is directed to inform Carbajal of the status of his appeal and of his future options. Defense counsel has no further obligations unless, upon review, counsel finds 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, 15657 (1984). Carbajal shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶22 Carbajal s conviction and sentence are affirmed, and his presentence incarceration credit modified to reflect 94 days served. /s/_ SAMUEL A. THUMMA, Judge CONCURRING: /s/_ PHILIP HALL, Presiding Judge /s/_ PETER B. SWANN, Judge 11

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