State v. Lopez-Moreno

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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. ) ) JESUS GUADALUPE LOPEZ-MORENO, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 01/19/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 11-0249 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-126883-003DT The Honorable Sally Schneider Duncan, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Droban & Company, PC By Kerrie M. Droban Attorney for Appellant Phoenix Anthem B R O W N, Judge ¶1 Jesus Guadalupe Lopez-Moreno ( Defendant ) appeals his convictions and sentences for six counts of kidnapping, five counts of armed robbery, one count of burglary in the first degree, one count of conspiracy to commit burglary in the first degree, two aggravated counts assault. of sexual Counsel assault, for and Defendant two filed counts of brief in a accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record on appeal, she was unable to find any arguable grounds for reversal. Defendant was granted the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶2 Our obligation reversible error. to to review the 289, sustaining 293, record for We view the facts in the light most the conviction reasonable inferences against Defendant. Ariz. entire State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable is 778 P.2d 1185, and resolve all State v. Guerra, 161 1189 (1989). Finding no reversible error, we affirm. ¶3 In May 2009, Defendant was indicted on seven counts of kidnapping, class 2 dangerous felonies, pursuant to Arizona Revised Statutes ( A.R.S. ) section 13-1304 (2010); 1 seven counts of armed robbery, class 2 dangerous felonies, pursuant to A.R.S. § 13-1904 (2010); one count of burglary, a class 2 dangerous felony, pursuant to A.R.S. § 13-1508 1 (2010); one count of One of the counts of kidnapping was charged as a dangerous crime against children pursuant to A.R.S. § 13-705 (2010). 2 conspiracy to commit burglary, a class 2 dangerous felony, pursuant to A.R.S. § 13-1508; one count of misconduct involving weapons, a class 4 dangerous felony, pursuant to A.R.S. § 133102 (Supp. 2011); two counts of sexual assault, class 2 dangerous felonies, pursuant to A.R.S. § 13-1406 (2010); one count of sexual abuse, a class 5 dangerous felony, pursuant to A.R.S. § 13-1404 (2010); two counts of aggravated assault, class 2 dangerous felonies, pursuant to A.R.S. § 13-1204 (Supp. 2011); and two counts of aggravated assault, felonies, pursuant to A.R.S. § 13-1204. 2 class 3 dangerous The following evidence was introduced at trial. ¶4 On the evening of April 18, 2009, two armed intruders entered an apartment in Phoenix. At some point, more intruders entered, one of whom was later identified as Defendant. Seven residents and visitors were present at the time. The intruders ordered and the occupants to the floor rings, money, and other property. at gunpoint demanded An intruder hit one of the visitors in the back of the head with a gun. Defendant took a different person, J.C., to a bedroom where he ordered her at gunpoint to undress, perform oral sex, put a condom on him, and have sexual intercourse with him. One of the visitors fled the apartment and called police. 2 Absent material revision after the date offense, we cite the statute s current version. 3 of the alleged ¶5 Phoenix responded to the Police call Officers and were Herrick informed another intruder had fled on foot. and that Meelhuysen Defendant and The officers pursued them and Meelhuysen saw that Defendant had a gun. Meelhuysen ordered him to drop the gun, but Defendant kept running. Meelhuysen kept chasing him, and Defendant aimed the weapon at Meelhuysen and Herrick. Officer Concerned Herrick, that Meelhuysen Defendant fired hitting him in the chest and leg. was eventually apprehended. he remained for ten days. four might rounds shoot at him or Defendant, Defendant kept running but He was taken to the hospital, where During an interview with police the day he was released from the hospital, Defendant admitted to having sex with J.C. A forensic scientist who tested the condom concluded that the DNA inside it matched Defendant s. ¶6 A jury found Defendant guilty of six counts of kidnapping, five counts of armed robbery, one count of burglary in the first degree, one count of conspiracy to commit burglary in the first degree, two counts counts of aggravated assault. 3 of sexual assault, and two During the aggravation phase, the State alleged five aggravators: (1) use of a deadly weapon; (2) presence of an accomplice; (3) commission for pecuniary gain; 3 Counts 1, 2, 19, and 23 were dismissed during trial. The jury acquitted Defendant on counts 7, 11, and 14. There was no count 17 on the indictment. 4 (4) infliction of physical, emotional or financial harm to the victims; and (5) lying in wait or ambushing a victim. The jury found for the State had respective charges. 4 proven most of the aggravators The court stacked the sentences by victim, sentencing Defendant to a total of 134 years. granted 713 days the of presentence incarceration Defendant was credit. This timely appeal followed. ¶7 We have searched error and find none. the entire record for reversible All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The record shows Defendant was present and represented by counsel at all pertinent stages of the proceedings and that the evidence supports the jury s verdicts. Defendant was afforded the opportunity to speak before sentencing and the sentences imposed were within statutory limits. Accordingly, we affirm Defendant s convictions and sentences. ¶8 Upon the filing of this decision, counsel shall inform Defendant of the status of the appeal and his 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. 4 The jury determined the presence of an accomplice and commission for pecuniary gain had not been proven as to the two counts of sexual assault or the two counts of aggravated assault. 5 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /s/ ___________________________________ PATRICIA K. NORRIS, Judge /s/ ___________________________________ PHILIP HALL, Judge 6

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