State v. Elias

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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. ) ) MANUEL MENDOZA ELIAS, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05/22/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 11-0324 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-149297-004 DT The Honorable Sherry K. Stephens, Judge AFFIRMED IN PART; VACATED AND REMANDED IN PART 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 Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Manuel Mendoza Elias appeals his convictions and sentences for burglary, kidnapping, robbery, and unlawful flight from a law enforcement vehicle. Counsel for Elias filed a brief in 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, he was unable to find any arguable grounds for reversal. Elias was granted the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶2 Our obligation reversible error. is to review the entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable to sustaining We view the facts in the light most the conviction reasonable inferences against Elias. and resolve all State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). For the reasons that follow, we affirm as modified in part, reverse in part, and remand for further proceedings. BACKGROUND ¶3 In September 2010, Elias was indicted on Count 1, burglary in the first degree, a class 2 dangerous felony, in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1508 (2010); 1 Counts 2 and 3, kidnapping, class 2 dangerous felonies, in violation of A.R.S. § 13-1304 (2010); Counts 4 and 5, armed robbery, class 2 dangerous felonies, in violation of A.R.S. § 13-1904 (2010); Counts 6 and 7, 1 aggravated assault, class 3 Absent material revision after the date of the offense, we cite the statute s current version. 2 dangerous 2011); felonies, Count 8, in violation misconduct of A.R.S. involving § 13-1204 weapons, a (Supp. class 4 dangerous felony in violation of A.R.S. § 13-3102 (Supp. 2011); and Count 9, unlawful flight from a law enforcement vehicle, a class 5 felony, in violation of A.R.S. § 28-622.01 (2004). The following evidence was presented at trial. ¶4 In three men the early kicked in morning the of of door Foothills area of Phoenix. the kitchen floor. hours home a September in 12, the 2010, Ahwatukee They told the two victims to lie on The intruder used the butt of a shotgun or rifle to assault victim A.P.M. while he was bound. A guest, who was upstairs, heard the commotion downstairs and realized what was happening. He broke a bathroom window, and he and his girlfriend climbed out onto an overhang to call 9-1-1. ¶5 As police neared the house, they saw a vehicle matching the description given in the 9-1-1 call and followed it. The vehicle eventually stopped at an industrial business in Tempe, and the occupants fled on foot. All three men were quickly apprehended, but no weapons were found. Police found property belonging to the victims in the vehicle. After being read his Miranda 2 rights, Elias confessed ¶6 to his vehicle. 2 participation in the crimes, including driving the At trial, Elias testified he met two men at a party Miranda v. Arizona, 384 U.S. 436 (1966). 3 who wanted him to help a friend move that evening. He later realized that they were not really helping someone move, but were going to commit a burglary. He panicked when he discovered there were people inside the home, including an infant. ¶7 A jury found Elias guilty of kidnapping (Counts 2 and 3) and unlawful flight from a law enforcement vehicle (Count 9), as well as of the lesser-included offenses of burglary in the second degree (Count 2), misdemeanor assault (Counts 6 and 7), and robbery (Counts 4 and 5). The jury found Elias not guilty of misconduct involving weapons and determined that Counts 1 through 5 were non-dangerous. ¶8 At sentencing, Elias admitted that he had two prior felony convictions and that he was on probation at the time of the offense. The court determined that Elias had violated his probation and sentenced him to one year of imprisonment with 247 days of presentence incarceration credit. After weighing the aggravating instant and mitigating factors in the case, the court sentenced Elias to concurrent sentences totaling seventeen years, with 228 days of presentence incarceration credit. This timely appeal followed. DISCUSSION ¶9 Our review sentencing errors. of the record reveals the following First, the conviction for assault on Count 7 4 was incorrectly designated as a class 1 misdemeanor. The assault statute provides in pertinent part: A. A person commits assault by: 1. Intentionally, knowingly or recklessly causing any physical injury to another person; or 2. Intentionally placing another person in reasonable apprehension of imminent physical injury. A.R.S. § 13-1203(A). committed under The statute further provides that assault subsection (A)(1) is a class 1 misdemeanor, while assault committed under subsection (A)(2) is a class 2 misdemeanor. A.R.S. § 13-1203(B). Because the jury verdict forms did not distinguish between the two types of assault, the verdict form did not indicate whether the jury found Elias guilty pursuant to (A)(1) or (A)(2) as to L.R.P., the victim of Count 7. However, the State presented no evidence at trial that L.R.P. was physically injured. See A.R.S. § 13-1203(A)(1). The evidence was therefore legally insufficient to establish Elias guilt under § 13-1203(A)(1). 410, 411, ¶ 6, 103 P.3d See State v. Stroud, 209 Ariz. 912, 913 (2005) ( We review the sufficiency of evidence presented at trial only to determine if substantial evidence exists to support the jury verdict. ). ¶10 Elias There is, however, substantial evidence to establish guilt 1203(A)(2). under the lesser-included offense of § 13- Accordingly, we modify the judgment to reflect a 5 conviction for a class 2 misdemeanor on Count 7 and remand to the trial court for resentencing. See Ariz. R. Crim. P. 31.17(d); see also State v. George, 206 Ariz. 436, 442-43, ¶ 14, 79 P.3d 1050, 1056-57 (App. 2003) ( [B]ecause the evidence was more than adequate to support a conviction for the necessarily included offense . . . we modify the judgment to reflect [the defendant s] conviction for the lesser offense and remand the case to the trial court to the trial court totaled 228 resentence [the defendant] accordingly. ). ¶11 Second, served, which days, sentenced on Counts Elias to time 6 7. The and sentences exceed the statutory maximum range for class 1 and 2 misdemeanors. See A.R.S. § 13-707(A)(1), (2) (2010) (establishing maximum terms of imprisonment of six months and four months, misdemeanors). Count 7. respectively, for class 1 and class 2 As noted above, Elias must be resentenced on As to Count 6, because the sentence was not legally imposed, we remand for resentencing. See State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002) ( Imposition of an illegal sentence constitutes fundamental error. ). ¶12 Finally, although the trial court applied 228 days of presentence incarceration credit to the instant offenses and 247 days of credit to his probation violation, Elias should have been granted 247 days of presentence incarceration credit on all 6 counts, except Counts 6 and 7. See State v. Brooks, 191 Ariz. 155, 156-57, 953 P.2d 547, 548-49 (App. 1997) (noting that if the sentence imposed after probation revocation is concurrent with the sentence imposed on the new criminal charge, defendant is entitled to presentence incarceration credit on both sentences for all time spent in custody). ¶13 We have reviewed the entire record for reversible error and, with the exception of the sentencing errors we have identified, find none. All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Elias was present and represented by counsel at all pertinent stages of the proceedings and was afforded the opportunity to speak before sentencing. CONCLUSION ¶14 Based on the foregoing, we affirm Elias convictions and sentences on Counts 1, 2, 3, 4, 5, and 9. We modify his conviction on Count 7 to a class 2 misdemeanor. We vacate the sentences imposed on Counts 6 and 7 and remand for resentencing and modification of the presentence incarceration credit as to all counts. ¶15 Elias Upon the filing of this decision, counsel shall inform 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 7 Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Elias 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, Judge CONCURRING: /s/ ___________________________________ PETER B. SWANN, Presiding Judge /s/ ___________________________________ JON W. THOMPSON, Judge 8

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