State v. Holguin

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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 DIVISION ONE FILED: 06/07/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ELIAS MICHAEL NICKOLAS HOLGUIN, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0412 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-149297-002DT The Honorable Sherry K. Stephens,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 Michael J. Dew Attorney for Appellant Phoenix S W A N N, Judge ¶1 appeals assault. Elias from Michael his Nickolas convictions Holguin for ( Defendant ) burglary, timely kidnapping, and Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel advises us that a thorough search of the record has revealed no arguable question of law and requests that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given an opportunity to file a supplemental brief in propria persona on or before January 17, 2012. He has not done so. FACTS AND PROCEDURAL HISTORY ¶2 We view the facts in the sustaining Defendant s convictions. light most favorable to State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). ¶3 Around 1:00 a.m. on September 12, 2011, Defendant and two other intruders broke into a house. The intruders told the two people who were downstairs, L.P. and A.M., to lie down on the kitchen floor. The intruders wrapped A.M. s hands in duct tape and beat his head. L.P. testified that the intruders were armed and that she was scared for her physical safety. ¶4 In a bedroom upstairs, girlfriend heard the commotion. L.P. s brother and his When L.P. s brother realized what was happening, he broke a window in the bathroom, and he and his girlfriend escaped onto a patio overhang. L.P. s brother could look into the bedroom observe two of the intruders ransacking it. call 911 on his cell phone. 2 and From there, was able to He was also able to ¶5 When the intruders saw the broken bathroom window, they knew that someone had gotten out of the house, and they decided to flee. The intruders threw several items into the back of a white pickup truck and drove away. The police, having been informed that a white truck was involved in the burglary, saw the intruders truck driving away from the scene and pursued it. ¶6 The truck fled from police for seventeen miles. It eventually stopped in the parking structure of an industrialbusiness complex. Defendant and the other intruders ran from the truck and scattered; with the help of helicopters and a K-9 unit, the police caught them. house was found in the truck. Property stolen from the victims Defendant and the other two men who fled from the truck were placed under arrest. ¶7 On September 20, 2010, a grand jury indicted Defendant on nine counts: one count of burglary in the first degree, a class 2 dangerous felony; two counts of kidnapping, a class 2 dangerous felony; two counts of armed robbery, a class 2 dangerous felony; two counts of aggravated assault, a class 3 dangerous felony; one count of misconduct involving weapons, a class 4 dangerous felony; and one count of unlawful flight from a law enforcement vehicle, a class 5 felony.1 1 The state alleged At trial, the state did not seek a conviction on the unlawful flight charge against Defendant. 3 that the offenses had aggravating circumstances; that Defendant had historical prior convictions; and that Defendant had committed the offenses while under community supervision. ¶8 In March 2011, all three intruders were tried in a single jury trial. On March 22, the jury found Defendant not guilty on the charge of misconduct involving weapons. It also found him not guilty on the charges of aggravated assault, armed robbery, and first-degree burglary; it did find him guilty, however, of the lesser included offenses: assault, robbery, and second-degree burglary. On the two kidnapping charges, the jury found that Defendant was guilty, but that the offenses were nondangerous. The jury found aggravating circumstances for the second-degree burglary count, the two counts of kidnapping, and the two robbery counts. ¶9 On June 3, 2011, the court held a sentencing hearing for Defendant. The court found that Defendant had a historical prior conviction for burglary and that he committed the charged offenses while on community supervision. For the burglary count (now the classified as a class 3 felony) court imposed an aggravated sentence of 13 years in prison; for the two counts of kidnapping (still class 2 felonies) aggravated sentences of 18.5 years; and for the two counts of robbery (now class 4 felonies) the court imposed aggravated sentences of 6 years. The court ordered all of those sentences to be served concurrently and 4 awarded Defendant 263 days of presentence incarceration credit. As to the assault charges, the court classified both as class 1 misdemeanors and, accordingly, sentenced Defendant to be incarcerated in the county jail for 263 days, with credit for 263 days already served. DISCUSSION ¶10 We find two errors in regard to Defendant s sentences for misdemeanor assault. upon review. Errors at sentencing are reversible See State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002) ( Imposition of an illegal sentence constitutes fundamental error. ). I. DEFENDANT S ASSAULT AGAINST VICTIM CLASSIFIED AS A CLASS 1 MISDEMEANOR. ¶11 Defendant misdemeanor. misdemeanor was sentenced for L.P. assault WAS as a class 1 Under A.R.S. § 13-1203(B), assault is a class 1 only when it is committed intentionally knowingly pursuant to subsection A, paragraph 1. 1203(A)(1) IMPROPERLY states that a person commits or Section 13assault by [i]ntentionally, knowingly or recklessly causing any physical injury to another person. ¶12 Here, Defendant s two assault convictions were divided by victim -- L.P. and A.M. -- and the indictment specified that the assault with respect to A.M. caused a physical injury but the assault with respect to L.P. 5 merely placed [her] in reasonable apprehension of imminent physical injury. and evidence established that A.M. was beaten Testimony (photos taken after the break-in showed A.M. s head bloodied and bandaged). But the state presented no evidence that L.P. received any physical injury. In respect to the charge referencing L.P., we find no evidence to support Defendant s guilt under A.R.S. § 131203(A)(1). State v. Stroud, 209 Ariz. 410, 411, 103 P.3d 912, 913 (2005) (the appellate court reviews evidence to determine if substantial evidence exists to support the jury verdict ). ¶13 There Defendant s is guilt substantial under § evidence, however, 13-1203(A)(2) as to charged support indictment and explained by the jury instructions. in the Under A.R.S. § 13-1203(A)(2), the state can prove assault by showing that a defendant intentionally plac[ed] another person in reasonable apprehension of imminent physical injury. At trial, L.P. testified that during the break-in she was scared for her own safety. The evidence, but distinguish jury s assault the verdict between the verdict form did physical rested not allow injury on the assault substantial jurors in to § 13- 1203(A)(1) and the reasonable apprehension assault in § 131203(A)(2). That distinction matters, because assault under § 13-1203(A)(2) is a class 2 -- not a class 1 -- misdemeanor. A.R.S. § 13-1203(B). 6 ¶14 The jury properly convicted Defendant for reasonable apprehension assault against L.P., but in entering the judgment and imposing offense as misdemeanor. sentence a the class 1 court mistakenly misdemeanor instead identified of a the class 2 We therefore modify the judgment on Defendant s conviction for assault against L.P. to reflect that it comes under § 13-1203(A)(2) as a class 2 misdemeanor, and vacate the sentence imposed for that conviction and remand the case to the trial court for resentencing. The resentencing on the Cf. Ariz. R. Crim. P. 31.17(d). misdemeanor conviction must remain within the maximum limitations allowed under § 13-707, discussed in the next section. II. DEFENDANT S SENTENCE FOR THE ASSAULT AGAINST VICTIM A.M. EXCEEDED THE STATUTORY LIMIT OF SIX MONTHS. ¶15 Under A.R.S. § 13-707, the trial court must impose a sentence of imprisonment maximum limitations. for a misdemeanor within certain For a class 1 misdemeanor, that maximum limitation is six months; for a class 2 misdemeanor, it is four months. A.R.S. received a § sentence 13-707(1), of 263 (2). days In on this his case, assault against A.M., which was a class 1 misdemeanor. Defendant conviction Defendant s 263 day sentence exceeds the maximum limitation of six months. We therefore vacate the sentence and remand the case to the trial 7 court for resentencing on that assault count. See Thues, 203 Ariz. at 340, ¶ 4, 54 P.3d at 369. CONCLUSION ¶16 We have reviewed the entire record for fundamental error; we find none besides the sentencing errors identified above. For the foregoing reasons, we affirm Defendant s convictions and sentences and remand for resentencing as set forth above. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ MICHAEL J. BROWN, Judge /s/ ____________________________________ JON W. THOMPSON, Judge 8

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