State v. Rodriguez

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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 ) ) ) Appellee, ) ) v. ) ) ) ANDREW RODRIGUEZ, ) ) Appellant. ) _____________________________ ) 1 CA-CR 11-0449 STATE OF ARIZONA, DEPARTMENT D DIVISION ONE FILED: 06/14/2012 RUTH A. WILLINGHAM, CLERK BY: sls MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2010-149297-003 DT The Honorable Sherry K. Stephens, Judge AFFIRMED IN PART; VACATED AND REMANDED IN PART Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals and Capital Litigation Section Attorneys for Appellee Gaffney Law Offices By Robert Gaffney Attorneys for Appellant Phoenix Scottsdale T H O M P S O N, Judge ¶1 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d (defendant) 878 has (1969). advised us Counsel that, for after Andrew searching Rodriquez the entire record, he has been unable to discover any arguable questions of law and has filed a brief requesting that this court conduct an Anders review of the record. Defendant has been afforded an opportunity to file a supplemental brief in propria persona, and he has not done so. ¶2 Our obligation reversible error. to to review the entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable is sustaining We review the facts in the light most the conviction reasonable inferences against defendant. and resolve all State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989)(citations omitted). For the reasons that follow, we affirm as modified in part, reverse in part, and remand for further proceedings. FACTUAL AND PROCEDURAL HISTORY ¶3 In the morning hours of September 12, 2010, defendant and two accomplices unlawfully entered a home in the Ahwatukee area of Phoenix. The men forced two victims, A.M. and L.P., to lie face down on the kitchen floor and demanded to be told where their cash and safe were located. In an attempt to obtain the information, one of the men struck A.M. in the head with a blunt object, allegedly a gun, and threatened to blow off L.P. s hand. One of the men then stayed with the victims in the kitchen area 2 while the other two searched the house. A guest, who was upstairs at the time the men entered the house, broke out an upstairs window, climbed onto a balcony, and placed a phone call to 911. The two broken window and completing their intruders searching the house noticed realized that someone had escaped. search of the house, the men the After exited with several items of the victims personal property. ¶4 As police were en route to the house, they noticed a white vehicle that resembled the description given in the 911 call. The police followed the vehicle, which performed multiple driving maneuvers in an effort to elude police, until it eventually stopped in an industrial business complex in Tempe, Arizona. on Once stopped, the three occupants of the vehicle fled foot and were property was found abandoned. ¶5 quickly in and found and around detained. the vehicle The that victims the men A.M. s wallet was found in defendant s pants pocket. At trial, defendant testified that he was walking from his mother s house to his girlfriend s house at approximately 12:00 a.m. when he saw A.M. s wallet dropped out of a vehicle near a Circle K store. Defendant claimed that he tried to waive the car down but was unsuccessful, so he placed the wallet in his pocket and continued walking towards his girlfriend s house with the intention of turning the wallet in to the police the next day. According to defendant, after he found the wallet, he 3 noticed police chasing him, the police released K-9 units, and he ran into the commercial compound in an effort to avoid being bitten. ¶6 first Defendant was indicted on one count of burglary in the degree, kidnapping, robbery, a class class class 2 2 2 dangerous dangerous dangerous felony, felonies, two felonies, two and counts counts of of armed two counts of both counts of aggravated assault, class 3 dangerous felonies. ¶7 A jury convicted defendant of kidnapping, class 2 felonies (Counts 2 and 3), and also found defendant guilty of the lesser-included offenses of burglary in the second degree, a class 3 felony (Count 1), two counts of robbery, class 4 felonies (Counts 4 and 5), and two counts of misdemeanor assault (Counts 6 and 7). The jury determined that Counts 1-5 were non-dangerous, but did find that aggravating factors were present. The trial court sentenced defendant to aggravated sentences of seven years for Count 1, nine years for each of Counts 2 and 3, three years for each of Counts 4 and 5, and time served for Counts 6 and 7, with all sentences to run concurrently. Defendant incarceration credit. received 263 days of presentence This timely appeal followed. DISCUSSION ¶8 Our review sentencing errors. of the record reveals the following First, the conviction for assault on Count 4 7, relating to victim L.P., was incorrectly designated by the trial court as a class 1 misdemeanor. Assault is defined by statute 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)(1)-(2)(2010). Section 13-1203(B) provides that an assault committed under subsection (A)(1) is a class 1 misdemeanor, while an assault committed under subsection (A)(2) is a class instructions proof that 2 misdemeanor. provided the that defendant, A.R.S. [t]he one, § 13-1203(B). crime of The assault intentionally, jury requires knowingly or recklessly caused physical injury to another person, or two, intentionally put another person in reasonable apprehension of immediate physical injury, but the verdict form did not provide a space where the jury could specify as to which type of assault it was finding defendant guilty of committing. While there was sufficient evidence for the jury to find defendant guilty of assault under the instructions given, the trial judge erroneously classified Count 7 as a class 1 misdemeanor as there was no evidence produced at trial that L.P., the victim of Count 7, was physically injured during the home invasion. 5 See A.R.S. § 13-1203(A)(1). For that reason, the evidence was insufficient to classify the assault conviction for Count 7 under A.R.S. § 13-1203(A)(1). See State v. Fristoe, 135 Ariz. 25, 33, 658 P.2d 825, 834 (App. 1982)( The trial judge s judgment will not be overturned unless . . . the trial judge abused his discretion in determining the sentence. )(citation omitted). ¶9 While the evidence at trial cannot support the assault as to L.P. being classified as a class 1 misdemeanor, the evidence substantially supports that the assault be classified under A.R.S. 13-1203(A)(2) and (B) as a class 2 misdemeanor. Therefore, we modify the judgment to reflect a conviction for a class 2 misdemeanor on Count 7 and remand to the trial court for resentencing. 206 Ariz. See Ariz. R. Crim. P. 31.17(d); State v. George, 436, 443, ¶ 14, 79 P.3d 1050, 1057 (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 [for resentencing]. )(citations omitted). ¶10 Second, our review of the record revealed a sentencing error relating to Counts 6 and 7. The trial court sentenced defendant to time served on both counts, equaling 263 days. Section 13-707(A)(1)-(2)(2010) establishes a statutory maximum sentence of six months of imprisonment for a class 1 misdemeanor 6 and four months of imprisonment for a class 2 misdemeanor. As such, the sentences imposed by the trial court exceeded the statutory maximum. Therefore, as the sentence for Count 6 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 error. )(citation illegal sentence omitted). As constitutes previously fundamental stated, defendant must also be resentenced on Count 7. ¶11 We have read counsel s brief and have searched the entire record for reversible error and, with the exception of the sentencing errors previously identified, find none. Leon, 104 Ariz. at 300, 451 P.2d at 881. See All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So adequately far represented as the by record counsel reveals, at all defendant stages of was the proceedings. ¶12 defendant Upon the filing of this decision, counsel shall inform of the status of the appeal and his options. Counsel s duty to further defendant s cause on direct appeal is satisfied and 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, 156-57 (1984). Defendant has thirty days from the date of this decision in 7 which to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. CONCLUSION ¶13 We affirm defendant s Counts 1, 2, 3, 4, and 5. convictions and sentences on We modify defendant s conviction on Count 7 to a class 2 misdemeanor. We vacate the sentences imposed on Counts 6 and 7 and remand for resentencing on those counts. /s/ __________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ PETER B. SWANN, Presiding Judge /s/ ___________________________________ MICHAEL J. BROWN, Judge 8

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