State v. Ibarra

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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. 31.34 DIVISION ONE FILED: 06/05/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. REFUGIO IBARRA, JR., Appellant. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0594 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in La Paz County Cause No. CR201100033 The Honorable Michael J. Burke, Judge CONVICTIONS AND SENTENCES AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee David Goldberg Attorney for Appellant J O H N S E N, Judge Phoenix Fort Collins, CO ¶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), of two counts conviction dangerous felonies, dangerous felonies. appeal and frivolous. found and following of two Refugio aggravated counts of Ibarra, assault, endangerment, Jr. s Class 3 Class 6 Ibarra s counsel has searched the record on no arguable question of law that is not See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Ibarra was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Ibarra s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 L.S., At were mother. 1 the time staying of with the offenses, Ibarra and his T.S. and brother, his mother, sister and Just before 4:00 a.m. one morning, after a long night of drinking, Ibarra s mother began a verbal dispute with T.S. about his relationship with Ibarra s sister. When Ibarra heard the argument, he came out from the back bedroom and exchanged words with T.S. When T.S. would not back down, Ibarra began to 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Ibarra. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 hit him, and weaponless, they Ibarra started pulled wrestling. a stabbed T.S. repeatedly. knife Although from his was pocket back T.S. and T.S. then fled out the door. L.S. stood in front of Ibarra to prevent him from following, and Ibarra stabbed her in the back. ¶3 After police arrived on the scene, Ibarra spontaneously asked an officer about T.S. s condition, stating Well, I stabbed that guy in the back. Is he going to be okay? Later of that day, after being advised his Miranda 2 rights, Ibarra told an officer that he had stabbed T.S. with a threeinch knife and that, although he did not remember stabbing L.S., he did remember her crying out in pain. Ibarra stated that at the time it was all rage and that he was not really thinking. ¶4 Ibarra assault (one was charged pertaining to with each two counts victim) and of two endangerment (one pertaining to each victim). aggravated counts of At trial, the jury found Ibarra guilty of all counts as charged, and further found each offense to be dangerous. After a trial on aggravating factors, the jury found the State had proven four aggravating circumstances beyond a reasonable doubt. The court sentenced Ibarra to mitigated terms of five years for each count of 2 aggravated assault and one and one-half Miranda v. Arizona, 384 U.S. 436 (1966). 3 years for each endangerment count, all terms to run concurrently, with 191 days presentence incarceration credit. ¶5 to Ibarra timely appealed. Article Arizona 6, Section Revised 9, Statutes of We have jurisdiction pursuant the Arizona ( A.R.S. ) Constitution, sections and 12-120.21(A)(1), 13-4031 and -4033 (West 2012). 3 DISCUSSION ¶6 was The record reflects Ibarra received a fair trial. represented by counsel at all stages of the proceedings against him and was present at all critical stages. held appropriate pretrial hearings. It did He not The court conduct a voluntariness hearing; however, the record did not suggest a question about the voluntariness of Ibarra s statements to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶7 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. properly comprised of 12 members. The jury was The court properly instructed the jury on the elements of the charges and of justification, the State s burden of proof and the necessity of a unanimous verdict. The jury returned unanimous 3 verdicts, Absent material revision after the date offense, we cite a statute s current version. 4 of which an were alleged confirmed by juror polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed legal sentences for the crimes record for of which Ibarra was convicted. CONCLUSION ¶8 We have reviewed error and find none. 881. After the the entire reversible See Leon, 104 Ariz. at 300, 451 P.2d at filing of this decision, obligations pertaining to Ibarra have ended. defense counsel s Defense counsel need do no more than inform Ibarra of the outcome of this appeal and his future options, 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). On the court s own motion, Ibarra has 30 days from the date of this decision to file a pro per motion for reconsideration. Ibarra has 30 days from the date of this decision to file a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ LAWRENCE F. WINTHROP, Chief Judge 5

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