STATE v. TRUJILLO

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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. ED ZAVALA TRUJILLO, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 8/13/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0484 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-005847-001 The Honorable Julie P. Newell, Judge Pro Tem AFFIRMED ________________________________________________________________ Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender Phoenix By Charles R. Krull, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 Ed Zavala Trujillo appeals the sentences imposed on him after remand following this court s decision in State v. Trujillo, 227 Ariz. 314, 257 P.3d 1194 (App. 2011). argues that the superior court abused its Trujillo discretion by not finding Trujillo s background was a mitigating factor and by not reducing the sentences accordingly. For the reasons set forth below, we disagree and affirm the sentences. 1 BACKGROUND ¶2 In November 2008, a jury found Trujillo three counts of felony aggravated assault. guilty on At a hearing in December 2008, the State also established that Trujillo had two prior felony convictions. At his initial sentencing in February 2009, the superior court found that the environment in which he was raised considered The had this court sentencing. also a a devastating mitigating considered effect factor four when on Trujillo imposing aggravating and sentences. factors during First, at trial, the jury found beyond a reasonable doubt the aggravating factor of emotional harm to the victim. Pursuant to Arizona Revised Statute ( A.R.S. ) section 13- 701(D), the court further determined that Trujillo s criminal history, the short length of time between his last incarceration 1 In his notice of appeal, Trujillo also purports to appeal his convictions. This court affirmed his convictions in Trujillo, 227 Ariz. at 322, ¶ 38, 257 P.3d at 1202, however, and Trujillo has focused his appeal on his sentences. 2 and the crimes aggravating in question, factors. The and court his lack sentenced of remorse Trujillo to were three aggravated prison terms: seventeen years on Count 1, ten and one-half years on Count 2, and twenty years on Count 3. All sentences were ordered to be served concurrently. ¶3 In Trujillo s initial appeal, this court found that the superior court violated Trujillo s Fifth Amendment rights against self-incrimination when it considered his failure to own up to the crime as an aggravating factor: in considering Trujillo s lack of remorse and failure to admit guilt, the trial court deprived him of a right essential to his Trujillo, 227 Ariz. at 318, ¶ 15, 257 P.3d at 1198. defense. As a result of this error, we vacated the sentences and remanded the case for resentencing. ¶4 Id. at 319, ¶ 21, 257 P.3d at 1199. Trujillo was resentenced at a hearing in July 2012. In making its sentencing decisions, the superior court explained that it had examined the 2009 presentence report, all letters and recommendations, two mitigation reports, and statements from Trujillo and mitigating his family. circumstances circumstances [were] It all found and considered the sufficiently that substantial to the possible aggravating warrant an aggravat[ed] sentence. The court did not find any mitigating factors. resentenced The court Trujillo to concurrent, aggravated sentences of fifteen years on Count 1, ten and one- 3 half years on Count 2, and eighteen years on Count 3. ¶5 On appeal, Trujillo argues that the superior court abused its discretion by failing to consider his background and upbringing as a mitigating factor. This court has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21 (2003), 13-4031 (2010), and -4033 (2010). ANALYSIS ¶6 The determination of mitigating circumstances is entirely within the discretion of the sentencing court. State v. (App. Carbajal, 1994). 177 Ariz. 461, 463, 868 P.2d 1044, 1046 In determining whether mitigating factors exist, the trial court is bound to consider [a]ny other factor that is relevant to the defendant s character or background . . . . A.R.S. § 13-701(E)(6). The court is not, however, obligated to find any mitigating factors. See State v. Long, 207 Ariz. 140, 148, ¶ 41, 83 P.3d 618, 626 (App. 2004). We will find abuse of discretion if a sentencing decision is arbitrary or capricious, or when the court fails to conduct an adequate investigation into the facts relevant to sentencing. State v. Ward, 200 Ariz. 387, 389, ¶ 6, 26 P.3d 1158, 1160 (App. 2001); see also State v. Fillmore, 187 Ariz. 174, 184 85, 927 P.2d 1303, 1313 14 (App. 1996) arbitrary (finding and that capricious a court s because 4 it sentencing was decision determined by was an inflexible, mechanical process ). ¶7 Trujillo argues that the superior court s failure to find Trujillo s background to be a mitigating factor sentencing purposes constitutes fundamental error. no authority to support this claim, however. for He presents Contrary to Trujillo s contentions, the superior court is not bound by the determinations of the court in a prior sentencing. Rather, when a reviewing court vacates the sentence imposed and remands for reconsideration, the resentencing court sentences anew and is free to impose any terms legally allowable. State v. Thomas, 142 Ariz. 201, 204, 688 P.2d 1093, 1096 (App. 1984). ¶8 In accordance with statutory requirements, the superior court in this case examined the evidence presented at the initial sentencing hearing and considered statements made by Trujillo and his family. the court was not required to established a mitigating factor. 41, 83 P.3d at 626. find additional As explained above, that this evidence See Long, 207 Ariz. at 148, ¶ The court determined the new sentences to be imposed for each of the three convictions, two of which were reduced in comparison with the original, vacated sentences. find nothing arbitrary or in this record capricious to in indicate imposing that the the new court We was sentences. Furthermore, the sentences fall within the allowable statutory limits. See A.R.S. § 13-703(J) (Supp. 2012) (sentencing ranges 5 for category therefore, three that repetitive there was no offenders). abuse We conclude, of discretion we affirm during resentencing. CONCLUSION ¶9 For the foregoing reasons, Trujillo s sentences. /s/ _____________________________________ JOHN C. GEMMILL, Judge CONCURRING: /s/ ___________________________________ PETER B. SWANN, Presiding Judge /s/ ___________________________________ KENT E. CATTANI, Judge 6

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