STATE v. CELIS-ACOSTA

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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. DANIEL CELIS-ACOSTA, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 8/13/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0571 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-005622-002 The Honorable Samuel A. Thumma, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Daniel Celis-Acosta appeals from his convictions and sentences for unlawful discharge of a firearm and disorderly conduct, both class six dangerous felonies. Ariz. Rev. Stat. ( A.R.S. ) § 13-3107(A) (Supp. 2012); 1 A.R.S. § 13-2904(A)(6), (B) (2010). ¶2 After searching the record on appeal and finding no arguable question of law that was not frivolous, Celis-Acosta s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel s motion to allow Celis-Acosta to file a supplemental brief in propria persona, but Celis-Acosta did not do so. ¶3 After fundamental reviewing error and, the entire therefore, record, affirm we find no Celis-Acosta s convictions and sentences. FACTS AND PROCEDURAL BACKGROUND 2 ¶4 Around 11 p.m. on October 14, 2010, Celis-Acosta, his mother, and other family members were at home when his mother heard a car arrive. His mother went outside, saw three or four men armed with long rifles that appeared to be assault rifles, and screamed for help. The armed men began to leave. As she 1 Although the Arizona Legislature amended certain statutes cited in this opinion after the date of Celis-Acosta s offenses, the revisions are immaterial. Thus, we cite to the current version of these statutes unless otherwise noted. 2 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Celis-Acosta. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 retreated inside, Celis-Acosta ran past her to go outside with his nine millimeter handgun. vehicle, while house. The it was vehicle He fired two shots at a fleeing approximately then made heading back towards Celis-Acosta. ¶5 a 709 feet U-turn and away from appeared to the be He shot at it again. At trial, Celis-Acosta testified he had shot at the vehicle in self-defense and to protect his family. The superior court instructed the jury on justification for self-defense -deadly physical force, justification for defense of a third person, justification in defense of premises, justification for using force in defense of residential structure, and use of force guilty in as crime charged prevention. and the court The jury sentenced found him Celis-Acosta to concurrent mitigated prison terms of one year and ten months on each count with 33 days of presentence incarceration credit. 3 ¶6 weighs The jury, not this appellate court, finds the facts, the evidence, and determines 3 a witness s credibility. On this record, we cannot verify whether the presentence incarceration credit the superior court gave to Celis-Acosta is accurate. At trial, police testified they arrested Celis-Acosta on October 15, 2010, but the record does not reflect when he was released. The record also reflects Celis-Acosta was arrested on August 11, 2011 on a bench warrant and posted a bond on August 12, 2011, but does not reflect when he was released. Further, the presentence investigation report does not mention the time Celis-Acosta spent in jail before his sentencing. Nevertheless, at sentencing, the State and defense counsel agreed Celis-Acosta was entitled to 33 days of presentence incarceration credit. 3 State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 2009). there was Despite Celis-Acosta s testimony, on this record, sufficient evidence to reject Celis-Acosta s self- defense and justification claims. DISCUSSION ¶7 We have reviewed error and find none. 881. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at Celis-Acosta received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶8 The evidence presented at trial was substantial and supports the verdicts. members elements and the of court the The jury was properly comprised of eight properly charges, instructed the on the presumption Celis-Acosta s jury of innocence, the State s burden of proof, and the necessity of a unanimous verdict. presentence The superior court received and considered a report, Celis-Acosta was given an opportunity to speak at sentencing, and his sentences were within the range of acceptable sentences for his offenses. (L) (Supp. 2012) (sentencing range See A.R.S. § 13-704(A), for class six dangerous felony); A.R.S. § 13-105(13) (Supp. 2012) ( Dangerous offense means an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the 4 intentional or knowing infliction of serious physical injury on another person. ). CONCLUSION ¶9 We decline to order briefing and affirm Celis-Acosta s convictions and sentences. ¶10 After the filing of this decision, defense counsel s obligations pertaining to Celis-Acosta s representation in this appeal have ended. Celis-Acosta of Defense counsel need do no more than inform the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). 5 ¶11 Celis-Acosta has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court s own motion, we also grant Celis-Acosta 30 days from the date of this decision to file an in propria persona motion for reconsideration. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ MICHAEL J. BROWN, Judge /s/ JOHN C. GEMMILL, Judge 6

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