State v. Cruz

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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. LUCIO CRUZ, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 04-13-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-1114 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-158825-002 SE The Honorable James T. Blomo, Judge Pro Tempore AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Yvette Gray Attorney At Law By Yvette C. Gray Attorney for Appellant Phoenix Lucio Cruz Appellant In Propria Persona Florence B R O W N, Judge ¶1 Lucio Cruz appeals his conviction and sentence for one count of theft of means of transportation. Counsel for Cruz filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record on appeal, she was unable to find any arguable grounds for reversal. Cruz was granted the opportunity to file a supplemental brief in propria persona, and has 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 view the facts in the light most the conviction reasonable inferences against Cruz. and resolve all State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm. ¶3 In November 2007, Cruz was indicted for theft of means of transportation, a class 4 felony, in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1814 (Supp. 2009). 1 following evidence was presented at trial. The In August 2007, a man leaving a place of business in Phoenix discovered that his 2007 Ford Focus was missing. He immediately police and reported the vehicle stolen. 1 contacted the Several days later, We cite the current version of the applicable statutes if no revisions material to this decision have since occurred. 2 Tempe Police suspiciously. officer Wallace pulled Cruz over for driving He ran the plates on the 2007 Ford Focus Cruz was driving and discovered the vehicle had been reported stolen. Wallace also noticed that the driver s side window was broken and there was glass on the inside of the vehicle. read Cruz scenarios his as Miranda 2 to how rights, he came Cruz to be gave After Wallace several driving the different vehicle, including: (1) that he and Vanessa Vacaneri 3 picked the car up together; (2) that Vanessa picked it up the day before; and (3) that he had seen Vanessa in the car three days before. ¶4 Vanessa testified on behalf of Cruz. She told the jury that she had borrowed the car from a friend to go get something to eat, although she could not recall where her friend lived. She saw Cruz at a convenience store and asked him to drive because she can t see at night and [] didn t have . . . glasses or contacts on. Vanessa further admitted that she was high on methamphetamine on the night of the incident and she did not really remember every second very clearly. ¶5 The jury found Cruz guilty as charged. It also found that the State proved one aggravating circumstance, the presence 2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 Vanessa Vacaneri is a co-defendant in this case, but is not a party to the appeal. She entered a plea of guilty to attempted unlawful use of means of transportation and possession or use of dangerous drugs. 3 of an accomplice. Cruz was sentenced to a mitigated term of ten years imprisonment with 348 days of presentence incarceration credit. He timely appealed. ¶6 In his supplemental brief, Cruz raises several issues, including improper admission assistance of counsel. 4 of photographs and ineffective We consider alleged trial error under the harmless error standard when a defendant objects at trial and thereby preserves an issue for appeal. State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005) (citation omitted). Fundamental error review, in contrast, applies when a defendant fails to object to alleged trial error. Id. at ¶ 19 (citing State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993)). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. and internal Cruz s quotations supplemental omitted). brief were None raised of in the the Id. (citation arguments trial in court, therefore we review only for fundamental error. 4 This court will not consider claims of ineffective assistance of counsel on direct appeal, regardless of merit. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Such claims must be first presented to the trial court in a petition for post-conviction relief. Id. 4 ¶7 Cruz argues that the State withheld crucial evidence by not disclosing certain photographs that were used at trial. We disagree. ¶8 The underlying principle of our disclosure rules is the avoidance of undue delay or surprise. State v. Reinhardt, 190 Ariz. 579, 586, 951 P.2d 454, 461 (1997) (citation omitted). A trial court s ruling on admissibility of evidence will not be disturbed absent a clear abuse of discretion. State v. Emery, 141 Ariz. 549, 551, 688 P.2d 175, 177 (1984) (citation omitted). During the examination of Wallace, defense counsel asked for a sidebar conference in which he indicated he had not previously seen two photographs. The State reminded the court that the pictures had been disclosed long ago and [defense counsel] had plenty of time to come to [the State s] office and make sure [his] file [was] complete. 5 Defense counsel did not raise any further objection or otherwise dispute the State s position that the pictures had been timely disclosed. Thus, we find no error, much less fundamental error. ¶9 Next, Cruz claims the court erred by not declaring a mistrial during closing arguments, or in the alternative, by not striking defense counsel s statement that Cruz had prior felony convictions. We find nothing 5 in the record that indicates Pictures were listed on the State s notice of disclosure statement filed January 19, 2008. 5 defense counsel brought up Cruz s prior felony convictions during closing arguments. The record indicates that the only mention convictions of prior felony occurred just sentencing, after the jury had found him guilty. before We find no error. ¶10 Finally, Cruz alleges that the jurors were biased against Vanessa because they asked her irrelevant questions and thus the court erred in not striking her testimony from the record. Vanessa Specifically, Cruz points to the jury s questioning of as to whether during her testimony. she was under the influence of drugs Although the jury s question may have been repetitive, it was within the trial court s discretion to allow it. See Ariz. R. Crim. P. 18.6(e), cmt. to 1995 amendment ( If the court determines that the juror s question calls for admissible evidence, the question should be asked by court or counsel in the court s discretion. ). Prior to the jury s question about her drug use, in response to questioning from defense counsel, Vanessa admitted she had been using methamphetamine on the date of the crime, and later pled guilty to possession of methamphetamine. She also denied she was high but admitted she was currently taking prescribed medications for a mental illness. ¶11 Again, we find no error. We have read and considered counsel s brief and Cruz s brief, and we have reviewed the entire record for fundamental 6 error. none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. As far as the record reveals, Cruz was represented by counsel at all stages of the proceedings, 6 Cruz was given the sentencing, and the sentence opportunity to imposed was speak before within statutory limits. ¶12 Upon the filing of this decision, counsel shall inform Cruz of the status of the appeal and his options. Defense 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). Cruz has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. 6 Due to a family emergency, Cruz s counsel was not present in the courtroom during the reading of the verdict on the aggravating factors; however, the court polled the jury in his absence. 7 ¶13 Accordingly, we affirm Cruz s conviction and sentence. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ______________________________ PETER B. SWANN, Presiding Judge /s/ ______________________________ LAWRENCE F. WINTHROP, Judge 8

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