State v. De La Rosa-Torres

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.S 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. CRESENCIANO DE LA ROSA-TORRES, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07-29-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0123 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-008770-001 DT The Honorable Joseph C. Welty, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Kenneth S. Countryman, PC By Kenneth S. Countryman Attorney for Appellant Phoenix Cresenciano De La Rosa-Torres Appellant Watonga, OK K E S S L E R, Judge ¶1 This appeal was filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Torres ( De La Rosa-Torres ) Cresenciano De La Rosa- conviction of four counts of kidnapping, class 2 dangerous felonies, under Arizona Revised Statutes ( A.R.S. ) section 13-1304 (2001), and one count of human smuggling, a class 4 felony under A.R.S. § 13-2319 (Supp. 2010). Finding no arguable issues to raise, counsel requested that this Court search the record for fundamental error. Rosa-Torres asking filed this evidence; Court (2) a supplemental to review denying brief three motions in propria issues: for (1) De La persona, insufficient mistrial; and (3) prosecutorial misconduct. ¶2 After reviewing the entire record, we conclude the evidence is sufficient to support the verdict and there is no reversible error. Therefore, we affirm De La Rosa-Torres conviction and sentences. FACTUAL AND PROCEDURAL HISTORY ¶3 We view the facts in the light most favorable to sustaining the conviction. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). ¶4 De La Rosa-Torres and co-defendant, Jorge Moralez-Loza ( Jorge or co-defendant ), were arrested at a house on Coolidge Street in Phoenix, Arizona (the Coolidge house ) by human smuggling detectives after receiving information that the house was being used to harbor illegal immigrants. 2 The State s four witnesses1 testified that they entered ¶5 the United States through various parts of eventually transported to the Coolidge house. the house, they were wallets, and shoes. forced to Mexico and were Upon arriving at relinquish their clothes, Two of the witnesses indicated that their names were written in a notebook by one of the house guards, and one of the witnesses said fingerprints were taken. his picture, date of birth, and The guards forced the witnesses, some at gunpoint, to call family members demanding between $1,800 to $6,000 dollars. The witnesses testified that they were forced to stay in closets or rooms with other individuals for one to three-and-a-half weeks. The witnesses saw De La Rosa-Torres bring into other individuals the house, recalled him being present during phone calls, and testified he carried a notebook around the house. ¶6 One of the witnesses recalled that when detectives arrived at the Coolidge house, De La Rosa-Torres entered the room that the witness was kept in. The witness testified that De La Rosa-Torres quickly changed into dirty clothes, left his money in the room, and told him that they were all equals. Another witness agreed to speak with a detective and to identify the house guards. Officer R. put the witness into a patrol car 1 The State s four witnesses were the victims in the four kidnapping counts. 3 and pulled the car in front of the garage where each person exited the house one at a time. Each individual was asked to directly face the patrol car and to turn to the side so the witness could see each person s face and profile clearly. The witness testified that he was able to identify all seven of the house guards, including De La Rosa-Torres and the co-defendant. ¶7 Officer R. testified that upon arriving at the house, detectives knocked on the front door, and kicked it down after they heard foot traffic and a scream from inside. Upon entering, detectives noticed there was no furniture or groceries in the cabinets, and that the house had a foul smell. Officer R. also recalled seeing multiple phone chargers in the family room, binders and notebooks on the stairwell, and plywood placed on the windows. Officer R. testified in the these were They also characteristics of drop houses. ¶8 Detectives found 54 people house. found a gun, piles of clothes, shoes, belts, and other personal items. Other evidence collected from the house included a Cricket cell phone, which Officer R. explained is very difficult to trace, notes containing a wire company telephone and PIN numbers, notes containing nicknames, phone numbers, dates, and amounts which Officer R. thought to be a list of payouts, a paper containing names of guides, Western Union receipts, I.D.s 4 and birth certificates, and a ledger containing information on drivers, guides, pollos names and their contacts. ¶9 The jury convicted De La Rosa-Torres on all counts. The superior court sentenced De La Rosa-Torres to two 21-year and two 10-year sentences for the kidnapping counts three-year sentence for the human smuggling count.2 were imposed concurrently. and one The terms The court also awarded De La Rosa- Torres 474 days of presentence incarceration credit ¶10 De La Rosa-Torres timely filed his notice of appeal. Ariz. R. Crim. P. 31.3. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), (3) (2003), 13-4031, -4033(A)(1) (2010). DISCUSSION I. ¶11 Standard of Review This Court fundamental error. has reviewed the entire record for State v. Barraza, 209 Ariz. 441, 447, ¶ 21, 2 The jury found beyond a reasonable doubt that the following aggravating factors were present: infliction or threatened infliction of serious physical injury, use or threatened use or possession of a deadly weapon or a dangerous instrument during the commission of a crime, the presence of an accomplice, and the commission of the offenses as consideration for receipt of anything of pecuniary value. The court found the following additional aggravating factors: the number of victims, that the victims were poor, uneducated, unsophisticated, unaware of how to contact authorities, were taken advantage of by De La RosaTorres, and did not speak English. See State v. Martinez, 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, 625 (2005) (if the jury finds one statutorily enumerated aggravating factor, defendant is exposed to an aggravated sentence and the sentencing judge is permitted to find and consider additional aggravating factors). 5 104 P.3d 172, 178 (App. 2005). 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. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). In addition, we will not reverse unless the defendant shows prejudice. 567, ¶ 20, 115 P.3d at 607. light most favorable to Henderson, 210 Ariz. at On review, we view the facts in the sustaining the jury s resolve all inferences against the defendant. verdict and State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). II. Insufficient Evidence ¶12 De La Rosa-Torres argues that the record lacks sufficient evidence to prove he was a coyote because there is no evidence that he possessed a gun or a cell phone, and such evidence is necessary to support the verdict. The sufficiency of evidence presented at trial is reviewed only to determine if substantial evidence exists to support the jury verdict. State v. Stroud, 209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005). Substantial evidence has been described as more than a mere scintilla and is that which reasonable persons could accept as sufficient doubt. to support a guilty verdict beyond a reasonable State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 469 6 (1997) (citation omitted). In determining the sufficiency of evidence, we review the facts in the light most favorable to sustaining the verdict. Stroud, 209 Ariz. at 411, ¶ 6, 103 P.3d at 913 (citation omitted). ¶13 of A defendant is criminally accountable for the conduct another if the defendant is an accomplice person in the commission of the offense. (2010). of such other A.R.S. § 13-301(2) Thus, evidence need not show that De La Rosa-Torres carried a gun or a cell phone to sustain a guilty verdict. Instead, evidence must only show that De La Rosa-Torres had a meaningful role in the commission of the crimes. Nonetheless, two witnesses testified to observing De La Rosa-Torres carrying a gun, and other witnesses testified that he forced them to make phone calls to family members demanding money via a cell phone. This, combined with all other evidence described above, is sufficient to sustain a guilty verdict. III. Denying Motions for Mistrial ¶14 De La Rosa-Torres contends the superior court abused its discretion by denying co-defendant s motion for mistrial. Co-defendant s counsel moved for a mistrial on several occasions arguing that the State acted in bad testimony that it believed to be untrue. faith by soliciting The court denied the motions for mistrial, finding that the State did not act in bad faith because it did not attempt to get witnesses to say things 7 that the State believed were untrue. The court concluded that if the witnesses made inconsistent statements, they would be subject to cross-examination determined by the jury. and their credibility would be At no time did De La Rosa-Torres counsel move for a mistrial. Accordingly, we find no error, much less fundamental error. IV. Prosecutorial Misconduct ¶15 De La Rosa-Torres asserts that the State s alleged failure to disclose victim testimony to defense counsel prior to trial constituted prosecutorial misconduct. He also claims that the State called witnesses whom it had reason to believe conspired to lie under oath. ¶16 To prove prosecutorial misconduct, an [a]ppellant must show: (1) the state s actions were improper; and (2) a reasonable likelihood exists that the misconduct could have affected the jury s verdict, thereby denying defendant a fair trial. 61, 75 State v. Montano, 204 Ariz. 413, 427, ¶ 70, 65 P.3d (2003) (citation omitted). We will reverse on prosecutorial misconduct if it is so pronounced and persistent that it permeates the entire atmosphere of the trial. State v. Rosas-Hernandez, 202 Ariz. 212, 218-19, ¶ 23, 42 P.3d 1177, 1183-84 (App. 2002) (citation omitted). ¶17 Although co-defendant s counsel made this objection at trial, De La Rosa-Torres counsel did not make this objection 8 below. Thus, we review for fundamental error. Ariz. at 568, ¶ 22, 115 P.3d at 608. Henderson, 210 To prevail under this standard, a defendant must demonstrate that fundamental error occurred and it caused him prejudice. Id. at 568, ¶ 22, 115 P.3d at 608. ¶18 At trial two witnesses made statements inconsistent with those that were made to the State before trial. Prior to trial, these witnesses identified the co-defendant as one who cooked and served food to the victims. At trial, however, these witnesses testified that the co-defendant carried a gun, guarded the rooms, and assaulted a victim on one occasion. ¶19 Because of this inconsistency, the co-defendant s counsel moved for a mistrial alleging that the State s attorney acted in bad faith. The superior court denied the motion finding that the State did not attempt to get witnesses to say things that the State did not believe were true. The court concluded that witnesses giving inconsistent statements would be subject to vigorous cross-examination and their credibility would be determined by the jury. ¶20 Here, we find no error, much less fundamental error, because the trial court determined the State did not attempt to have witnesses testify untruthfully. Moreover, there is no prejudice because the inconsistent statements merely pertained to co-defendant s conduct and not De La Rosa-Torres conduct. 9 V. Presentence Incarceration Credit ¶21 Finally, presentence the superior incarceration credit court awarded to La De 474 days Rosa-Torres. of Our review of the record and calculation indicates that the court awarded De La Rosa-Torres the correct credit. CONCLUSION ¶22 After meritorious careful grounds review conviction or sentences. the reversal for of of record, we De Rosa-Torres La find no The record reflects De La Rosa-Torres had a fair trial, was present, provided an interpreter, and was represented by counsel at all critical stages prior to and during trial, as well as for the verdict and at sentencing. The jury was properly comprised of twelve members pursuant to A.R.S. § 21-102(A) (2002). Additionally, the court imposed the proper sentences for De La Rosa Torres offense. ¶23 We affirm De La Rosa-Torres conviction and sentences. Upon the filing of this decision, De La Rosa-Torres counsel shall inform him of the appeal s status and his future options. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, De La Rosa-Torres shall have thirty days from the date of this decision to file a motion for 10 reconsideration in propria Supreme Court for review. pesrona or petition the Arizona See id. /S/ _____________________________ DONN KESSLER, Judge CONCURRING: /S/ _______________________________ PATRICK IRVINE, Presiding Judge /S/ _______________________________ MICHAEL J. BROWN, Judge 11

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