State v. Perales

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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. ADOLPH VALDEZ PERALES, JR., Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 04-22-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0409 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-124640-001 DT The Honorable John R. Ditsworth, Judge AFFIRMED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix by Louise Stark, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ B A R K E R, Judge ¶1 Adolph Valdez Perales, Jr. ( Perales ) appeals from his conviction and sentence for one count of aggravated assault, a class 3 dangerous felony; one count of discharging a firearm within city limits, a class 6 dangerous felony; one count of misconduct with weapons, a class 4 felony; and one count of disorderly conduct, a class 6 dangerous felony. Perales was sentenced on May 27, 2009 and timely filed a notice of appeal on May 28, 2009. Perales counsel 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 this court that after searching the entire record arguable ground for reversal. on appeal, she finds no Perales was granted leave to file a supplemental brief in propria persona on or before March 8, 2010, and did not do so. He did raise four issues on appeal through his counsel. ¶2 of We have jurisdiction pursuant to Article 6, Section 9 the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010). reversible error. We are required to search the record for Leon, 104 Ariz. at 299, 451 P.2d at 880. Because we find no such error, we affirm. Facts and Procedural Background ¶3 On April 19, 2008, A.M. allowed M.L. to take his truck for a test drive. While on that test drive, M.L. almost got 2 into an accident with a gold Acura at the corner of Tonto Street and 40th Avenue. A.M. witnessed this near accident from just five meters away from the intersection. A.M. then approached the truck and was maybe three or two meters from M.L. Shortly after the near accident, an argument ensued between M.L. and the driver of Perales. with M.L. the Acura, who M.L. and A.M. later identified as Perales got out of the Acura while continuing to argue Although M.L. denied getting out of the truck, A.M. testified that M.L. and Perales were out of their respective vehicles and arguing to such an extent A.M. believed that a physical fight would result. Ultimately, Perales reached back into his car, grabbed a gun, pointed in the direction of M.L. for five seconds, and pulled the trigger. Luckily, the shot missed the M.L. and instead hit the side of truck. Not surprisingly, this resulted in M.L. fearing for his life and A.M. worrying about the safety of M.L. ¶4 A.M. and chain of events. M.L. were not the only witnesses to this E.M. was driving through the intersection when the two men were arguing. Through her rearview mirror, she witnessed the man from what she described as a beige car point a gun in the direction of the truck and shoot twice. after, she called 911 to report the incident. was cleaning a unit within his located near the intersection. apartment Soon Meanwhile, M.O. complex that was After hearing hard braking, 3 M.O. looked towards the intersection and saw a small sports car and white truck. M.O. also saw two men arguing and the driver of the sports car grab a gun and shoot. truck, called 911 to report the M.O. then rushed to his incident, and followed sports car until it eventually pulled into a driveway. the At this point, M.O. watched as a police officer stopped the vehicle. Later, after Perales was in custody, M.O. identified Perales as the shooter and driver of the small sports car. ¶5 Officer J.C. stopped this beige/gold car as it turned into a driveway because the car matched the description from an emergency traffic vehicle, Officer call. J.C. As Perales commanded was Perales getting to get out down. of the After detaining Perales, the Officer feared that a family member in the house may exit and grab a gun, if there was one in the vehicle. Officer J.C. first looked into the vehicle from the passenger side and then from the driver side, where the door was ajar. From the driver side he could see two handguns between the center consol and the driver s seat. He did not immediately remove the guns. ¶6 Eventually, Mountain precinct. Officer J.I. took Perales to the South Before interviewing Perales, Officer J.I. testified that he read Perales his Miranda rights. Officer J.I. further testified that during this interview, Perales admitted shooting his Sky handgun at the scene. 4 ¶7 At the conclusion of the trial, a twelve-member jury convicted Perales on all four counts. At sentencing, the judge failed to explicitly offer Perales an opportunity to speak, but Perales counsel did not object nor request such an opportunity. Moreover, when the trial judge asked defense counsel if there was anything further, defense counsel replied, No, your Honor. Discussion ¶8 Perales through his counsel raises four issues. They are without merit. 1. Perjury by a Male Witness A.M. ¶9 The jury was able to evaluate the testimony of A.M. and all other testifying witnesses. Accordingly, there was no fundamental error. 2. Prosecutorial Misconduct ¶10 Prosecutorial misconduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with significant resulting danger of mistrial. indifference to a State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172 P.3d 423, 426-27 (App. 2007) (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984)). There is nothing in the record to support 5 a finding of prosecutorial misconduct. Accordingly, there is no fundamental error. 3. Illegal Search and Seizure of the Car ¶11 Under Amendment the warrant automobile requirement, law exception to enforcement the Fourth officers can search a vehicle lawfully in their custody if probable cause exists to believe that the vehicle contains contraband, even in the absence of exigent circumstances. State v. Reyna, 205 Ariz. 374, 374, ¶ 1, 71 P.3d 366, 366 (App. 2003). Here, the car matched the description from the emergency traffic call and Officer J.C. could see two handguns from outside the car. Accordingly, Officer J.C. had probable cause and thus, there was no fundamental error. 4. Coercion ¶12 Perales does not suggest what he means by coercion. If he is referring to his admission during the police interview, we see no basis to assert it was coerced. Nevertheless, even if there had been coercion (and we discern none), there was no prejudice because there was substantial Perales without the admission. evidence to convict There were four witnesses that testified that Perales shot a handgun in the direction of M.L.; two guns were found on Perales; and gun residue was found on Perales left hand. See State v. Henderson, 210 Ariz. 561, 567, 6 ¶¶ 19-20, 115 P.3d 601, 607 (2005) (holding defendant must establish both fundamental error and prejudice). Disposition ¶13 by In addition to addressing the foregoing issues raised Perales, we have reviewed the record and have found no meritorious grounds for reversal of Perales conviction or for modification of the sentence imposed. See Anders, 386 U.S. at 744; Leon, 104 Ariz. at 300, 451 P.2d at 881. present at all represented by accordance with critical counsel. the stages All of the proceedings proceedings Arizona Rules Accordingly, we affirm. 7 of Perales was were and conducted Criminal was in Procedure. ¶14 After the filing of this decision, counsel s obligations in this appeal have ended subject to the following. Counsel need do no more than inform Perales of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). Perales 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. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ___________________________________ PETER B. SWANN, Judge 8

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