State v. Mendoza

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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. RAMON LUIS MENDOZA, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07-15-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0741 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-170870-001 DT The Honorable Margaret R. Mahoney, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorney for Appellee Phoenix Bruce Peterson, Legal Advocate By Kerri L. Chamberlin, Deputy Legal Advocate Attorney for Appellant Phoenix G E M M I L L, Judge ¶1 Ramon Luis Mendoza appeals from his convictions and sentences of armed robbery and kidnapping, class 2 dangerous felonies, aggravated assault, a class 3 dangerous felony, and misconduct involving weapons, a class 4 felony. Mendoza s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record and found no arguable question of law and requesting examine the record for reversible error. 528 U.S. 259 (2000). that this court See Smith v. Robbins, Mendoza was afforded the opportunity to file a supplemental brief in propria persona but did not do so. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We therefrom view the in the light convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 On ( Victim ) the drove late to a night gas of November station to 13, get a 2008 the soda. victim When he arrived at the gas station, a young woman approached Victim and asked if he had a cell phone. Because he did not, he gave her some change to make a phone call at the payphone. After making the call, the woman returned the remaining fifty cents and asked Victim if he could give her a ride. woman to an apartment complex near 2 Victim agreed and drove the 1600 W. Pierson. After pulling into the parking lot, he backed his truck into a parking space and put it in park. ¶4 Immediately after the truck was parked, Mendoza and his accomplice, Simon Juan Ortega, ran up to the truck. Both men were wearing blue latex gloves and Mendoza was carrying a gun. Mendoza held the gun to Victim s face and commanded him to get out of the truck. At Mendoza s direction, the woman got into the driver s seat, Ortega rode shotgun, and Mendoza put Victim in the back seat and held him at gunpoint. As the truck pulled out of the parking lot, Mendoza ordered Victim to keep his head down. and the Victim tried to stay aware of his surroundings direction he was traveling, but he was disoriented because Mendoza and Ortega repeatedly hit him in the head with their fists and the butt of the gun. ¶5 While the woman continued to drive the truck, Mendoza demanded Victim hand over his wallet, credit cards, and cell phone. At that time, Victim only had a money clip with ninety- five dollars and his silver St. Christopher necklace. Mendoza held the gun to Victim, threatening to kill him, while Victim turned the money clip and necklace over to Ortega. After turning his property over, Victim struggled with Mendoza over the gun. During the struggle, the gun discharged once taking out the driver-side window and injuring Ortega s hand. At this time, the woman had been driving on the I-17; she pulled the 3 truck over and Victim looked on as Mendoza and Ortega got out of the truck, replaced the magazine, got reorganized, and then got back into the truck. When Mendoza reentered the truck he told Victim, now we got to kill you. ¶6 At surveillance. some point, the truck came under police Mendoza, Ortega, and the woman, aware of police involvement, became more agitated as they were driving through a neighborhood attempting to evade the police and planning to meet back at a relative s house. At one point, the woman slowed down so Mendoza could ditch the gun; a few minutes later, all three abandoned the truck. As the woman and Ortega took off running, Mendoza told Victim, keep your head down. Soon after abandoning the truck, Ortega I ll shoot you. and apprehended in the surrounding neighborhood. Victim identified both Ortega and Mendoza Mendoza were That same night, in one-on-one identifications. 1 1 Mendoza requested, and the court held, a Dessureault hearing to determine whether Victim s one-on-one identification of Mendoza was reliable. Immediately after the crime, Victim provided the interviewing officer sufficiently accurate descriptions of the three suspects gender, height, weight, ethnicity, and age. Mendoza and Ortega were apprehended, separately, while Victim was being interviewed, and Victim was taken to identify them separately. Prior to viewing Ortega, the officer advised Victim: this may or may not be the person. Remember what he looks like, take a look at the person. Keep in mind that it may or may not be him. The officer could not remember whether he gave the same admonition to Victim before showing him Mendoza. When Victim saw Mendoza he initially identified him, yeah that s him, then he changed his mind and 4 ¶7 Mendoza was charged with one count of armed robbery, a class 2 dangerous felony, one count of kidnapping, a class 2 dangerous felony, one count of aggravated assault, a class 3 dangerous felony, and one count of misconduct involving weapons, a class 4 felony. At trial, the State presented testimony of Victim and police officers identifying Mendoza. Victim s DNA was found on Mendoza s clothing, and a piece of blue latex glove containing both Victim s and Mendoza s DNA was found in the back seat of the truck. ¶8 Mendoza was convicted on all counts and the jury found the offenses alleged in counts 1, 2, and 3 to be dangerous. With respect to count 4, the misconduct involving weapons charge, Mendoza stipulated to a prior felony conviction. sentencing, the court found the involvement of At accomplices, physical and emotional harm to the victim, financial harm, and the violent nature of the offense to warrant aggravated terms on counts 1, 2, and 3. The court sentenced Mendoza to aggravated terms of 16 years for counts 1 and 2, an aggravated term of 11 years for count 3, and the presumptive term of 4.5 years for said, I m not sure. The suspect had been looking over his shoulder and when he turned to face Victim his head was down. But, when the suspect lifted his head and looked up, Victim identified Mendoza saying, yeah, that s him. I recognize his face. He s the one who had the gun. Based on the totality of the circumstances, the court found the one-on-one identification to be reliable. 5 count 4, with all four sentences to be served concurrently. ¶9 We Mendoza timely appealed his convictions and sentences. have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). DISCUSSION ¶10 On August 9, 2009, a month after the jury returned a verdict, Mendoza filed a pro se motion for new trial seeking a change of claiming counsel, he restraints. 2 improperly had been Even filed, alleging prejudiced though the prosecutorial the court when motion held an misconduct, a juror was both saw him untimely evidentiary hearing and in and to determine whether Mendoza was actually prejudiced by a juror 2 Mendoza s motion was a conflation of three motions (1) to reconsider Judge Kemp s pre-trial denial of Mendoza s motion for new counsel, (2) for a new trial due to prosecutorial misconduct, and (3) for a new trial due to Mendoza being prejudiced when a juror saw him in restraints. The court disposed of the first issue as untimely and not ripe; Mendoza s motion for reconsideration should have been filed before Judge Kemp, see State ex rel. Romley v. Superior Court, 183 Ariz. 139, 142, 901 P.2d 1169, 1172 (App. 1995) (to preserve judicial resources, a second trial judge should not review the first judge s ruling unless new circumstances have arisen), and it should have been filed no later than 20 days prior to trial. Ariz. R. Crim. P. 16.1. Regarding the second issue and despite the fact that as a represented party, Mendoza did not have a right to file a motion for new trial, the court considered and dismissed his prosecutorial misconduct claim for lack of sufficient detail. Cf. Lincoln v. Lincoln, 155 Ariz. 272, 274, 746 P.2d 13, 15 (App. 1987) (represented party has no right to personally conduct any aspect of the litigation except through counsel. ). We find no reversible error in these rulings. 6 seeing him in restraints. See State v. Apelt, 176 Ariz. 349, 361, 861 P.2d 634, 646 (1993) ( [B]rief and inadvertent exposure of a handcuffed or shackled defendant to members of the jury outside the courtroom is not inherently prejudicial, and a defendant is not entitled to a new trial absent a showing of actual prejudice. ). ¶11 At the hearing, Mendoza testified that a juror who was still in the hallway while he was being moved to the in-custody holding tank during a recess may have seen him in restraints. He claimed that he had already crossed into the hallway when the bailiff and Mendoza testified recognize a man walking that him. he The with did her see passed the sheriff s man deputy by and but saw he him. did responsible not for transferring Mendoza testified that the clerk had approached him as he was about to bring Mendoza into the hallway and stopped him from doing so because the hallway had not been cleared of jurors. The deputy did not see the bailiff or the possible juror in the hallway. the deputy because The clerk testified that she had stopped she heard the bailiff and a man walking behind her in the hallway; she was not sure whether the man had been a juror, and she did not think that the man and the bailiff had seen Mendoza. ¶12 was Because there was no evidence the man in the hallway a juror or that he had ever 7 seen Mendoza, the court concluded that Mendoza did not show actual prejudice therefore denied Mendoza s motion for a new trial. and Mendoza does not raise this issue on appeal, and, in any event, we find no reversible error. ¶13 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The evidence presented supports the convictions and the sentences imposed fall within the ranges permitted by law. As far as the record reveals, Mendoza was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶14 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Mendoza of the disposition 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. Mendoza has thirty days from the date of this decision in which to proceed, if he desires, with a pro se petition for review. 8 motion for reconsideration or CONCLUSION ¶15 The convictions and sentences are affirmed. ___/s/_______________________ JOHN C. GEMMILL, Judge CONCURRING: ____/s/_____________________________ SHELDON H. WEISBERG, Presiding Judge ____/s/_____________________________ PHILIP HALL, Judge 9

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