State v. Rodriguez

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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 DIVISION ONE FILED: 09/30/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ORLANDO RODRIGUEZ, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 09-0877 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-142963-001 DT The Honorable Barbara L. Spencer, Judge Pro Tempore CONVICTIONS AND SENTENCES AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce F. Peterson, Legal Advocate By Consuelo M. Ohanesian, Deputy Legal Advocate Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 This appeal was timely 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 Orlando Rodriguez s convictions of two counts of robbery, Class 4 felonies. Rodriguez s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Rodriguez was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Rodriguez s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 Rodriguez and two companions approached Scott E. and Juan T. while they were walking down the street one night.1 Rodriguez advanced toward Scott E. and Juan T. with his fists raised, demanding that the two give him all [they had]. T. gave Rodriguez five dollars. Juan One of Rodriguez s companions demanded Scott E. s necklace; Scott E. refused and the assailant forcefully assailant grabbed punched the necklace. him, knocking tearing the chain off his neck. Scott Scott E. E. resisted to the and the ground and Juan T. came to Scott E. s aid and began fighting with Scott E. s assailant. Rodriguez then ran at Juan T., thrusting a shiny object toward him. 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Rodriguez. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 ¶3 After a jury convicted Rodriguez, the court suspended sentences on both convictions and imposed concurrent three-year terms of probation, which included a deferred four-month jail term. to Rodriguez timely appealed. Article Arizona 6, Section Revised 9, Statutes of We have jurisdiction pursuant the sections Arizona Constitution, 12-120.21(A)(1) (2003), and 13- 4031 (2010) and -4033(A)(1) (2010). 2 DISCUSSION ¶4 The record reflects Rodriguez received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. The court held appropriate pretrial hearings. ¶5 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of eight members with one alternate. The court the properly instructed the jury on the elements of charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was juror confirmed considered during the a by polling. presentence sentencing report hearing The and and court addressed imposed received its legal and contents terms of probation. 2 Absent material revisions after the date offense, we cite a statute s current version. 3 of an alleged CONCLUSION ¶6 We have reviewed the entire record for reversible error and find none. ¶7 See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations in this appeal have ended. Defense counsel need only inform Rodriguez of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission petition for review. to the Arizona Supreme Court by See State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Rodriguez has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Rodriguez has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ PATRICK IRVINE, Judge /s/ PHILIP HALL, Judge 4

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