State v. Gonzales

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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. DANIEL ROBERT GONZALES, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 12/06/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0598 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-173935-001 DT The Honorable Barbara L. Spencer, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Thomas Gorman Attorneys for Appellant Sedona H A L L, Judge ¶1 Daniel Robert Gonzales (defendant) appeals from his convictions and the sentences imposed. For the reasons set forth below, we affirm. ¶2 Defendant's appellate 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 that, after a diligent search of the record, he was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). In his October 25, 2011 motion, defendant raises two issue regarding the effectiveness of his representation and the sufficiency of the evidence. ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). ¶4 Defendant was charged by indictment with two counts of armed robbery, class two dangerous felonies, in violation of Arizona Revised Statutes (A.R.S.) section 13-1904(A)(1) (2010). 2 ¶5 The following evidence was presented at trial. At approximately 3:00 a.m. on November 25, 2009, O.Q. and A.V. were working at a Chevron station. heard A.V. scream his name. O.Q. was stocking ice when he Immediately, O.Q. went to the front of the store and saw A.V. struggling with a man in an attempt to prevent the man from taking a case of beer. O.Q. ordered the man to leave the store and the man then pulled a knife from his pocket and challenged O.Q. to a fight. At that point, another man with tattoos on his chest entered the thirty-pack of beer, and exited the store. knife then exited the store. store, grabbed a The man with the Moments later, however, both men reentered the store, with the one man still wielding a knife, and the other man grabbed more beer, and they again left. ¶6 gave As soon as the men left, A.V. called the police and a description direction it of was the vehicle headed. the Shortly men left in thereafter, and the Officer Christopher Gallegos of the Phoenix Police Department received a call from dispatch providing a description of the vehicle and the occupants. Officer Gallegos observed a silver four-door Chevy Impala that matched the description of the vehicle and began following it. Because it was considered a high risk vehicle stop, Officer Gallegos waited for other officers before he conducted the stop. 3 ¶7 After ordering the occupants out of the vehicle, Officer Gallegos conducted a search of the car and found the two cases of beer behind a speaker box in the trunk. He also found a knife matching A.V. s description in the passenger side visor. ¶8 At trial, O.Q. testified that Officer Gallegos asked him to view the occupants of the Chevy Impala and he identified defendant as the man who took the cases of beer. He further testified, however, that defendant looked very different at trial than the man he observed that evening. When defendant was asked to show O.Q. and the jury his chest, O.Q. testified that defendant s tattoos were generally how he remembered them, but noted that he was primarily focusing on the knife and not defendant s appearance at the time of the incident. ¶9 After a six-day trial, the jury found defendant guilty as charged. mitigating The trial court found that the aggravating and factors weighed evenly and sentenced defendant to presumptive concurrent terms of 10.5 years in prison on each count with 165 days of presentence incarceration credit. ¶10 Defendant first argues ineffective counsel. We will not consider claims of ineffective assistance of counsel on direct appeal regardless of merit. assistance See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). therefore decline to address this argument. of We If defendant wishes to pursue a claim for ineffective assistance of counsel, he may 4 file a claim for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. ¶11 Defendant next contends that insufficient evidence was presented at trial to support his convictions. We review the sufficiency of the evidence by determining whether substantial evidence supports the jury s finding, viewing the facts in the light most favorable to sustaining the jury verdict. Kuhs, 223 Ariz. 376, 382, ¶ 24, 224 P.3d 192, State v. 198 (2010) (internal quotation omitted). Substantial evidence is proof that accept reasonable persons could as adequate . . . to support a conclusion of defendant s guilty beyond a reasonable doubt. Id. (internal quotation omitted). We set aside a jury verdict for insufficiency of the evidence only when it is clear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. State Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). v. To obtain a conviction in this case, the State was required to prove that defendant, or his accomplice, was armed with a deadly weapon or a simulated deadly weapon when they took property from another person against his will. A.R.S. §§ 13-1902, -1904(A)(1) (2010). ¶12 Based on our review of the record, there substantial evidence supporting defendant s convictions. was O.Q. testified that he heard his coworker screaming for help and then 5 observed A.V. fighting with a man who was attempting to take beer. The man pulled out a knife and challenged O.Q. to a fight. Defendant then entered the store, grabbed the beer, and the men left. Moments later, the two men reentered the store and defendant took more beer while the other man continued to wave the knife in a threatening manner. Although O.Q. testified that trial, defendant looked different at O.Q. positively identified defendant as one of the perpetrators the night of the robbery and he further testified that defendant s tattoos were consistent with his recollection of the tattoos on the man who took the beer. Therefore, we conclude that the State, through O.Q. s testimony, presented sufficient evidence from which the jury could reasonably conclude that defendant committed the crimes charged. ¶13 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentences imposed were within statutory limits. ¶14 After obligations appeal have the pertaining ended. filing to of this defendant's Counsel need 6 do decision, counsel s representation no more than in this inform defendant 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant 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. Accordingly, defendant's convictions and sentences are affirmed. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/_________________________________ MICHAEL J. BROWN, Presiding Judge _/s/_________________________________ PATRICIA K. NORRIS, Judge 7

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