State v. Sanchez
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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©; ARCAP 28©; Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) SANTIAGO FIDEL SANCHEZ, ) ) Appellant. ) __________________________________) DIVISION ONE FILED: 02/24/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 09-0662 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR-2008-0181 The Honorable Lee Frank Jantzen, Judge AFFIRMED Thomas Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Katia Mehu, Assistant Attorney General Attorneys for Appellee DeRienzo and Williams P.L.L.C. By Daniel J. DeRienzo Attorneys for Appellant Phoenix Prescott Valley G E M M I L L, Judge ¶1 Santiago Fidel Sanchez was convicted by a jury on one count of drive-by shooting, a class 2 felony; three counts of discharge of a weapon at a structure, each a class 3 felony; and one count of misconduct involving weapons (prohibited possessor), sentence a class 4 enhancement felony. The allegations jury that further the found offenses the were committed while on pretrial release and to assist, promote or further the interests of a criminal street gang to be proven. At sentencing, the State established that Sanchez had two historical felony convictions and the trial court sentenced him as a repetitive offender to concurrent and consecutive terms of imprisonment totaling thirty-eight years. ¶2 On appeal, Sanchez argues that the trial court erred by denying his motion for continuance, failing to preclude late disclosed photographs, allowing the jury to return inconsistent verdicts, and imposing consecutive sentences. For reasons that follow, we affirm. DISCUSSION A. ¶3 Motion for Continuance. Sanchez intended to present expert testimony at trial on gangs and gang activity. After his witness failed to appear as scheduled on the last day of trial, Sanchez requested a oneday continuance to attempt to locate the witness. Sanchez argues that the trial court erred in denying his request. will not continuance reverse during a trial trial court s unless prejudice are clearly established. 186, 200, 766 P.2d 59, 73 (1988). 2 denial abuse of of a We motion for discretion and State v. Mauro, 159 Ariz. ¶4 on When informed of the failure of the witness to appear the morning of the last day of trial, the trial court recessed the trial to give defense counsel time to contact the witness and determine when he would be available. Defense counsel informed the trial court that the voice mail for the witness s telephone number indicated it was full and that counsel could not leave a message, but that he would continue to make efforts to contact him. After lunch, defense counsel explained to the trial court that an investigator had gone by the witness s Defense office, counsel but the witness stated further that he had was not obtained there. the home telephone number for the witness but calls to that number were not answered. Defense counsel acknowledged that he had no idea where the witness was and could not offer any assurances that the witness would appear the following day. The trial court ruled that in the absence of any contact with the witness there was no basis for further delay. The defense then rested and the trial proceeded to closing argument without testimony from the witness. ¶5 We find no abuse of discretion by the trial court. Sanchez did not subpoena the witness. sufficient State v. (1979). to justify Blodgette, denial 121 Furthermore, of Ariz. the 392, trial 3 the This failure alone is motion 395, court for 590 did continuance. P.2d give 931, Sanchez 934 an opportunity to determine if the witness would appear in a timely manner. When no contact could be made with the witness and no assurances could be offered that the witness would appear the following day, the trial court could reasonably conclude that granting an additional continuance would not be productive. This conclusion is supported by the fact that in neither his motion for new trial raising the denial of the continuance nor his brief on appeal does Sanchez offer any explanation for the witness s non-appearance or make any claim that the witness would have been available if an additional continuance had been granted. There was no error in the denial of the motion for continuance. State v. Reyes, 99 Ariz. 257, 266, 408 P.2d 400, 406 (1965). B. ¶6 Motion to Preclude Photographs Sanchez next contends the trial court erred in denying his motion to preclude late disclosed photographs. The various photographs sought to be precluded depict Sanchez with a shotgun and throwing gang signs. Noting that other photographs had been disclosed by the State months earlier, Sanchez argued that the newly disclosed photographs should be precluded because the disclosure was untimely. The trial court denied the motion on the grounds that there was no prejudice to Sanchez from the late disclosure. ¶7 Arizona Rule of Criminal Procedure 15.1(c) states: 4 Unless otherwise ordered by the court, the prosecutor shall disclose the materials and information listed in Rule 15.1(b) not later than. . . 30 days after arraignment. Rule 15.1(b)(5) includes: (5) A list of all papers, documents, photographs or tangible objects that the prosecutor intends to use at trial or which were obtained from or purportedly belong to the defendant. . . . Rule 15.6 further imposes a continuing duty to disclose. If the trial court learns of a party s violation of discovery rules, it shall impose any circumstances. sanction it finds appropriate Ariz. R. Crim. P. 15.7(a). under the Sanctions the trial court may impose include, but are not limited to, granting a continuance, declaring a mistrial, or preclusion of evidence. Id. ¶8 The decision whether to impose sanctions and the choice of sanctions for a disclosure violation is within the sound discretion of the trial court. State v. Stewart, 139 Ariz. 50, 59, 676 P.2d 1108, 1117 (1984). In deciding whether to impose sanctions for a disclosure violation, the trial court should consider (1) the importance of the evidence, (2) surprise or prejudice disclosure to was circumstances. 290, 308 (1996). the in other bad party, faith, and (3) (4) whether any the other lack of relevant State v. Towery, 186 Ariz. 168, 186, 920 P.2d Preclusion is rarely an appropriate sanction 5 for a disclosure violation, and the trial court should apply sanctions so as to have merits of the case. minimal Id. effect on the evidence and Denial of a sanction is generally not an abuse of discretion if the trial court believes the defendant will not be prejudiced. ¶9 Here, the Id. disclosure of the photographs occurred nearly a month prior to trial and well before the final deadline for disclosure. See Ariz. R. Crim. P. 15.6(c) (setting deadline for final disclosure as seven days prior to trial). Although disclosure of the photographs should have occurred earlier, the prosecutor explained the circumstances behind their untimely disclosure and there was no evidence of bad faith on the part of the State. the charges familiar Moreover, the photographs were clearly relevant to against with the Sanchez. Finally, photographs as they Sanchez were was pictures already of him obtained from a computer in his residence and there was no claim of prejudice from the timing of the disclosure. On this record, we cannot conclude the trial court abused its discretion in not precluding the photographs. C. ¶10 Sanchez Inconsistent Verdicts In addition to the counts on which he was convicted, was charged with one count of misconduct involving weapons (interests of a street gang) in violation of Arizona Revised Statutes (A.R.S.) section 6 13-3102(A)(9) (Supp. 2007). The jury acquitted Sanchez on this count. During the aggravation phase of the trial, however, the jury found that the State had proven the allegation that the offenses on which Sanchez had been convicted were committed with the intent to promote, further or assist any criminal conduct by a criminal street gang. motivation Based enhancement on the jury s allegation, verdict the trial on court the gang sentenced Sanchez to enhanced terms of imprisonment in accordance with A.R.S. § 13-604(T) (Supp. 2007), which mandates that his sentences be increased by three or five years depending on the felony classification. ¶11 Sanchez contends the verdict on the gang motivation enhancement allegation should be vacated because the verdict is inconsistent with his acquittal on the misconduct weapons (interests of a street gang) count. 1 the offense of misconduct involving weapons involving A person commits (interest of a street gang) by knowingly . . . [d]ischarging a firearm at an occupied structure in order to assist, promote or further the interests of a criminal street gang. 1 A.R.S. § 13-3102(A)(9). In the heading to this claim of error, Sanchez includes as an additional issue whether sufficient evidence was presented at the aggravation hearing to justify the enhancement. Because this issue is not developed in the body of his brief, it has been waived on appeal. State v. Walden, 183 Ariz. 595, 605, 905 P.2d 974, 984 (1995), overruled on other grounds by State v. Ives, 187 Ariz. 102, 108, 927 P.2d 762, 768 (1996). 7 Sanchez argues that because this offense contains only one more element than the offenses of drive-by shooting, A.R.S. § 131209(A) (Supp. 2007), and discharging a firearm at a structure, A.R.S. § 13-1209(A) (Supp. 2007), i.e., to assist, promote or further the interests of a street gang, the acquittal on this offense requires the conclusion that the jury determined that the other offenses arising from the drive-by shooting were likewise not gang related. ¶12 The weapons verdicts (interest of on charge of street a the gang) misconduct and the gang involving motivation enhancement are inconsistent, but Arizona follows the majority rule that consistency in verdicts is not required. State v. Zakhar, 105 Ariz. 31, 32, 459 P.2d 83, 84 (1969); see also State v. Eastlack, 180 Ariz. 243, 258, 883 P.2d 999, 1014 (1994) (no constitutional requirement of consistent verdicts). is based on the idea that inconsistency by This rule jurors in their verdicts does not show that they were not convinced of the defendant s guilt. (1932). The Dunn v. United States, 284 U.S. 390, 393 reference by Sanchez to decisions from other jurisdictions that do not allow inconsistent verdicts to stand is unavailing. by the As an intermediate appellate court, we are bound decisions of our supreme court authority to modify or disregard them. and do not the State v. Smyers, 207 Ariz. 314, 318 n.4, ¶ 15, 86 P.3d 370, 374 n.4 (2004). 8 have Thus, we find no merit to Sanchez s challenge to the gang motivation enhancement. D. Consecutive Sentences ¶13 Sanchez also argues that the trial court erred in ordering the sentence on his conviction for drive-by shooting be served consecutive to his sentences on discharge of a weapon at a structure. (2010), Sanchez contends consecutive the three counts Citing A.R.S. § 13-116 sentences are improper because all four offenses arose out of the same conduct. statute states: of This An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. Whether consecutive sentences are permitted under a set particular of facts is reviewed de novo. State v. Roseberry, 210 Ariz. 360, 370 n.8, ¶ 57, 111 P.3d 402, 412 n.8 (2005). ¶14 when Although a A.R.S. defendant s § conduct 13-116 is a bars consecutive single act, it sentences does not preclude consecutive sentences for offenses involving multiple victims. State v. Hampton, 213 Ariz. 167, 182, ¶ 23, 140 P.3d 950, 965 (2006). In the instant case, the four convictions at issue were based on multiple .45 caliber gunshots and shotgun blasts fired by Sanchez and a co-defendant at a Bullhead City home. The home and several vehicles parked in front of the home 9 were hit by the gunfire. The drive-by shooting count pertained to the shooting of the home and the three counts of discharge of a weapon at a structure were directed at the shooting of the vehicles. The home was owned by a person different from the owners of the vehicles. Because there were separate victims for the counts of drive-by shooting and discharge of a weapon at a structure, there was no error by the trial court in imposing consecutive sentences. See State v. White, 160 Ariz. 377, 379- 81, 773 P.2d 482, 484-86 (App. 1989) (consecutive sentences for each offense upheld when single act caused separate criminal result to each of four victims). CONCLUSION ¶15 We affirm Sanchez s convictions and sentences. ___/s/___________________________ JOHN C. GEMMILL, Judge CONCURRING: __/s/______________________________ PATRICIA K. NORRIS, Presiding Judge __/s/______________________________ PATRICIA A. OROZCO, Judge 10
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