State v. Calzada

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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. ) ) STEVE RICHARD CALZADA, ) ) Appellant. ) ) ) __________________________________) DIVISION ONE FILED: 06/30/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0619 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-109454-001 DT The Honorable Christopher T. Whitten, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Steve Richard and sentence conviction misdemeanor. Calzada for (Defendant) resisting arrest, appeals his a one class ¶2 Defendant s 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 a search of the entire appellate record, arguable question of law that was not frivolous. he found no Defendant was afforded the opportunity to file a supplemental brief in propria persona, and he has done so. Defense counsel also advises this Court that Defendant wishes us to address three specific issues, and we do so below. ¶3 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) (2003), 13-4031, and -4033.A.1 (2010).1 sections 12-120.21.A.1 Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY ¶4 When reviewing the record, we view the evidence in the light most favorable to supporting the verdict. State v. Torres-Soto, 187 Ariz. 144, 145, 927 P.2d 804, 805 (App. 1996). ¶5 Slater In and February Chairez 2010, went El to 1 Mirage City Defendant s Police home to Officers serve an We cite to the current version of the applicable statutes when no revisions material to this decision have since occurred. 2 outstanding warrant for a city code violation. The officers advised Defendant that he could either be taken to see a judge in El Mirage or be taken to jail in downtown Phoenix. Slater testified that during this discussion, he told Defendant he was going to be arrested, that he would be handcuffed[,] . . . placed in the back of the squad car and transported to the city court. his Defendant asked if he could go inside the house to get shoes. Slater advised Defendant accompany him back inside the house. that an officer must Defendant slammed the door shut, walked towards the street, through the two officers, and cussed at the officers. ¶6 As Defendant walked past, Chairez grabbed Defendant s left wrist to put him in handcuffs and Defendant aggressively ripped away with a clenched fist. went towards assisted in Chairez s taking face Defendant s clenched fist nearly Defendant down to striking the him. ground Slater as Chairez attempted to grab Defendant, who was swinging his arms. Once on the ground, the officers attempted to get Defendant s arms out from under his body and behind his back. struggle, officers repeated resisting, stop resisting. commands to During the ensuing Defendant to, stop Defendant received a small scratch on his cheek, Slater had a small abrasion on his left wrist, and Chairez had some small scratches on his elbow and right wrist. 3 ¶7 Defendant s version of the events was different than that of the officers. He stated that the officers only told him that he could either go to El Mirage City Court or jail in downtown Phoenix, but did not tell him that he was under arrest until he was tackled on the ground; as he was walking towards the patrol car, officers punched him in the back of the head and began to tackle him; and he did not struggle with the officers by punching, pushing or kicking them. ¶8 The State charged Defendant with resisting arrest, a class six felony. At a bench trial, the court found Defendant guilty of resisting arrest, a class one misdemeanor. The trial court sentenced Defendant to probation for two years. Defendant timely appealed. DISCUSSION ¶9 We address whether Defendant properly waived his right to a jury trial.2 2 Defendant also claims that the State s witnesses lied to the court and fabricated their testimony. However, the credibility of a witness is for the trier-of-fact, not an appellate court. State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991). We therefore do not address this issue. Defendant also claims that his counsel provided ineffective assistance in cross-examining the police officers. This Court will not address ineffective assistance of counsel claims raised in a direct appeal regardless of merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Therefore, we also do not address this issue. 4 ¶10 Defendant failed to raise this issue before the trial court and therefore fundamental error. has forfeited appellate review, absent See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To find fundamental error, Defendant must show that: (1) error occurred; (2) the error is fundamental; and (3) the error caused prejudice. 23-26, 115 P.3d at 608. Id. at 568, ¶¶ Error is fundamental if it goes to the foundation of [the] case, takes away a right that is essential to [the] defense, and is of such magnitude that [the defendant] could not have received a fair trial. 608. Id. at ¶ 24, 115 P.3d at A defendant may waive the right to a trial by jury with consent of determines the the prosecution right is and being the waived court, if the voluntarily court and submitted in writing or made in open court on the record. is Ariz. R. Crim. P. 18.1.b.(1)-(2). ¶11 In this case, the court inquired as to whether Defendant sought to waive his right to a jury trial at a trial management conference. The court asked and Defendant responded that he understood the charge against him, he read and spoke English, he was not on any drugs or medication, he understood what a trial by a judge and not a jury means, and he knew that he had the right to have the matter tried by a jury if he wished. On the same day, Defendant submitted, in writing, the waiver of his right to a trial by jury, affixed with his, his 5 attorney s, the prosecutor s, and the judge s signatures. Therefore, we find that Defendant knowingly and willingly waived his right to a trial by jury and the trial court did not commit error in allowing Defendant to voluntarily waive this right. CONCLUSION ¶12 We have read and considered counsel s and Defendant s supplemental in propria persona brief, carefully searched the entire record for reversible error and have found none. 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. Clark, All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the court s finding of guilt. all Defendant was present and represented by counsel at critical stages of the proceedings. At sentencing, Defendant and his counsel were given an opportunity to speak and the court imposed a legal sentence. ¶13 Counsel s representation in obligations this appeal pertaining have ended. to Defendant s Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission petition for review. to the Arizona Supreme Court by State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, 6 with an in propria persona motion for reconsideration or petition for review.3 ¶14 For the foregoing reasons, Defendant s conviction and sentence is affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ___________________________________ PATRICIA K. NORRIS, Presiding Judge /S/ ___________________________________ JOHN C. GEMMILL, Judge 3 Pursuant to Rule 31.18.b, Defendant or his counsel have fifteen days to file a motion for reconsideration. On the Court s own motion, we extend the time to file such a motion to thirty days from the date of this decision. 7

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