State v. Maldonado
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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.
OLIVER O MALDONADO,
Appellant.
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DIVISION ONE
FILED: 09/27/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 10-0829
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(Not for Publication –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. CR2009-005943-001DT
The Honorable James T. Blomo, Judge Pro Tempore
AFFIRMED AS MODIFIED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
James J. Haas, Maricopa County Public Defender
By Spencer D. Heffel, Deputy Public Defender
Attorneys for Appellant
Phoenix
Phoenix
K E S S L E R, Judge
¶1
Oliver Maldonado
(“Appellant”) filed this appeal
in
accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following his
conviction
dangerous
of
one
felony
count
under
section 13-1102(A)
of
negligent
Arizona
homicide,
Revised
Statutes
a
class
4
(“A.R.S.”)
(2010),1 and one count of endangerment, a
class 1 misdemeanor under A.R.S. § 13-1201 (2010).2
¶2
Finding
counsel
no
requested
fundamental error.
arguable
that
this
issues
Court
to
raise,
search
the
Appellant’s
record
for
Appellant was given the opportunity to, but
did not submit a pro per supplemental brief.
For the reasons
that follow, we affirm Appellant’s convictions and modify his
sentence
to
reflect
one
additional
day
of
presentence
incarceration credit.
FACTUAL AND PROCEDURAL HISTORY
¶3
Appellant
was
charged
with
manslaughter
and
endangerment in connection with events that took place in May
2007.
¶4
He pled not guilty to the charges.
Appellant was employed by a mobile pressure washing
1
We cite the current version of the applicable statute when
no revisions material to this decision have since occurred.
2
Although the sentencing minute entry lists the offense of
endangerment as a class 6 felony, discussions on the record
indicate that the trial court intended the offense to be a class
1 misdemeanor under A.R.S. § 13-1201(B).
“When we are able to
ascertain the trial court’s intention by reference to the
record, remand for clarification is unnecessary.
We therefore
clarify this discrepancy on appeal pursuant to [A.R.S. § 134037].”
State v. Contreras, 180 Ariz. 450, 453 n.2, 885 P.2d
138, 141 n.2 (App. 1994) (citation omitted).
2
company
While
responsible
he
for
typically
fleet
worked
washing
and
weeknights,
concrete
Appellant
cleaning.
agreed
in
advance to cover a Saturday morning shift.
¶5
On the evening of May 11, 2007, Appellant returned to
Mesa after completing a job in Tucson.
He smoked marijuana at
midnight, and when he was unable to sleep, smoked again at 6:00
a.m.
Later that morning Appellant awoke around 8:45 a.m., and
reported for work at 9:30 a.m.
Although Appellant testified
that he felt tired, he claimed he no longer felt the effects of
the drugs he smoked earlier that morning.
¶6
Appellant was scheduled to work at three separate job
sites along with his friend N.S. and his girlfriend A.Y.
driving
on
the
freeway
to
the
third
and
final
While
location,
Appellant began to doze off, and was awakened by a vibration
from
the
road’s
destination,
rumble
Appellant
concrete block walls.
¶7
strips.
fell
Only
asleep,
a
and
block
crashed
from
into
their
two
N.S. died as a result of the collision.
Officer W., a certified drug recognition expert, was
called
to
the
scene
to
investigate.
After
administering
a
variety of tests both at the scene and at the station, Officer
W. concluded that Appellant was under the influence of marijuana
and unable to safely operate a motor vehicle.
¶8
that
At trial, the State’s forensic criminalist testified
three
nanograms
of
tetrahydrocannabinol
3
(“T.H.C.”)
were
found in Appellant’s system, indicating recent use of marijuana.
He further testified that the drug can affect a person’s ability
to drive, and that such impairment can last anywhere between
four
and
twenty-four
hours.
In
contrast,
the
forensic
toxicologist for the defense testified that after reviewing the
case
he
could
not
say
with
any
Appellant was in fact impaired.
scientific
certainty
that
He also testified that such an
impairment would not have any significant effect on driving, as
multiple
studies
show
that
drivers
under
the
influence
of
marijuana are actually five percent less likely to be involved
in an accident.
¶9
In July 2009, an eight-person jury convicted Appellant
of negligent homicide, a dangerous offense, and endangerment.
He was sentenced to a four-year term of imprisonment for the
charge of negligent homicide, a concurrent six-month term for
the
charge
of
endangerment,
and
was
awarded
197
days
of
presentence incarceration credit.
¶10
Appellant
31.3(b).
We have jurisdiction pursuant to Article 6, Section 9,
of
Arizona
the
appealed.
See
Constitution,
as
Ariz.
well
R.
as
Crim.
A.R.S.
P.
§§
Rule
12-
120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).
STANDARD OF REVIEW
¶11
In an Anders appeal, this Court must review the entire
record for fundamental error.
State v. Richardson, 175 Ariz.
4
336, 339, 857 P.2d 388, 391 (App. 1993).
Fundamental error is
“error going to the foundation of the case, error that takes
from the defendant a right essential to his defense, and error
of such magnitude that the defendant could not possibly have
received a fair trial.”
State v. Henderson, 210 Ariz. 561, 567,
¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142
Ariz. 88, 90, 688 P.2d 980, 982 (1984)).
the
defendant
must
also
demonstrate
To obtain a reversal,
that
the
error
caused
prejudice. Id. at ¶ 20.
DISCUSSION
¶12
After careful review of the record, we find no grounds
for reversal of Appellant’s conviction.
The record reflects
Appellant had a fair trial and all proceedings were conducted in
accordance
with
the
Arizona
Rules
of
Criminal
Procedure.
Appellant was present and represented at all critical stages of
trial, was given the opportunity to speak at sentencing, and the
sentence imposed was within the range for Appellant’s offenses.
I. SUFFICIENCY OF THE EVIDENCE
¶13
In
“[w]e
reviewing
construe
the
the
sufficiency
evidence
in
the
of
light
evidence
most
at
trial,
favorable
to
sustaining the verdict, and resolve all reasonable inferences
against the defendant.”
State v. Greene, 192 Ariz. 431, 436, ¶
12,
(1998).
967
P.2d
insufficiency
106,
of
111
the
evidence
“Reversible
occurs
5
only
error
where
based
there
is
on
a
complete absence of probative facts to support the conviction.”
State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117,
1118-19 (1976)).
A. Negligent Homicide
¶14
For the jury to find Appellant guilty of negligent
homicide, it had to find that Appellant (1) caused the death of
a
person
and
(2)
failed
to
recognize
a
substantial
unjustifiable risk that the result would occur.
and
A.R.S. §§ 13-
105(10)(d) (2010), -1102(A).
¶15
In
this
case,
Appellant
admitted
to
driving
and
crashing his vehicle, and the parties stipulated that the victim
died as a result of the collision.
He also admitted to smoking
marijuana
morning.
at
12:00
and
6:00
that
While
Appellant
testified that he no longer felt the drug’s effects at the time
of the accident, the State’s expert witness testified that the
amount of active T.H.C. in his system was consistent with recent
cannabis
use,
and
Officer
W.
testified
that
in
his
opinion
Appellant was under the influence and unable to safely operate a
motor vehicle.
Appellant further testified that he was tired
and had already begun to doze off on the freeway prior to the
crash.
Based on this testimony, there was substantial evidence
to support Appellant’s conviction of negligent homicide.
B. Endangerment
6
¶16
For the jury to find Appellant guilty of endangerment
under A.R.S. § 13-1201, it had to find that Appellant recklessly
endangered another person with a substantial risk of imminent
death or physical injury.
aware
of
and
A person who acts recklessly “is
consciously
disregards
a
substantial
and
unjustifiable risk that the result will occur,” and “[t]he risk
must be of such nature and degree that disregard of such risk
constitutes a gross deviation from the standard of conduct that
a reasonable person would observe in the situation.”
13-105(10)(c).
A.R.S. §
Recklessness “requires a conscious choice of a
course of action, either with knowledge of the serious danger to
others involved in it or with knowledge of facts which would
disclose this danger to any reasonable man.”
Williams v. Wise,
106 Ariz. 335, 341, 476 P.2d 145, 151 (1970).
¶17
Here,
Appellant
was
cognizant
falling asleep while driving.
of
the
real
risk
of
He testified that prior to the
accident, he began to doze off, and was awakened by a vibration
from the road’s rumble strips.
continued
to
drive
to
his
Despite this warning, Appellant
third
assignment.
Based
on
this
testimony, the jury could reasonably conclude that Appellant was
aware
of
the
danger
he
posed
in
continuing
to
operate
the
vehicle, and as a result, recklessly endangered the life of the
7
surviving passenger.3
II. PRESENTENCE INCARCERATION CREDIT
¶18
Presentence
incarceration
credit
is
given
for
time
spent in custody beginning on the day of booking and ending on
the day before sentencing.
See State v. Carnegie, 174 Ariz.
452, 454, 850 P.2d 690, 692 (App. 1993); State v. Hamilton, 153
Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987).
custody
from
his
arrest
on
February
sentencing on August 21, 2009.
4,
Appellant was in
2009,
until
his
While Appellant’s total time
incarcerated prior to sentencing was 198 days, he only received
a credit of 197 days.
We, therefore, modify the sentence to
reflect this correction.
3
See Clancy v. State, 829 N.E.2d 203, 209 (Ind. Ct. App.
2005) (finding “that merely falling asleep while driving is
insufficient evidence of recklessness.
Instead, there must be
some proof that the driver consciously ignored, for a period of
time, substantial warnings that he or she might fall asleep, and
continued to drive despite warnings, before actually falling
asleep and causing an accident”); State v. Valyou, 910 A.2d 922,
924 (Vt. 2006) (“[F]alling asleep at the wheel does not, in and
of itself, constitute gross negligence. On the other hand, when
a driver is on sufficient notice as to the danger of falling
asleep but nevertheless continues to drive, the driver’s
subsequent failure to stay awake may be grossly negligent.”);
Boos v. Sauer, 253 N.W. 278, 279 (Mich. 1934) (“To constitute
gross negligence in falling asleep while driving there must have
been such prior warning of the likelihood of sleep that
continuing
to
drive
constitutes
reckless
disregard
of
consequences. . . . It has been held that prior warning may be
by way of having before gone to sleep or dozed off.”).
8
CONCLUSION
¶19
For
the
foregoing
reasons,
we
affirm
Appellant’s
conviction but modify his sentence to grant him 198 days of
presentence incarceration credit, and modify the conviction of
endangerment to a class 1 misdemeanor.
Upon the filing of this
decision, defense counsel shall inform Appellant of the status
of his appeal and his future appellate options.
Defense counsel
has no further obligations, unless, upon review, counsel finds
an issue appropriate for submission to the Arizona Supreme Court
by petition for review.
584-85,
684
P.2d
154,
See State v. Shattuck, 140 Ariz. 582,
156-57
(1984).
Upon
the
Court’s
own
motion, Appellant shall have thirty days from the date of this
decision to proceed, if he so desires, with a pro per motion for
reconsideration or petition for review.
/s/
DONN KESSLER, Judge
CONCURRING:
/s/
PATRICIA A. OROZCO, Presiding Judge
/s/
MICHAEL J. BROWN, Judge
9
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