State v. Vera
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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. ) ) OSCAR JIMENEZ VERA, ) ) Appellant. ) ) __________________________________) 1 CA-CR 10-0836 DIVISION ONE FILED: 07/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2006-007096-001 DT The Honorable Julie P. Newell, Commissioner 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 Christopher Johns, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Oscar Jimenez Vera (Defendant) appeals his convictions and sentences. 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, he found no arguable question of law that was not frivolous. Defendant was afforded the opportunity to file a supplemental brief in propria persona, but he did not do so. ¶2 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 ¶1 We view the facts in this case in the light most favorable to sustaining the conviction. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). A grand jury indicted Defendant on four counts: count one, discharge of a firearm at a structure, a class two dangerous felony; count two, aggravated assault, a class three dangerous felony and a domestic violence offense; count three, endangerment, a class 1 We cite to the current version of the applicable statutes when no revisions material to this decision have since occurred. 2 six dangerous felony; and count four, unlawful discharge of a firearm, a class six felony. ¶2 In February 2006, Defendant s wife (Wife) was living in a Phoenix apartment complex with her three children, two of whom were fathered by Defendant. a telephone in her apartment. At the time, Wife did not have For some tenants who did not have telephones in their apartments, the on-site apartment complex manager (Manager) allowed tenants to use her phone in case of an emergency. Manager At approximately 8:00 p.m. on February 1, 2006, received a call on her cell phone. The caller identified himself as Defendant and asked to speak with Wife. Defendant is Wife s estranged husband. Wife testified that she had not given Manager s cell phone number to Defendant; however, Wife had called Defendant from Manager s cell phone because they were fighting about child support. Manager went outside of her apartment and knocked on Wife s door. Wife answered the door and Manager told her [Defendant] wanted to talk to her, and gave Wife the phone. Wife started to talk to Defendant while standing in her doorway. Wife testified she recognized the voice on the phone as Defendant s. The caller said can you hear this, and then she heard two shots followed by the caller saying well, guess what, this is me. Furthermore, Wife testified after she heard the shots she saw Defendant walking by 3 himself over to her apartment with a weapon in his right hand. Wife threw the phone back to Manager and told her to call nineone-one, and Wife shut her apartment door. After shutting the door Wife heard approximately five more shots. Manager called nine-one-one, continued to hear shots and saw one gunman that she later identified as Defendant approximately fifteen feet away. Manager further testified she could hear the bullet flying right next to [her] ear. ¶3 Meanwhile, inside her apartment Wife s oldest daughter heard gunshots and Manager scream. Wife s daughter then took her younger brothers into the bathroom to protect them. Manager testified she then saw Defendant flee on foot from the apartment complex. ¶4 Police arrived at the scene after Manager s nine-one- one call and found eight casings. A police crime laboratory forensic scientist testified the casings found at the scene were fired from the same weapon. ¶5 Manager testified she received another call from Defendant about fifteen to twenty minutes after the police left the apartment complex, wherein Defendant instructed Manager to tell [Wife] that he was going to kill her. ¶6 A jury found Defendant guilty of count two, aggravated assault, a class three dangerous felony and a domestic violence 4 offense; count three, endangerment, a class one misdemeanor; and count four, felony.2 unlawful discharge of a firearm, a class six Defendant s Rule 20 motion was denied as well as his Rule 24 motion for a new trial. ¶7 After consideration review of all of See Ariz. R. Crim. P. 20, 24.1. the possible presentence aggravating report and and mitigating circumstances, the court sentenced Defendant to the following: count two, imprisonment for the presumptive term of seven and one-half years with credit for 173 days of presentence incarceration; count three, terminal disposition; count four, a term of probation for two years upon Defendant s discharge from the Arizona Department of Corrections as to his sentence for count two. ¶8 Defendant appealed, Defendant s appeal pursuant Arizona to was however, dismissed Rule of for Criminal on May lack of Procedure 26, 2009, jurisdiction 31.3, which provides that a notice of appeal shall be filed within twenty days after the entry of judgment and sentence. Defendant did not file a notice of appeal until May 18, 2009, more than twenty days after the entry of judgment and sentence. Pursuant to Defendant s request for post-conviction relief, leave to file a delayed 2 notice of appeal was granted on September 30, 2010 A jury found Defendant not guilty of count one, discharge of a firearm at a structure. 5 pursuant to Rule 32.1.f. Defendant filed a timely delayed notice of appeal on October 21, 2010. DISCUSSION ¶9 This Court fundamental error. foundation of the has reviewed the entire record for Error is fundamental when it affects the case, deprives the defendant of a right essential to his defense, and is an error of such magnitude that the defendant could not possibly have had a fair trial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To prevail, a defendant must also establish that the error caused prejudice. Id. at ¶ 20, 115 P.3d at 607. record reflects Defendant received a fair trial. The Defendant was represented by counsel at all stages of the proceedings and was present or waived his presence at all critical stages. The jury was properly comprised of twelve members and two alternates. The trial court properly instructed the jury. ¶10 The State presented sufficient evidence upon which the jury could have based its decision. To convict a person of aggravated assault under A.R.S. § 13-1204 (2006) the jury must first find that the person committed an assault as defined by A.R.S. § 13-1203 (2006). Assault under A.R.S. § 13-1203.A.2 requires [i]ntentionally placing another person in reasonable apprehension of imminent physical injury. 6 Furthermore, under A.R.S. § 13-1204.A.2 [a] person commits aggravated assault if the person commits assault as defined in § 13-1203 [and] . . . the person uses a deadly weapon or dangerous instrument. Additionally, under A.R.S. § 13-604.P (2006) a dangerous felony means a felony involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument. Wife testified she recognized the voice on the phone as Defendant. Wife further testified the caller said can you hear this, and then she heard two shots followed by the caller saying well, guess what, this is me. Wife also stated after she heard the shots she saw Defendant walking by himself over to her apartment with a weapon in his right hand. was placed in reasonable Wife s testimony indicates she apprehension of imminent injury and Defendant used a deadly weapon. physical Thus, there was sufficient evidence to support Defendant s conviction by a jury for aggravated assault and the jury s finding that the aggravated assault charge was a dangerous felony. ¶11 Sufficient evidence was also provided that Defendant s aggravated assault charge was a domestic violence offense under A.R.S. § 13-3601.A (2006). Pursuant to § 13-3601.A, a domestic violence offense means an offense defined in § 13-1201 through 13-1204 if the relationship between the victim and the defendant is one of marriage or the victim and the defendant 7 have a child in common. Wife testified in court Defendant was her husband and she has two children with Defendant. Thus, the evidence indicates the aggravated assault charge is a domestic violence offense. ¶12 The State presented sufficient evidence to allow the jury to convict Defendant on count four, endangerment. Under A.R.S. § 13-1201.A (2006), [a] person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury. Manager testified in court that Wife talked to Defendant briefly before Manager heard two shots. Wife threw Manager the phone, said call the police and Wife slammed the door. Manager turned around when she heard the shots and saw Defendant shooting towards Wife. Manager called nine-one-one saw and continued to hear approximately fifteen feet away. shots and Defendant, Manager testified she could hear the bullet flying right next to her right ear. Thus, there was evidence of a substantial risk of death or physical injury. ¶13 Sufficient evidence was also presented at trial that Defendant discharged a firearm within the limits of the City of Phoenix, a municipality, in violation of A.R.S. §§ 13-3101, and -3107 (2006). A.R.S. § 13-3107.A, is violated when [a] person who with criminal negligence discharges a firearm within or into the limits of any municipality. 8 The evidence previously recited supports the jury s finding that Defendant discharged a firearm within the limits of the City of Phoenix, a municipality. ¶14 The jury returned unanimous verdicts, which defense counsel confirmed by polling jurors. The court received and considered a presentence report, and imposed legal sentences. Both Defendant and his counsel were present at sentencing and both were given an opportunity to address the court prior to the imposition of sentences. CONCLUSION ¶15 We have read and considered counsel s brief, carefully searched the entire record for reversible error, and we have found none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the jury s findings of guilt. ¶16 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 this 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 has thirty days from the 9 date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.3 ¶17 For the foregoing reasons, Defendant s convictions and sentences are affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ___________________________________ DONN KESSLER, Judge /S/ ___________________________________ MICHAEL J. BROWN, 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. 10
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