State v. Salcido

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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. MARIO SAUL SALCIDO, Appellant. DIVISION ONE FILED: 07/14/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0927 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-102954-001DT The Honorable Karen L. O Connor, 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 Christopher V. Johns, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 738 This is an appeal under Anders v. California, 386 U.S. (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Mario Saul Salcido has advised us that, after searching the entire record, he has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. Defendant, however, filed a supplemental brief. FACTS 1 ¶2 Leslie Chavez was shot outside of Pantera s, gentlemen s show club, by security guards in January 2010. a The mother of his children, Crystal Salcido, took him to Maryvale Hospital in the back of his pickup truck. After Ms. Salcido had been handcuffed pending further investigation, Officer Lindsey Smith escorted her to the bathroom. As they were going back to the patrol car, Defendant followed them and threw water from his water bottle that hit Officer Smith. ¶3 Because Defendant seemed to be out of control, Officer Smith told Defendant to turn around and told him he was under arrest. As she was trying to search him for weapons, he turned around and pushed her. ground. officers She grabbed him and put him on the Defendant, however, refused to obey the commands of the and was eventually tased by Officer Miller. Defendant was subsequently placed in a patrol car. 1 We review the facts in the light most favorable to sustaining the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 ¶4 Defendant was charged by information with aggravated assault and resisting arrest. The case proceeded to trial after a motion for full mental health evaluation pursuant to Arizona Rule of Criminal conferences. Procedure 11, as well as two settlement The jury, after considering all of the testimony, including Defendant s, and the instructions, acquitted Defendant of the aggravated assault but convicted him of resisting arrest. After the trial court found beyond a reasonable doubt that he had three prior felonies, Defendant was sentenced to a threeyear mitigated prison term, with credit for forty days of pursuant to presentence incarceration. ¶5 We have jurisdiction over this appeal Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 134031, and -4033(A)(1) (2010). DISCUSSION ¶6 We Defendant s have brief, reversible error. ¶7 read and and have considered searched the counsel s entire brief, record for See Leon, 104 Ariz. at 300, 451 P.2d at 881. Defendant, however, raises a number of issues in his supplemental brief. We address each for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.2d 89, 96 (App. 1999); see also State v. Henderson, 210 Ariz. 561, 115 P.3d 601 (2005). 3 ¶8 First, he argues that the trial court abused its discretion by not giving a disorderly conduct instruction. We have long held that disorderly conduct is not a lesser included offense of resisting arrest. See State v. Diaz, 135 Ariz. 496, 497, 662 P.2d 461, 462 (App. 1983) (disorderly conduct is not a lesser included offense of resisting arrest). find no error because the court could not Consequently, we legally give the disorderly conduct instruction as a lesser included of resisting arrest. ¶9 Defendant next argues that the trial court abused its discretion by allowing Officer Miller to testify in rebuttal based on facts not in evidence based or attributed on hearsay. We review the decision to allow rebuttal evidence for abuse of discretion. State v. Talmadge, 196 Ariz. 436, 440, ¶ 17, 999 P.2d 192, 196 (2000). ¶10 Officer Miller was permitted to testify in rebuttal because Defendant testified earlier that no one said that he was under arrest. Officer Miller then recounted to the jury what Defendant told him after being provided Miranda 2 warnings. Officer Miller s testimony was designed to impeach and undermine Defendant s 2 testimony that he did not Miranda v. Arizona, 384 U.S. 436 (1966). 4 know the police were trying to arrest him. 3 Because Defendant, like any witness who testifies, is subject to having his testimony impeached pursuant to Arizona Rule of Evidence 607, the trial court did not abuse its discretion in allowing Officer Miller to testify in rebuttal. ¶11 Defendant also argues that there was no evidence of his consciousness of guilt to demonstrate that he was guilty of resisting arrest. He argues that the jury did not hear about his diminished capacity or mental disability. The defense was free, however, to present the evidence and Defendant could have testified about his mental disability. The record reveals that he did not discuss any mental disability. ¶12 The record also reveals that the jury heard all the testimony presented, including the fact that uniformed officers tried to arrest Defendant, that he was intoxicated, that he fought and struggled, and that he only calmed down after he was tased a second time. The jury was then properly instructed. Consequently, that the fact he struggled with the police to prevent his arrest supports the verdict. 3 We will not address the argument that Officer Miller should not have been allowed to testify about any outstanding warrant for Defendant because the warrant was briefly raised by the defense. If there was any error when it was discussed, it was invited error. State v. Lucero, 223 Ariz. 129, 136, ¶¶ 19-21, 220 P.3d 249, 256 (App. 2009) 5 ¶13 Finally, Defendant argues that the trial court erred by not ordering a revised presentence report because there was no discussion about his diminished mental capacity or emotional retardation in the report. Because there was no request for an additional report and no objection to the report, we only review for fundamental error. ¶14 We find no error. The trial court was aware of the findings and results of the Rule 11 evaluation, as well as all the trial testimony. Moreover, because the jury was not involved in the sentencing process it did not need to see the presentence report. Based on the mitigated prison sentence imposed despite Defendant s prior felonies, it is clear that the judge considered all of the information available to her. Consequently, the court committed no error by not ordering a presentence report with additional information. ¶15 Having addressed Defendant s supplemental arguments, and having searched the entire record for reversible error, we find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings, within the statutory limits. 6 and the sentence imposed was CONCLUSION ¶16 After obligation to this decision represent has Defendant been in filed, this appeal counsel s has ended. Counsel need do no more than inform Defendant of the status of the appeal review and reveals Defendant s an issue future options, appropriate for unless submission Arizona Supreme Court by petition for review. Shattuck, 140 Ariz. 582, 585, 684 P.2d counsel s to the See State v. 154, 157 (1984). Defendant can, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. ¶17 Accordingly, we affirm Defendant s conviction and sentence. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ LAWRENCE F. WINTHROP, Judge /s/ ____________________________ PATRICK IRVINE, Judge 7

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