STATE v. HERNANDEZ

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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. JOHNATHAN TORRES HERNANDEZ, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 2/7/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 11-0717 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-140049-001 The Honorable Kristin C. Hoffman, Judge AFFIRMED AS MODIFIED 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 Tennie B. Martin, 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) (1969). and State v. Leon, 104 Ariz. 297, 451 P.2d 878 Counsel for Defendant Johnathan Torres Hernandez has advised us that, after searching the entire record, she 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 was given the opportunity to file a supplemental brief but has not done so. FACTS 1 ¶2 The father of the thirteen-year-old victim called the police after he discovered that Hernandez had engaged in sexual relations with investigation, his child. Hernandez After was the police subsequently conducted indicted for an two counts of sexual conduct with a minor and one count of child prostitution, all class 2 felonies and dangerous crimes against children. ¶3 During trial, the victim testified that Hernandez sent her a text message and offered her $1500 if he could perform oral sex on her. He picked her up at a Safeway store and drove her to a motel in Tolleson. She testified that he took off her 1 We view the facts in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997). 2 clothes, and after she was on the bed, put his penis in her vagina. She saved the underwear she was wearing and later gave it to the police. ¶4 A ( D.P.S. ) criminalist crime lab from the testified Department that she of Public found sperm Safety in the crotch area of the victim s underwear and preserved the DNA for analysis. Additionally, a forensic biochemist from the D.P.S. crime lab testified that the DNA found on the victim s underwear matched Hernandez s DNA sample at twelve locations. ¶5 Hernandez testified on his own behalf. He offered his version of the events but specifically denied having intercourse with the thirteen-year-old. Despite his testimony, the jury found him guilty of one count of sexual abuse of a minor by having sexual intercourse with the victim, and that the victim was under the age of fourteen. The jury, however, found him not guilty of the second count (digital penetration) and was unable to reach a verdict on the child prostitution charge. was subsequently sentenced eighteen years in prison. to a slightly mitigated Hernandez term of He received 431 days of presentence incarceration credit. ¶6 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (West 2013). 3 DISCUSSION ¶7 We have read and considered counsel s brief, and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. We find See Leon, 104 that all of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. We further find that the record demonstrates that Hernandez was represented by counsel at all stages of the proceeding. ¶8 The Hernandez evidence, admitted moreover, being in the supports motel room the with conviction. the victim. Although he disputed how his DNA found its way to the crotch area of the victim s underwear, the jury had to determine the credibility of the witnesses and whether the State proved its case beyond a reasonable doubt. State v. Piatt, 132 Ariz. 145, 150-51, 644 P.2d 881, 886-87 (1981). instructed and concluded that The jury was properly the State proved beyond a reasonable doubt that Hernandeaz had sexual intercourse with the young teen. ¶9 In Consequently, we find no error by his conviction. reviewing the sentence, we sentence is within the statutory range. the presentence calculation is one conclude that the We note, however, that day short. The record reveals that Hernandez was taken into custody on August 1, 2010, and remained in custody until he was sentenced on October 7, 2011. He was, as a result, in pretrial incarceration for 432 4 days. of Consequently, we modify his sentence to reflect 432 days presentence incarceration credit. See Ariz. R. Crim. P. 31.17(b); State v. Stevens, 173 Ariz. 494, 495-96, 844 P.2d 661, 662-63 (App. 1992) (correcting a miscalculation in presentence credit by modifying the sentence without remanding back to the trial court). ¶10 Having completed our review of the record, we find no error much less fundamental error. basis for us to conclude that Accordingly, there is no Hernandez is entitled to any appellate relief. ¶11 After this decision is filed, counsel s obligation to represent Defendant in this appeal has ended. Counsel must only inform Defendant of the status of the appeal and Defendant s future options, unless counsel identifies an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant may, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. 5 CONCLUSION ¶12 Accordingly, we affirm Defendant s conviction and sentence, but modify his presentence incarceration credit. /s/ __________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ _____________________________ PATRICIA A. OROZCO, Judge /s/ _____________________________ RANDALL M. HOWE, Judge 6

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