STATE v. PENA
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NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. ARTURO PENA, Appellant. No. 1 CA-CR 19-0623 FILED 9-29-2020 Appeal from the Superior Court in Maricopa County No. CR2019-001159-001 The Honorable Ronee Korbin Steiner, Judge AFFIRMED COUNSEL Arizona Attorney General’s Office, Phoenix By Michael O’Toole Counsel for Appellee Mayes Telles PLLC, Phoenix By David Paul Lish, Mark Mendoza Counsel for Appellant STATE v. PENA Decision of the Court MEMORANDUM DECISION Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Kent E. Cattani and Judge Cynthia J. Bailey joined. H O W E, Judge: ¶1 Arturo Pena appeals his convictions and sentences for drive-by shooting and aggravated assault. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 During a “road rage” incident, Pena shot another driver through the back of his neck. The driver survived and the State charged Pena with drive-by-shooting and aggravated assault. The State also alleged six aggravating circumstances. ¶3 Following a trial, Pena was convicted of both offenses and defense counsel stipulated to two of the six aggravating circumstances: that the offenses involved the infliction or threatened infliction of serious physical injury and that the offenses caused physical, emotional, or financial harm to the victim. The court engaged Pena in a brief colloquy to ensure that he had properly waived his right to the jury determining whether the State had proved the aggravating circumstances beyond a reasonable doubt. At sentencing, the court imposed a mitigated prison term for the drive-by shooting conviction and a concurrent presumptive term for the aggravated assault conviction. Pena timely appealed. DISCUSSION ¶4 Pena argues that the trial court improperly gave weight to the aggravating circumstances that he stipulated to because it conducted an incomplete colloquy. He also argues that insufficient evidence supports the court’s determination that the offenses involved the infliction of serious physical injury. He asserts that he was prejudiced because had the court not considered those two aggravating circumstances, he would have received a more lenient sentence. Because he did not object at trial, Pena must establish fundamental error, which requires him to prove either error and resulting prejudice, or that the error “was so egregious that he could not 2 STATE v. PENA Decision of the Court possibly have received a fair trial.” State v. Escalante, 245 Ariz. 135, 140, 142 ¶¶ 12, 21 (2018). ¶5 Because the trial court did not impose an aggravated sentence, Pena’s arguments are moot. A trial court may consider aggravating circumstances not proved beyond a reasonable doubt when imposing a presumptive or mitigated sentence. See State v. Miranda-Cabrera, 209 Ariz. 220, 227 ¶¶ 31–32 (App. 2004) (resentencing not required when consideration of aggravating circumstances did not result in an aggravated sentence). Therefore, even if we assume that Pena’s stipulation was invalid, the trial court could still consider those aggravating circumstances when sentencing Pena to a mitigated or presumptive prison term. See id. ¶6 Further, Pena cannot establish prejudice because his arguments are speculative. See State v. Munninger, 213 Ariz. 393, 397 ¶ 14 (App. 2006) (defendant’s speculation that the trial court would impose a specific sentence if it had not considered an aggravating factor does not show prejudice). Here, Pena speculates that, absent his stipulation, the State could not have proved those two aggravating circumstances beyond a reasonable doubt and that the court would have imposed a more lenient sentence. Pena failed to establish fundamental error. CONCLUSION ¶7 For the foregoing reasons, we affirm. AMY M. WOOD • Clerk of the Court FILED: AA 3
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