Opinion
1 CA-CR 11-0087
06-14-2012
STATE OF ARIZONA, Appellee, v. DANIEL GUTIERREZ, Appellant.
Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and W. Scott Simon, Assistant Attorney General Attorneys for Appellee Bruce F. Peterson, Legal Advocate by Consuelo M. Ohanesian, Deputy Legal Advocate Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-006222-002DT
The Honorable John R. Hannah, Jr., Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
and W. Scott Simon, Assistant Attorney General
Attorneys for Appellee
Phoenix
Bruce F. Peterson, Legal Advocate
by Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Appellant
Phoenix THUMMA, Judge
¶1 Daniel Gutierrez ("Appellant") appeals his convictions and sentences for two counts of aggravated assault. For the following reasons, we affirm.
Appellant does not appeal his convictions and sentences for armed robbery or conspiracy to commit armed robbery.
FACTS AND PROCEDURAL HISTORY
¶2 In July 2009, Appellant was driving a truck in which T.K. and another man were passengers. Appellant then stopped and picked up Carlos Robles and Andrew Gonzalez. At trial, T.K. testified Robles and Gonzalez were carrying pistols when they entered the truck. Later, one of the other men in the truck suggested they "jack" two suspected cocaine dealers. Appellant then drove near an alley where the two suspected cocaine dealers were inside a parked car. After Appellant and the other men in the truck surveyed the area, Robles and two of the men got out of the truck and observed the suspected cocaine dealers while Appellant remained in the truck.
¶3 After Robles and the two other men returned to the truck, Appellant made gestures toward the alley and said "I want to do it like this." Appellant then drove the truck to the alley and blocked the victims' car so that it could not move. While Appellant remained in the truck, Robles and another man in the truck shot both of the victims and stole a black bag from the victims' car. Appellant and the other men then sped away in the truck.
¶4 Police stopped the truck a few minutes later. During the stop, police found the black bag belonging to the victims, a gun matching the bullet casings found in the victims' car, a shotgun and a pistol. Witnesses identified the truck as being involved in the shooting. Witnesses also identified several of the men, including Appellant, as being involved in the shooting. Police located DNA matching one of the victims on Robles' shirt.
¶5 The State charged Appellant with two counts of armed robbery, class two dangerous felonies; conspiracy to commit armed robbery, a class two dangerous felony and two counts of aggravated assault, class three dangerous felonies. Appellant was tried by jury with two co-defendants. After the State rested its case in chief, Appellant moved for a directed verdict on all counts under Rule 20 of the Arizona Rules of Criminal Procedure ("Rule 20"). The court denied the motion, and the jury found Appellant guilty as charged. After sentencing, Appellant filed this timely appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.01(A)(1) (West 2012), 13-4031 and -4033(A).
Absent material revisions to this decision, we cite the current Westlaw version of applicable statutes.
DISCUSSION
¶6 Appellant argues the superior court abused its discretion in denying his Rule 20 motion on the aggravated-assault charges because it erroneously relied on the United States Supreme Court's decision in United States v. Pinkerton, 328 U.S. 640 (1946). Although we agree the superior court should not have relied on Pinkerton, substantial evidence indicates Appellant was an accomplice to the aggravated assaults. Accordingly, the superior court properly denied Appellant's Rule 20 motion.
Appellant does not challenge the jury instructions, and the record reveals that the superior court properly instructed the jury.
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¶7 The denial of a Rule 20 motion is reviewed for an abuse of discretion. State v. McMurdy, 216 Ariz. 567, 573, ¶ 14, 169 P.3d 931, 937 (App. 2007). A Rule 20 motion should be granted only if there is "no substantial evidence to warrant a conviction" on a charge. Ariz. R. Crim. P. 20(a); see also State v. Fulminante, 193 Ariz. 485, 493, ¶ 24, 975 P.2d 75, 83 (1999). Substantial evidence is evidence that reasonable jurors "could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Davolt, 207 Ariz. 191, 212, ¶ 87, 84 P.3d 456, 477 (2004). We will affirm the superior court's ruling on the Rule 20 motion if it is correct for any reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). Because Appellant failed to object when the superior court stated Pinkerton was applicable to the aggravated assault charges, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶8 Pinkerton held, as a matter of federal law, that a conspirator may be held responsible for a crime to which the conspirator never agreed if the crime is reasonably foreseeable and is committed in furtherance of the conspiracy. 328 U.S. at 646-48. The Arizona Supreme Court, however, held that "Pinkerton is not the law in Arizona" and that a criminal defendant may not be held responsible for the criminal offenses of a co-conspirator unless the criminal defendant is an accomplice or principal. State ex rel. Woods v. Cohen, 173 Ariz. 497, 500-01, 844 P.2d 1147, 1150-51 (1992).
¶9 Here, the State charged Appellant as an accomplice to the aggravated assaults, not as a conspirator. Because Pinkerton does not reflect Arizona law and did not address accomplice liability, the superior court erred in relying on Pinkerton when denying Appellant's Rule 20 motion on the aggravated assault charges.
¶10 Although the superior court should not have cited Pinkerton, substantial evidence revealed that Appellant was an accomplice to the aggravated assaults. Appellant drove a truck to pick up two men who were carrying guns. After one of the men suggested they "jack" the victims, Appellant drove the truck near an alley where the victims were parked, and Appellant surveyed the area. A witness observed Appellant gesturing toward the alley and saying, "I want you to do it like this." Appellant then drove the truck to the alley and positioned it to block the victims' car while two of the men shot the victims. After the men stole a bag from the victims' car, Appellant sped away in the truck.
¶11 Because there was substantial evidence for a reasonable juror to find Appellant an accomplice to the aggravated assaults, the superior court properly denied Appellant's Rule 20 motion. See Perez, 141 Ariz. at 464, 687 P.2d at 1219 (noting appellate court will "affirm the trial court's ruling if the result was legally correct for any reason"). Similarly, because the superior court did not err in denying the Rule 20 motion, Appellant cannot show fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607; State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (2006).
CONCLUSION
¶12 For the foregoing reasons, we affirm Appellant's convictions and sentences for aggravated assault.
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SAMUEL A. THUMMA, Judge
CONCURRING:
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PATRICIA A. OROZCO, Presiding Judge
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JON W. THOMPSON, Judge