Opinion
No. 1 CA-CR 13-0308
07-10-2014
STATE OF ARIZONA, Appellee, v. HUMBERTO MARTIN SANCHEZ, Appellant.
Arizona Attorney General's Office, Phoenix By Michael T. O'Toole Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Peg Green Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2011-149237-001
The Honorable Peter C. Reinstein, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Peg Green
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined. SWANN, Judge:
¶1 Defendant Humberto Martin Sanchez appeals his convictions and sentences for attempted first-degree murder, aggravated assault, second-degree burglary, and threatening or intimidating. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). After reviewing the record, we ordered and received supplemental briefing pursuant to Penson v. Ohio, 488 U.S. 75 (1988), regarding Defendant's sentences. For the reasons that follow, we affirm Defendant's convictions but vacate his sentences and remand for resentencing.
After receiving our order for supplemental briefing, Defendant filed a motion in propria persona asking for an extension of time and "professional help . . . [in the form of] someone who can represent [him]." Defendant's appointed appellate counsel then timely filed a supplemental brief on his behalf and mailed a copy to him. Without acknowledging counsel's brief, Defendant thereafter renewed his request for an extension of time and stated that he had not yet "found . . . an inmate willing to help [him], to file the brief."
On this record we do not construe Defendant's motions as requests for selfrepresentation. Defendant merely seeks legal representation that has already been provided to him, and of which he has been given notice. We therefore summarily deny his motions for extensions of time as moot. Cf. Coleman v. Johnsen, No. CV130350SA, 2014 WL 2619990, at *4, ¶¶ 1718, 20 (Ariz. June 13, 2014) (requiring factorbased analysis of request for selfrepresentation filed more than 30 days after notice of appeal).
FACTS AND PROCEDURAL HISTORY
¶2 In September 2011, Defendant was indicted on one count of attempted first-degree murder, three counts of aggravated assault, one count of second-degree burglary, and one count of criminal damage as against his wife, A.S., and on one count of threatening or intimidating as against his wife's boyfriend, A.V. He pled not guilty and was tried by jury.
¶3 At trial, the state presented evidence of the following facts. In 2011, Defendant and A.S., a married couple with two minor children in common, were living separately and A.S. was dating A.V. Defendant, however, wished to reconcile with A.S. To that end, on one occasion he confronted A.V. by forcefully hitting the window of A.V.'s vehicle, with A.V. inside, while commanding him to get out and fight -- behavior that caused A.V. to drive away out of concern for his safety. A few weeks later, Defendant asked A.S. to choose between him and A.V. A.S. responded that she could no longer be with Defendant but wished to remain friends with him for their children's sakes. The next day, September 19, Defendant telephoned A.S. and again asked her to choose between him and A.V. A.S. told Defendant that she chose A.V. Defendant then asked to see A.S. and A.S. declined.
¶4 That evening, A.S. left her apartment to meet A.V. for dinner. Later, Defendant attempted to locate A.S. by telephoning one of her neighbors and by visiting her apartment complex, where he asked another neighbor about A.S.'s whereabouts and stated that he was "going to kill the bitch." After visiting A.S.'s apartment complex, Defendant went to his parents' house, where his and A.S.'s children were staying. He woke the children and returned with them to A.S.'s complex. Finding A.S.'s apartment door to be locked, and lacking a key, Defendant and the children initially went to a neighbor's apartment but then returned to A.S.'s apartment, where Defendant directed one of the children to enter the apartment through a balcony window. The child complied and unlocked the apartment door from the inside to admit his sibling and father.
¶5 Inside A.S.'s apartment, Defendant drank beer and sent a text message to his nephew that read: "Im right here waiting for this bitch . me [my son] and [my daughter]. Im going to nok thhis bitch out wen sje gets herwe and cut her throat. This is man talk." Defendant also telephoned the nephew and told him that he was going to slit A.S.'s throat. At the conclusion of this conversation, the nephew called family members to notify them of the situation. In response, Defendant's mother went to A.S.'s apartment. She removed the children from the apartment but Defendant refused to leave.
¶6 Throughout the night, A.S. received telephone calls from several neighbors who were concerned by Defendant's presence and behavior. She also received text messages from Defendant, one of which read: "Bitch im going tokkkkkkkkiiilluuuuuuuuuuuuuu." A.S. decided that she would not return to her apartment until the night had passed.
¶7 The next morning, A.S. returned to her apartment complex. As she walked through the parking lot, she suddenly encountered Defendant. Holding one hand behind his back, Defendant told A.S. that they should go to her apartment. Frightened, A.S. repeatedly asked Defendant not to harm her. Defendant responded by bringing his hand out from behind his back, revealing a large rock that he then threw at her. A.S. crouched and tried to cover herself, but the rock struck her shoulder. Defendant then grabbed her by the hair and threw her onto the ground. As A.S. screamed for help, Defendant hit her in the face with his fist and told her that he was going to kill her. He then began to stab her upper body with a large kitchen knife taken from A.S.'s home. During the attack, friction between A.S.'s face and the ground caused a loss of tissue to the tip of A.S.'s nose.
¶8 When a neighbor who heard A.S.'s screams exited her apartment and yelled at Defendant, he stopped stabbing A.S., walked to his vehicle, and began to drive away. But when A.S. rose from the ground and staggered to a nearby apartment, crying and calling for help, Defendant stopped his vehicle, exited it, and confronted A.S. at the apartment door, asking her, "Do you think I was playing?" He then reentered his vehicle and drove away, and the apartment's inhabitant opened the door to receive A.S. Police and firefighters responded soon thereafter, and A.S. was transported to a hospital. At the crime scene, police found a trail of blood leading from the parking lot to the complex. They also found a river rock and a purse in the parking lot. A.S. told police that Defendant was her attacker and provided them with his cell phone number.
¶9 Defendant used his cell phone to send several text messages to third parties after the attack, including a message that he had "[c]ut her fukin face and her fukin traitor lying ass nek" and another message requesting "some money if i can make it to da border." He also called his nephew and stated that he had slit A.S.'s throat, and told a friend that he had done something to A.S. with a knife, was sorry, and did not know whether she was alive. Police tracked Defendant's cell phone to that friend's house and arrested Defendant there. They found Defendant's vehicle parked behind a fence at the house, and inside of the vehicle found his cell phone, a pair of blue jeans, and, on the interior of the driver's side door, blood. Lab tests revealed blood belonging to A.S. on the blue jeans and on Defendant's shoe.
¶10 Medical personnel determined that A.S. had suffered multiple hematomas and lacerations, a fractured scapula, a loss of nose tissue, a punctured lung, and an injury to the carotid artery sheath. According to the trauma surgeon who treated A.S., several of these injuries were potentially life-threatening. A.S. was required to stay in the hospital for four days, and when she returned home to her apartment she found that someone had poured cooking oil on clothing and jewelry therein.
¶11 At the conclusion of the state's case-in-chief, Defendant successfully moved for a judgment of acquittal on the count of criminal damage. Defendant then called one witness, for purposes of impeachment, and rested.
¶12 After hearing closing arguments and considering the evidence, the jury found Defendant guilty on all remaining counts: attempted first-degree murder of A.S. (Count 1); aggravated assault against A.S. with a knife, a deadly weapon or dangerous instrument, causing serious physical injury (Count 2); aggravated assault against A.S. with a rock, a deadly weapon or dangerous instrument, causing reasonable apprehension of imminent physical injury (Count 3); aggravated assault against A.S. by means of force to intentionally, knowingly, or recklessly cause a temporary but substantial disfigurement to her nose (Count 4); burglary in the second degree against A.S. by entering or remaining in her apartment with the intent to commit a theft or felony therein (Count 5); and threatening or intimidating A.V. (Count 7). The jury further found that Counts 1-4 were domestic violence offenses.
¶13 The jury also found aggravating factors with respect to Counts 1-5, and at sentencing, the court found that Defendant had two prior felony convictions and was on probation for one of those convictions at the time of the trial offenses. The court found that though Defendant's remorse was a mitigating factor, this mitigating factor was outweighed by the aggravating factors. The court sentenced Defendant to an aggravated flat-time prison term of 22 years for Count 1, a concurrent aggravated prison term of 18 years for Count 2, a concurrent aggravated prison term of 18 years for Count 3, a concurrent aggravated prison term of 6 years for Count 4, a consecutive aggravated prison term of 7 years for Count 5, and a six-month jail term for Count 7 with a terminal disposition based on time served. Defendant timely appeals.
DISCUSSION
I. PRETRIAL AND TRIAL PROCEEDINGS
¶14 We discern no fundamental error in the pretrial and trial proceedings. Defendant was present and represented by counsel at all critical stages before and during trial, and his complaint that his trial counsel was ineffective cannot be considered on direct appeal -- such claims must be raised in a petition for postconviction relief under Ariz. R. Crim. P. 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). The jury was properly comprised of 12 jurors, see A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a); the state presented proper closing and rebuttal arguments, and, as we explain in more detail below, the court properly denied Defendant's motions for mistrial; and the jury reached verdicts supported by the evidence.
A. The Superior Court Acted Within Its Discretion by Denying Defendant's Motions for Mistrial.
¶15 Mistrial is "the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Dann, 205 Ariz. 557, 570, ¶ 43, 74 P.3d 231, 244 (2003) (citation omitted). Defendant first moved for mistrial near the outset of the trial, after A.S. testified that events occurred "when [Defendant] first got out of jail." Though this reference to Defendant's prior incarceration was inappropriate, it was fleeting and unrepeated. The court acted within its discretion to determine that a mistrial was not required.
¶16 Defendant later made a second motion for mistrial based on a detective's testimony that law enforcement had lost photographs of A.S.'s apartment that showed pry marks and clothing ruined by cooking oil. Again, we conclude that the court did not err by finding mistrial inappropriate. The state provided other evidence regarding Defendant's unlawful entry into A.S.'s apartment and the damage to A.S.'s possessions. Additionally, in view of the later judgment of acquittal on the criminal damage charge, the lost photographs of the clothing were not directly material to Defendant's guilt. And to the extent that the lost evidence was relevant to Defendant's guilt on other counts and to questions of police credibility and the adequacy of their investigation, the issue was adequately presented to the jurors by instructions that they "should weigh the explanation, if any, given for the loss or unavailability of the evidence" and could, based on an inadequate explanation, "draw an inference unfavorable to the State which in itself may create a reasonable doubt as to the defendant's guilt."
B. The State Presented Sufficient Evidence To Support Defendant's Convictions.
¶17 The evidence that the state presented at trial was properly admissible and was sufficient to support Defendant's convictions. To show that Defendant was guilty of Count 1, attempted first-degree murder, the state was required to prove that Defendant, intending or knowing that his conduct would cause A.S.'s death, acted with premeditation to cause her death by taking any step in a course of conduct planned to culminate in her death. A.R.S. §§ 13-1001(A)(2), -1105(A)(1). The state met this burden by introducing evidence that Defendant, after telling A.S. and others that he was going to kill her, waited for her at her apartment and stabbed her upper body repeatedly with a large kitchen knife. The same evidence also supports Defendant's conviction for the first aggravated assault count, Count 2, for which the state was required to prove that Defendant intentionally, knowingly, or recklessly caused physical injury to A.S. using a knife that was designed for lethal use or readily capable of causing death or serious physical injury under the circumstances in which it was used. A.R.S. §§ 13-105(12), -105(15), -1203(A)(1), -1204(A)(2).
¶18 To support Defendant's conviction for the second aggravated assault count, Count 3, the state was required to prove that Defendant intentionally placed A.S. in reasonable apprehension of imminent physical injury using a rock that was readily capable of causing death or serious physical injury under the circumstances in which it was used. A.R.S. §§ 13-105(12), -1203(A)(2), -1204(A)(2). The state met this burden by introducing evidence that Defendant threw a large rock at A.S. at close range, causing her to crouch and attempt to shield herself from its impact.
¶19 To support Defendant's conviction for the third aggravated assault count, Count 4, the state was required to prove that Defendant intentionally, knowingly, or recklessly caused physical injury to A.S. using any means of force, causing temporary but substantial disfigurement. A.R.S. §§ 13-1203(A)(1), -1204(A)(3). The state met this burden by introducing evidence that Defendant pushed A.S. onto the ground and caused friction between her nose and the ground that resulted in a loss of tissue.
¶20 To support Defendant's conviction for Count 5, second-degree burglary, the state was required to prove that Defendant entered or remained unlawfully in A.S.'s apartment with the intent to commit any theft or felony therein. A.R.S. § 13-1507(A). The state met this burden by introducing evidence that Defendant entered A.S.'s locked apartment by directing his child to climb through a window, and once inside told others that he was going to slit A.S.'s throat when she returned home.
¶21 Finally, to support Defendant's conviction for threatening or intimidating, Count 7, the state was required to prove that Defendant, by word or by conduct, intimidated or threatened to cause physical injury to A.V. or serious damage to A.V.'s property. A.R.S. § 13-1202(A)(1). The state met this burden by introducing evidence that Defendant had confronted A.V. by forcefully hitting A.V.'s vehicle window while ordering him to exit the vehicle and fight.
C. The State Presented Sufficient Evidence To Support the Jury's Findings of Domestic Violence.
¶22 The jury's findings that Counts 1-4 were domestic violence offenses were sufficiently supported. Attempted first-degree murder and aggravated assault are types of offenses that may qualify as domestic violence offenses under A.R.S. § 13-3601, and, consistent with subsection (A)(1) of that statute, the state presented evidence that A.S. and Defendant were a married couple. II. AGGRAVATION-PHASE PROCEEDINGS
¶23 In the aggravation phase, the jury found several aggravating factors under A.R.S. § 13-701(D). We conclude that these findings were supported by sufficient evidence but not all of them could be considered for purposes of aggravation.
¶24 As an initial matter, we note that the state failed to file a notice of aggravating factors until trial was underway. On this record, however, the absence of pretrial notice did not deprive Defendant of due process because the notice given still allowed him several days to prepare rebuttal. See State v. Scott, 177 Ariz. 131, 141-42, 865 P.2d 792, 802-03 (1993). The aggravating factors were properly presented to the jury despite their late disclosure.
¶25 With respect to both Count 1 and Count 2, the jury found that aggravating factors existed under § 13-701(D)(1), (2), and (9). These aggravating factors describe, respectively: the defendant's "[i]nfliction or threatened infliction of serious physical injury, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment"; the defendant's "[u]se, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment"; and the victim's "suffer[ing of] physical, emotional or financial harm." A.R.S. § 13-701(D)(1), (2), (9). The jury's findings that these factors were present with respect to Counts 1 and 2 were sufficiently supported by the evidence that Defendant had seriously injured A.S. by attacking her with a knife. With respect to Count 2, however, the § 13-701(D)(2) factor could not be considered as an aggravating factor because Defendant's use of a deadly weapon or dangerous instrument was an essential element of the offense. See A.R.S. §§ 13-701(D)(2), -1203(A)(1), -1204(A)(2).
¶26 With respect to Count 3, the jury found that an aggravating factor existed under § 13-701(D)(2). But again, though this finding was supported by the evidence that Defendant had thrown a large rock at A.S., it could not be considered as an aggravating factor because Defendant's use of a deadly weapon or dangerous instrument was an essential element of the offense. See A.R.S. §§ 13-701(D)(2), -1203(A)(1), -1204(A)(2).
¶27 With respect to both Count 4 and Count 5, the jury found that an aggravating factor existed under § 13-701(D)(9). These findings were supported by the evidence that Defendant had forcefully disfigured A.S.'s nose, and by the evidence that he had entered and used her apartment without her permission, waited there to attack her, and removed a knife from her kitchen. III. SENTENCING PROCEEDINGS
¶28 The court committed fundamental error by enhancing Defendant's sentences on Counts 1, 2, and 3 based on his criminal record. Consistent with the parties' joint pretrial statement, the court sentenced Defendant on Counts 1, 2, and 3 under A.R.S. § 13-704(D). Section 13-704(D) describes sentencing ranges for persons who have been convicted of class 2 or class 3 dangerous offenses and have "one historical prior felony conviction that is a class 1, 2 or 3 felony involving a dangerous offense."
¶29 As an initial matter, we consider whether Counts 1, 2, and 3 -- a class 2, class 3, and class 3 felony, respectively, see A.R.S. §§ 13-1001(C)(1), -1105(D), -1204(D) -- were dangerous offenses. A dangerous offense is one "involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person." A.R.S. § 13-105(13). Here, the jury was instructed on dangerousness but was not asked to make specific findings on dangerousness. No specific finding of dangerousness is required, however, if dangerousness necessarily constitutes an element of the offense. State v. Smith, 146 Ariz. 491, 499, 707 P.2d 289, 297 (1985). We hold that a finding of an aggravating factor that is consistent with dangerousness may also be sufficient to obviate the need for a specific finding of dangerousness. Cf. State v. Gomez, 211 Ariz. 494, 502, ¶ 38, 123 P.3d 1131, 1139 (2005) (noting that jury finding of dangerousness for sexual assault conviction could, alternatively, establish "serious physical injury" aggravating factor). Here, dangerousness was inherent in Defendant's convictions for Counts 2 and 3, see A.R.S. §§ 13-1203(A)(1), -1204(A)(2), and the jury's finding of an aggravating factor under A.R.S. § 13-701(D)(2) was sufficient to classify Count 1 as a dangerous offense.
¶30 But though Counts 1, 2, and 3 were dangerous offenses, the state failed to prove that Defendant had a historical class 1, 2, or 3 felony conviction involving a dangerous offense. The state provided proof of a prior class 3 non-dangerous felony and a prior class 6 dangerous felony, neither of which could qualify Defendant as a repetitive dangerous offender under § 13-704(D). Defendant should have been sentenced as a first-time dangerous offender under A.R.S. § 13-704(A). As the state concedes in its supplemental brief, the court's application of the wrong sentencing range constituted fundamental error that requires us to vacate Defendant's sentences on Counts 1, 2, and 3. See State v. Provenzino, 221 Ariz. 364, 369, ¶ 18, 212 P.3d 56, 61 (App. 2009) (imposition of unlawful sentence outside of statutory range is fundamental error). Further, we agree with the state that the error requires resentencing on all counts because the error may have affected the overall sentencing plan. See Pepper v. United States, 131 S. Ct. 1229, 1251 (2011).
¶31 We note that at resentencing, the court may apply the same sentencing ranges it previously used with respect to Counts 4, 5, and 7. The court imposed a proper sentence on Count 7 under A.R.S. § 13-707(A)(1), and properly sentenced Defendant on Counts 4 and 5 as a category two repetitive offender under A.R.S. § 13-703(I). An adult defendant who stands convicted of a felony qualifies as a class two repetitive offender if he has one historical prior felony conviction. A.R.S. § 13-703(B)(2). Each of Defendant's prior felony convictions qualified as a historical prior felony conviction under A.R.S. § 13-105(22)(a)(ii) and (b), respectively, and they could be counted as only one conviction for purposes of enhancement because they were committed on the same occasion, A.R.S. § 13-703(L). We reject Defendant's contention that the state presented insufficient evidence of the prior convictions. The state offered sufficient documentary and testimonial evidence to prove Defendant's criminal record. See, e.g., State v. Robles, 213 Ariz. 268, 273, ¶ 16, 141 P.3d 748, 753 (App. 2006).
Though the sentencing minute entry indicates that the court found only one prior felony conviction, the class 6 dangerous felony conviction, the transcript of the sentencing hearing shows that the court also found the existence of the class 3 non-dangerous felony. The court's oral pronouncement controls over the written minute entry. State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649 (1989).
Even if the prior convictions had not been committed on the same occasion, Defendant still could not be sentenced as a repetitive offender with two prior convictions. A defendant is entitled to pre-verdict notice of sentence enhancements sought based on prior convictions. A.R.S. § 13-703(N); State v. Williams, 144 Ariz. 433, 442, 698 P.2d 678, 687 (1985). The state specifically alleged only one prior conviction before the sentencing hearing; moreover, the parties' joint pretrial statement indicated that Defendant was subject to enhanced sentencing ranges based on one prior conviction only.
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¶32 We further note that at resentencing, evidence regarding Defendant's criminal record may justify the imposition of aggravated sentences even where the jury did not find proper aggravating factors. See A.R.S. § 13-701(D)(11) (court may find aggravating factor of prior felony conviction within past ten years); State v. Ritacca, 169 Ariz. 401, 403, 819 P.2d 987, 989 (App. 1991) (court may use prior conviction to enhance and aggravate sentence). We also note the applicability of flat-time sentencing based on probation status, see A.R.S. § 13-708, and consecutive sentencing for separate acts, see State v. Jonas, 164 Ariz. 242, 249, 792 P.2d 705, 712 (1990). We finally direct the court not to impose a DNA testing fee on Defendant. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013).
CONCLUSION
¶33 For the reasons set forth above, we affirm Defendant's convictions but vacate his sentences and remand for resentencing.