Opinion
No. 1 CA-CR 14-0469
06-16-2015
STATE OF ARIZONA, Appellee, v. JOHN VICTOR GUZMAN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Charles R. Krull Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-457385-001
The Honorable Daniel J. Kiley, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Charles R. Krull
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 John Victor Guzman appeals his convictions and sentences for resisting arrest and shoplifting. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Guzman's appellate counsel has searched the record on appeal and found no arguable, nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530 (App. 1999). Guzman was given the opportunity to file a supplemental brief in propria persona but did not do so.
¶2 We have searched the record for fundamental error and have found none. Therefore, we affirm Guzman's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶3 Guzman was charged with shoplifting, resisting arrest and aggravated assault, all stemming from an incident at a QuikTrip convenience store. Guzman pled not guilty and the matter proceeded to a jury trial.
¶4 At trial, the state presented evidence of the following facts. On the night of the incident, Phoenix Police Officers Nichols and Price had stopped at a QuikTrip to get a snack before they started their patrol for the evening. Ofc. Nichols saw Guzman walk to the back of the store and look into the beer coolers. Ofc. Price testified that he saw Guzman retrieve a couple of items from the beer coolers, disappear for a minute, and then reappear without anything in his hands. Then Guzman went to the cash register, spoke with one of the employees but did not purchase anything, and walked out the front door.
¶5 Once Guzman was at the door, Ofc. Price said to Ofc. Nichols, "Hey, the beer cans are in . . . his pant leg." Ofcs. Nichols and Price followed Guzman into the parking lot. Ofc. Price ran up to Guzman and was about to detain him when Guzman turned around, toward Ofc. Price, in what appeared to be a "fighting stance." According to Ofc. Nichols, this meant that he was "getting ready to assault Officer Price." Ofc. Price then grabbed Guzman's sweatshirt and Guzman grabbed onto Ofc. Price's right arm. Ofc. Price testified that once Guzman reached out for his right arm, he felt pressure which was "restricting [him] from doing what [he] needed." He also stated that although he was wearing a long-sleeve polyester uniform shirt, "It hurt bad."
¶6 Ofc. Nichols tried to pull Guzman off Ofc. Price, but he was unsuccessful. Ofc. Nichols then punched Guzman in the face and Guzman fell backward and landed on his side. Ofcs. Nichols and Price tried to gain control of Guzman's arms, but he kept pulling them away and struggling with the officers as they attempted to handcuff him. The officers were also giving Guzman commands to stop resisting, saying "Police. Stop resisting." Once the officers had handcuffed Guzman, Ofc. Price noticed two cans of "Four Loko" malt liquor lying in the parking lot.
¶7 Ofc. Price began complaining of pain on his right arm and stated that he had been pinched. Another officer arrived on the scene to take photographic evidence of the pinch that Ofc. Price had suffered. Ofc. Nichols stated that he could see evidence of the pinch that night. Additionally, Ofc. Nichols testified that the next day, the area where Ofc. Price had been pinched appeared to be bruised.
¶8 At the conclusion of the state's case-in-chief, Guzman moved for a judgment of acquittal. The court denied the motion and Guzman rested without presenting any evidence.
¶9 After considering the evidence and hearing closing arguments, the jury found Guzman guilty of shoplifting and resisting arrest. However, the jury could not reach a verdict on the aggravated assault charge and the court declared a mistrial as to that count. Guzman was sentenced to 180 days in county jail for shoplifting and was given presentence incarceration credit for 180 days. He was sentenced to 1.5 years' imprisonment for resisting arrest, to be served concurrently with his jail term, and was given credit for 220 days of presentence incarceration.
Guzman later pled guilty to the aggravated assault charge and was sentenced to five years' imprisonment, to be served concurrently with his other sentences.
DISCUSSION
¶10 The record reveals no fundamental error. Guzman was present and represented at all critical stages. The record shows no evidence of jury misconduct and the jury was properly comprised of eight jurors. See A.R.S. § 21-102(B); Ariz. R. Crim. P. 18.1(a).
¶11 The evidence that the state presented at trial was properly admissible and was sufficient to support Guzman's convictions. Guzman was charged with shoplifting under A.R.S. § 13-1805(A)(1), which required the state to prove that Guzman knowingly obtained goods from an establishment in which merchandise is displayed for sale by removing such property without paying the purchase price with the intent to deprive the establishment of the goods. The state produced evidence that Guzman took two cans from the beer cooler at QuikTrip, put the cans in his pants, and then exited the store without paying for them. Additionally, after the altercation between Guzman and the officers ended, two cans of "Four Loko" malt liquor were lying in the parking lot. This evidence was sufficient to allow the jury to find Guzman guilty of shoplifting.
¶12 Guzman was also charged with resisting arrest under A.R.S. § 13-2508(A)(1), which required the state to prove that Guzman intentionally prevented or attempted to prevent a person reasonably known to him to be a peace officer from effecting an arrest by using or threatening to use physical force against the peace officer. The state produced evidence that after Guzman had been punched in the face by Ofc. Nichols and was on the ground, he began to struggle with the officers as they tried to put him in handcuffs. The officers were giving him commands that they were the police and he should stop resisting; however, Guzman was pulling his arms away from the police as they tried to detain him. Ofc. Price also stated that Guzman was on the ground laughing and taunting the officers. This evidence was sufficient to allow the jury to find Guzman guilty of resisting arrest.
¶13 At sentencing, Guzman was given an opportunity to speak and the court stated on the record the evidence and materials it considered and the factors it found in imposing Guzman's sentence. The court imposed a legal sentence for the offenses, see A.R.S. §§ 13-702(D), -707(A)(1), -1805(H), -2508(B), and correctly calculated Guzman's presentence incarceration credit under A.R.S. § 13-712(B).
CONCLUSION
¶14 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300. We therefore affirm Guzman's convictions and sentences.
¶15 Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Guzman of the status of this appeal and his future options. Id. Guzman has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Guzman has 30 days from the date of this decision in which to file a motion for reconsideration.