Opinion
No. 1 CA-CR 14-0322
12-22-2015
STATE OF ARIZONA, Appellee, v. MARIA YORLENI-LAZARO, Appellant.
COUNSEL Office of the Attorney General, Phoenix By Joseph T. Maziarz Counsel for Appellee The Hopkins Law Office, PC, Tucson By Cedric Martin Hopkins 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-007258-009 DT
The Honorable Sherry K. Stevens, Judge
AFFIRMED
COUNSEL Office of the Attorney General, Phoenix
By Joseph T. Maziarz
Counsel for Appellee The Hopkins Law Office, PC, Tucson
By Cedric Martin Hopkins
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Maurice Portley joined. OROZCO, Judge:
¶1 Maria Yorleni-Lazaro (Appellant) appeals her conviction and sentence for negligent child abuse, a class 6 undesignated felony. Appellant's counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297 (1969), stating that he has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant's counsel therefore requests we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999) (stating that this Court reviews the entire record for reversible error). We allowed Appellant to file a supplemental brief in propria persona, but she has not done so.
¶2 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 and 13-4033.A. Finding no reversible error, we affirm.
We cite the current version of the applicable statutes because no revisions material to this decision have occurred since the date of the offenses.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64 (App. 1994).
¶3 The events leading to Appellant's conviction began when a grand jury returned a twenty-count indictment charging nine family members with various crimes including kidnapping, sexual conduct with a minor, child prostitution, sexual abuse, child molestation, conspiracy to commit child abuse, and hindering prosecution.
By the time trial commenced, one defendant had died and four of the defendants had accepted plea agreements. --------
¶4 Appellant was named in two counts of the indictment; one count of conspiracy and one count of child abuse. The State alleged Appellant conspired with other family members to keep her father Tolentino Lazaro-Roa's (Tolentino) sexual misconduct with his daughter, N.L., and his grandchildren, S.L., Y.L., R.L.M., and Y.L.M., a secret from the authorities. Also, that Appellant had endangered her children, Y.L., R.L.M., and Y.L.M., and continued to leave them at Tolentino's home even after she knew of his misconduct.
¶5 On May 3, 2009, during a family gathering, Maria Isabel Lazaro (Maria Isabel), Tolentino's wife, discovered her thirteen-year-old daughter N.L. and fourteen-year-old granddaughter S.L. in a bedroom engaged in inappropriate behavior. While riding home with her parents Jaime (Maria Isabel and Tolentino's son) and Rocio Lazaro (Maria Isabel and Tolentino's daughter-in-law), S.L. discussed with them what her grandmother had seen.
¶6 When they arrived home, S.L. then disclosed to her parents that her grandfather Tolentino had been molesting her. Rocio "was all upset" and "angry." S.L. decided not to tell her mother at that time that her father Jaime had also been molesting her because she "was scared that I was going to break the family" and that her brothers would "hate [her] and never like [her] ever again." And although S.L. knew that Tolentino had molested his own daughter, N.L., and his granddaughter, Y.L.M., she decided not to tell her parents for similar reasons.
¶7 After S.L.'s disclosure, her mother asked S.L. if she wanted to call the police, but warned S.L. that "if you tell the police then you're going to get made fun of." S.L.'s parents did not call the police, but they did call Tolentino and Maria Isabel and other family members to discuss S.L.'s accusations. About an hour or two later, Tolentino, Maria Isabel, their sons Rafael Lazaro, Jesus Lazaro, and other family members arrived at Rocio and Jaime's house. At this meeting, the family confronted Tolentino and he asked for the family's forgiveness. The family agreed not to call police because they did not want Tolentino to "spend the last of his days in prison," but the family did not formulate any plan to protect the children from Tolentino.
¶8 Rocio testified that on one occasion, Appellant called her to report that Tolentino had molested her daughter, Y.L.M. Rocio did not remember whether the call had occurred before or after S.L. disclosed that Tolentino had molested her. Rocio also testified that Maria Isabel provided child care and would babysit Appellant's children, even after Tolentino admitted he had molested S.L. Maria Isabel testified that she did have a conversation with Appellant that they would have to be "more careful with the kids because we knew what had happened."
¶9 Appellant's daughter, Y.L., testified she had been sexually abused by Tolentino and although Appellant told her to stay away from Tolentino, it was difficult because they lived next door and she would go over to Tolentino's house before school and that Tolentino would drive her to school. Y.L. was born February 3, 2000 and was molested by Tolentino when she was eleven years old. Therefore, the molestation occurred sometime in 2011 after S.L.'s disclosure of Tolentino's abuse to the family in May 2009.
¶10 Appellant's son, R.L.M., testified that when he was in the third or fourth grade and his family lived next door, Tolentino molested him. He also testified that he and his sister would go to Tolentino's house in the mornings before school.
¶11 Appellant's youngest daughter, Y.L.M., also testified that Tolentino had molested her. She testified that she, her brother and her sister would go to Tolentino's house in the mornings before school and one of those mornings Tolentino "touched my bottom part." Appellant instructed Y.L.M. that she should not to tell anyone about the touching. When asked if Appellant ever left her alone with Tolentino after knowing that he had molested her, Y.L.M. responded affirmatively.
¶12 A jury acquitted Appellant on count one, conspiracy to commit child abuse, but found her guilty of count two, negligent child abuse. The trial court left the offense undesignated, suspended imposition of sentence, and placed Appellant on probation for eight years.
DISCUSSION
¶13 Pursuant to A.R.S. § 13-3623.B, the crime of negligent child abuse requires proof that the defendant, having the care or custody of a child, under circumstances other than those likely to produce death or serious physical injury, negligently caused or permitted the child's person or health to be injured or to be placed in a situation where their health is endangered. Criminal negligence means,
with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.A.R.S. § 13-105.10(d). The State presented ample evidence of each element. Appellant was aware that Tolentino molested S.L. and her own daughter. Also, Appellant lived next door to Maria Isabel and Tolentino and continued to leave her children in Tolentino's home, even after she learned that Tolentino molested S.L.
CONCLUSION
¶14 We have read and considered counsel's brief and carefully searched the entire record for reversible error and have found none. See Clark, 196 Ariz. at 541, ¶ 49. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the jury's finding of guilt. Appellant was present and represented by counsel at all critical stages of the proceedings. At sentencing, Appellant and her counsel were given an opportunity to speak, and the court imposed a legal sentence.
¶15 Counsel's obligations pertaining to Appellant's representation in this appeal have ended. Counsel need do nothing more than inform Appellant of the status of the appeal and her future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Appellant shall have thirty days from the date of this decision to proceed, if she so desires, with an in propria persona motion for reconsideration or petition for review.
¶16 For the foregoing reasons, Appellant's conviction and sentence are affirmed.