Opinion
Court of Appeals No. A-11026 Trial Court No. 3AN-10-7007 CR No. 5966
07-31-2013
ANDREA MARIE SANTOYO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Andrew Steiner, Bend, Oregon, for the Appellant. Robert E. Henderson, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, David Stewart, Judge.
Appearances: Andrew Steiner, Bend, Oregon, for the Appellant. Robert E. Henderson, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
COATS, Senior Judge.
Andrea Santoyo was convicted of two counts of assault in the first degree, a class A felony. On each count, Santoyo faced a presumptive range of seven to eleven years of imprisonment. The superior court rejected Santoyo's proposed mitigating factors and imposed a seven-year term on each conviction, with six months of one sentence consecutive to the other. Thus, Santoyo's composite sentence was seven and one-half years of imprisonment. Santoyo appeals, arguing that the superior court erred in rejecting her proposed mitigating factor: that, in committing the offense, she acted "with serious provocation from the victim." We conclude that the superior court did not err in rejecting this mitigating factor.
AS 12.55.125(c)(2)(A).
AS 12.55.155(d)(6).
On June 25, 2010, the defendant, Andrea Santoyo, and Jessica Fratis became involved in an argument. Apparently, during this argument, Santoyo flipped a cigarette at Fratis. (The cigarette did not hit her, but went by her head.) Fratis became angry and started hitting Santoyo. As the fight continued, Santoyo pulled out a knife and stabbed Fratis several times. Miguel Slats intervened in the fight and received a cut on his side that was five inches long, as well as a one-inch cut to his left arm.
Bystanders called 911, and Santoyo fled the area. But she was apprehended by the police a few blocks away. Fratis was taken to the hospital where she received emergency surgery. She was in the hospital for approximately six weeks recovering from her wounds. Slats was hospitalized for four or five days for his wounds.
The State charged Santoyo with one count of assault in the first degree for assaulting Jessica Fratis and one count of assault in the first degree for assaulting Miguel Slats. In a jury trial, Santoyo argued that she had acted in self-defense. The jury rejected Santoyo's self-defense argument, convicting her of both counts of assault in the first degree.
At sentencing, Santoyo proposed the mitigating factor that, in committing the offense, she had "acted with serious provocation from the victim." In order to establish a mitigating factor, the defendant must prove the mitigating factor to the court by clear and convincing evidence. In order to prove the serious-provocation mitigating factor, the defendant must show provocation "sufficient to excite an intense passion in a reasonable person in the defendant's situation, other than a person who is intoxicated, under the circumstances as the defendant reasonably believed them to be ... ." In addition, the defendant's response must be proportional to the provocation. Whether the response is proportional "involves a common sense balancing of the seriousness of the defendant's crime against the seriousness of the provocation."
AS 12.55.155(f).
AS 11.41.115(f)(2).
Roark v. State, 758 P.2d 644, 647 (Alaska App. 1988).
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In rejecting the mitigating factor, the superior court concluded that Santoyo's conduct of inflicting serious physical injury with a knife was disproportionate to any provocation that she had received.
In reviewing the trial court's decision rejecting the mitigating factor, we are to accept the trial court's factual findings unless they are clearly erroneous. In this particular case, the sentencing judge conducted a jury trial, at which all of the evidence was presented. It is common in trials where two parties are involved in an altercation, and several witnesses have observed the altercation, to have serious conflicts in the testimony presented at trial. And the trial judge, who has the opportunity to observe that testimony is in a much better position than we are to determine the relevant facts.
In the present case, the superior court concluded that Santoyo's response in using a knife in this conflict was disproportionate to any provocation she had received. This finding is supported by the record. The trial court could certainly find that responding to this altercation by repeatedly using a knife and causing serious physical injury to Fratis and Slats was excessive and would not support finding the mitigating factor that Santoyo acted "with serious provocation from the victim."
The judgment of the superior court is AFFIRMED.