Opinion
1 CA-CR 11-0454
05-21-2013
STATE OF ARIZONA, Appellee, v. QADIR HODARI AL-AMIN, Appellant.
Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Division Attorneys for Appellee The Hopkins Law Office, P.C. By Cedric Hopkins Attorneys for Appellant Qadir Hodari Al-Amin Appellant Pro Se
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(Not for Publication -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. CR2009-007602-001
The Honorable Daniel G. Martin, Judge
AFFIRMED AS MODIFIED
Thomas C. Horne, Attorney General
By Joseph T. Maziarz, Chief Counsel
Criminal Appeals/Capital Litigation Division
Attorneys for Appellee
Phoenix The Hopkins Law Office, P.C.
By Cedric Hopkins
Attorneys for Appellant
Phoenix Qadir Hodari Al-Amin
Appellant Pro Se
Florence HOWE, Judge ¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Qadir Hodari Al-Amin ("Al-Amin"), asks this Court to search the record for fundamental error. Al-Amin was given an opportunity to file a supplemental brief in propria persona. Al-Amin has done so. After reviewing the record and Al-Amin's supplemental brief, we affirm Al-Amin's convictions and sentences, but modify the sentence to include presentence incarceration credit of 984 days on count two.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the trial court's judgment and resolve all reasonable inferences against Al-Amin. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). ¶3 Around 12:45 a.m. on October 7, 2008, sixteen-year-old M.V. and four friends were driving home from a friend's house in a pickup truck. M.V. sat in the passenger seat in the front of the truck with another woman, S.H., and the driver, while two other passengers rode in the bed of the truck. The truck was traveling west on Hidalgo street in Phoenix when the passengers in the bed of the truck yelled to the driver in Spanish to stop and turn around because he had missed a turn. The driver began backing up, and a group of unknown individuals approached and fired multiple gunshots at the truck. One of the bullets struck M.V. in the head, killing her. Officers removed bullet fragments from the running board and dashboard of the passenger side of the truck. The bullet fragment found on the dashboard contained M.V.'s DNA. Officers searched the neighborhood and found several shell casings at the intersection of Vista Grande and Hidalgo. The house on the corner of the intersection was a well-known Lindo Park Crips hangout. ¶4 On October 11, 2008, officers arrested B.G. in an unrelated disturbance for discharging a firearm. B.G. informed the police that he had information about the shooting. Al-Amin had told him "[w]e did it," referring to the "girl with the truck." B.G. also observed "a big gun" while helping Al-Amin move into his new home. ¶5 On October 16, 2008, officers executed a search warrant on Al-Amin's home. During the search, officers recovered an SKS rifle ("the rifle") in the closet of Al-Amin's master bedroom. Officers also found several items of gang indicia including clothing and drawings. ¶6 A forensic scientist with the City of Phoenix examined the rifle, the shell casings, and the bullet fragments. The forensic scientist determined that the rifle fired six of the shell casings found at the scene, that the rifle "highly likely" fired four of the shell casings found at the scene, and that the rifle "likely" fired one of the shell casings found at the scene. Additionally, the rifle "likely" fired one of the bullet fragments inside the truck. ¶7 The State charged Al-Amin with count one, second-degree murder, a class one dangerous felony; count two, assisting a criminal street gang, a class three dangerous felony, count three, four, five and six, aggravated assault, class three dangerous felonies; and count seven, misconduct involving weapons, a class four felony. Al-Amin successfully moved to sever count seven from the other counts. ¶8 At trial, the State presented evidence of Al-Amin's gang affiliation. Al-Amin's nickname was "blue rag," and he belonged to the Lindo Park Crips. He was "trying to make a name for hi[m]self, trying to get back into the swing of things in his neighborhood." A detective with extensive gang experience testified that Al-Amin met all seven of the Arizona Revised Statutes criteria for an active gang member. The detective also testified that he believed Al-Amin was trying to raise his status in the gang. ¶9 The State also presented evidence linking Al-Amin to the shooting of M.V. One individual, whom did not come forward until he was arrested, testified that he walked up to the scene during the shooting and only saw Al—Amin shooting. Another individual, housed in the same area of jail as Al-Amin, testified that Al-Amin told him that he shot at the truck because he thought it was a rival gang. ¶10 At the close of the evidence, the trial court properly instructed the jury on the elements of the offense. The jury convicted Al-Amin of count one, two, three, four, five and six. Al-Amin pled guilty to count seven. ¶11 The trial court conducted the sentencing hearing in compliance with Al-Amin's constitutional rights and Rule 26 of the Arizona Rules of Criminal Procedure. On count one the trial court sentenced Al-Amin to thirty years; on count two the trial court sentenced Al-Amin to twenty years concurrent with count one; on counts three, four, five, and six the trial court sentenced Al-Amin to twenty-five years each consecutive to each prior count; and for count seven the trial court sentenced Al-Amin to twelve years consecutive to count six. The court credited count one for 984 days presentence incarceration. The trial court also imposed restitution in the amount of $1,591.20.
DISCUSSION
¶12 We review Al-Amin's convictions and sentences for fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). ¶13 Counsel for Al-Amin has advised this Court that after a diligent search of the entire record, he has found no arguable question of law. We have read and considered counsel's brief, and Al-Amin's supplemental brief and fully reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Al-Amin was represented by counsel at all stages of the proceedings and the sentence imposed was within the statutory limits. ¶14 Al-Amin asserts in his supplemental brief that the gang evidence was irrelevant and highly prejudicial to his case. "Trial courts have broad discretion in balancing probative value against prejudice, and we will not reverse unless error is clear." State v. Salazar, 181 Ariz. 87, 91, 887 P.2d 617, 621 (App. 1994). A court may admit all relevant evidence, defined as evidence having "any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action." Ariz. R. Evid. 402; see also Ariz. R. Evid. 401. One of the charges against Al-Amin was assisting a criminal street gang. The gang evidence admitted during trial was relevant to show that a gang existed and that Al-Amin's conduct assisted that criminal street gang. We find the court did not abuse its discretion in admitting the gang evidence. ¶15 Al-Amin also asserts that the evidence was not sufficient to prove his actions were gang motivated. A question of the "sufficiency of the evidence is one of law, subject to de novo review on appeal." State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). A court will enter a judgment of acquittal if no substantial evidence supports the conviction. See Ariz. R. Crim. P. 20. "Substantial evidence is that which reasonable persons 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). "In determining the sufficiency of the evidence, we view the evidence in the light most favorable to sustaining the verdict, and we resolve all inferences against the defendant." Id. We will reverse a court's conviction only if "there is a complete absence of probative facts to support its conclusion." State v. Carlisle, 198 Ariz. 203, 206, ¶ 11, 8 P.3d 391, 394 (App. 2000). The State presented evidence that Lindo Park Crips was a gang and that Al-Amin was a part of that gang because he had gang indicia in his home and he met all the criteria of an active gang member. The State also presented testimony that Al-Amin was attempting to get back into the gang and make a name for himself. Therefore, the State provided sufficient evidence that Al-Amin's actions were gang motivated. ¶16 The record shows that the court credited Al-Amin 984 days of presentence incarceration on count one only. But the sentence on count two was concurrent with count one. This means that the court also should have applied the presentence incarceration credit on count two. A defendant is entitled to have presentence incarceration credit applied to each concurrent sentence. State v. Cruz-Mata, 138 Ariz. 370, 375, 674 P.2d 1368, 1373 (1983). This serves the legislative purpose of Ariz. Rev. Stat. § 13-712(B) (West 2013). Thus, we modify the court's sentence to include presentence incarceration credit of 984 days to count two. ¶17 Upon the filing of this decision, defense counsel shall inform Al-Amin of the status of his appeal and of his future options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Al-Amin shall have thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. On the Court's own motion, we extend the time for Al-Amin to file a pro per motion for reconsideration to thirty days from the date of this decision.
We cite the current version of the applicable statutes because no revisions material to this decision have since occurred.
CONCLUSION
¶18 We affirm as modified.
_____________________
RANDALL M. HOWE, Judge
CONCURRING: _____________________
PATRICIA K. NORRIS, Presiding Judge
_____________________
ANDREW W. GOULD, Judge