Opinion
No. 1 CA-CR 13-0491
07-22-2014
STATE OF ARIZONA, Appellee, v. VINCENT ROMAN BARBA, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Joel M. Glynn 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NOTICE: NOT FOR PUBLICATION.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. CR2011-157856-001
The Honorable Peter C. Reinstein, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Maurice Portley joined. KESSLER, Presiding Judge:
¶1 Vincent Roman Barba appeals his convictions and sentences for three dangerous offenses: aggravated assault, a class three felony, discharge of a firearm at a structure, a class three felony, and drive-by shooting, a class two felony. Counsel for Barba filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), requesting that this Court search the record for fundamental error. Barba was given the opportunity to but did not file a supplemental brief in propria persona. In response to our order, counsel for the parties submitted Penson briefing on multiple issues. After reviewing the entire record we conclude the evidence is sufficient to support the verdicts and sentences and there is no fundamental error. Accordingly we affirm. However, we vacate the portion of Barba's sentences requiring him to pay for DNA testing.
Penson v. Ohio, 488 U.S. 75 (1988).
FACTUAL AND PROCEDURAL HISTORY
¶2 The offenses at issue all arise from a single road rage incident involving Barba and the victim that occurred in November 2011. While entering the highway Barba's car cut in front of the victim's car and the victim honked his horn and flashed his lights at Barba. On the highway, after objects flew out of Barba's window and struck the victim's car, the victim wrote Barba's license plate number on his hand. They both exited the highway using the same off-ramp. While waiting at the light, Barba's car was one car length in front of the victim's car and in the lane to the right of the victim's car. The victim could see that Barba was looking at him, saying something, and waving his arms. The victim waved his arms back at Barba and then saw as Barba pointed a gun over his shoulder. The victim was trying to put his car in reverse to escape the apparent danger when he saw a red flash come from the muzzle of the gun, heard a shot, and felt something hit his car. The victim did not know if Barba would keep shooting. The light turned green and Barba drove off. The victim was scared, but knew he was not hurt, and he drove a short distance down the road and called 911. The victim informed the 911 operator of his location, that Barba had turned on 67th Avenue, and gave a description of Barba's vehicle and the license plate number.
¶3 Police responded to the scene and saw what appeared to be a recent bullet strike in the victim's passenger door. The angle of the bullet hole was consistent with the victim's description of the event. Meanwhile, other police officers located Barba's vehicle and followed him to 67th Avenue where they stopped him after he pulled into a gas station parking lot. Barba denied any involvement in a road-rage incident, but when police transported the victim to Barba's location, the victim positively identified both Barba and his vehicle. Police searched Barba's car but found no weapons, ammunition, or shell casings. Police tested Barba's hands for gunshot residue and the test came back positive. Barba was arrested and eventually indicted for the instant offenses.
¶4 After a five-day trial, a jury found Barba guilty of all counts. Because the State alleged the crime was aggravated by the use of a firearm, the jury was asked to determine the existence of that aggravator. On separate verdict forms, the jury found that each crime was a "dangerous offense because the offense involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument."
The State also alleged that the offenses were aggravated because they caused the victim emotional harm, but this issue was never presented to or deliberated upon by the jury.
¶5 Because the offenses were dangerous felonies based on the use of a firearm, the superior court sentenced Barba to enhanced presumptive prison terms of seven-and-one-half years' imprisonment for both aggravated assault and discharge of a firearm at a structure, and a "slightly mitigated" sentence of ten years' imprisonment for drive-by shooting. The court ordered that Barba serve the sentences concurrently and credited him with 59 days' presentence incarceration credit.
¶6 Barba timely appealed. 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) (2003), 13-4031 (2010), and - 4033(A)(1) (2010).
DISCUSSION
¶7 In an Anders appeal, we review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also demonstrate that the error caused prejudice. Id. at ¶ 20.
A. The evidence is sufficient to support Barba's convictions.
¶8 On review, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)).
¶9 The State proved that Barba committed aggravated assault by intentionally placing the victim in reasonable apprehension of imminent physical injury while using a deadly weapon or dangerous instrument. See A.R.S. §§ 13-1203(A)(2) (2010), -1204(A)(2) (Supp. 2013). The victim testified that he was scared and tried to reverse his car when he saw Barba point a gun toward him, and watched as Barba fired the weapon in his direction. The victim could see and hear the shot fired, and felt the bullet hit his car. He did not know if Barba would continue to shoot. This is sufficient to establish that the victim was placed in reasonable apprehension of imminent physical injury. See State v. Baldenegro, 188 Ariz. 10, 13, 932 P.2d 275, 278 (App. 1996) ("Either direct or circumstantial evidence may prove the victim's apprehension." (citation omitted)). Although Barba denied the incident and was not found with a weapon, he and his car were positively identified by the victim, he had gunshot residue on his hands, and police observed a recent bullet hole in the victim's passenger side car door that was consistent with the victim's description of the event. Thus, in the context of the ongoing road rage incident between the victim and Barba, a jury could reasonably conclude that Barba intended to place the victim in reasonable apprehension of imminent physical injury. See State v. Salman, 182 Ariz. 359, 362, 897 P.2d 661, 664 (App. 1994) ("[A] defendant's intent to cause reasonable apprehension of imminent physical injury in the victim can be inferred from the evidence.").
We cite the current version of the applicable statute because no revisions material to this decision have since occurred.
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¶10 Based on the same evidence, the State also proved that Barba knowingly discharged a firearm at the victim's vehicle, see A.R.S. § 13-1211(B), (C)(3) (2010), and committed a drive-by shooting by intentionally discharging a weapon from his vehicle at the victim's vehicle, see A.R.S. § 13-1209(A) (2010). Thus, there is sufficient evidence to support Barba's convictions for aggravated assault, discharging a firearm at a structure, and drive-by shooting.
B. Barba was not prejudiced by the court's improper
¶11 In their Penson briefs, the parties acknowledge that the superior court erred in considering Barba's use of a dangerous weapon as an aggravating factor because it was used to enhance his sentence and was an essential element of the offenses. See A.R.S. § 13-701(D)(2) (Supp. 2013) (stating court can consider use of a firearm as an aggravating factor "except if this circumstance is an essential element of the offense . . . or has been utilized to enhance the range of punishment under [A.R.S.] § 13-704 [(Supp. 2013)]"); State v. Glassel, 211 Ariz. 33, 57 n.17, ¶ 101, 116 P.3d 1193, 1217 n.17 (2005) (noting that because defendant's use of a deadly weapon was used to enhance the range of punishment, the court erred by relying on the use of a deadly weapon as an aggravating circumstance). In addition, the State correctly concedes that the emotional harm aggravating factor should not have been considered as an aggravator because the State never pursued that factor for sentencing purposes. However, we need not decide whether the error was fundamental in nature because Barba correctly concedes he cannot show he was prejudiced. See Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. The court imposed enhanced presumptive sentences and a slightly mitigated enhanced sentence pursuant to A.R.S. § 13-704(A), which is permitted upon the jury's finding of dangerousness, see State v. Purcell, 199 Ariz. 319, 329, ¶ 35, 18 P.3d 113, 123 (App. 2001), regardless of the existence of any aggravating factors. See A.R.S. § 13-704(L) ("The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law . . . if an allegation of dangerous offense is charged in the indictment or information and . . . found by the trier of fact."). Because there is nothing in the record to establish that the court would have given lesser sentences had it not improperly considered aggravating factors, there is no prejudice and resentencing is unnecessary. See Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607; State v. Olmstead, 213 Ariz. 534, 536, ¶ 7, 145 P.3d 631, 633 (App. 2006) (declining to find error because "the court considered the individual circumstances of the defendant and . . . imposed a sentence well within its discretion"); State v. Ruggiero, 211 Ariz. 262, 267-68, ¶¶ 23-28, 120 P.3d 690, 695-96 (App. 2005) (determining that defendant did not carry burden to show error in finding an aggravator caused sentencing prejudice); State v. Johnson, 210 Ariz. 438, 442, ¶¶ 12-13, 111 P.3d 1038, 1042 (App. 2005) (stating "no constitutional violation occurs if the ultimate sentence falls within the range authorized by the jury verdict alone" and affirming because the court "did not rely on [an aggravating] circumstance to increase [the defendant's] punishment beyond the maximum authorized").
C. Barba is not required to pay for DNA testing.
¶12 As part of Barba's sentence, the superior court required him to pay for his DNA testing pursuant to A.R.S. § 13-610 (Supp. 2013). After the court so ruled, we held in State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013), that there is no basis under that statute to require a defendant to pay the cost of DNA testing. Therefore, we vacate the portion of Barba's sentence that requires him to pay for his DNA testing. See id.
CONCLUSION
¶13 We have reviewed the record for fundamental error and have found no such error. The proceedings complied with the Arizona Rules of Criminal Procedure, Barba and his attorney were present, and Barba was given an opportunity to speak at sentencing. The evidence supports the verdicts, and the sentences imposed were within the enhanced sentencing range applicable to Barba's dangerous offenses. Thus, we affirm Barba's convictions and sentences, but vacate the portion of Barba's sentences that requires him to pay for DNA testing. Upon the filing of this decision, counsel shall inform Barba of the status of the appeal and his future appellate 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). Barba shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.