Opinion
No. 1 CA-CR 18-0239
05-21-2019
STATE OF ARIZONA, Appellee, v. NOE HERNANDEZ BAUTISTA, Appellant.
COUNSEL The Hopkins Law Office, P.C., Tucson By Cedric Martin Hopkins Counsel for Appellant Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2016-002037-001
The Honorable Ronda R. Fisk, Judge
AFFIRMED
COUNSEL
The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.
BEENE, Judge:
¶1 This appeal was filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Noe Hernandez Bautista was convicted of aggravated assault with a deadly weapon, a Class 3 felony; discharge of a firearm at a nonresidential structure, a Class 3 felony; and discharge of a firearm within city limits, a Class 6 felony. Bautista's counsel searched the record on appeal and found no arguable question of law that is not frivolous. See State v. Clark, 196 Ariz. 530 (App. 1999). Bautista was given an opportunity to file a supplemental brief in propria persona; he has not done so. Counsel now asks this Court to search the record for fundamental error. After reviewing the record, we affirm Bautista's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the judgment and resolve all reasonable inferences against Bautista. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 Bautista and A.D. were friends and A.D. occasionally hired Bautista to do work for his company, a family-owned wrecking yard. To obtain cash, Bautista tried to sell A.D. a pressurized tool, but A.D. declined. Instead, A.D. loaned Bautista $200 and held the tool as collateral.
¶4 On November 12, 2015, Bautista showed up unannounced at the yard and spent much of the day there with A.D. and F.U., A.D.'s wife. At the close of business, however, Bautista demanded A.D. purchase the pressurized tool. When A.D. refused, Bautista became angry, left the business area, and waited on the street in his truck. As A.D. left the yard, Bautista shot at A.D. from his vehicle. A.D. threw a rock at Bautista in an attempt to deter him from shooting at him further, and Bautista repositioned the truck and shot from another direction, now firing at the vehicle in which F.U. sat. A.D. believed "[Bautista] was trying to hit [A.D.] or [his] wife because then the bullets . . . were hitting towards the truck
[and] in the truck." F.U. was scared as she sat inside the truck and felt the impact of the bullets striking the truck, and she worried a bullet would hit her or her husband. A.D. and F.U. later separately identified Bautista in a photographic lineup as the shooter.
¶5 Bautista was charged with two counts of aggravated assault with a deadly weapon, one count of discharging a firearm at a nonresidential structure, and one count of discharging a firearm within city limits. At trial, after the State rested, Bautista moved for a judgment of acquittal, and the superior court denied the motion. As part of his defense, Bautista testified he was out of the country at the time of the shooting. The State rebutted the defense with paperwork and testimony that Bautista visited a Phoenix Motor Vehicle office to title his vehicle on the date of the shooting, November 12, 2015.
¶6 The jury found Bautista guilty of aggravated assault with a deadly weapon for victim F.U., a Class 3 felony; discharge of a firearm at a nonresidential structure, a Class 3 felony; and discharge of a firearm within city limits, a Class 6 felony. Bautista was acquitted of the aggravated assault charge for victim A.D.
¶7 The superior court conducted a sentencing hearing and sentenced Bautista to 7.5 years for the aggravated assault charge, 7.5 years for the discharge of a firearm at a structure, and 2.25 years for discharge of a firearm within city limits. Each of these presumptive, concurrent sentences includes an incarceration credit of 643 days.
DISCUSSION
¶8 We review Bautista's convictions and sentences for fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011). Counsel for Bautista advised this Court that after a diligent search of the entire record, counsel has found no arguable question of law. We have read and considered counsel's brief and fully reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Counsel represented Bautista at all stages of the proceedings, and the sentences imposed were within the statutory guidelines.
¶9 Upon the filing of this decision, defense counsel shall inform Bautista of the status of the appeal and of his future options. 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 (1984). Bautista shall have
30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.
CONCLUSION
¶10 For the foregoing reasons, we affirm Bautista's convictions and sentences.