Opinion
No. 1 CA-CR 14-0363
07-28-2015
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Michael J. Dew Attorney At Law, Phoenix By Michael J. Dew 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR 2012-135181-001
The Honorable Jo Lynn Gentry, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Michael J. Dew Attorney At Law, Phoenix
By Michael J. Dew
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Jon W. Thompson joined. DOWNIE, Judge:
¶1 Ana Marie Cadena appeals her convictions and sentences for attempted armed robbery, aggravated assault, and conspiracy to commit armed robbery. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for reversible error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Cadena was given the opportunity to file a supplemental brief in propria persona, but she has not done so.
FACTS AND PROCEDURAL HISTORY
"We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant." State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). --------
¶2 Cadena was driving a vehicle with passengers R.C., I.B., and O.R., who wanted to find some "spice." They saw the victim making a delivery to a smoke shop and followed him to his next stop. Cadena parked the car and I.B. and R.C. — both carrying guns — got out. I.B. demanded money from the victim and raised his gun to the victim's chest. The victim was able to take I.B.'s gun from him, but a second gun was fired, hitting both the victim and I.B.
¶3 R.C. and I.B. returned to the car, and the group fled the scene with Cadena driving. I.B. was bleeding but did not want medical treatment, so Cadena took him to his mother's house. I.B. later went to the hospital, where he was interviewed by police officers. I.B. stated he had been shot at a park. Officers investigated, but concluded no shooting had occurred at the park. The officers later encountered a two-tone Chrysler matching the description they had of the one involved in the earlier incident. Cadena was the driver, and O.R. was a passenger. The officers followed the car, but lost sight of it going into an apartment complex parking lot. A few minutes later, they found the parked car and observed a large red stain on the back seat that appeared to be blood.
¶4 While checking out the car, the officers saw O.R. exit an upstairs apartment. Shortly thereafter, Cadena exited the same apartment. Upon seeing the officers, Cadena began to walk quickly away, but stopped when ordered to do so. Cadena was arrested and taken to the police station, where she was interviewed. Police executed a search warrant at the apartment and discovered a gun wrapped in a shirt in a closet. The gun was later linked to shell casings found at the scene of the shooting.
¶5 Cadena was charged with: (1) count one, attempted armed robbery, a class three dangerous felony, (2) count two, aggravated assault, a class three dangerous felony, and (3) count three, conspiracy to commit armed robbery, a class two felony. After a jury trial, she was convicted on all counts. The jury found that the State had proven three aggravators for each count: presence of an accomplice, commission of the offense for pecuniary gain, and physical harm to the victim. Cadena was sentenced to 7.5 years' imprisonment for each count, to be served concurrently. She timely appealed. We have jurisdiction pursuant to Article Six, Section Nine of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶6 We have read and considered the brief submitted by appellate counsel and have reviewed the entire record. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Cadena was either present at or waived her presence for all critical phases of the proceedings. She was represented by counsel. The jury was properly impanelled and the record reflects no irregularity in the deliberation process. The sentences imposed were within the statutory ranges. Cadena was awarded the proper amount of presentence incarceration credit.
¶7 Substantial evidence supports the jury's verdicts. See State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981) (In reviewing for sufficiency of evidence, "[t]he test to be applied is whether there is substantial evidence to support a guilty verdict."). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). Substantial evidence "may be either circumstantial or direct." State v. Henry, 205 Ariz. 229, 232, ¶ 11, 68 P.3d 455, 458 (App. 2003).
¶8 As charged in this case, for count one, the State was required to prove that Cadena, with the intent to promote or facilitate the commission of an offense, aided another in planning or committing attempted armed robbery. See A.R.S. §§ 13-301(2), -303(A)(3), -1001, -1902. Attempted armed robbery occurs when a person has the intent to commit armed robbery and performs an overt act towards its commission. See State v. Clark, 143 Ariz. 332, 334, 693 P.2d 987, 989 (App. 1984); see also A.R.S. § 13-1001(A)(2). Armed robbery involves the use or threatened use of a deadly weapon with the intent "to coerce surrender of property." A.R.S. §§ 13-1902, -1904(A)(1)-(2).
¶9 A video of Cadena's police interview was played at trial. In that interview, Cadena admitted driving the car with I.B., R.C., and O.R. as passengers. She admitted following the victim from one of his deliveries to the scene of the incident. She also admitted knowing that I.B. and R.C. had guns when they exited the car and that the plan was to use the guns to scare the victim into giving them property. Other evidence, including DNA evidence and witness identification, corroborated I.B. and R.C.'s presence at the scene and in the vehicle. Additionally, the gun the victim took from I.B. was recovered from the scene, while another gun that matched the shell casings found at the scene was recovered from Cadena's apartment. Based on this evidence, the jury could have reasonably concluded that I.B. and R.C. committed attempted armed robbery and that Cadena aided in the perpetration thereof.
¶10 For count two, the State was required to prove that Cadena, with the intent to promote or facilitate the commission of an offense, aided another in planning or committing aggravated assault. See A.R.S. §§ 13-301(2), -303(A)(3), -1203, -1204(A)(2). Aggravated assault can be committed by causing physical injury to another person with the use of a deadly weapon, either intentionally, knowingly, or recklessly, or by intentionally placing another person in reasonable apprehension of imminent physical injury with the use of a deadly weapon. A.R.S. §§ 13-1203(A)(1)-(2), -1204(A)(2). The evidence discussed supra established that Cadena drove I.B. and R.C. to the smoke shop with knowledge that they planned to use their guns to scare the victim into surrendering property. Additionally, evidence established that both the victim and I.B. sustained gunshot wounds, that blood stains on the gun recovered at the scene matched I.B.'s DNA, and that shell casings discovered at the scene were consistent with the gun recovered from Cadena's apartment. Based on this evidence, the jury could have concluded that R.C. committed aggravated assault. Furthermore, the jury could have concluded aggravated assault was an offense that was a "natural and probable or reasonably foreseeable consequence of the offense" of attempted armed robbery. See A.R.S. § 13-303(A)(3). Sufficient evidence supported the verdict on count two.
¶11 For count three, the State was required to prove that Cadena conspired to commit armed robbery. The elements of conspiracy are:
(1) an unlawful object to be accomplished, (2) a plan or scheme embodying means to accomplish that object, (3) an agreement or understanding between two or more of the defendants whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement or by an effectual means and (4) an overt act, except when the agreement is to commit a felony upon the person of another or to commit arson or burglary.State v. Avila, 147 Ariz. 330, 336, 710 P.2d 440, 446 (1985); see also A.R.S. § 13-1003(A). Substantial evidence established each of the elements. Based on Cadena's police interview and other evidence discussed supra, the jury could have reasonably found that she and her passengers planned to follow the victim, use guns to intimidate him into surrendering property, and escape via the car Cadena was driving. Substantial evidence also established overt acts toward committing armed robbery, including following the victim, positioning the car to quickly drive away, and approaching the victim with weapons. Sufficient evidence supports the verdict as to count three.
CONCLUSION
¶12 We affirm Cadena's convictions and sentences. Counsel's obligations pertaining to Cadena's representation in this appeal have ended. Counsel need do nothing more than inform Cadena of the status of her 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, 684 P.2d 154, 156-57 (1984). On the court's own motion, Cadena shall have thirty days from the date of this decision to proceed, if she desires, with an in propria persona motion for reconsideration or petition for review.