Opinion
No. 1 CA-CR 14-0035
04-21-2015
STATE OF ARIZONA, Appellee, v. ADAM ARMANDO HERNANDEZ, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Ballecer & Segal, LLP, Phoenix By Natalee Segal 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2011-101480-001
The Honorable Warren J. Granville, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge Kenton D. Jones and Judge Michael J. Brown joined. SWANN, Judge:
¶1 Adam Armando Hernandez appeals his convictions and sentences for aggravated assault, attempted first degree murder, theft of means of transportation, kidnapping, and armed robbery. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Hernandez's appellate counsel has searched the record on appeal and found no arguable, nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530 (App. 1999). Hernandez was given the opportunity to file a supplemental brief in propria persona but did not do so.
¶2 We have searched the record for fundamental error and, having found none, affirm Hernandez's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶3 Hernandez was indicted on ten counts of aggravated assault, two counts of attempted first degree murder, one count of theft of means of transportation, three counts of kidnapping, two counts of armed robbery, and one count of misconduct involving weapons. The state also alleged that Hernandez had committed the charged offenses while on probation. Hernandez pled not guilty to all charges and the matter proceeded to a jury trial.
The court later severed the misconduct involving weapons charge.
¶4 At trial, the state presented evidence of the following facts. On the morning of January 5, 2011, Detective Duncan received information from an automatic license-plate reader about the location of a possible stolen vehicle. This vehicle, a Kia Sorento, was located at an apartment complex. The vehicle had been reported stolen by its owner, Mary B.
¶5 Det. Duncan and his partner went to the apartment complex and began conducting surveillance on the vehicle. Det. Duncan called Det. Deanda at the criminal-apprehension unit and told him that he had located the Kia. Then Det. Deanda went to the apartment complex and began conducting surveillance himself.
¶6 Det. Deanda testified that Daniel Perez was an individual who had been involved in an officer shooting in Casa Grande and was believed to be associated with this Kia. Believing that the individual driving the car was Daniel Perez, a dangerous criminal, Det. Deanda and several other officers, including a helicopter unit, began following the Kia once the driver (later determined to be Hernandez and not Daniel Perez) left the apartment complex.
¶7 While Hernandez was being followed by police officers, he made a series of random stops, including at a residential home. The officers trailing the driver did not make an arrest at any of these stops because of their public safety concerns and because they did not have the proper apprehension team in place. Eventually, Hernandez stopped at the Chandler Fashion Mall, got out of the car, and ran into the mall. ¶8 Lieutenant Cost pursued Hernandez as he came back outside of the mall. Then Hernandez pointed a gun at Det. S.1, who was driving an unmarked police vehicle, and fired four or five rounds into the vehicle. Det. S.1 started shooting at Hernandez and Det. L. began firing his gun at Hernandez as well. Hernandez then turned and pointed his gun in the direction of Det. L. and Lt. Cost and began firing his gun at Det. L. Then Hernandez went back into the mall and several police officers ran after him; however, they were unable to locate him inside the mall.
¶9 Because Hernandez was still at large, Det. B.1 pulled into a business center across the street from the mall to see if he could find any helpful information. A Baja Fresh restaurant was one of the businesses in the center where he was located. Det. B.1 testified that he began to watch a man who was talking on the phone and who seemed worried, which caught Det. B.1's attention. Det. B.1 noted that the subject kept walking out from the overhang of the retail shops and looking up at the sky, which also caught his attention. Det. B.1 called for units to come over and assist him and Dets. H., S.2, B.2, B.3, and M. were sent to help. Eventually, Det. B.1 was given a picture of Daniel Perez -- at that point all of the officers involved still believed Perez was the shooter -- and once Det. B.1 saw the photo, he knew that Perez was not the subject he had been watching.
¶10 At this point, Hernandez had gone into the Baja Fresh and Det. B.3 and Det. M. decided to go talk to him. From his vantage point, Det. B.1 saw Hernandez pull a black semi-automatic weapon from his waistband and discharge a round into the ceiling. As Det. B.3 and Det. M. got to the front of the restaurant, all of the customers began running out of the restaurant. Then Det. B.1 saw Hernandez fire two more rounds in the direction of the police. Det. B.3 stated that Hernandez was shooting in his direction. Then Det. M. started giving Hernandez commands that they were the police and for Hernandez to come out with his hands up. Then Hernandez said, "I'll shoot your head, I'll shoot your head" and shot at them again from inside the Baja Fresh. Eventually, other police personnel came on the scene and the detectives were relieved by the SWAT team.
¶11 A Baja Fresh employee (Employee 1) who was working at the time of the incident testified that she saw Hernandez pull out a gun and tell all of the customers to get out, then he came around the counter to where she was standing. Hernandez then took Employee 1 and her coworker, Employee 2, to the office in the back of the restaurant at gunpoint and had them sit on the floor. Hernandez told the employees that he was not going to hurt them. Then he called his mother to tell her that he was sorry and that he loved her. He also made a phone call to a friend and a third person. Hernandez opened the safe while the three of them were in the back office and took an unknown amount of money.
¶12 It was later discovered that Employee 3 was hiding in the restaurant behind some boxes on a shelf near the bathrooms. Employee 3 was hiding the entire time Hernandez was in the restaurant and there was no evidence that Hernandez ever knew Employee 3 was there.
¶13 At some point Hernandez's sister called the police to say her brother was Adam Hernandez and he had called her and asked her to come to the Baja Fresh because he needed help. She gave the hostage negotiator Hernandez's cell phone number. Then the hostage negotiator called Hernandez. After a few hours of talking to the negotiator, Hernandez and the two employees were allowed to walk out of the restaurant into police custody. After he was apprehended, Hernandez asked Det. Deanda if he had hurt or killed anyone and Deanda advised him that he had not.
¶14 At the conclusion of the presentation of evidence, Hernandez moved for a judgment of acquittal with respect to the kidnapping of Employee 3 and the attempted murder of Det. L. The court dismissed the kidnapping count with prejudice because there was no evidence that Hernandez was aware of the employee's presence in the restaurant. The court denied Hernandez's motion with regard to the attempted first degree murder of Det. L.
¶15 The jury found Hernandez guilty of aggravated assault of Det. S.1, attempted first degree murder of Det. S.1, aggravated assault of Det. L., attempted first degree murder of Det. L., theft of means of transportation, aggravated assault of Det. B.3, aggravated assault of Det. M., aggravated assault of Employee 1, aggravated assault of Employee 2, kidnapping of Employee 1, kidnapping of Employee 2, armed robbery of Employee 1, and armed robbery of Employee 2. The jury found Hernandez not guilty of aggravated assault of Det. S.2, aggravated assault of Det. B.1, aggravated assault of Det. H., and aggravated assault of Det. B.2.
¶16 As a sentencing enhancement, the court found that Hernandez had two prior felony convictions. As an aggravating factor, the court also found, based upon the jury's verdict, threatened infliction of serious physical injury for all counts other than theft of means of transportation. The jury found as aggravating factors that the victim was a police officer engaged in official duties for four of the counts and emotional harm to the victim for six of the counts.
¶17 The court found that Hernandez had been in custody for 1,435 days total; of that time, 1,077 days were attributed to this case. Hernandez's probation was revoked and he was sentenced to the presumptive term of 3.5 years' imprisonment for the probation violation. The court gave him 1,275 days of presentence incarceration credit, satisfying the parole violation sentence. Hernandez was sentenced to the presumptive term of 11.25 years' imprisonment for theft of means of transportation and given 160 days of presentence incarceration credit. Hernandez was sentenced to 33 years' imprisonment for aggravated assault of Det. S.1, 15.75 years for attempted first degree murder of Det. S.1, 28 years for aggravated assault of Det. L., and 15.75 years for attempted first degree murder of Det. L., all to be served concurrent to each other and consecutive to the theft of means of transportation sentence. Hernandez was then sentenced to 28 years' imprisonment for the aggravated assault of Det. B.3 and 28 years for the aggravated assault of Det. M., to be served concurrent to each other but consecutive to the previous counts. Then Hernandez was sentenced to 11.25 years' imprisonment for aggravated assault of Employee 1, 11.25 years for kidnapping Employee 1, 11.25 years for aggravated assault of Employee 2, 11.25 years for kidnapping of Employee 2, 15.75 years for armed robbery of Employee 1, and 15.75 years for armed robbery of Employee 2, all to be served concurrent to each other but consecutive to the previous counts. Excluding the sentence imposed for his probation violation, Hernandez was sentenced to a total of 88 years' imprisonment. Hernandez timely appeals.
DISCUSSION
¶18 The record reveals no fundamental error. Hernandez was present and represented by counsel at all critical stages. The record shows no evidence of jury misconduct and the jury was properly composed of twelve jurors. See Ariz. Const. art. 2, § 23; Ariz. R. Crim. P. 18.1(a). The state presented proper closing and rebuttal arguments.
¶19 The evidence that the state presented at trial was properly admissible and was sufficient to support Hernandez's convictions. Hernandez was charged with aggravated assault under A.R.S. §§ 13-1203(A)(2), -1204(A)(2), and -1204(A)(8)(a), which required the state to prove that Hernandez intentionally placed Det. S.1, Det. L., Det. B.3, Det. M., Employee 1, and Employee 2 in reasonable apprehension of imminent physical injury, either knowing or having reason to know that they were peace officers engaged in the execution of official duties, or using a deadly weapon or dangerous instrument.
¶20 The state produced evidence that Hernandez fired a gun multiple times at Det. S.1 while he was driving an unmarked police vehicle. Det. S.1 saw Hernandez turn towards him with a gun and then reclined in his seat as he heard gunshots and felt glass falling on him from the shattered windshield of his car. Det. S.1 testified that when he was being shot at he was afraid for his life. This evidence was sufficient to allow the jury to find Hernandez guilty of aggravated assault of Det. S.1.
¶21 The state produced evidence that Det. L. approached Hernandez in a police tactical vest yelling, "Police, stop" as Hernandez was firing at Det. S.1. When Det. L. began to fire at Hernandez, Hernandez turned his gun toward Det. L. and fired back. Det. L. testified that as Hernandez was shooting at him, he was concerned for his safety. This evidence was sufficient to allow the jury to find Hernandez guilty of aggravated assault of Det. L.
¶22 The state produced evidence that Hernandez fired his gun in the direction of Det. B.3 and Det. M. Det. M. gave Hernandez commands that they were the police and for Hernandez to come out with his hands up. Then Hernandez shot at them again from inside the Baja Fresh and said, "I'll shoot your head, I'll shoot your head." Det. M. stated that he was in fear for his life that day. Det. B.3 stated that his fear quickly turned into anger once Hernandez began shooting in their direction. This evidence was sufficient to allow the jury to find Hernandez guilty of aggravated assault of Det. B.3 and Det. M.
¶23 The state produced evidence that Hernandez grabbed Employee 2 by her shirt with a gun in his hand and pushed her to the back office. Employee 2 said that she was scared, that she did not believe Hernandez when he said he was not going to hurt them, and when he grabbed her, she thought "that's it." At two different times Hernandez pointed his gun at Employee 1 and took her to the front of the store so that he could see what was going on outside without the police shooting at him. When Hernandez pointed his gun at Employee 1, she was concerned for her safety. This evidence was sufficient to allow the jury to find Hernandez guilty of aggravated assault of Employee 1 and Employee 2.
¶24 Hernandez was charged with attempted first degree murder under A.R.S. §§ 13-1001(A)(2), -1105(A)(1), and -1101(1), which required the state to prove that Hernandez, intending or knowing that his conduct would cause death, with premeditation, attempted to cause the death of Det. L. and Det. S.1. The state produced evidence that Hernandez fired a gun multiple times at Det. S.1 while he was driving an unmarked police vehicle. Hernandez turned his gun toward Det. L. after Det. L. began shooting at him and returned fire. This evidence was sufficient to allow the jury to find Hernandez guilty of attempted first degree murder of Det. S.1 and Det. L.
¶25 Hernandez was charged with theft of means of transportation under A.R.S. § 13-1814(A)(1), which required the state to prove that Hernandez, without lawful authority, knowingly controlled Mary B.'s vehicle with the intent to permanently deprive her of the vehicle. The state presented evidence that Hernandez had been driving the Kia that was reported stolen by Mary B. Mary B. testified that her car was taken from her at gunpoint and she had never given anyone named Adam Hernandez permission to drive her car. This evidence was sufficient to allow the jury to find Hernandez guilty of theft of means of transportation.
¶26 Hernandez with charged with kidnapping under A.R.S. § 13-1304, which in these circumstances required the state to prove that Hernandez knowingly restrained Employee 1 and Employee 2 with the intent to inflict death, physical injury or a sexual offense on the employees, or to otherwise aid in the commission of a felony. The state presented evidence that Hernandez took Employee 1 and Employee 2 to the office in the back of the Baja Fresh at gunpoint and kept them as hostages while he took over the restaurant with a semi-automatic weapon and shot at police officers. This evidence was sufficient to allow the jury to find Hernandez guilty of kidnapping.
¶27 Hernandez was charged with armed robbery under A.R.S. §§ 13-1902 and -1904, which in these circumstances required the state to prove that Hernandez, in the course of taking property from Employee 1 and Employee 2's immediate presence against their will, threatened or used force against them with the intent to coerce surrender of the property or to prevent resistance to his taking the property while he was armed with a deadly weapon. The state presented evidence that Hernandez opened the Baja Fresh safe with a key while the two employees were being held hostage in the back office and took an unknown amount of money. This evidence was sufficient to allow the jury to find Hernandez guilty of armed robbery.
¶28 At sentencing, Hernandez was given an opportunity to speak and the court stated on the record the evidence and materials it considered and the factors it found in imposing sentence. The court imposed a legal sentence for the offenses. See A.R.S. §§ 13-701(D)(1), (9), & (11), -701(E)(6), -703(C) & (J), -704(D), -1001(C)(1), -1105(D), -1204(E), -1304(B), -1814(D), -1904(B). The court correctly calculated Hernandez's presentence incarceration credit under A.R.S. § 13-712(B).
CONCLUSION
¶29 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300. Accordingly, we affirm Hernandez's convictions and sentences.
¶30 Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Hernandez of the status of this appeal and his future options. Id. Hernandez has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Hernandez has 30 days from the date of this decision in which to file a motion for reconsideration.