Opinion
1 CA-CR 21-0125
04-05-2022
STATE OF ARIZONA, Appellee, v. ELISE MANUEL MBUYI, Appellant.
The Susser Law Firm, PLLC, Chandler By Adam Susser Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2020-001858-001 The Honorable Geoffrey H. Fish, Judge
The Susser Law Firm, PLLC, Chandler
By Adam Susser
Counsel for Appellant
Vice Chief Judge David B. Gass delivered the decision of the court, in which Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.
MEMORANDUM DECISION
GASS, VICE CHIEF JUDGE:
¶1 Elise Manuel Mbuyi filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Mbuyi's counsel searched the record and identified no arguable, non-frivolous question of law. Counsel, therefore, asks this court to review the record for fundamental error. Mbuyi was given an opportunity to file a supplemental brief in propria persona. He has not done so. Finding no error in the record, we affirm Mbuyi's convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to sustaining the jury's verdict and resolves all reasonable inferences against Mbuyi. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 The victim - who sells corn and other products from a mobile cart-was selling corn in El Oso Park at dusk. Mbuyi and an accomplice approached the victim and asked to purchase a mango. The accomplice then "took [out] a gun and pointed it right in [the victim's] ribs" and demanded money. Mbuyi grabbed the victim's hands from behind and searched the victim's pockets for money. After stealing $15 from the victim, they ran to a nearby car.
¶4 Two bystanders witnessed the robbery, got into their car, and chased Mbuyi and the accomplice for several blocks. While the bystanders were on the phone with a 911 operator, either Mbuyi or the accomplice fired shots at the bystanders' car, "just missing [them]." A bullet hit the passenger's side windshield of their vehicle, propelling some glass toward the bystander in the passenger seat. At that point, the bystanders stopped pursuing Mbuyi.
¶5 The robbers' vehicle stopped in a residential street, and an officer saw Mbuyi hop a fence into a nearby backyard. Officers arrested Mbuyi when an air support unit pilot alerted officers to the heat signature of a person standing against a wall in a residential backyard. Officers later found $15 on the front passenger floorboard of the robbers' car, and a backpack containing Mbuyi's wallet and identification card in the driver's side floorboard.
¶6 The State charged Mbuyi with, and a jury convicted him of, armed robbery, aggravated robbery, drive-by shooting, and unlawful discharge of a firearm. See A.R.S. §§ 13-1209.A, -1903.A, -1904.A, -3107.A. The superior court sentenced Mbuyi to concurrent sentences on each count, the longest being 10.5 years imprisonment for armed robbery with presentence incarceration credit for 622 days. Mbuyi timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4033.A.1.
ANALYSIS
¶7 This court has read and considered counsel's brief and fully reviewed the record for reversible error. See Leon, 104 Ariz. at 300; State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
¶8 All the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record shows Mbuyi was present for, and represented by counsel at, all critical stages of the proceedings. See State v. Bohn, 116 Ariz. 500, 503 (1977); State v. Conner, 163 Ariz. 97, 104 (1990). The jury was properly comprised of twelve jurors and at least two alternates. See A.R.S. § 21-102.A. The record shows no evidence of jury misconduct. The superior court properly instructed the jury on the elements of the charged offenses, the State's burden of proof, and Mbuyi's presumed innocence. Additionally, Mbuyi was given an opportunity to speak at sentencing, and the sentences imposed are within statutory guidelines. See Ariz. R. Crim. P. 26.9, 26.10(b)(1); A.R.S. §§ 13-704.A, -1209.D, -1903.B, -1904.B, -3107.A.
CONCLUSION
¶9 Mbuyi's convictions and sentences are affirmed.
¶10 Defense counsel's obligations pertaining to Mbuyi's representation in this appeal have ended. Defense counsel need do no more than inform Mbuyi of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to our supreme court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶11 Mbuyi has thirty days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. See Ariz. R. Crim. P. 31.21. This court, on its own motion, also grants Mbuyi thirty days from the date of this decision to file an in propria persona motion for reconsideration. See Ariz. R. Crim. P. 31.20.