Opinion
No. 1 CA-CR 13-0853
01-27-2015
STATE OF ARIZONA, Appellee, v. JESUS VALVERDE, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Mohave County Legal Advocate, Kingman By Jill L. Evans 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. CR-2012-00484
The Honorable Derek C. Carlisle, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined. BROWN, Judge:
¶1 Jesus Valverde, Jr. appeals his conviction and sentence for one count of aggravated assault. Counsel for Valverde 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), advising that after searching the record on appeal, he was unable to find any arguable grounds for reversal. Valverde was granted the opportunity to file a supplemental brief in propria persona, but he has not done so.
¶2 Our obligation is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We view the facts in the light most favorable to sustaining the conviction and resolve all reasonable inferences against Valverde. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm.
¶3 In April 2012, Valverde was indicted for violating Arizona Revised Statutes ("A.R.S.") section 13-1204(A)(10), which provides that assault of a corrections officer by an inmate constitutes aggravated assault, a Class 5 felony. The following evidence was presented at trial.
¶4 The victim was employed as a security officer at the Arizona State Prison Complex - Kingman. On the morning of November 7, 2011, the victim and another security officer, Officer Dykens, entered a housing area, or "pod," of the prison to investigate suspicious activity they had observed from the control room. Valverde was a resident of this pod, which housed up to 59 inmates in bunk beds. When the victim and Officer Dykens entered the pod, Valverde was laying on his bed watching television. ¶5 The victim and Officer Dykens approached another resident of the same pod, Eric Rivera, and instructed him that they were going to "wand" him with a handheld metal detector to check for contraband. When the wand buzzed at Rivera's genital area, the victim instructed Rivera to "cuff up," or prepare his hands for restraint. Rivera then moved toward the restrooms, but the victim blocked his path and Rivera moved instead into the bunk area. When the victim again stepped into Rivera's path, Rivera yelled something that sounded to the officers like "Hispanic names" and other inmates began to move around the pod.
¶6 The victim restrained Rivera in a "bear hug" after Rivera struck him in the chest. Several inmates then converged on the victim while Officer Dykens made a radio call asking other officers for assistance. The victim looked over his shoulder and saw Valverde approaching him. Valverde then began punching the victim in the back of the head until Officer Dykens pulled him off. Upon arrival of the other officers, Officer Dykens instructed them to handcuff Valverde, who was then taken out of the pod. Soon after the incident, the victim, Officer Dykens, and their supervising officer each completed a "Use of Force/Incident Command Report," which were admitted into evidence at trial.
¶7 A jury found Valverde guilty as charged. Prior to sentencing, the trial court found that the State met its burden of proving that Valverde had a prior felony conviction. The court then sentenced Valverde to a mitigated sentence of two years, with credit for 51 days of presentence incarceration.
The court found that Valverde was set to be released from prison on September 18, 2013, and therefore awarded 51 days of presentence incarceration credit because he was held in custody after that date based solely on the current case.
¶8 We have searched the entire record for reversible error and have found none. All of the proceedings were conducted in accordance with Arizona Rules of Criminal Procedure. The record shows Valverde was present at all pertinent proceedings and was represented by counsel. Valverde had an opportunity to speak before sentencing, and the sentence imposed was within the statutory limits. Accordingly, we affirm Valverde's conviction and sentence.
¶9 Upon the filing of this decision, counsel shall inform Valverde of the status of the appeal and his 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). Valverde 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.