Opinion
No. 1 CA-CR 12-0751
01-28-2014
STATE OF ARIZONA, Appellee, v. JOSE ANGEL GARCIA VILLAREAL, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Jeffrey L. Force Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR 2011-123571-001
The Honorable Daniel G. Martin, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe, delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Patricia A. Orozco joined. HOWE, Judge:
¶1 Jose Angel Garcia Villareal timely appeals his convictions for first degree felony murder, three counts of kidnapping, burglary, and misconduct involving weapons, in violation of A.R.S. §§ 13-1105, -1506, -1508, -1304, and -3102. 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 requested this Court to review the record for reversible error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Villareal was given the opportunity to file a supplemental brief pro se, which the court has considered. The Court has reviewed the record and, with the exception of the trial court's order requiring Villareal to pay for his DNA testing, finds no reversible error. Pursuant to State v. Reyes, 232 Ariz. 468, 472 ¶ 14, 307 P.3d 35, 39 (App. 2013), we vacate the portion of the sentencing order requiring Villareal to pay for his DNA testing. Accordingly, Villareal's convictions and resulting sentences are affirmed as modified.
FACTS AND PROCEDURAL HISTORY
This Court views the evidence in the light most favorable to sustaining the convictions and resolves all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008). This Court also resolves any conflict in the evidence in favor of sustaining the verdicts. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶2 One evening Villareal's girlfriend, Juanita Portillo, decided to go to a house where one of the victims lived to buy methamphetamine. Portillo had frequented the victim's house, mainly to obtain drugs. During the second of three visits to the victim's house that evening, one of the victims offered Portillo money for sex. She left the house, but wanted to return and confront the victim because she felt that the victim had "disrespected" her.
¶3 When Portillo told Villareal what had happened, the following individuals returned to the victim's house in Portillo's vehicle: Portillo, Villareal, Santos Villareal (Villareal's nephew), Michael Hernandez, George Ramos (Villareal's relative), Jessica Lopez (Portillo's cousin) and Lopez's daughter. After they arrived, Portillo started "banging" on the door. Villareal then got out of the vehicle and stood next to Portillo. Victim F.R., who had $1,100.00 in his wallet, opened the door. Lopez and the others then heard a lot of "commotion" and "yelling." Portillo made a "signal," and at that point, Hernandez retrieved a shotgun and he, Santos Villareal, and Ramos went inside the house.
Santos Villareal's convictions and sentences were affirmed as modified by this Court in State v. Villareal, 1 CA-CR 12-0752 (Ariz. App. Nov. 7, 2013) (mem. decision).
Michael Hernandez was tried separately and convicted. His appeal is pending before this Court in State v. Hernandez, 1 CA-CR 13-0162.
¶4 At that moment, victim J.V. ran toward the door and tried to close it, but Hernandez pointed the shotgun at him and told him to "turn around and go back." F.R. was shoved against the wall, hit with a machete or shotgun, and knocked to the ground. Portillo put her hand in F.R.'s pocket and "took his wallet." Someone asked him where the money was and F.R. told him "they already took it."
¶5 J.V. returned to the porch door and "felt a blow to his head" that caused him to fall to the floor. While J.V. pretended to be unconscious, he saw "the guy with the shotgun" walking towards victim J.G., and heard them fighting. Portillo came over and began going through J.V.'s pockets and taking his things. J.V. tried to get up to help J.G., but someone put a foot on his face and a knife to his neck and told him to stay down. J.G. tried to escape by running away until Hernandez shot him. While F.R. and J.V. were restrained on the floor, they heard the shot. Hernandez's shotgun blast stuck J.G. in the head, killing him. Hernandez then threatened to shoot F.R., but Portillo yelled "no, no, no," and "cut in front of him." Then everyone ran out of the house and fled in Portillo's vehicle. While riding in the vehicle, Santos Villareal said that if anything happened, he would "go down for it." Hernandez said that if anything happened, he "knows who was in the car." The group drove to Santos Villareal's apartment, where Hernandez told Santos to get rid of the shotgun. Santos remained at the apartment when the remainder of the group drove to Villareal's mother's house. Once there, Villareal, Portillo, Hernandez, and Ramos divided the money from F.R.'s wallet. Fearful that the surviving victims might seek revenge, Villareal kept a gun at the house because "we were scared that somebody - you know, they were going to come and retaliate or something because of what happened that night."
¶6 Villareal was later arrested and charged with one count of first-degree, felony murder (count 1), a class one dangerous offense; one count of burglary (count 2), a class 3 dangerous felony; three counts of kidnapping (counts 3-5), class 2 dangerous felonies; and one count of misconduct involving weapons (count 6), a class four felony. The State also alleged two historical felony convictions and several aggravating circumstances. The jury convicted on all counts, and found the three kidnapping counts were dangerous offenses. The jury also found two of the aggravators, presence of an accomplice, and that the offenses caused physical, emotional or financial harm, with the one exception of physical, emotional or financial harm as to the burglary offense.
¶7 For first-degree, felony murder, the trial court imposed a sentence of life without parole, concurrent with the sentences imposed on counts 2, 3, and 6; twelve years' imprisonment on counts 2, 3, and 4; counts 2 and 3 concurrent with each other and with counts 1 and 6, and count 4 consecutive to counts 1, 2, 3, and 6; twelve years' imprisonment on count 5; consecutive to count 4; and thirty months imprisonment, consecutive to counts 1, 2, and 3. The court awarded 568 days presentence incarceration credit against the terms imposed on counts 1, 2, 3, and 6. Finally, the court ordered Villareal to submit to DNA testing and to pay the applicable fee for the cost of the testing pursuant to A.R.S. § 13-610.
DISCUSSION
¶8 The Court has reviewed and considered counsel's brief and Villareal's supplemental brief, and has searched the entire record for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App. 1999). In his supplemental brief, Villareal argues that (1) the trial court erroneously admitted evidence, including a knife, shoes, and a shotgun shell; (2) the trial court should have precluded testimony from either Portillo or Lopez because they were main witnesses with conflicting testimonies; (3) Detective M. altered a police report before trial and then lied at trial; (4) the trial court improperly imposed multiple punishments for a single act; (5) Portillo's testimony was incredible and should not have been admitted because her story changed multiple times; and (6) Villareal's counsel was ineffective.
1. Admissibility of knife, shoes, and shotgun shell
¶9 Villareal argues that this evidence was inadmissible because it had nothing to do with his case and/or that no DNA or other forensic evidence established that these items belonged to — or were used by — him. The argument lacks merit. The knife found during a search of Portillo's vehicle was similar to the victims' description of the knife used during the home invasion. Villareal was charged as an accomplice so the lack of DNA or fingerprint evidence was of no moment. The knife was relevant and admissible.
Before trial, counsel for co-defendant Santos Villareal moved to preclude admissibility of the knife on foundation grounds, but the trial court denied the motion.
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¶10 Villareal was tried jointly with his nephew Santos Villareal. After Santos Villareal's arrest, his shoes were seized and later admitted at trial because his shoes could have left shoe prints in Portillo's vehicle and at the crime scene. Both Hernandez's and Portillo's shoes were also admitted for those same reasons. Even though the shoes did not belong to Villareal, the shoes and the expert's comparisons were relevant and admissible because Villareal was tried as an accomplice, and they corroborated Portillo's trial testimony, corroborated the victims' identification testimony, and placed Villareal's accomplices in the vehicle and at the crime scene. At trial, the State called a firearms expert and offered demonstrative evidence to explain to the jury how a shotgun operated and to explain the different shotgun shell types which could be fired from the same shotgun. The State presented this evidence because victim J.V. had been shot with a shell containing number 8 shot. After the home invasion, police found and seized a shotgun shell containing number 6 shot at Villareal's mother's house. The expert testified that the shotgun seized from Santos Villareal's apartment could fire both types of shotgun shells. Thus, the shotgun shell was relevant and admissible.
2. Testimony from Juanita Portillo and Jessica Lopez
¶11 The fact that witnesses' testimony conflict does not render it inadmissible. Indeed, conflicting accounts are often the reason a case proceeds to trial. The jury is sole arbiter of the credibility of witness testimony. State v. Roberts, 139 Ariz. 117, 121, 677 P.2d 280, 284 (App. 1983). Any competent witness may testify, even if not very credible. Id. Both Portillo and Lopez were competent witnesses. The fact that their testimony may have been contradictory in some respects does not preclude either witness from testifying.
3. Altered police report and perjured testimony
¶12 Villareal does not cite to the record to support his argument that Detective M. allegedly altered a police report and then lied about it at trial. Nor does he explain what specifically was allegedly altered. No police report was admitted at trial. It does appear that a disagreement exists about what was said during Portillo's taped interview. Apparently the interview was transcribed as an aid for the jury. Defense counsel asked Detective M. about the transcript, and then had the actual recording played for the jury. Any possible discrepancy concerning Portillo's or Detective M.'s statements was resolved by the jury. Villareal does not offer or cite to any evidence that the asserted discrepancy was anything other than a transcription error. Nor does he indicate or show how he was prejudiced. Error is not reversible unless prejudice is shown. State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).
4. Consecutive sentences for a single act
¶13 Villareal does not explain how his criminal acts are a "single act," thus precluding the imposition of consecutive sentences. In any event, as reflected in the statement of facts, Villareal's criminal acts were separate and distinct acts. Section 13-116 states in pertinent part: "An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." The analysis under § 13-116 focuses on the "facts of the transaction" to determine if the defendant committed a single act. State v. Gordon, 161 Ariz. 308, 313 n.5, 778 P.2d 1204, 1209 n.5 (1989). Here, Villareal completed the crime of burglary when he entered the home with the intent to commit a theft or felony while he or an accomplice possessed a deadly weapon or dangerous instrument. A.R.S. § 13-1508. Furthermore, separate facts support the kidnapping counts. But even if the kidnappings were a single act, § 13-116 does not preclude consecutive sentences because the acts caused three separate criminal results. See State v. White, 160 Ariz. 377, 380, 773 P.2d 482, 485 (App. 1989) (section 13-116 not intended to preclude consecutive sentences when defendant's single act injures more than one person). The felony murder is supported by different evidence not necessary to support the burglary or kidnapping counts. J.V. was shot and killed during the commission of a robbery. Finally, the misconduct involving weapons is supported by separate evidence that after the home invasion, Villareal, a prohibited possessor, obtained and kept a gun to protect against possible retaliation.
5. Juanita Portillo's testimony was incredible and should have been precluded
¶14 Villareal argues that because Portillo changed her story "3 or 4 different times," her testimony was incredible and should not have been presented to the jury. As noted above, any competent witness may testify, and it is for the jury to determine the credibility of the witness. In this case, Portillo admitted that at first, she lied to police because she was protecting Villareal, and defense counsel impeached Portillo's trial testimony with her plea agreement which included a provision that she testify for the State.
6. Ineffective assistance of counsel
¶15 Villareal claims his trial counsel inadequately advised him regarding plea offers and "what we were going to trial on." However, claims of ineffective assistance of counsel may not be raised on direct appeal. State ex rel Thomas v. Rayes, 214 Ariz. 411, 415 ¶ 20, 153 P.3d 1040, 1044 (2007); State v. Spreitz, 202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002). These claims must be presented to the trial court in a post-conviction relief proceeding. Id.
CONCLUSION
¶16 This Court has read and considered counsel's brief and Villareal's pro se brief, and has searched the record provided for reversible error. Leon, 104 Ariz. at 300, 451 P.3d at 881; Clark, 196 Ariz. at 537 ¶ 30, 2 P.3d at 96. From that review, the record reveals no reversible error other than the DNA fee noted above. The proceedings appear to have been conducted in compliance with the Arizona Rules of Criminal Procedure, Villareal was represented by counsel at all stages of the proceedings, and the sentences imposed are within the statutory limits. Villareal's convictions and resulting sentences are therefore affirmed as modified.
¶17 Upon the filing of this decision, defense counsel is directed to inform Villareal of the status of his appeal and of his future 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). Villareal shall have thirty days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.