State v. Munoz ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
FRANCISCO RAY MUNOZ, Appellant.
No. 1 CA-CR 21-0365
FILED 5-5-2022
Appeal from the Superior Court in Maricopa County
No. 2020-125660-001
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore
AFFIRMED
COUNSEL
Deputy Legal Defender, Phoenix
By Cynthia D. Beck
Counsel for Appellant
Francisco Ray Munoz, San Luis
Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Brian Y. Furuya joined.
STATE v. MUNOZ
Decision of the Court
P E R K I N S, Judge:
¶1 Francisco Ray Munoz timely appealed in accordance with
Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969),
following his conviction for misconduct involving weapons, a class four
felony. Munoz’s counsel has searched the record and found no arguable
question of law that is not frivolous. See Anders, 386 U.S. at 744; see also State
v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Munoz filed a pro per
supplemental brief.
¶2 Our obligation is to review the entire record for reversible
error, Clark, 196 Ariz. at 537, ¶ 30, viewing the evidence in the light most
favorable to sustaining the convictions and resolving all reasonable
inferences against Munoz. See State v. Guerra, 161 Ariz. 289, 293 (1989). After
reviewing the entire record, we have found no reversible error. We affirm
Munoz’s convictions but modify his pre-sentence incarceration credit.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In June 2020, officers Joseph McGehee and Michael Fernandez
responded to a report of domestic violence. The victim told the officers that
Munoz threatened her with a gun. The victim described Munoz’s physical
appearance to the officers and told them Munoz left on a bicycle. The
officers quickly contacted Munoz and found a loaded handgun in his
waistband. The officers seized the handgun and detained Munoz.
¶4 Officer Lindo arrived on scene soon after and asked Munoz
who the handgun belonged to, how long he had it, and whether he knew if
he was allowed to possess a firearm. Nothing in the record indicates any of
the officers informed Munoz of his Miranda rights before Lindo’s
questioning. Munoz responded that someone else owned the handgun, that
he had only possessed it for one day, and that he knew his right to possess
a firearm had not been restored since his previous felony conviction.
¶5 The State charged Munoz with three counts: (1) aggravated
assault, a class three felony; (2) misconduct involving weapons, a class four
felony; and (3) assault, a class two misdemeanor. The court bifurcated the
case, scheduling separate trials for count two and counts one and three. The
State first tried Munoz on count two.
¶6 Both McGehee and Lindo testified. Detective Roman Narbaez
and forensic scientist Amy Griffin also testified. Narbaez collected Munoz’s
fingerprints, which Griffin matched to the fingerprints on Munoz’s
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STATE v. MUNOZ
Decision of the Court
previous felony conviction record. Jessica Ellefritz, a criminal intelligence
analyst, testified the handgun was operable.
¶7 The jury convicted Munoz on count two. Munoz then pled
guilty to count one, which the State amended to disorderly conduct, a class
six dangerous felony. The superior court dismissed count three. The court
sentenced Munoz to 6.5 years’ imprisonment for misconduct involving
weapons, and 2.25 years’ imprisonment for disorderly conduct. The court
ordered Munoz’s sentences to run concurrently, and he received 124 days
of pre-incarceration credit for both counts. The court later amended the pre-
incarceration credit on count one to 181 days but left the credit for count
two unchanged.
DISCUSSION
¶8 Our review revealed a possible Miranda violation, and the
superior court erred when it amended Munoz’s pre-incarceration credit,
but we find no reversible error.
¶9 The record reflects that all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure, that Munoz was
represented by counsel at all stages of the proceedings, and that he was
present at all critical stages. See State v. Conner, 163 Ariz. 97, 104 (1990) (right
to counsel); see also State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present
at critical stages).
¶10 During sentencing, the State filed and proved three prior
felonies. Munoz had the opportunity to speak during sentencing and the
superior court stated on the record the factors it considered before imposing
a sentence within the statutory limits. See A.R.S. §§ 13-701, -703, -3102; see
also Ariz. R. Crim. P. 26.9, 26.10.
I. Possible Miranda violation
¶11 Lindo questioned Munoz five minutes after the other officers
detained him. The State introduced the exchange at trial. No record
evidence indicates Munoz received Miranda warnings before answering
Lindo’s questions. Under Miranda, “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.”
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
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STATE v. MUNOZ
Decision of the Court
¶12 Possible Miranda violations are subject to a harmless error
analysis. State v. Rodriguez, 186 Ariz. 240, 246 (1996). When the State
introduces statements that may have been suppressed for violating
Miranda, we review whether the remaining evidence of guilt was so
overwhelming to be harmless beyond a reasonable doubt. See State v. Zaid,
249 Ariz. 154, 160, ¶ 22 (App. 2020).
¶13 We hold the possible Miranda violation did not prejudice
Munoz because the State introduced overwhelming evidence outside
Munoz’s statements to Lindo. McGehee testified he found the handgun,
which Ellefritz deemed operable, in Munoz’s waistband. And Griffin
testified Munoz’s fingerprints matched those on his previous felony
conviction record.
¶14 There is overwhelming evidence Munoz knowingly
possessed a deadly weapon while a prohibited possessor. See A.R.S. § 13-
3102(A)(4); see also State v. Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App. 2013)
(“Actual possession means a defendant knowingly exercised direct
physical control over an object.”). The statute requires only “that a
defendant knowingly possessed the firearm, not that he knew he was a
prohibited possessor.” State v. Holmes, 250 Ariz. 311, 316, ¶ 16 (App. 2020).
Admission of Munoz’s non-Mirandized statements thus constituted
harmless error.
II. Munoz’s supplemental brief
¶15 Munoz argues he was denied due process because the
superior court gave him only five minutes to decide whether to accept a
plea. He argues this time constraint pressured him into trial. He also argues
the plea negotiations violated Rule 17.4(a)(2) because trial Judge Giaquinto
presided over the settlement conference.
¶16 Munoz’s brief misstates the facts. The “settlement
conference” to which Munoz refers was the trial procedure conference. Rule
17.4(a)(2) states that during plea negotiations, the trial judge may only
participate in plea discussions if the parties consent. Otherwise, another
judge must oversee plea discussions. Ariz. R. Crim. P. 17.4(a)(2). At the
conference, defense counsel stated that the actual settlement conference
occurred with Commissioner Allen. And Munoz admitted at the trial
procedure conference that he had a prior opportunity to discuss the plea
deal with his attorney and attended the settlement conference. The court
also noted Munoz spent 90 minutes earlier that day discussing the plea deal
with his attorney. The “five minutes” Munoz references is the final recess
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STATE v. MUNOZ
Decision of the Court
the court offered Munoz to consider and sign the plea deal. The court then
reviewed the plea agreement with Munoz. When the court asked Munoz
for his plea, he responded “not guilty.” The court then continued with trial
procedures. We find no error.
III. Pre-incarceration credit
¶17 In September 2021, the superior court amended Munoz’s
sentencing order to reflect his 181 days of pre-incarceration credit. But the
amended order only applied to count one, as amended. Under A.R.S. § 13-
712(B), a defendant is entitled to pre-sentence incarceration credit for “[a]ll
time actually spent in custody pursuant to an offense” until the defendant
is sentenced to imprisonment. The court thus erred by not applying
Munoz’s pre-incarceration credit to both sentences. We accordingly modify
Munoz’s pre-incarceration credit for his misconduct involving weapons
conviction to 181 days.
CONCLUSION
¶18 We have reviewed the entire record for arguable issues of law
and find none. We therefore affirm Munoz’s conviction and resulting
sentence as modified. See Leon, 104 Ariz. at 300–01.
¶19 Defense counsel’s obligations pertaining to Munoz’s
representation in this appeal have ended. Counsel must only inform Munoz
of the outcome of this appeal and his future options, 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 (1984). Munoz has thirty days from the date of this decision to
proceed, if he desires, with a pro per motion for reconsideration or petition
for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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