State v. Aguilar ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DANIEL AGUILAR, Appellant.
No. 1 CA-CR 22-0222
FILED 2-21-2023
Appeal from the Superior Court in Yavapai County
No. P1300CR202101115
The Honorable Krista M. Carman, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
STATE v. AGUILAR
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.
H O W E, Judge:
¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for Daniel
Aguilar has advised this court that he has found no arguable questions of
law and asks us to search the record for fundamental error. Aguilar has
filed a supplemental brief in propria persona, which the court has
considered. After reviewing the record, we affirm Aguilar’s convictions and
sentences.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Aguilar. See State v.
Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). Aguilar lived in his trailer with
his girlfriend, Anna, and her son, James.1 On August 3, 2021, early in the
morning, Aguilar and Anna got into an argument while in their bedroom.
James, who slept on a couch in the other room of the trailer, overheard the
argument and immediately video-called his aunt, Michelle. Michelle could
hear screaming over the phone and called 9-1-1. Officer David Herrera
responded to the 9-1-1 call and arrived at the scene with other
accompanying officers, where they heard a male and female arguing inside
the trailer. The officers knocked on the door, announced themselves, and
Anna opened the door.
¶3 Officer Herrera handcuffed Aguilar and took him away from
the trailer. Officer Herrera noticed a “scratch mark or red mark that looked
like a scratch mark” on Aguilar’s cheek. Officer Herrera asked Aguilar what
had happened to his cheek. Aguilar answered that he had hurt it at work.
Officer Herrera also noticed redness and swelling in Anna’s right side
upper lip. Anna was unaware that anything had happened to her lip.
1 We use pseudonyms to protect the privacy of the victim and
witnesses.
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¶4 While speaking with James, Officer Jeffrey Pizzi, another
officer at the scene, learned about a fight between Anna and Aguilar on July
26, 2021, during which Aguilar had hit Anna with a hammer. At first, Anna
denied that Aguilar had hit her with a hammer the week before. But after
Officer Pizzi told her that if she did not tell him what had happened the
week before, he would arrest her and send James to the Department of
Child Services (“DCS”), she admitted that Aguilar had hit her with a
hammer in her right temple and on her ankle. Officers Pizzi then found two
hammers inside the trailer and collected them.
¶5 For the July incident, the State charged Aguilar with two
counts of aggravated assault, class 3 felonies. For the August incident, the
State charged Aguilar with two counts of disorderly conduct, class 1
misdemeanors, and one count of assault, a class 1 misdemeanor. Before
trial, Anna retracted her statement to the police that Aguilar had hit her
with a hammer on July 26, 2021. At trial, Anna testified that she retracted
her statements to the police because she was seeing Aguilar and did not
want him to go to prison.
¶6 James testified that he saw Aguilar hit his mother’s forehead
with a hammer. Michelle testified that she saw an injury on Anna’s ankle
and a red bump on her head. Officer Herrera, the case agent, testified that
he had observed injuries on both Aguilar and Anna. He also testified that
he took pictures of Anna’s head injury. Finally, he testified that Aguilar had
been taken away from the trailer when he talked to Anna and James.
¶7 After a jury trial on the two felony charges, Aguilar was
convicted of one count of aggravated assault and acquitted of the other
count of aggravated assault. The jury also found that the State had proved
two aggravating factors: (1) the use, threatened use or possession of a
deadly weapon or dangerous instrument during the commission of the
crime, and (2) the offense was committed in the presence of a child and the
relationship between the victim and the defendant is one of persons
residing or having resided in the same household or the defendant and
victim were in a romantic sexual relationship.
¶8 After a bench trial on the three misdemeanor charges, the trial
court found Aguilar guilty of one count of disorderly conduct and not
guilty of the other two misdemeanor counts. At the sentencing hearing, the
trial court sentenced Aguilar to seven and a half years in prison for the
aggravated assault count and awarded him 38 days of pre-incarceration
credit. For the disorderly conduct count, the trial court sentenced Aguilar
to six months in the county jail and awarded him 38 days of
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pre-incarceration credit. The sentences were to run concurrently with one
another. The trial court also stated that a fine of $150,000, together with a
surcharge of 78 percent was available for the aggravated assault offense.
However, the judgment of guilt and sentence awarded Aguilar six months
credit for time served for the disorderly conduct count. Similarly, the
judgment of guilt and sentence reflects the fine as $1,000 instead of $150,000.
Aguilar timely appealed.
DISCUSSION
¶9 Aguilar’s counsel has advised this court that after a diligent
search of the entire record, he has found no arguable question of law. In his
supplemental brief, Aguilar argues that his Fourteenth and Eighth
Amendment rights were violated.2 We review Aguilar’s convictions and
sentences for fundamental error. See State v. Flores, 227 Ariz. 509, 512 ¶ 12
(App. 2011). To prevail under this standard of review, a defendant must
establish that (1) error exists, (2) the error is fundamental, and (3) the error
caused him prejudice. State v. Smith, 219 Ariz. 132, 136 ¶ 21 (2008).
¶10 Aguilar first argues that his Fourteenth Amendment rights
were violated because the conviction lacked sufficient evidence. Anna
retracted her story before the trial and testified at trial that she had told
Officer Pizzi that Aguilar hit her with a hammer only because Officer Pizzi
threatened to arrest her and send James to DCS. He also argues that the
pictures of Anna’s temple showed no injury. “It is . . . fundamental error to
convict a person for a crime when the evidence does not support a
conviction.” State v. Allen, 253 Ariz. 306, 314 ¶ 93 (2022) (quoting State v.
Stroud, 209 Ariz. 410, 412 ¶ 6 n. 2 (2005)). But Aguilar’s arguments about the
sufficiency of the evidence go merely to the weight of evidence and
credibility of the witnesses. This court does not weigh evidence; “that is the
function of the jury.” State v. Williams, 209 Ariz. 228, 231 ¶ 6 (App. 2004).
“To set aside a jury verdict for insufficient evidence it must clearly appear
that upon no hypothesis whatever is there sufficient evidence to support
the conclusion reached by the jury.” Id. (quoting State v. Arredondo, 155 Ariz.
314, 316 (1987)). At trial, the jury heard several witnesses’ testimonies, and
2 Aguilar has also moved this court to release certain documents and
consider “any newly discovered evidence” from these documents. Because
newly discovered evidence is generally relevant in a petition for
post-conviction relief under Arizona Rule of Criminal Procedure 32.1(e), we
deny the motion without prejudice to filing the motion in the superior court
during post-conviction proceedings.
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saw pictures of Anna’s head injury and the hammers. This was sufficient
evidence to find Aguilar guilty, and we find no error.
¶11 Aguilar next argues that the court committed fundamental
error in instructing the jury that to prove aggravated assault, the State was
required to prove that he “intentionally, knowingly, or recklessly cause[d]
a physical injury” to Anna. He argues that aggravated assault can be
committed only by “intentionally placing a victim in a reasonable
apprehension.” Aguilar’s argument is meritless. Under Arizona law, a
person commits assault by (1) “[i]ntentionally, knowingly or recklessly
causing any physical injury to another person”; or (2) “[i]ntentionally
placing another person in reasonable apprehension of imminent physical
injury”; or (3) “[k]nowingly touching another person with the intent to
injure, insult or provoke such person.” A.R.S. § 13–1203(A). An accused is
guilty of aggravated assault if, when committing an assault, the accused
“uses a deadly weapon or dangerous instrument.” A.R.S. § 13–1204(A).
¶12 Here, for the two counts of aggravated assault, the State
alleged that Aguilar, while using a hammer, a deadly weapon or dangerous
instrument, “intentionally knowingly, or recklessly” caused a physical
injury to Anna. In the jury instructions, the jury was instructed that to prove
aggravated assault, the State was required to show that Aguilar
“intentionally, knowingly, or recklessly cause[d] a physical injury to
another person,” and that he “used a deadly weapon or dangerous
instrument to cause the physical injury.” Thus, we see no error.
¶13 Next, Aguilar argues that his due process rights were violated
because Officer Herrera was present during the jury selection and
throughout the trial. But Officer Herrera was the case agent, and as such,
the State was entitled to his presence during the jury selection and
throughout the trial. See Ariz. R. Crim. P. 9.3(a)(2) (B). Thus, the trial court
did not err in allowing Officer Herrera to be present in the courtroom.
¶14 For his last argument, Aguilar challenges the composition of
the jury. He argues that his Sixth Amendment rights were violated because
Hispanics make up 14.7% of the Yavapai County population, but no
Hispanics were on the jury.3 To establish a prima facie violation of the Sixth
Amendment’s fair-cross-section requirement, Aguilar must show: “(1) that
the group alleged to be excluded is a ‘distinctive’ group in the community;
3 Aguilar’s fair-cross-section argument implicates his Sixth
Amendment rights; he incorrectly cites to the Eighth Amendment to the
United States Constitution. Berghuis v. Smith, 559 U.S. 314, 319 (2010).
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(2) that the representation of this group in venires from which juries are
selected is not fair and reasonable in relation to the number of such persons
in the community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.” Id. (quoting Duren v.
Missouri, 439 U.S. 357, 364 (1979)). Although Aguilar claims that Hispanics
make up 14.7% of the Yavapai County population, he provides no
supporting evidence. Further, he does not claim that the second and the
third requirement are met, nor does he make showings in support of the
second and third requirements. Thus, because Aguilar fails to develop his
argument, he has waived it. See State v. Vassell, 238 Ariz. 281, 285 ¶ 18 (App.
2015) (failure to argue a claim ordinarily waives that claim).
¶15 We have further reviewed the record for reversible error, see
Leon, 104 Ariz. at 300, and find none. All the proceedings were conducted
in compliance with the Arizona Rules of Criminal Procedure. Aguilar was
represented by counsel through trial and sentencing. The sentences
imposed were within the statutory guidelines. We decline to order further
briefing and affirm Aguilar’s convictions and sentences.
¶16 We note, however, that the judgment of guilt and sentence
awards Aguilar six months credit for time served for the misdemeanor,
disorderly conduct count. At the sentencing hearing, the court awarded
Aguilar only 38 days of pre-incarceration credit. Further, during the
sentencing hearing, the trial court stated that a fine of $150,000 was
available for the aggravated assault offense, but the judgment of guilt and
sentence reflects the fine as $1,000.4 “When a discrepancy between the trial
court’s oral pronouncement of a sentence and the written minute entry can
be clearly resolved by looking at the record, the oral pronouncement in
open court controls over the minute entry.” State v. Ovante, 231 Ariz. 180,
188 ¶ 38 (2013). And this court “can order the minute entry corrected.” Id.But because correcting the judgment of guilt and sentence results in
detriment to Aguilar, and the State has not filed a cross-appeal, we order
no changes to the judgment of guilt and sentence. See Chaparro v. Shinn, 248
Ariz. 138, 142 ¶ 19 (2020) (citing State v. Dawson, 164 Ariz. 278, 283–84
(1990)).
¶17 Upon the filing of this decision, defense counsel shall inform
Aguilar of the status of the appeal and of his future options. 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
4 The State also recommended to the trial court that Aguilar be
ordered to pay a fine of $1,000.
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State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Aguilar shall have 30 days
from the date of this decision to proceed, if he desires, with a pro per motion
for reconsideration or petition for review.
CONCLUSION
¶18 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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