State v. Zarra ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RICHARD CARL ZARRA, Appellant.
Nos. 1 CA-CR 15-0524
1 CA-CR 15-0525
(Consolidated)
FILED 7-12-2016
Appeal from the Superior Court in Maricopa County
Nos. CR2014-117720-001
CR2004-132145-001
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Tennie B. Martin
Counsel for Appellant
STATE v. ZARRA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following Richard Carl Zarra's convictions of aggravated assault, a Class 4
felony, and resisting arrest, a Class 6 felony. Zarra also appeals the
revocation of his probation. Zarra's counsel has searched the record and
found no arguable question of law that is not frivolous. See Smith v. Robbins,
528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530 (App.
1999). Zarra was given the opportunity to file a supplemental brief but did
not do so. Counsel now asks this court to search the record for fundamental
error. After reviewing the entire record, we affirm Zarra's convictions and
sentences and the revocation of his probation.
FACTS AND PROCEDURAL BACKGROUND
¶2 Zarra called the police to report his wallet had been stolen.1
Uniformed officers in marked police vehicles responded to the call and
attempted to locate the suspect in the immediate area near Zarra's
residence. After the officers were unable to locate the suspect Zarra had
described, they went to Zarra's residence to ask him questions about the
reported theft. When Zarra came to the door, he appeared agitated and
upset. Zarra would not answer the officers' questions and became very
angry and aggressive. Zarra lunged toward one of the officers with his
hands toward the officer's head. In response, the officers grabbed Zarra's
arms and attempted to get him on the ground. The officers told Zarra that
he was under arrest and to stop resisting, but he continued to struggle with
the officers. During the struggle, Zarra told one of the officers, "I'm going
to f***ing bite you," and then leaned over and bit the officer's upper arm.
1 Upon review, we view the facts in the light most favorable to
sustaining the judgment and resolve all inferences against Zarra. State v.
Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
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STATE v. ZARRA
Decision of the Court
The officers continued to struggle with Zarra until one officer deployed a
Taser and the other officer was able to handcuff Zarra.
¶3 Zarra was charged with aggravated assault and resisting
arrest. Because Zarra was on probation at the time, Zarra's probation officer
filed a petition to revoke probation, alleging Zarra had committed
aggravated assault and resisting arrest. A jury convicted Zarra of
aggravated assault and resisting arrest and found he had been on probation
at the time of the offenses. The superior court sentenced Zarra to concurrent
sentences of incarceration, the longest of which is 4.5 years. The court also
found the convictions constituted violations of Zarra's probation and
imposed a consecutive sentence in that matter of 3.5 years' incarceration
with 513 days of presentence incarceration credit.
¶4 Zarra timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1) (2016), 13-4031 (2016) and -4033 (2016).2
DISCUSSION
¶5 The record reflects Zarra received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The court held appropriate pretrial hearings.
It did not conduct a voluntariness hearing; however, the record does not
suggest a question about the voluntariness of Zarra's statements to police.
See State v. Smith, 114 Ariz. 415, 419 (1977); State v. Finn, 111 Ariz. 271, 275
(1974).
¶6 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict Zarra of the assault and resisting arrest
charges. The jury was properly comprised of eight members with two
alternates. The court properly instructed the jury on the elements of the
charges, the State's burden of proof and the necessity of a unanimous
verdict. The jury returned unanimous verdicts, which were confirmed by
juror polling. The court received and considered a presentence report,
addressed its contents during the sentencing hearing and imposed legal
sentences for the crimes of which Zarra was convicted.
¶7 Zarra also was present and represented by counsel at all
critical stages of the revocation proceeding. See State v. Jackson, 16 Ariz.
App. 476, 478 (1972) ("A defendant is entitled to the presence and
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. ZARRA
Decision of the Court
participation of [his or her] counsel at the hearing on revocation of
probation and at the resulting imposition of sentence."). The record reflects
that the superior court afforded Zarra his rights under the federal and state
constitutions and our statutes, and the revocation proceeding was
conducted in accordance with the Arizona Rules of Criminal Procedure.
¶8 Pursuant to Arizona Rule of Criminal Procedure 27.8(b)(3),
the State must prove a probation violation by a preponderance of the
evidence. The court's determination that a defendant violated a probation
term will not be reversed unless the determination is unsupported by any
theory of the evidence. State v. Tatlow, 231 Ariz. 34, 39, ¶ 15 (App. 2012).
The court found the State proved by a preponderance of the evidence that
Zarra violated the terms of his probation when he committed aggravated
assault and resisting arrest. Because Zarra was convicted of aggravated
assault and resisting arrest, sufficient evidence supported the superior
court's determination that Zarra violated probation.
¶9 The court can revoke probation only for a violation of a
condition of which Zarra had written notice. See Ariz. R. Crim. P. 27.8(c)(2).
Zarra signed and received written copies of his probation conditions,
including the conditions he was accused of violating. Before sentencing
Zarra, the court provided him an opportunity to speak. Thereafter, it
revoked his probation and imposed a sentence within the statutory range
for aggravated assault, a Class 3 felony, with proper credit given for
presentence incarceration.
CONCLUSION
¶10 We have reviewed the entire record for reversible error. See
Leon, 104 Ariz. at 300. We find none.
¶11 After the filing of this decision, defense counsel's obligations
pertaining to Zarra's representation in this appeal have ended. Defense
counsel need do no more than inform Zarra 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). On the court's
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STATE v. ZARRA
Decision of the Court
own motion, Zarra has 30 days from the date of this decision to proceed, if
he wishes, with a pro per motion for reconsideration. Zarra has 30 days from
the date of this decision to proceed, if he wishes, with a pro per petition for
review.
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