State v. Lozano-Perez ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOSUE ISRAEL LOZANO-PEREZ, Appellant.
No. 1 CA-CR 18-0068
FILED 12-18-2018
Appeal from the Superior Court in Maricopa County
No. CR2015-151196-001 DT
The Honorable Ronda R. Fisk, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
STATE v. LOZANO-PEREZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James P. Beene joined.
C R U Z, Presiding Judge:
¶1 Josue Israel Lozano-Perez timely appeals from his convictions
and sentences for sexual conduct with a minor, a class two felony, counts 1,
2, 5, and 7; and sexual abuse, a class three felony, counts 3, 6, 8, 9, 10, 11,
and 12. After searching the record on appeal and finding no arguable
question of law that was not frivolous, Lozano-Perez’s counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), asking this Court to search the record for fundamental
error. This Court granted counsel’s motion to allow Lozano-Perez to file a
supplemental brief in propria persona, but Lozano-Perez did not do so. After
reviewing the entire record, we find no fundamental error and, therefore,
affirm his convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Lozano-Perez. See
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998) (citation omitted). Lozano-
Perez was charged with multiple counts of sexual misconduct against his
daughter, occurring when she was between the ages of eight and fourteen
years old. The court held a five-day trial, at the conclusion of which
Lozano-Perez was found guilty on all but one count. During the course of
the trial, the State put on five witnesses: J.P., victim and biological daughter
of Lozano-Perez; Detective Laurie Kessler, interviewer of victim J.P.; Dr.
Wendy Dutton, testifying expert as a forensic interviewer; brother of the
victim J.P.; and sister of the victim J.P. Additionally, a recorded
conversation between J.P. and Lozano-Perez was read into evidence.
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STATE v. LOZANO-PEREZ
Decision of the Court
¶3 J.P. testified she was sexually abused by Lozano-Perez on
multiple instances from the time she was eight years old continuing until
her fifteenth birthday. She testified about her sexual abuse at the hands of
Lozano-Perez in detail. J.P. testified that on one occasion her brother
accidently walked into the room where Lozano-Perez was preparing to
engage in sexual contact with J.P. Her brother testified corroborating the
incident; he remembered it occurred when he was around five years old.
¶4 Detective Laurie Kessler testified to the circumstances around
the initial report given by J.P. to police; and testified to the procedure used
for the recorded conversation between J.P. and Lozano-Perez. Dr. Dutton
testified as an expert regarding the biological responses of sexual abuse
victims, including the suppression of memories, and the reasons victims of
sexual abuse often do not come forward for years.
¶5 The apparent linchpin in the State’s case was the recorded
conversation between J.P. and Lozano-Perez. In that conversation, J.P.
recounted to Lozano-Perez, with specificity, instances of sexual abuse that
Lozano-Perez perpetrated on J.P. Lozano-Perez did not deny the
allegations, but instead apologized for his behavior. Additionally, Lozano-
Perez attempted to excuse his victimization of J.P. by referencing abuse
perpetrated on him when he was younger. At the end of the State’s case-
in-chief, Lozano-Perez moved to dismiss sexual abuse counts 3 and 4 under
Arizona Rule of Criminal Procedure 20, alleging there was no substantial
evidence to support guilty verdicts. The court denied the motion
¶6 The court gave jury instructions which included the weight to
give witness testimony, the duty of the jury, the presumption of innocence,
the State’s burden to prove all elements of the crimes alleged beyond a
reasonable doubt, and the requirement of a unanimous verdict. The court
explained Lozano-Perez was charged with four counts of sexual conduct
with a minor, and eight counts of sexual abuse. The counts of sexual
conduct with a minor required proof that Lozano-Perez intentionally or
knowingly engaged in sexual intercourse or oral sexual contact with a
person under eighteen years of age; and that if the minor was under fifteen,
the State was not required to prove Lozano-Perez knew the minor’s age.
These sexual abuse counts required the State to prove Lozano-Perez
intentionally or knowingly engaged in sexual contact with another person
who was under fifteen years of age and the sexual contact involved only
the female breast.
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STATE v. LOZANO-PEREZ
Decision of the Court
¶7 The jury acquitted Lozano-Perez of one count of sexual abuse
(count 4), but returned guilty verdicts on all counts of sexual conduct with
a minor, and seven counts of sexual abuse.
¶8 The trial court conducted the sentencing hearing in
compliance with Lozano-Perez’s constitutional rights and Arizona Rule of
Criminal Procedure 26. The State alleged no aggravating factors and the
court, after reviewing the presentence report and listening to Lozano-Perez,
found no mitigating factors. The court ordered the following sentences: for
sexual conduct with a minor, two sentences of life, each with the possibility
of release after thirty-five years, and two sentences of twenty years each; for
sexual abuse, seven sentences of five years each. Each sentence was ordered
to be served consecutively, beginning with the first life sentence. Lozano-
Perez received 799 days of presentence incarceration credit.
DISCUSSION
¶9 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. Lozano-Perez received a fair trial. He
was represented by counsel at all stages of the proceedings and was present
at all critical stages.
¶10 The evidence presented at trial was substantial and supports
the verdicts. The jury was properly comprised of twelve members and the
court properly instructed the jury on the elements of the charges, Lozano-
Perez’s presumption of innocence, the State’s burden of proof, and the
necessity of a unanimous verdict. The superior court received and
considered a presentence report, Lozano-Perez was given an opportunity
to speak at sentencing, and his sentences were within the acceptable range
for his offenses.
¶11 We decline to order briefing and affirm Lozano-Perez’s
convictions and sentences.
¶12 After the filing of this decision, defense counsel’s obligations
pertaining to Lozano-Perez’s representation in this appeal have ended.
Defense counsel need do no more than inform Lozano-Perez of the outcome
of this appeal and his future options, unless, upon review, counsel finds an
issue appropriate for submission of a petition for review to the Arizona
Supreme Court. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
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STATE v. LOZANO-PEREZ
Decision of the Court
¶13 Lozano-Perez has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. On the
court’s own motion, we also grant him thirty days from the date of this
decision to file an in propria persona motion for reconsideration.
CONCLUSION
¶14 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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