State v. Chavez ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JUAN MANUEL CHAVEZ, Appellant.
No. 1 CA-CR 16-0304
FILED 5-2-2017
Appeal from the Superior Court in Maricopa County
No. CR2014-005355-002 DT
The Honorable Carolyn K. Passamonte, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Office of Michael J. Dew, Phoenix
By Michael J. Dew
Counsel for Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
STATE v. CHAVEZ
Decision of the Court
W I N T H R O P, Judge:
¶1 Juan Manuel Chavez (“Appellant”) appeals his conviction
and sentence for assisting a criminal street gang. Appellant’s counsel has
filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders
v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d
878 (1969), stating he has searched the record on appeal and has found no
arguable question of law that is not frivolous. Appellant’s counsel therefore
requests that we review the record for fundamental error. See State v. Clark,
196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court
reviews the entire record for reversible error). This court allowed Appellant
to file a supplemental brief in propria persona, but Appellant has not done
so.
¶2 We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1) (2016), 13-4031 (2010), and 13-4033(A) (2010).1
Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶3 In October 2014, a grand jury issued an indictment charging
Appellant with Count I, kidnapping, a class two dangerous felony; Count
II, dangerous or deadly assault by a prisoner, a class two dangerous felony;
and Count III, assisting a criminal street gang, a class three felony. See
A.R.S. §§ 13-105(13) (Supp. 2016) (dangerous offense), -1203 (2010) (assault),
-1206 (2010) (dangerous or deadly assault by a prisoner), -1304 (2010)
(kidnapping), -2321 (2010) (participating in or assisting a criminal street
gang). The State later filed allegations of historical priors, alleging that
Appellant had numerous prior felony convictions committed on multiple
occasions, and alleged an additional historical prior conviction upon
Appellant’s conviction in a pending case (Maricopa County Superior Court
Case No. CR2014-101311-001 DT). The State also filed, inter alia, allegations
of aggravating circumstances, of multiple offenses not committed on the
1 We cite the current version of all applicable statutes because no
revisions material to this decision have occurred since the date of the
offense.
2 We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).
2
STATE v. CHAVEZ
Decision of the Court
same occasion, and that Appellant had intended to promote, further, or
assist criminal conduct by a criminal street gang.
¶4 At trial, the State presented the following evidence: In July
2014, Appellant, Ricardo Pulido, Jason Lopez, and the victim were
incarcerated in Maricopa County’s Fourth Avenue Jail. Appellant and the
victim were cellmates.
¶5 Appellant, Pulido, and the victim were “probate” members of
the Arizona Mexican Mafia (“AMM”).3 Because the victim had cooperated
with law enforcement and entered an agreement to testify in another case
involving the AMM, he became a target for elimination.
¶6 On July 10, 2014, Pulido entered the victim’s cell. Shortly
thereafter, the victim also entered the cell, and Appellant and Lopez soon
followed. Appellant and Pulido, aided by Lopez, punched and stabbed the
victim multiple times with a homemade shank. After the assailants
finished, they hugged and said, “Love you, primo,”4 and called the victim
a “fucking rat.” Appellant, Pulido, and Lopez then stated they would leave
the victim there to die, and each assailant individually exited the cell.
¶7 The victim, who was covered in blood, used the cell intercom
system to call for help. Detention officers responded and discovered the
victim on the floor and in need of medical attention. The victim was
transported to the hospital with extensive injuries, including stab wounds
to his upper torso. The victim identified Appellant, Pulido, and Lopez as
the individuals who attacked him.
¶8 While the victim called for help, Appellant hurried to the
shower area, where he took off his shirt and pants, showered, and then
proceeded to the recreation yard. Detention officers later found Appellant’s
shirt on the shower floor with blood on it. Subsequent DNA testing
indicated the blood on Appellant’s shirt was that of the victim.
¶9 Pulido, Lopez, and Appellant testified for the defense. Pulido
and Lopez, who had entered plea agreements and been convicted of various
3 Appellant has numerous tattoos indicating his membership in the
AMM and one of its affiliates, the South Side Ninth Street gang. Appellant
testified that his tattoos were largely representative of his Native American
religion, not the AMM.
4 The word “primo” means “cousin,” and is a term indicating a
person’s probate status in the AMM.
3
STATE v. CHAVEZ
Decision of the Court
charges related to the attack on the victim, claimed they were the sole
assailants and that Appellant had done nothing to help them. Pulido and
Lopez each admitted having several other prior convictions.
¶10 Appellant admitted having at least two prior convictions.
Appellant testified that, shortly after he entered his cell on July 10, things
“escalated.” He became concerned for his safety and tried to stay out of the
assault, but could not leave because his exit was blocked. He did not tell
detention officers what had happened because he was not a “snitch,” and
claimed to have no knowledge that the victim had agreed to testify in
another matter.
¶11 The jury found Appellant guilty as charged of Count III,
assisting a criminal street gang, but could not reach a verdict on Counts I
and II, and the court declared a mistrial as to those counts. The jury also
found five aggravating factors for sentencing purposes. Appellant later
entered a plea agreement, pleading guilty to Count I as amended to reflect
kidnapping, a class two non-dangerous felony, in exchange for the
dismissal of Count II.
¶12 After determining Appellant had at least two historical prior
felony convictions, including the conviction in CR2014-101311-001 DT, the
trial court sentenced Appellant to concurrent, aggravated terms of eight
years’ imprisonment for Count I and twenty years’ imprisonment for Count
III, with zero days of presentence incarceration credit, and ordered that
Appellant’s sentences be served consecutively to the sentence in CR2014-
101311-001 DT. Appellant filed a timely notice of appeal of his conviction
and sentence for Count III, assisting a criminal street gang.
ANALYSIS
¶13 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537,
¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and
supports the verdict. Appellant was represented by counsel at all stages of
the proceedings and was given the opportunity to speak at sentencing. The
proceedings were conducted in compliance with his constitutional and
statutory rights and the Arizona Rules of Criminal Procedure.
¶14 After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See State
4
STATE v. CHAVEZ
Decision of the Court
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant 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.
CONCLUSION
¶15 Appellant’s conviction and sentence for assisting a criminal
street gang are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
5