State v. Gomez ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANDREW LUIS GOMEZ, Appellant.
No. 1 CA-CR 15-0032
FILED 2-23-2016
Appeal from the Superior Court in Maricopa County
No. CR2010-105026-001-SE
The Honorable Pamela D. Svoboda, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant
STATE v. GOMEZ
Decision of the Court
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.
W I N T H R O P, Judge:
¶1 Andrew Luis Gomez (“Gomez”) appeals his convictions and
sentences for one count of aggravated assault, one count of unlawful
imprisonment, and one count of misconduct involving weapons. Gomez’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 that he has searched the record on appeal
and found no arguable question of law that is not frivolous. Gomez’s
counsel therefore requests 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). We allowed
Gomez to file a supplemental brief in propria persona, but he 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), 13-4031, and 13-4033(A).1 Finding no reversible
error, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶3 In 2010, a grand jury indicted Gomez, charging him with one
count of aggravated assault—a class 3 dangerous felony and a domestic
violence offense; one count of unlawful imprisonment—a class 6 felony and
a domestic violence offense; and one count of misconduct involving
weapons—a class 4 felony. See A.R.S. §§ 13-1203, -1204, -1303, -3102, -3601.
1 We cite the current version of the applicable statutes unless revisions
material to this decision have occurred since the dates of the offenses.
2 We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Appellant. See State
v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).
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Decision of the Court
The State also alleged the assault offense in count 1 was dangerous. See
A.R.S. § 13-704.
¶4 At trial, the State presented the following evidence: Gomez
had multiple prior felony convictions and was therefore prohibited from
possessing firearms. One late afternoon, Gomez’s cousin D.A. drove her
Ford Bronco to Gomez’s house to transfer the truck to him. They had been
involved in a romantic relationship that had ended months earlier; Gomez
promised he would leave her alone after the transfer. Upon D.A.’s arrival
at Gomez’s house, Gomez asked D.A. to take him to a water store for a jug
of water and an automobile supply shop to recharge the truck’s battery.
After they finished the errands, Gomez invited D.A. to go inside his house
for drinks. They had a few cans of beer in the bedroom, which was the only
room in the house having electricity; Gomez then became upset and started
to blame D.A. for the problems he was facing. Feeling uncomfortable, D.A.
stood up and told Gomez she wanted to leave. Gomez told her she was not
going anywhere and stood in the doorway, blocking the exit. When D.A.
tried to get out of the room, Gomez pulled out a gun from the back of his
pants and shot D.A. in her left thigh. The bullet shattered D.A.’s femur
bone, missing her femoral artery by less than half an inch; the pain from the
gunshot wound sent D.A. falling to the floor, with blood gushing out of her
leg. While D.A. was trying to stop the bleeding with her bare hands, Gomez
attempted to place the gun in her right hand. D.A. slapped the gun off her
hand; seeing his attempt failed, Gomez walked away to change his shirt.
Unable to move, D.A. begged Gomez to take her to the hospital and, in
exchange, she would not tell anybody he shot her.
¶5 Gomez bandaged D.A.’s leg to slow down the bleeding and
carried her to the Bronco. Instead of immediately driving D.A. to the
hospital, however, Gomez went back to, and lingered at, the house for
approximately five minutes. On the way to the hospital, Gomez instructed
D.A. to say her injury was caused by a drive-by shooting. Later, while at
the hospital,3 D.A. initially recited this story of a drive-by shooting; but,
with the encouragement from her uncle, she recounted the real story to the
law enforcement. Gomez was then arrested at the hospital.
¶6 During the police investigation, gunshot residue was detected
in the samples collected from Gomez’s left hand; also the front of Gomez’s
left shoe was stained with blood. While Gomez was in jail waiting for trial,
3 This hospital was different from the one Gomez and D.A. initially
arrived at. D.A. was helicoptered to the second hospital for the gunshot
wound to be treated; Gomez drove in the Bronco to the second hospital.
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STATE v. GOMEZ
Decision of the Court
he sent D.A. a letter, threatening her with violence if she were to testify
against him, and called his ex-stepfather to retrieve Gomez’s safe from
Gomez’s house before its foreclosure. A cleaning crew of the house hired
by the bank during foreclosure found a gun in the safe, together with
Gomez’s other belongings. The gun contained DNA from both Gomez and
D.A.
¶7 Several months before the shooting, D.A. had reported to law
enforcement another incident of domestic violence by Gomez toward her at
his house when she went there with a friend to retrieve her bicycle. In that
incident, Gomez hit her with a broomstick from behind and strangled her
until she became unconscious. When Deputy Sterns with Maricopa County
Sheriff’s office called Gomez at Gomez’s cell phone and introduced himself
as an officer investigating the incident, Gomez denied he was the person
the officer was looking for and disconnected the call.
¶8 Gomez testified in his own defense. He claimed D.A. instead
shot herself because of her jealousy over Gomez’s relationship with another
woman. Gomez denied he wrote the threatening letter or that he ever
possessed the gun. He also denied the prior incident of domestic violence,
explaining he disconnected the investigator’s call after a person, without
any self-introduction, called him looking for someone named “Richard.”
¶9 The jury found Gomez guilty as charged, and that counts 1
and 2 are offenses of domestic violence. The court found the offense in
count 1 was dangerous due to the use of a gun and sentenced him to
concurrent terms of 10 years’ imprisonment for counts 1 and 3, and 3.75
years’ imprisonment for count 2, with credit for 1807 days of presentence
incarceration. Gomez timely appealed.
ANALYSIS
¶10 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 verdicts, and the sentences were within the statutory limits.
Gomez was represented by counsel at all stages of the proceedings and
allowed to speak at sentencing. The proceedings were conducted in
compliance with his constitutional and statutory rights and the Arizona
Rules of Criminal Procedure.
¶11 After filing of this decision, defense counsel’s obligations
pertaining to Gomez’s representation in this appeal have ended. Counsel
need do no more than inform Gomez of the status of the appeal and of his
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future options, unless counsel’s review reveals an issue appropriate for
petition for review to the Arizona Supreme Court. See State v. Shattuck, 140
Ariz. 582, 584-85, 684 P.2d 154, 156–57 (1984). Gomez 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
¶12 Gomez’s convictions and sentences are affirmed.
:ama
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