State v. Hernandez ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
MICHAEL ANTHONY HERNANDEZ, Appellant.
No. 1 CA-CR 13-0162
FILED 05-29-2014
Appeal from the Superior Court in Maricopa County
No. CR2011-123571-003
The Honorable Daniel G. Martin, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Nicole T. Farnum, Phoenix
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge John C. Gemmill and Judge Randall M. Howe joined.
STATE v. HERNANDEZ
Decision of the Court
T H U M M A, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738(1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for
Defendant Michael Anthony Hernandez has advised the court that, after
searching the entire record, she is unable to discover any arguable
questions of law, and has filed a brief requesting this court conduct an
Anders review of the record. Hernandez was given the opportunity to file
a supplemental brief pro se, and has done so. This court has reviewed the
entire record and finds no reversible error. Accordingly, the convictions
and resulting sentences are affirmed.
FACTS 1 AND PROCEDURAL HISTORY
¶2 In 2011, police responded to the home of F.R. 2 following the
report of a shooting. Upon arrival, police found a dead man, who had
been shot in the head, in the carport area. Hours into the investigation and
processing of the crime scene, F.R. and J.V. arrived at the home and told
the police about the incident resulting in the death. F.R. and J.V. said a
number of individuals had broken into the home, robbed them and shot
the man before running away. The description of the people involved in
the incident led police to arrest a number of individuals involved,
including Hernandez.
¶3 At trial, the State presented evidence, including the
testimony of two accomplices, showing that Hernandez was at the scene
at the time of the shooting and that, according to the two accomplices,
Hernandez had possession of the gun. Defense counsel called into
question the reliability of the testimony of the accomplices, including
questioning their motive for testifying, bringing out evidence of
agreements they reached with the State and suggesting their memory of
1 This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997)
(citation omitted).
2Initials are used to protect the victims’ privacy. State v. Maldonado, 206
Ariz. 339, 341 n.1, 78 P.3d 1060, 1062 n.1 (App. 2003).
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STATE v. HERNANDEZ
Decision of the Court
the events could have been distorted by drug and alcohol use. As was his
right, Hernandez did not testify.
¶4 The jury found Hernandez guilty of first-degree murder,
first-degree burglary and three counts of kidnapping. The jury also found
a number of aggravating factors. The superior court then found two
mitigating factors. Hernandez was sentenced to life in prison without the
possibility of parole for 25 years on count one and 14 years in prison for
counts two, three, four and five. The court imposed sentences on counts
one, two and three concurrently with each other; imposed the sentence on
count four consecutively to counts one through three and imposed the
sentence on count five consecutively to count four. Hernandez timely
appeals his convictions and sentences. This court has jurisdiction over his
appeal pursuant to Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1), 13-4031, and -4033(A)(1) (2014). 3
DISCUSSION
¶5 The court has reviewed and considered defense counsel’s
brief and has searched the entire record for reversible error. See State v.
Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App. 1999) (providing
guidelines for briefs when counsel has determined no arguable issues to
appeal). Searching the record and briefing reveals no reversible error. In
his pro se brief, Hernandez argues his convictions were improper because:
(1) insufficient evidence supports the convictions and (2) the superior
court erred in imposing consecutive sentences.
I. Sufficiency Of The Evidence.
¶6 This court will not reverse a conviction “for insufficiency of
the evidence unless there is no substantial evidence to support the jury’s
verdict.” State v. Scott, 187 Ariz. 474, 477, 930 P.2d 551, 554 (App. 1996)
(citing State v. Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983)).
Substantial evidence is “[m]ore than a scintilla and is such proof as a
reasonable mind would employ to support the conclusion reached.” State
v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶7 The jury was presented with conflicting evidence about the
involvement of a number of individuals, the exact sequence of events and
forensic evidence. Although conflicting, there was sufficient evidence for a
3 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.
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STATE v. HERNANDEZ
Decision of the Court
finding of guilt beyond a reasonable doubt on each of the convictions. See
State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). Therefore,
Hernandez has failed to show that any conviction was not supported by
substantial evidence.
II. Consecutive Prison Terms.
¶8 Hernandez claims the sentences for counts four and five
should have been imposed concurrently with the other sentences. “An act
or omission which is made punishable in different ways by different
sections of the law may be punished under both, but in no event may
sentences be other than concurrent.” A.R.S. § 13-116. As applied, the
superior court’s sentence for count four (Kidnapping of J.G.) was imposed
consecutively to the sentences for counts one (First Degree Murder), two
(Burglary) and three (Kidnapping of F.R.); similarly, the sentence for
count five (Kidnapping of J.V.) was imposed consecutively to the sentence
for count four.
¶9 Because counts three, four and five dealt with kidnapping of
different individuals, A.R.S. § 13-116 is not implicated. See State v. Gordan,
161 Ariz. 308, 315, 778 P.2d 1204 (1989); see also State v. Carreon, 210 Ariz.
54, 74-75 ¶¶ 101-09, 107 P.3d 900, 920-21 (2005) (applying Gordon analysis);
State v. Burdick, 211 Ariz. 583, 585 ¶ 6, 125 P.3d 1039, 1041 (App. 2005)
(consecutive sentences proper where crime of disorderly conduct
committed against multiple victims); State v. White, 160 Ariz. 377, 379-81,
773 P.2d 482, 484-86 (App. 1989) (consecutive sentences upheld when a
single criminal act harmed multiple victims). Accordingly, and because
the sentences imposed were within statutory limits, the superior court did
not err in sentencing Hernandez.
III. Restraints.
¶10 On the first day of trial, outside the presence of the jury,
defense counsel brought to the superior court’s attention “that the way
they have the restraint system on Mr. Hernandez, it’s rather noticeable,
especially on his back and sides areas . . . [and that] [w]e don’t have the
benefit of having a jacket for him today” and, therefore, expressed concern
that the jury might improperly see the restraints. In response, the superior
court had Hernandez stand and sit to evaluate the restraints. The court
then stated Hernandez should stand and face the jury when they came in
so they did not see the restraint system and to sit in his chair in a way as
to avoid leaning forward. Following these suggestions, no other concern
was expressed regarding restraints, and Hernandez does not suggest that
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STATE v. HERNANDEZ
Decision of the Court
the jury saw the restraints. See State v. Dixon, 226 Ariz. 545, 552 ¶¶ 30-32,
250 P.3d 1174, 1181 (2011) (applying harmless error review for visibility of
shackles by jury). Accordingly, on this record, there was no error.
CONCLUSION
¶11 This court has read and considered the briefs filed by
defense counsel and Hernandez and has searched the record provided for
reversible error. Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at537 ¶ 30, 2 P.3d at 96. From the court’s review, the record reveals no
reversible error. Instead, the record indicates all proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure;
Hernandez was represented by counsel at all stages of the proceedings
and the jury was properly instructed. Accordingly, Hernandez’
convictions and resulting sentences are affirmed.
¶12 Upon filing of this decision, defense counsel is directed to
inform Hernandez of the status of his appeal and of his future options.
Defense 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 State v. Shattuck, 140 Ariz. 582, 585, 684 P.2d
154, 157 (1984). Hernandez shall have thirty days from the date of this
decision to proceed, if he desires, with a pro se motion for reconsideration
or petition for review.
:gsh
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