State v. Bencomo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
FERNANDO VARGAS BENCOMO, Appellant.
No. 1 CA-CR 15-0465
FILED 3-31-2016
Appeal from the Superior Court in Maricopa County
No. CR2014-133443-001
The Honorable Christopher A. Coury, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
STATE v. BENCOMO
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.
N O R R I S, Judge:
¶1 Fernando Bencomo timely appeals from his conviction and
sentence for burglary in the third degree, a class 4 felony. After searching
the record on appeal and finding no arguable question of law that was not
frivolous, Bencomo’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v.
Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record
for fundamental error. This court granted counsel’s motion to allow
Bencomo to file a supplemental brief in propria persona, but Bencomo did
not do so. After reviewing the entire record, we find no fundamental error
and, therefore, affirm Bencomo’s conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND1
¶2 On the evening of July 11, 2014, Bencomo entered a hotel
restaurant and bar. Wearing only blue jeans and no shirt, he walked up to
the bar and asked the bartender, “What do you have to drink here?” The
bartender, who had seen Bencomo running in the courtyard of the hotel
earlier in the night, observed that Bencomo had a “startling” demeanor.
Even though a few minutes remained before the establishment’s 11:00 p.m.
closing time, the bartender told Bencomo they were closed. Bencomo swore
and approached the bartender, who was standing behind the bar in an area
inaccessible to patrons. Fearing she might be blocked in behind the bar by
him, the bartender moved out of his way. Bencomo then stepped behind
the bar and grabbed two bottles of rum saying “Well, I’ll just take it to go.”
He then left the restaurant without paying for the rum. The bartender
immediately called 911 and gave a physical description of Bencomo.
¶3 Subsequently, a hotel employee observed a shirtless man in
blue jeans running away from the hotel. Another hotel employee also saw
a man in blue jean shorts and no shirt leaving the property. A detective
1We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Bencomo.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
2
STATE v. BENCOMO
Decision of the Court
later picked up Bencomo around midnight, when he observed an
individual matching Bencomo’s description walking along a side-walk and
carrying two bottles. At trial, the three hotel employees positively
identified Bencomo.
¶4 An eight person jury found Bencomo guilty of burglary in the
third degree, a class four felony. At the sentencing hearing, the superior
court found Bencomo had four prior felony convictions, including two
historical prior felony convictions, one for aggravated assault committed in
2012, see Arizona Revised Statutes (“A.R.S.”) section 13-105(22)(c) (2014),2
and one arising out of three offenses Bencomo committed on the same
occasion in 2008, which the court treated as one conviction, see A.R.S. §§
13-105(22)(d), -703(L) (2014); and two prior felony convictions, from 2000
and 2004, which the court found were aggravating circumstances.3 See
A.R.S. § 13-701(D)(11), (25) (2014). After considering the aggravating
circumstances and the mitigating circumstances, the superior court
sentenced Bencomo to a mitigated sentence of seven years imprisonment
and awarded him 168 days of presentence incarceration credit.
DISCUSSION
¶5 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Bencomo received a
fair trial. He was represented by counsel at all stages of the proceedings
and was present at all critical stages.
¶6 The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of eight members and the
court properly instructed the jury on the elements of the charge, Bencomo’s
presumption of innocence, the State’s burden of proof, and the necessity of
a unanimous verdict. The superior court received and considered a
2We cite to the statutes in effect as of the date of Bencomo’s
offense.
3The sentencing minute entry does not state the specific
statutory subsections the court relied on in finding the two historical prior
felony convictions and the two separate aggravating circumstances. As our
supreme court has explained, to “facilitate appellate review, trial judges
should indicate on the record the specific statutory subsection under which
a criminal sentence is imposed.” State v. Anderson, 211 Ariz. 59, 60 n.1, ¶ 4,
116 P.3d 1219, 1220 n.1 (2005).
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STATE v. BENCOMO
Decision of the Court
presentence report, Bencomo was given an opportunity to speak at
sentencing, which he did, and his sentence was within the range of
acceptable sentences for his offense.
CONCLUSION
¶7 We decline to order briefing and affirm Bencomo’s conviction
and sentence.
¶8 After the filing of this decision, defense counsel’s obligations
pertaining to Bencomo’s representation in this appeal have ended. Defense
counsel need do no more than inform Bencomo 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶9 Bencomo has 30 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 Bencomo 30 days from the date of this
decision to file an in propria persona motion for reconsideration.
:ama
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