State v. Portillo

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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.
ROBERTO PORTILLO, Appellant.
No. 1 CA-CR 13-0722
FILED 12-18-2014
Appeal from the Superior Court in Maricopa County
No. CR 2012-006237-001
The Honorable Dawn M. Bergin, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Offices of Michael J. Dew, Phoenix
By Michael J. Dew
Counsel for Appellant
STATE v. PORTILLO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Donn Kessler and Judge Kent E. Cattani joined.
T H O M P S O N, Judge:
¶1 This case comes to us as 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 Roberto Portillo (defendant) has advised us that, after
searching the entire record, he has been unable to discover any arguable
questions of law and has filed a brief requesting this court to conduct an
Anders review of the record. Defendant was given an opportunity to file a
supplemental brief in propria persona, but has not done so.
¶2 The victim testified that defendant, her biological uncle, had
sexual intercourse with her on four separate occasions, and attempted
sexual intercourse with her on one occasion. The first incident of sexual
intercourse was at the defendant’s house in Chandler when the victim was
six years old. Defendant penetrated victim’s vagina with his fingers
underneath her clothing as she was laying down on the couch watching
television. The second incident of sexual intercourse was at the victim’s
aunt’s house at a family celebration when the victim was six or seven years
old. The victim was wearing a dress and defendant bent her over his knee
and penetrated her vagina with his fingers. The third incident of sexual
intercourse was when the victim was eight or nine years old. The victim
was face down on the bed when defendant took off her pants and
underwear and penetrated her anus with his penis. The fourth incident of
sexual intercourse occurred during the painting of defendant’s house when
the victim was ten years old. The victim had paint on her pants and she
removed them and sat on defendant’s couch in her underwear. Defendant
laid her down on the couch, took off her underwear, and penetrated her
anus with his penis. The final incident occurred at the victim’s old house
after she had gone swimming when she was eleven years old. Defendant
attempted to move the part of victim’s bathing suit covering her vagina
before she squirmed away.
¶3 Defendant was charged and convicted of four counts of
sexual conduct with a minor, class 2 felonies and dangerous crimes against
children. He was also charged and convicted of one count of attempted
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STATE v. PORTILLO
Decision of the Court
sexual conduct with a minor, a class 3 felony and a dangerous crime against
children. The jury found that all five counts occurred while the victim was
twelve years of age or younger. The trial court sentenced defendant to five
consecutive terms, including four terms of life in prison with no possibility
of parole for at least thirty-five years and one term of ten years of
imprisonment. The trial court gave defendant 541 days of presentence
incarceration credit to be applied against the first term of life in prison.
Defendant timely appealed.
¶4 We have identified a potential issue: whether Arizona
Revised Statute (A.R.S.) section 13-604.01 (2008)1 allows defendant’s
sentence for attempted sexual conduct with the victim, who was eleven at
the time the attempted sexual conduct occurred, to be enhanced as a
dangerous crime against children. See State v. Gonzalez, 216 Ariz. 11, 13-14,
¶ 8-9, 162 P.3d 650, 652-53 (App. 2007). After Gonzalez was decided, the
statute was clarified by the legislature, such that it is evident there is and
was no special statutory sentencing consideration for this preparatory
crime based on the victims age, eleven. That the victim here was eleven and
had not yet attained twelve years of age was superfluous. Therefore, we
conclude that A.R.S. § 13-604.01 (2008) was correctly applied to defendant’s
sentencing for attempted sexual conduct with a minor under fifteen years
of age, and the presumptive sentence of ten years imprisonment was
proper.
¶5 We have read and considered defendant’s Anders brief and
have searched the entire record for reversible error, finding none. See Leon,
104 Ariz. at 300, 451 P.2d at 881. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure, and the
sentences imposed were within the statutory limits. Pursuant to State v.
Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), defendant’s
counsel’s obligations in this appeal are at an end. Defendant has thirty days
from the date of this decision in which to proceed, if he so desires, with an
in propria persona motion for reconsideration or petition for review.
1 During the time period of the offense for attempted sexual misconduct,
there are two different versions of A.R.S. § 13-604.01 that could apply. They
are substantively the same for our purposes, and thus, we refer to the later
applicable version, A.R.S. § 13-604.01 (2008).
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STATE v. PORTILLO
Decision of the Court
¶6 We affirm the convictions and sentences.
:gsh
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