State v. Hernandez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RICARDO HERNANDEZ, Appellant.
No. 1 CA-CR 15-0101
FILED 3-29-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-417494-001
The Honorable Virginia L. Richter, Judge Pro Tem
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
STATE v. HERNANDEZ
Decision of the Court
G E M M I L L, Judge:
¶1 Ricardo Hernandez appeals his conviction and sentence for
aggravated assault, a domestic violence offense. Hernandez’s counsel filed
a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State
v. Leon, 104 Ariz. 297 (1969), stating that she has searched the record and
found no arguable question of law and requesting that this court examine
the record for reversible error. Hernandez was afforded the opportunity to
file a pro se supplemental brief and has done so. See State v. Clark, 196 Ariz.
530, 537, ¶ 30 (App. 1999). For the following reasons, we affirm.
BACKGROUND
¶2 “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001). On April 12, 2013, police were called to a
home after several 911 calls reported a domestic violence altercation.
Hernandez’s neighbor, Patricia G., called 911 after she witnessed
Hernandez chasing his son, J.H., down the street. Patricia G. testified that
J.H. was screaming for help, saying that his father was beating his mother.
Another neighbor, Daniel K., testified that he witnessed Hernandez chasing
J.R. down the street and yelling at J.H. to get back in the house. J.H. also
called 911 and reported that his dad was trying to stab his mom with a knife.
¶3 Police arrived on the scene and found T.J., Hernandez’s
fiancé, along with J.H. and several other children. During an interview
conducted at the scene, T.J. told police that Hernandez grabbed her by the
arm and bent her hand and wrist. She also told police that Hernandez held
a knife to her throat. Police photographs taken at the scene reveal several
cuts on T.J.’s arms and a “zig-zag” cut spanning the length of her cheek and
chin.
¶4 T.J. later explained that she had become angry at Hernandez
during a family shopping trip. After stopping at a liquor store to buy
several vodka shots and a 40 ounce bottle of malt liquor, T.J. and Hernandez
returned to their home. Once there, the two got into an argument, which
led to the altercation in question. Contrary to what she told police on the
day of the incident, T.J. testified at trial that she began hitting and pushing
Hernandez and that he never pushed her or threatened her with a knife. At
trial, J.H. also contradicted his earlier statement to police by testifying that
he had never seen Hernandez with a knife.
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STATE v. HERNANDEZ
Decision of the Court
¶5 The jury found Hernandez guilty of one count of aggravated
assault against T.J. and not guilty of aggravated assault against J.H. The
jury also found that the State had proven, beyond a reasonable doubt, the
aggravators of emotional harm to the victim, dangerousness, commission
of a domestic violence offense in the presence of a child, and that the victim
and Hernandez resided and had a child together. After a bench trial on
priors, the court found Hernandez was convicted on a prior felony for
aggravated drunk driving.
¶6 Despite the aggravating factors, Hernandez was sentenced to
the presumptive term of 7.5 years imprisonment with credit for 650 days of
presentence incarceration. We have jurisdiction under Article 6, Section 9,
of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031 and 13-4033.
DISCUSSION
I. Hernandez’s Supplemental Brief
¶7 In his supplemental brief, Hernandez argues that there was
insufficient evidence to support his conviction. Specifically, he points to
T.J.’s level of intoxication at the time of the incident, argues that T.J. and
J.H. fabricated their stories to police, and contends that the evidence
regarding what kind of knife was used was inconsistent.
¶8 We conclude there is sufficient evidence in the record to
support Hernandez’s conviction. First, the jury had the opportunity to
examine all of the relevant evidence, including 911 calls and prior police
interviews with J.H. and T.J. The jury also heard evidence that T.J. had been
drinking heavily at the time of the incident, and the jury was therefore able
to consider in its deliberations her level of intoxication. Second, although
both T.J.’s and J.H.’s testimony contained conflicting and inconsistent
elements, it was the jury’s role to weigh the evidence and determine the
credibility of the witnesses’ statements. See State v. Williams, 209 Ariz. 228,
231, ¶ 6 (App. 2004). Similarly, although the jury heard conflicting evidence
over whether the marks on T.J.’s face were made with a bread knife or a
butter knife, there was sufficient evidence presented to support a finding
that some kind of knife was used during the incident. The record therefore
supports the verdict, and we find no error.
¶9 Hernandez also argues that his defense counsel withheld
important evidence from the jury and failed to utilize potentially favorable
evidentiary leads. To the extent that Hernandez is claiming ineffective
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STATE v. HERNANDEZ
Decision of the Court
assistance of counsel, such claims must be raised in a petition for post-
conviction relief under Arizona Rule of Criminal Procedure 32. See State v.
Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).
II. No Reversible Error
¶10 Having considered defense counsel’s brief and examined the
record for reversible error, see Leon, 104 Ariz. at 300, we find none. The
evidence presented supports the conviction and the sentence imposed falls
within the range permitted by law. As far as the record reveals, Hernandez
was represented by counsel at all stages of the proceedings, and these
proceedings were conducted in compliance with his constitutional and
statutory rights and the Arizona Rules of Criminal Procedure.
¶11 Pursuant to State v. Shattuck, 140 Ariz. 582, 584–85 (1984),
counsel’s obligations in this appeal have ended. Counsel need do no more
than inform Hernandez of the disposition of the appeal and his future
options, unless counsel’s review reveals an issue appropriate for
submission to the Arizona Supreme Court by petition for review.
Hernandez also has thirty days from the date of this decision in which to
proceed, if he desires, with a pro se motion for reconsideration or petition
for review.
CONCLUSION
¶12 The conviction and sentence are affirmed.
:ama
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