State v. Vargas

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
EMMANUEL VARGAS, Appellant.
No. 1 CA-CR 22-0327
FILED 7-18-2023
Appeal from the Superior Court in Maricopa County
No. CR2020-138971-001
The Honorable Eartha K. Washington, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
STATE v. VARGAS
Decision of the Court
MEMORANDUM DECISION
Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
F O S T E R, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for Defendant Emmanuel
Vargas has advised this Court that he found no arguable questions of law
and asks us to search the record for fundamental error. Vargas was charged
with aggravated assault, a class 3 dangerous domestic violence offense and
misconduct involving weapons, a class 4 felony. The State later dropped the
misconduct charge, and Vargas was convicted for aggravated assault.
Vargas was provided an opportunity to file a supplemental brief in propria
persona, but he has not exercised this opportunity. After reviewing the
record, this Court concludes there is no reversible error. State v. Clark, 196
Ariz. 530, 537, ¶ 30 (App. 1999). Accordingly, Vargas’ conviction, resulting
prison sentence and restitution fees are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 This Court views the facts in the light most favorable to
sustaining the judgment and resolves all reasonable inferences against
Vargas. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 In October 2020, the victim (hereinafter, “P.V.”) and Vargas
were living in the same home. P.V. is Vargas’ stepmother. One morning
during breakfast, P.V. and Vargas had an altercation where Vargas wielded
a firearm, pointed it at P.V. and pulled the trigger; the gun did not fire.
Following the altercation, P.V. left the home and arrived at her workplace
crying and unable to speak. After P.V. calmed down, she recounted the
incident to her manager, Brenda Diaz, who reported the incident to police.
¶4 At trial, P.V. and Diaz testified to the circumstances
surrounding the alleged event. Two police officers who responded to the
incident also testified to the circumstances around the confrontation. A
peace officer interviewed P.V. at her workplace then went to the home
shared by P.V., Vargas and Vargas’ father, Jaime Vargas-Juarez. Upon
officers’ arrival at the home, Vargas ran inside. The officers spent over an
hour trying to get Vargas to come out. Vargas eventually did so peacefully.
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STATE v. VARGAS
Decision of the Court
One of the officers testified that he obtained consent from Jaime Vargas-
Juarez to search the home for the gun. The gun was located in a small bag
in a kitchen cabinet; the search was recorded on camera and played for the
jury. When officers found the gun, a magazine and ammunition were in the
firearm, but it could not fire because no round was in the chamber.
¶5 Vargas did not appear on the first day of trial. When the court
inquired as to his whereabouts, Vargas’ counsel informed the court that
“[h]e just doesn’t want to be here.” The court ruled the trial would proceed
in absentia, or without him, and jury selection proceeded without issue.
After hearing testimony and dismissing the defense’s directed verdict
motion, both the State and the defense rested. The next day, however,
Vargas elected to reopen the trial so he could testify on his own behalf.
Before his testimony, the State and defense counsel argued whether the
State could question him about two prior felony convictions; during that
argument Vargas confirmed he had two prior felonies. The court ruled the
State could impeach Vargas with two prior felony convictions under
Arizona Rule of Evidence 609.
¶6 Vargas rested after testifying and the parties agreed to the
jury instructions. The jury convicted Vargas of aggravated assault with a
deadly weapon. The superior court conducted the sentencing hearing in
compliance with Vargas’ constitutional rights and Arizona Rule of Criminal
Procedure 26. After an appropriate colloquy, the court found Vargas’
admission of two prior felony convictions was made knowingly,
intelligently and voluntarily. The court also found there was a factual basis
for the admission and the court accepted the admission. After weighing
aggravating and mitigating factors, including one historical felony
conviction, the court sentenced Vargas to the presumptive term of 11.25
years with credit for 81 days’ time served. The court imposed statutory fees
in the total amount of $234.
DISCUSSION
¶7 This Court views the facts from the trial record in the light
most favorable to sustaining the conviction; Vargas’ convictions and
sentence are reviewed for fundamental error. State v. Flores, 227 Ariz. 509,
512, ¶ 12 (App. 2011); State v. Harm, 236 Ariz. 402, 404, n.2 (App. 2015).
Counsel for Vargas has advised the Court that after a diligent search of the
entire record, counsel has found no arguable question of law. Vargas was
provided the opportunity to submit a supplemental brief but failed to do
so. This Court has considered counsel’s brief and carefully reviewed the
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STATE v. VARGAS
Decision of the Court
entire record for reversible error. See Clark, 196 Ariz. at 537, ¶ 30. This Court
identified none.
¶8 The record reflects all proceedings complied with the Arizona
Rules of Criminal Procedure as well as Vargas’ statutory and constitutional
rights. Vargas was represented by counsel at all critical stages, and his
presence on the first day of trial was voluntarily waived. See Ariz. R. Crim.
P. 9.1; State v. Fristoe, 135 Ariz. 25, 34 (App. 1982) (“a defendant may waive
his right to be present at any proceeding by voluntarily absenting himself
from it”). The superior court permitted Vargas to speak at sentencing and
imposed a sentence within the statutory limits, with proper credit for time
in custody. It also stated on the record the factors it considered in imposing
the sentence.
CONCLUSION
¶9 For the foregoing reasons, this Court affirms Vargas’
conviction and sentence. Upon the filing of this decision, defense counsel
shall inform Vargas of the status of the appeal and his future options.
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, 584–85 (1984). Vargas shall
have 30 days from the date of this decision to proceed, if he desires, with a
pro per motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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