State v. Mendoza

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTOPHER ANTHONY MENDOZA, Appellant.
No. 1 CA-CR 22-0606
FILED 7-25-2023
Appeal from the Superior Court in Yuma County
No. S1400CR202100265
The Honorable Roger A. Nelson, Judge
AFFIRMED AS MODIFIED
COUNSEL
Yuma County Public Defender’s Office, Yuma
By Kaitlin Amos, Robert Trebilcock
Counsel for Appellee
Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellant
STATE v. MENDOZA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge D. Steven Williams delivered the Court’s decision, in
which Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.
W I L L I A M S, Judge:
¶1 Defendant Christopher Mendoza appeals his conviction and
sentence for aggravated assault using a deadly weapon or dangerous
instrument. For reasons that follow, we affirm his conviction and sentence
as modified.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 One February 2021 afternoon, Yuma police responded to a
shoplifting call at Walmart. Mendoza was standing next to his parked car
in the parking lot when a police officer drove past him. Mendoza then
walked into the store, and the officer decided to run Mendoza’s license
plate. Mendoza had a warrant for his arrest.
¶3 When Mendoza left the store, the officer approached him
from behind, calling out, “hey.” Mendoza did not stop but instead got into
his car and started it. Simultaneously, Mendoza’s girlfriend walked behind
the officer, trying to talk to her in an “almost distractionary” way. As
Mendoza “reversed [his car] at a high rate of speed,” the officer hit the back
passenger window with the palm of her hand. The driver’s side mirror
struck the officer’s arm and broke off from the car. The impact caused the
officer’s arm minor bruising and redness. Mendoza’s tires screeched as he
drove off. Mendoza later stated he saw a “blue uniform” and that he was
“on the run and [] didn’t wanna go back to jail.”
¶4 The State ultimately charged Mendoza with a single count of
aggravated assault using a deadly weapon or dangerous instrument, a class
2 felony under A.R.S. § 13-1204(A)(2) and (F). At trial, the officer testified
about the incident and the jury watched the officer’s body worn camera
footage of the incident. A detective who responded to the incident and later
interviewed Mendoza also testified.
¶5 At the end of the State’s case-in-chief, Mendoza moved for a
judgment of acquittal under Arizona Rule of Criminal Procedure 20 (“Rule
20”), arguing that the State did not provide substantial evidence the officer
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suffered any “actual physical injury” or that Mendoza’s actions were
reckless. The trial court denied the motion, and the jury convicted Mendoza
as charged. Mendoza was sentenced to a minimum term of seven-years’
imprisonment under A.R.S. § 13-704 and was given 664 days of presentence
incarceration credit.
¶6 Mendoza timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21, 13-4031,
and -4033.
DISCUSSION
¶7 Mendoza alleges three errors on appeal: (1) the trial court
erred by denying his Rule 20 motion; (2) the trial court’s sentence included
an aggravator not found by the jury, and; (3) the trial court improperly
sentenced Mendoza under A.R.S. § 13-1204(C).
I. Rule 20 Motion
¶8 We review a denial of a Rule 20 motion de novo but view all
evidence in a light most favorable to sustaining the verdict. State v. Allen,
253 Ariz. 306, 311, ¶ 69 (2022). We will affirm the trial court’s ruling if any
reasonable juror could have concluded the State proved the essential
elements of the crime beyond a reasonable doubt. State v. West, 226 Ariz.
559, 562, ¶ 16 (2011).
¶9 Mendoza argues the State failed to prove “any serious
physical injury had been inflicted by a dangerous instrument.” But whether
the officer suffered a serious physical injury is not an essential element
under A.R.S. § 13-1204(A)(2). State v. Molina, 211 Ariz. 130, 133, ¶ 10 (App.
2005). Instead, the State needed to prove that Mendoza used a dangerous
instrument to “caus[e] any physical injury to another person.” A.R.S. § 13-
1203(A)(1) (emphasis added). A dangerous instrument is “anything that
under the circumstances in which it is used . . . is readily capable of causing
death or serious physical injury.” A.R.S. § 13-105(12) (emphasis added). In
other words, the State was not obligated to prove that the dangerous
instrument (here, Mendoza’s car) caused a serious injury, only that it was
readily capable of causing such injury.
¶10 Mendoza also argues his actions could not be the “legal and
proximate cause” of the officer’s minor injuries because the officer “caused
the impact by walking into [his] blind spot and hitting the car window with
her hand.” Though the officer may have placed her hand on the car, she did
so at the same time Mendoza was quickly reversing out of the parking space
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making their actions concurrent. State v. Aragon, 252 Ariz. 525, 529,
¶ 11 (2022) (“[W]he[n] the defendant’s course of conduct actively continues
up to the time the injury is sustained, then any outside force which is also a
substantial factor in bringing about the injury is a concurrent cause of the
injury and never an intervening force.”) (internal quotations omitted).
Mendoza’s course of conduct—beginning with reversing his car and ending
with the injury to the officer—was continuous. Even if the officer’s decision
to approach the car and place her hand on it was a “substantial factor” in
causing the injury, it was not an “intervening force” such that Mendoza
would not be the cause of the officer’s injuries. Id.¶11 Mendoza further contends the State failed to prove he acted
recklessly in hitting the officer. To prove Mendoza acted recklessly, the
State was required to show that Mendoza “consciously disregard[ed] a
substantial and unjustifiable risk,” which must be “of such nature and
degree that disregard of such risk constitutes a gross deviation from the
standard of conduct that a reasonable person would observe.” A.R.S. § 13-
105(10)(c). Because Mendoza (according to him) looked over his shoulder
before backing out of the parking space, he argues his conduct was
“cautious and reasonable.” But the officer’s body-worn camera also showed
Mendoza exited the space and parking lot fast enough to make his tires
screech, that he did so in a parking lot with several pedestrians, and that he
failed to stop after striking the officer. The detective’s testimony likewise
indicated Mendoza may have been aware of the officer’s presence and that
he was attempting to flee. A reasonable juror could conclude Mendoza was
consciously attempting to evade law enforcement, risking injury to the
officer and others. See State v. Miles, 211 Ariz. 475, 482, ¶ 27 (App. 2005)
(finding that, among other facts, evidence the defendant drove “with tires
screeching” and failed to stop or slow down when required was sufficient
for a reasonable juror to find recklessness).
¶12 The trial court did not err by denying Mendoza’s Rule 20
motion.
II. Blakely and Dangerous Instruments
¶13 Mendoza next contends the trial court was not permitted to
sentence him under A.R.S. § 13-1204(A)(2) since the jury did not make an
explicit finding whether he used a dangerous weapon in committing
assault, thus violating his Sixth Amendment rights under Blakely v.
Washington, 542 U.S. 296 (2004). Because Mendoza objected at trial, we
review for harmless error. State v. Henderson, 210 Ariz. 561, 565–66, ¶ 8
(2005).
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¶14 After instructing the jury, but before deliberations began, the
court chose to alter the verdict forms. The original verdict forms gave the
jury three findings to consider: (1) whether Mendoza had committed
aggravated assault under A.R.S. § 13-1204(A)(2); (2) whether Mendoza used
a deadly weapon or dangerous instrument; and (3) whether the offense was
committed against a peace officer. The State, fearing the possibility that the
jury could return a contradictory verdict, moved the court to remove the
second finding requiring the jury to explicitly state whether the element of
use of a dangerous weapon had been proven. Over Mendoza’s objection,
the court altered the verdict forms.
¶15 Mendoza argues that under Blakely, his sentence for
aggravated assault cannot stand because the jury did not separately and
explicitly find he used a dangerous instrument. But nothing in the trial
court’s decision implicates, much less transgresses, the protections under
the Sixth Amendment per Blakely. Though Mendoza characterizes the use
of a dangerous instrument in A.R.S. § 13-1204(A)(2) as a “sentence
enhancement,” it is not an aggravator in the traditional sense. The State
made clear it had not sought any aggravators here. Rather, the use of a
dangerous instrument was a distinct element of the charged offense, which
the State was required to prove beyond a reasonable doubt. See State v.
Torres, 156 Ariz. 150, 152 (App. 1988) (noting that “the extra element
distinguishing the lesser included offense of assault from the greater
offense, aggravated assault, is the use of a deadly weapon”). There is no
requirement that verdict forms command the jury to make a separate
finding as to every element of a charge. See State v. Hernandez, 191 Ariz. 553,
561, ¶¶ 34-39 (App. 1998) (noting that the court did not err when providing
only the option of “guilty” for each charge, when also accompanied by a
single finding of “not guilty” for each charge).
¶16 The jury instructions listed the elements required for
aggravated assault—including the requirement that Mendoza used a
dangerous instrument—along with the definition of “dangerous
instrument.” Because we presume that juries follow the instructions given,
State v. Gallardo, 225 Ariz. 560, 569, ¶ 44 (2010), we presume the jury
understood its task in deliberating before returning a verdict.
¶17 To the extent that Mendoza argues the jury needed to make a
separate finding of dangerousness, we disagree. A dangerous offense is an
offense “involving the discharge, use or threatening exhibition of a . . .
dangerous instrument.” A.R.S. § 13-105(13). A jury “need not make a
finding of dangerousness where it is inherent in the crime,” State v. Larin,
233 Ariz. 202, 212, ¶ 38 (App. 2013) (quotations omitted), and
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Decision of the Court
dangerousness is inherent in a verdict for aggravated assault involving
dangerous instruments. State v. Suniga, 145 Ariz. 389, 396 (App. 1985).
III. Mendoza’s Sentence Under A.R.S. § 13-1204(C)
¶18 Mendoza’s final argument challenges the trial court’s
sentencing order, which lists a string citation of statutes Mendoza was
sentenced under and included A.R.S. § 13-1204(C). Subsection C states:
A person who is convicted of intentionally or knowingly
committing aggravated assault on a peace officer pursuant to
subsection A, paragraph 1 or 2 of this section shall be
sentenced to imprisonment for not less than the presumptive
sentence authorized under chapter 7 of this title and is not
eligible for suspension of sentence, commutation or release on
any basis until the sentence imposed is served.
Because the State’s theory of the case at trial was that Mendoza’s
aggravated assault resulted from reckless conduct, not intentional or
knowing conduct, Mendoza contends he could not be sentenced under
A.R.S. § 13-1204(C). We agree.
¶19 The only aggravated assault element the jury was instructed
on was using a dangerous instrument under A.R.S. § 13-1204(A)(2). And
Mendoza was not charged under A.R.S. § 13-1204(A)(8)(a) (allowing for a
conviction of aggravated assault “[i]f the person commits the assault
knowing or having reason to know that the victim is . . . [a] peace officer”).
The jury never found, expressly or impliedly, that Mendoza intentionally
or knowingly committed an assault on a police officer.
¶20 Mendoza urges us to remand the matter for a new sentencing
hearing. The trial court referenced A.R.S. § 13-1204(C) only one time—in its
sentencing order. But that statute is listed among several other statutes. No
party mentioned the statute, and the State did not argue that Mendoza
should be sentenced under the statute. To the contrary, the State’s
sentencing memorandum (which Mendoza agreed with in his sentencing
memorandum), the presentence report, and the trial court’s oral
pronouncement of Mendoza’s sentence all show Mendoza was sentenced
to a minimum term for his crime, not the presumptive sentence required
under A.R.S. § 13-1204(C). Although the reference to A.R.S. § 13-1204(C) in
the sentencing order is error, the trial court did not consider or use it to
determine Mendoza’s sentence. Therefore, we amend the sentencing order
to remove reference to A.R.S. § 13-1204(C) and affirm the sentence as
amended. Ariz. R. Crim. P. 31.19(c) (noting that an “appellate court may
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reverse, affirm, or modify the action of a lower court, and it may issue any
necessary and appropriate order in connection with its decision”); see also
State v. Veloz, 236 Ariz. 532, 538, ¶ 21 (App. 2015) (finding that the appeals
court could modify an incorrect sentencing minute entry “if the record
clearly identifies the intended sentence”).
CONCLUSION
¶21 We affirm Mendoza’s conviction but modify the trial court’s
sentencing order to remove its single reference to A.R.S. § 13-1204(C). In all
other respects, we affirm Mendoza’s sentence.
AMY M. WOOD • Clerk of the Court
FILED: JT
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