State v. Albano ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
VALERIE FELIZ ALBANO, Appellant.
No. 1 CA-CR 14-0836
FILED 5-10-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-001539-001
The Honorable Robert E. Miles, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
STATE v. ALBANO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.
H O W E, Judge:
¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel
for Valerie Feliz Albano asks this Court to search the record for
fundamental error. Albano was given an opportunity to file a supplemental
brief in propria persona. She has not done so. For the following reasons, we
affirm Albano’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
trial court’s judgment and resolve all reasonable inferences against Albano.
State v. Fontes, 195 Ariz. 229, 230 ¶ 2, 986 P.2d 897, 898 (App. 1998).
¶3 One evening in October 2012, Phoenix Police went to a home
in west Phoenix to conduct a warrant execution on Albano, who had a
misdemeanor warrant. The officers also wanted to speak with her about a
violent offender they sought and believed she had ties with. After getting
consent from Albano’s stepsister, who owned the house, officers entered
and found Albano asleep on the couch with her 11-month old son. When
she awoke, Albano became “very belligerent [and] uncooperative,” yelling
profanities and refusing the officers’ commands.
¶4 Hearing the yelling inside the house, Officer M.M., who had
been watching the house’s exterior during the warrant execution, decided
to enter. Because Albano was refusing to follow the officers’ commands,
Officer M.M. grabbed her right arm and told her she was under arrest.
When Officer M.M. pulled out his handcuffs, Albano slapped them out of
his hands and immediately began trying to jerk her arms away from him.
Another officer then removed Albano’s son from the couch and took him
outside while the remaining officers struggled with Albano.
¶5 As she kept trying to jerk her arm out of Officer M.M.’s hold,
Albano stood up on the couch, kicking him and trying to keep her hands
out of his reach. Officer M.M. then pulled her down, and while Albano
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STATE v. ALBANO
Decision of the Court
continued to scream and kick the officer, he put her in an arm-bar position
to control her, laying Albano on her stomach while controlling her elbow,
wrist, and shoulder. As Officer M.M. held Albano in this position, another
officer helped get Albano’s other arm behind her back and placed her in
handcuffs. As the officer did so, Albano scratched Officer M.M., digging
her fingernails into his wrist.
¶6 Despite being handcuffed, Albano continued to fight and
scream as officers took her out of the house. Once outside, Albano accused
Officer M.M. of punching her several times and dislocating her shoulder.
The officers called the paramedics to examine Albano, but the paramedics
released her back to the officers after concluding that she had not sustained
any injuries. The State charged Albano with one count of threatening or
intimidating, a class one misdemeanor; one count of resisting arrest, a class
six felony; one count of aggravated assault, a class four felony, and three
counts of aggravated assault, each class five felonies. However, the State
later dismissed the charge of threatening or intimidating.
¶7 During Albano’s jury trial, an officer who was present at the
scene testified that he saw Albano intentionally kick the officer twice as he
tried to control her. Officer M.M. also testified that he worried that Albano’s
screaming intended to alert someone of the officers’ presence to distract the
officers “from the primary threat.” After the State rested its case in chief,
Albano moved for a judgment of acquittal pursuant to Arizona Rule of
Criminal Procedure 20, arguing that insufficient evidence supported a
conviction for the first five counts of the indictment. But the trial court
denied the motion.
¶8 After the trial court conducted a hearing pursuant to Arizona
Rule of Evidence 609—permitting the State to use some of Albano’s prior
convictions to attack her credibility as a witness—Albano testified on her
own behalf. Albano testified that she began yelling profanities and
threatening the officers when she awoke because she was not aware that
they were officers. Upon realizing that the officer was with the Phoenix
Police, Albano testified that she “tried to relax” and told the officer that she
was not resisting. But she stated that the officer yelled commands at her to
place her hands behind her back, though she could not do so because she
was still lying on her back with her child on her chest. She also stated that
Officer M.M. punched her, had his gun drawn at her, and “ram[med]” her
into a wall. During rebuttal testimony, Officer M.M. denied all of these
allegations.
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STATE v. ALBANO
Decision of the Court
¶9 After deliberating, the jury convicted Albano of one count of
resisting arrest, acquitting her of the remaining four charges. Before her
sentencing hearing, Albano voluntarily admitted to four prior convictions.
The trial court subsequently conducted a sentencing hearing in compliance
with Albano’s constitutional rights and Arizona Rule of Criminal
Procedure 26. The trial court considered Albano’s prior convictions in
aggravating her sentence, and as mitigating circumstances considered that
she had young children requiring care and that she had made efforts to
improve herself while in custody. After concluding that the aggravating
and mitigating factors balanced each other out, the trial court sentenced
Albano to the presumptive term of 3.75 years’ imprisonment with 364 days’
presentence incarceration credit. Albano timely appealed.
DISCUSSION
¶10 We review Albano’s convictions and sentences for
fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628
(1991).
¶11 Counsel for Albano has advised this Court that after a diligent
search of the entire record, he has found no arguable question of law. We
have read and considered counsel’s brief and fully reviewed the record for
reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All
of the proceedings were conducted in compliance with the Arizona Rules
of Criminal Procedure. So far as the record reveals, Albano was represented
by counsel at all stages of the proceedings, and the sentence imposed was
within the statutory limits. We decline to order briefing, and we affirm
Albano’s convictions and sentences.
¶12 Upon the filing of this decision, defense counsel shall inform
Albano of the status of her appeal and of her future options. Defense
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, 684 P.2d 154, 156–57
(1984). Albano shall have 30 days from the date of this decision to proceed,
if she desires, with a pro per motion for reconsideration or a petition for
review.
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STATE v. ALBANO
Decision of the Court
CONCLUSION
¶13 For the foregoing reasons, we affirm.
:ama
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