State v. Flores ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ABRAHAM ESTRADA FLORES, Appellant.
No. 1 CA-CR 15-0674
FILED 6-9-2016
Appeal from the Superior Court in Yuma County
No. S1400CR201500114
The Honorable Maria Elena Cruz, Judge
AFFIRMED AS CORRECTED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant
Abraham E. Flores, Buckeye
Appellant
STATE v. FLORES
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.
N O R R I S, Judge:
¶1 Abraham Estrada Flores timely appeals from his conviction
and sentence for aggravated assault, a Class 3 dangerous felony. See Ariz.
Rev. Stat. § 13-1204(A)(2) (Supp. 2014). After searching the record on appeal
and finding no arguable question of law that was not frivolous, Flores’
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87
S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d
878 (1969), asking this court to search the record for fundamental error, and
also raising several issues at Flores’ request. This court granted counsel’s
motion to allow Flores to file a supplemental brief in propria persona, and he
did so. We reject the arguments raised in Flores’ counsel’s brief and Flores’
supplemental brief, and, after reviewing the entire record, we find no
fundamental error. Therefore, we affirm Flores’ conviction and sentence as
corrected.
FACTS AND PROCEDURAL BACKGROUND1
¶2 Victim J.C. testified that on January 30, 2015, he was working
at an agricultural farm when he received a call to come help repair a broken
sprinkler pipe. After receiving the call, he and two coworkers, J.C.B. and
J.H.B., met a foreman, C.C., at the location of the broken pipe to start
repairing it. Flores arrived shortly thereafter and began “arguing with
[C.C.] and cursing at him,” calling him “a snitch” and other obscenities
because C.C. had told Flores’ boss about the leaking pipe. Flores repeatedly
challenged C.C. “to hit him,” but C.C. told Flores “he wasn’t getting paid
to fight.” Flores eventually walked to his car, yelled several obscenities to
the whole group, and got in his car.
¶3 J.C. then approached Flores “to ask [Flores] why he was
saying that to [him]” because Flores barely knew him. According to J.C.,
1We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Flores. State
v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
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STATE v. FLORES
Decision of the Court
he “wasn’t approaching [Flores] with the intention of arguing or fighting.”
Flores got out of his car when J.C. approached, so J.C. “turned around to
walk away” and “started ignoring him” to avoid trouble. As he was
walking away, C.C. yelled, “watch out.” J.C. “glanced back and [] got a
glimpse of [Flores] coming at [him] with [a] machete,” and he got “really
scared.” J.C. thought Flores “was going to hit [him] on the head, but”
because he was able to duck down, Flores struck his back with the machete
instead.
¶4 C.C., J.C.B., and J.H.B. testified and described the incident in
similar terms. They also testified that when J.C. was walking away, Flores
got out of his car and retrieved the machete from his trunk. J.C. and the
other witnesses also testified that when J.C. approached the car, J.C. had his
“hands on his back” and did not make any threats to Flores. J.H.B. also
testified that at “no time at all” did Flores appear to be in fear of J.C.
¶5 An eight-member jury found Flores guilty of aggravated
assault, a dangerous offense. The superior court sentenced Flores to a
mitigated term of five years’ imprisonment with 38 days of pre-sentence
incarceration credit.
DISCUSSION
I. Supplemental Brief and Anders Brief Arguments
¶6 As we construe his supplemental brief and the arguments he
asked his counsel to raise in the Anders brief, Flores first argues the facts
supported his claim of self-defense. We reject this argument. We must not
“take the case away from the jury” by reviewing the record for evidence
supporting a conclusion or inference different from the resulting decision.
Flanders v. Maricopa Cty., 203 Ariz. 368, 371, ¶ 5, 54 P.3d 837, 840 (App. 2002).
“Courts are not free to reweigh the evidence and set aside the jury verdict
merely because the jury could have drawn different inferences or
conclusions or because judges feel that other results are more reasonable.”
Id. As the finder of fact, the jury rejected Flores’ self-defense claim. We do
not reweigh the evidence presented at trial to reach an opposite conclusion.
¶7 Flores next argues his conviction was not supported by
sufficient evidence. Based on our review of the record, however, the State
presented sufficient evidence supporting Flores’ conviction, see supra ¶¶ 2-
4, and any inconsistencies or weaknesses in the evidence merely went to the
weight of the evidence. See State v. Erivez, 236 Ariz. 472, 476, ¶ 16, 341 P.3d
514, 518 (App. 2015).
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STATE v. FLORES
Decision of the Court
¶8 Flores next argues three witnesses, C.C., J.C.B., and J.H.B.,
gave perjured and biased testimony and coordinated their initial witness
statements to police. The record does not support these arguments.
¶9 Flores next argues the trial was unfair and he was the victim
of a conspiracy among the trial judge, the prosecutor, and his lawyer to see
him convicted (“unfair trial argument”). In support of his unfair trial
argument, he asserts his counsel never provided him paperwork
confirming he wanted to go to trial; the prosecutor and judge repeatedly
got his last name wrong; J.C. lied at the conditions of release hearing; the
day after giving evidence, J.C., J.C.B., and J.H.B. celebrated with a box of
doughnuts because J.C.B. and J.H.B. had supported J.C. with their
testimony; the superior court required Flores to go to trial, but denied him
the opportunity to present other witnesses; and he was the victim of racism
because he is Mexican and does not speak English. The record does not
support these arguments. Furthermore, a trial judge is presumed to be
unbiased, State v. Henry, 189 Ariz. 542, 546, 944 P.2d 57, 61 (1997), and
rebutting this presumption requires a party to prove bias or prejudice by a
preponderance of the evidence. State v. Hurley, 197 Ariz. 400, 404-05, ¶ 24,
4 P.3d 455, 459-60 (App. 2000). Flores has not submitted any evidence to
rebut the presumption.
¶10 Flores raises several other arguments in further support of his
unfair trial argument. First, he points out he was never offered a plea
agreement. The State, however, is not required to offer a plea agreement.
See Ariz. R. Crim. P. 17.4(a). Second, he asserts the superior court did not
permit him to offer evidence that J.C. had been fired from his previous
employment for fighting his boss. Based on our review of the record,
however, the superior court did not abuse its discretion in excluding
evidence that J.C. had been fired from his previous job for fighting with his
boss. The evidence was only marginally relevant, at best, and could be
misleading or confusing to the jury. See Ariz. R. Evid. 403. Third, he argues
the superior court should not have limited him to presenting evidence of
J.C.’s prior aggressive acts to only the single act Flores knew about before
the incident in this case—J.C. fighting his prior boss. In Arizona, “a
defendant may not introduce evidence of specific acts unknown to the
defendant at the time of the alleged crime to show that the victim was the
initial aggressor.” State v. Fish, 222 Ariz. 109, 121, ¶ 35, 213 P.3d 258, 270
(App. 2009). “Accordingly, the superior court properly excluded the
specific act evidence” unknown to Flores for the purpose of showing J.C.
was the initial aggressor. Id.; see Ariz. R. Evid. 404(a)(2), 405.
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STATE v. FLORES
Decision of the Court
¶11 Flores also argues his trial counsel was ineffective. This court
will not consider claims of ineffective assistance of counsel on direct appeal.
State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (ineffective
assistance of counsel claims must be raised in Arizona Rule of Criminal
Procedure 32 proceedings).
¶12 Finally, Flores argues his sentence was excessive. If a
sentence is within the permissible statutory limits, we will not modify or
reduce it unless it is clearly excessive. See State v. Gillies, 142 Ariz. 564, 573,
691 P.2d 655, 664 (1984). The record does not support Flores’ contention
that his sentence was clearly excessive. See generally State v. Vermuele, 226
Ariz. 399, 403, ¶ 15, 249 P.3d 1099, 1103 (App. 2011) (appropriate sentence
within statutory range rests in trial court's discretion; abuse of discretion
characterized by failure to consider factors relevant to imposing sentence).
Flores received a mitigated sentence—the minimum sentence allowed
under the statute. His sentence was within the prescribed statutory range
and was imposed lawfully.
II. Anders Review
¶13 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Flores received a fair
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.
¶14 As discussed, the evidence presented at trial was substantial
and supports the verdict. The jury was properly comprised of eight
members, and the court properly instructed the jury on the elements of the
charge, Flores’ presumption of innocence, the State’s burden of proof, and
the necessity of a unanimous verdict. The superior court received and
considered a presentence report, Flores was given an opportunity to speak
at sentencing and did so, and, as discussed, his sentence was within the
range of acceptable sentences for his offense.
¶15 We note, however, the judgment and sentence of
imprisonment incorrectly states the superior court imposed a presumptive
sentence, when in fact the court imposed a mitigated sentence. We
therefore correct the superior court’s judgment and sentence of
imprisonment to reflect the superior court imposed a mitigated sentence.
CONCLUSION
¶16 We decline to order briefing and affirm Flores’ conviction and
sentence as corrected.
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STATE v. FLORES
Decision of the Court
¶17 After the filing of this decision, defense counsel’s obligations
pertaining to Flores’ representation in this appeal have ended. Defense
counsel need do no more than inform Flores of the outcome of this appeal
and his future options, unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶18 Flores has 30 days from the date of this decision to proceed, if
he wishes, with an in propria persona petition for review. On the court’s own
motion, we also grant Flores 30 days from the date of this decision to file an
in propria persona motion for reconsideration.
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