Calderon-Torres ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ARMANDO CALDERON-TORRES, Appellant.
No. 1 CA-CR 17-0405
FILED 5-1-2018
Appeal from the Superior Court in Maricopa County
No. CR2015-137821-001
The Honorable Virginia L. Richter, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
STATE v. CALDERON-TORRES
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.
J O N E S, Judge:
¶1 Armando Calderon-Torres appeals his convictions and
sentences for two counts of sexual conduct with a minor under fifteen years
of age and two counts of molestation of a child. After searching the entire
record, Calderon-Torres’s defense counsel identified no arguable question
of law that is not frivolous. Therefore, in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense
counsel asked this Court to search the record for fundamental error.
Calderon-Torres was granted an opportunity to file a supplemental brief in
propria persona but did not do so. After reviewing the entire record, we find
no fundamental error. Accordingly, the convictions and sentences are
affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 On three separate occasions between March 2009 and March
2011, when the victim was eleven and twelve years old, Calderon-Torres
masturbated the victim’s penis twice, touched the victim’s penis once, and
made the victim touch Calderon-Torres’s penis once.1 Calderon-Torres was
a close family friend of the victim’s parents and was often left alone with
the victim. The victim disclosed the events to his mother in 2012. When the
victim’s parents confronted Calderon-Torres, he apologized to them, and
then separately to the victim, and the parents did not report the incident to
the police. After the confrontation, Calderon-Torres was still permitted to
come to the house occasionally but was not allowed to be alone with the
victim.
1 “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).
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STATE v. CALDERON-TORRES
Decision of the Court
¶3 A few years later, the victim disclosed the events to a
physician, who then reported it to the police. After Calderon-Torres
refused to disclose details in a confrontation call with the victim’s mother,
he was interviewed at the police station in his native language, Spanish.
After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S.
436, 444 (1966), Calderon-Torres admitted to all four acts. See supra ¶ 2.
¶4 At a five-day trial, the State presented testimony from the
officers involved in the case, the victim, his mother, and a cold expert, who
testified generally about child sexual abuse.2 The State also introduced
English translations of the transcripts of both the confrontation call and
Calderon-Torres’s police interview. After an unsuccessful motion for
judgment of acquittal, the jury convicted Calderon-Torres of two counts of
sexual conduct with a minor under fifteen years of age and two counts of
molestation of a child. For the two counts of sexual conduct with a minor,
the jury made additional findings that the victim was under fifteen years of
age.
¶5 The trial court sentenced Calderon-Torres as a dangerous,
non-repetitive offender to twenty years’ imprisonment for each count of
sexual conduct with a minor (Counts 1 and 3) and seventeen years’
imprisonment for each count of molestation of a child (Counts 2 and 4). The
court ordered Calderon-Torres to serve his sentences for Counts 1 and 4
concurrently, with the remaining sentences consecutive to all other counts.
The court also credited him with 658 days’ presentence incarceration for
Counts 1 and 4. Calderon-Torres timely appealed, and we have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),3 13-4031,
and -4033(A)(1).
DISCUSSION
¶6 Our review of the record reveals no fundamental error. See
Leon, 104 Ariz. at 300 (“An exhaustive search of the record has failed to
produce any prejudicial error.”). A person commits sexual conduct with a
2 “‘Cold’ expert testimony ‘educates the trier of fact about general
principles but is not tied to the particular facts of the case.’” State v. Jacobson,
780 Ariz. Adv. Rep. 4, *2 n.2, ¶ 5 (App. 2017) (quoting State v. Salazar-
Mercado, 234 Ariz. 590, 595, ¶ 21 (2014)).
3 Absent material changes from the relevant date, we cite a statute’s
current version.
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STATE v. CALDERON-TORRES
Decision of the Court
minor by “intentionally or knowingly engaging in sexual intercourse . . .
with any person who is under eighteen years of age.” A.R.S. § 13-1405(A).
“Sexual intercourse,” includes “masturbatory contact with the penis.”
A.R.S. § 13-1401(A)(4). Sexual conduct with a minor who is under fifteen
years of age is a dangerous crime against children. A.R.S. § 13-705(P)(1)(e).
A person commits molestation of a child by “intentionally or knowingly
engaging in or causing a person to engage in sexual contact . . . with a child
who is under fifteen years of age.” A.R.S. § 13-1410(A). The record contains
sufficient evidence upon which the jury could determine beyond a
reasonable doubt that Calderon-Torres was guilty of the charged offenses.
¶7 All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals,
Calderon-Torres was represented by counsel at all stages of the proceedings
and was present at all critical stages including the entire trial and the
verdict. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at
critical stages) (citations omitted); State v. Bohn, 116 Ariz. 500, 503 (1977)
(right to be present at critical stages). Calderon-Torres was provided an
interpreter at all stages of the proceedings. See State v. Rios, 112 Ariz. 143,
145 (1975). The jury was properly comprised of twelve jurors, and the
record shows no evidence of jury misconduct. See Ariz. Const. art. 2, § 23;
A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a). The trial court properly
instructed the jury on the elements of the charged offenses, the State’s
burden of proof, and Calderon-Torres’s presumption of innocence. At
sentencing, Calderon-Torres was given an opportunity to speak, and the
court stated on the record the evidence and materials it considered and the
factors it found in imposing the sentences. See Ariz. R. Crim. P. 26.9, 26.10.
Additionally, the sentences are within the statutory limits.4 See A.R.S. §§ 13-
704(A), -705(C), (D), (M).
4 The trial court erroneously ordered the sentences for Counts 1 and 4
to be served concurrently. See A.R.S. § 13-705(M) (requiring a sentence for
sexual conduct with a minor to run “consecutive to any other sentence
imposed on the person at any time, including child molestation . . . of the
same victim”). However, we lack jurisdiction to correct an illegally lenient
sentence in the absence of a timely appeal or cross-appeal by the State. State
v. Dawson, 164 Ariz. 278, 286 (1990). Moreover, because the error was in
Calderon-Torres’s favor, it is not fundamental. See State v. Henderson, 210
Ariz. 561, 567, ¶¶ 19-20 (2005) (explaining fundamental error is error that
both goes to the foundation of the case and prejudices the defendant).
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STATE v. CALDERON-TORRES
Decision of the Court
CONCLUSION
¶8 Calderon-Torres’s convictions and sentences are affirmed.
¶9 Defense counsel’s obligations pertaining to Calderon-Torres’s
representation in this appeal have ended. Defense counsel need do no more
than inform Calderon-Torres of the outcome of this appeal and his future
options, unless, upon review, counsel finds an issue appropriate for
submission to our supreme court by petition for review. State v. Shattuck,
140 Ariz. 582, 584-85 (1984).
¶10 Calderon-Torres has thirty days from the date of this decision
to proceed, if he wishes, with an in propria persona petition for review. See
Ariz. R. Crim. P. 31.21. Upon the Court’s own motion, we also grant
Calderon-Torres thirty days from the date of this decision to file an in
propria persona motion for reconsideration.
AMY M. WOOD • Clerk of the Court
FILED: AA
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