State v. Gonzalez-Aguayo ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JUAN RAMON GONZALEZ-AGUAYO, Appellant.
No. 1 CA-CR 18-0339
FILED 3-21-2019
Appeal from the Superior Court in Maricopa County
No. CR2016-150907-001
The Honorable Richard L. Nothwehr, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Heath Law Firm PLLC, Mesa
By Mark Heath
Counsel for Appellant
STATE v. GONZALEZ-AGUAYO
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell 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 (1969). Counsel for Juan
Ramon Gonzalez-Aguayo has advised this Court that counsel found no
arguable questions of law and asks us to search the record for fundamental
error. Gonzalez-Aguayo was convicted of aggravated assault, a class 3
dangerous felony. Gonzalez-Aguayo was given an opportunity to file a
supplemental brief in propria persona; he has not done so. After reviewing
the record, we affirm Gonzalez-Aguayo’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Gonzalez-Aguayo.
See State v. Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). One evening in October
2016, R.C.’s mother asked him to go to a grocery store. As R.C. walked to
his car, he saw two men approaching him, including his neighbor
Gonzalez-Aguayo. Gonzalez-Aguayo started to yell at R.C. and pulled out
a black handgun. Gonzalez-Aguayo racked the handgun, pointed the
handgun at R.C., and threatened to kill R.C.
¶3 Because of the commotion, people started to come out of their
homes. As a result, Gonzalez-Aguayo handed the handgun to his friend,
who placed the handgun underneath his waistband. Gonzalez-Aguayo and
his friend then walked back to Gonzalez-Aguayo’s house. On their way
back, the friend placed the handgun behind a fence at the house.
¶4 Phoenix Police Department Officer Andrew Crotty and his
partner Lorraine Fernandez responded to the area after receiving a call
about a fight and that a male had a handgun. After learning that the
handgun had been placed by the fence, Officer Crotty searched the fence
and adjacent areas. He did not find the handgun, however. The officers then
arrested Gonzalez-Aguayo.
2
STATE v. GONZALEZ-AGUAYO
Decision of the Court
¶5 The State charged Gonzalez-Aguayo with one count of
aggravated assault, a class 3 dangerous felony. A settlement conference was
held in February 2018, but the parties did not reach an agreement. Because
the record was not clear if the advisement at the settlement conference was
accurate, the State extended an offer to Gonzalez-Aguayo before trial,
which he rejected. Also, the State moved before trial to amend the
indictment to include “BB gun” in addition to “handgun.” The State argued
that in an interview with Officer Crotty, Gonzalez-Aguayo initially denied
using a handgun, but he later admitted to having a BB gun but said he never
pointed it at R.C. Believing that Gonzalez-Aguayo would attempt to
introduce these self-serving hearsay statements without testifying, the State
moved to preclude them. The court did not rule on the requested
amendment, but it did grant the State’s request to preclude self-serving
statements in the State’s case-in-chief.
¶6 At trial, R.C. testified that Gonzalez-Aguayo had approached
him, racked a handgun, pointed the handgun at him, and threatened to kill
him. He also testified that he was scared because he thought his life was in
danger. Further, R.C. stated that he believed the handgun was “real”
because he was familiar with firearms; he had taken a course at a shooting
range that required using a variety of guns, including handguns, shotguns,
and rifles. R.C.’s friend E.B. testified that he followed R.C. out of the house
and saw Gonzalez-Aguayo rack the handgun and point it at R.C. He then
testified that he called another friend, J.B., to come outside at that point. J.B.
testified that as he exited the house, he saw Gonzalez-Aguayo give the
handgun to Gonzalez-Aguayo’s friend. Both officers testified that R.C.
appeared upset and was shaking when they interviewed him. The State did
not present any evidence regarding Gonzalez-Aguayo’s self-serving
statements, and Gonzalez-Aguayo declined to present any evidence at trial.
The jury found Gonzalez-Aguayo guilty of aggravated assault. The jury
also found that the offense was “dangerous” and that R.C. suffered
emotional harm, which were aggravating factors.
¶7 The trial court conducted the sentencing hearing in
compliance with Gonzalez-Aguayo’s constitutional rights and Arizona
Rule of Criminal Procedure 26. The court noted that Gonzalez-Aguayo’s
limited criminal history and age were mitigating factors. The court
sentenced Gonzalez-Aguayo to a minimum five years’ imprisonment and
awarded him with 76 days of presentence incarceration credit.
3
STATE v. GONZALEZ-AGUAYO
Decision of the Court
DISCUSSION
¶8 We review Gonzalez-Aguayo’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512 ¶ 12 (App. 2011).
Counsel for Gonzalez-Aguayo has advised this Court that after a diligent
search of the entire record, counsel 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, and find none. All of the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. So far as the record reveals, counsel represented
Gonzalez-Aguayo at all stages of the proceedings, and the sentence
imposed was within the statutory guidelines. We decline to order briefing
and affirm Gonzalez-Aguayo’s conviction and sentence.
¶9 Upon the filing of this decision, defense counsel shall inform
Gonzalez-Aguayo of the status of the appeal and of 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).
Gonzalez-Aguayo 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.
CONCLUSION
¶10 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
4