State v. Hernandez ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LORENZO HERNANDEZ, III, Appellant.
No. 1 CA-CR 15-0291
FILED 6-30-2016
Appeal from the Superior Court in Mohave County
No. S8015CR201400587
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. HERNANDEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.
C A T T A N I, Judge:
¶1 Lorenzo Hernandez III appeals his convictions and sentences
for aggravated assault, disorderly conduct, misconduct involving weapons,
possession of marijuana, and child abuse. Hernandez’s counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), certifying that, after a diligent search of the record, she
found no arguable question of law that was not frivolous. Hernandez was
given the opportunity to file a supplemental brief, but did not do so.
Counsel asks this court to search the record for reversible error. See State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we
affirm Hernandez’s convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 One morning in April 2014, Hernandez and his wife were
arguing in their bedroom. When his wife left the room, Hernandez told her
“[she]’d regret it” if she did not come back. His wife instead joined their
17-year-old daughter in the living room, and both of them heard the sound
of Hernandez cocking a gun.
¶3 Hernandez saw his wife and daughter leave the residence,
and he went outside and fired one shot as they drove away. Hernandez’s
wife and daughter called 9-1-1.
¶4 After speaking to Hernandez’s wife and daughter, Mohave
County Sheriff’s deputies found Hernandez sitting at home on the porch
steps. A deputy read Hernandez his Miranda rights, and while frisking him
for weapons, found a small canister containing marijuana. Hernandez
admitted that the marijuana was his.
¶5 With Hernandez’s wife’s consent, the deputies searched the
home. The deputies did not find the gun Hernandez had fired earlier that
day, but they found a pistol and a sawed-off shotgun with an eight-inch
barrel. Although Hernandez had previously denied having any weapons
in the house, he admitted the guns were his.
2
STATE v. HERNANDEZ
Decision of the Court
¶6 Hernandez was arrested and charged with aggravated
assault, disorderly conduct, and child abuse (all alleged as dangerous,
domestic violence offenses), as well as misconduct involving weapons and
possession of marijuana. After a two-day trial, a jury found Hernandez
guilty of a lesser-included child abuse offense (reckless rather than
intentional/knowing), and found him guilty as charged in all other
respects. The superior court found multiple mitigating circumstances and
sentenced Hernandez to concurrent, mitigated terms of imprisonment, the
longest of which is five years, with credit for 359 days of presentence
incarceration. Hernandez timely appealed.
DISCUSSION
¶7 We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none.
¶8 Hernandez was present and represented by counsel at all
critical stages of the proceedings against him. The record reflects that the
superior court afforded Hernandez all of his constitutional and statutory
rights, and that the proceedings were conducted in accordance with the
Arizona Rules of Criminal Procedure. The court conducted appropriate
pretrial hearings, and the evidence presented at trial and summarized
above was sufficient to support the jury’s verdicts. Hernandez’s sentences
fall within the range prescribed by law, with proper credit given for
presentence incarceration.
¶9 We note that, through an apparent oversight and without
objection from either party, the superior court did not give the standard
presumption of innocence jury instruction. But, the court informed the jury
of the presumption of innocence during voir dire, and instructed the jury
on the State’s burden to prove guilt beyond a reasonable doubt, and that
Hernandez was not required to testify or present evidence of any kind.
Although a defendant is entitled to a presumption of innocence instruction,
under the circumstances here (including the lack of objection, other
instructions provided, and overwhelming evidence of guilt) the failure to
instruct was not fundamental, prejudicial error. See Kentucky v. Whorton,
441 U.S. 786, 789 (1979); State v. White, 160 Ariz. 24, 31–32 (1989); see also
State v. Johnson, 173 Ariz. 274, 276 (1992).
CONCLUSION
¶10 Hernandez’s convictions and sentences are affirmed. After
the filing of this decision, defense counsel’s obligations pertaining to
3
STATE v. HERNANDEZ
Decision of the Court
Hernandez’s representation in this appeal will end after informing
Hernandez of his future options, unless counsel’s review reveals an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Hernandez will
be given 30 days from the date of this decision to proceed, if he desires, with
a pro se motion for reconsideration or petition for review.
:AA
4