State v. Santos ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
NOEL REY SANTOS, Appellant.
No. 1 CA-CR 19-0170
FILED 1-5-2021
Appeal from the Superior Court in Maricopa County
No. CR 2018-001578-001
The Honorable Kathleen H. Mead, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Ortega v. Ortega PLLC, Phoenix
By Alane M. Ortega
Counsel for Appellant
STATE v. SANTOS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann
joined.
C A M P B E L L, Judge:
¶1 Noel Santos appeals from his convictions and sentences for
aggravated assault. After searching the record on appeal and finding no
arguable question of law, Santos’ counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969), asking this court to search the record for reversible error. Santos was
given the opportunity to file a supplemental brief but has not done so.
Having reviewed the entire record, see State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999), we find no reversible error and affirm as modified.
¶2 Before approaching Santos’ residence to execute a “no-knock”
search warrant, police officers secured the perimeter of the property. Once
they were in position, a “point” officer approached the front door and
yelled, “[P]olice. Search warrant.”
¶3 With that announcement, officers began using tools to breach
the windows and front door of the house. Amidst the sound of breaking
glass, multiple officers heard a gunshot from within and two officers were
struck by metal fragments from the steel frame of the front security door.
At that point, to ensure their safety, the officers took cover behind their
vehicles.
¶4 Moments later, Santos emerged from the back door and
climbed over a backyard wall. Once he cleared the wall, Santos crouched
low to evade detection, but with the help of a canine unit, officers
apprehended and arrested him.
¶5 After taking him into custody, a police officer tested Santos’
hands for gun-shot residue. The test results revealed that Santos had gun-
shot residue on both of his hands, though police officers never found a
weapon in this house or yard.
¶6 The State charged Santos with five counts of aggravated
assault (using a handgun to place five officers in reasonable apprehension
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STATE v. SANTOS
Decision of the Court
of imminent physical injury).1 The State also alleged aggravating factors
and that Santos both had historical prior felony convictions and committed
the current offenses while on release.
¶7 At trial, Santos’ girlfriend testified that she saw him carrying
a holstered handgun the day police officers arrived at their home. She also
stated that she heard two shots fired from inside the house and claimed the
sound of the gunshots was distinct from the contemporaneous sounds of
banging and breaking glass. In addition, another of Santos’ roommates
testified that she yelled at Santos when she initially heard loud noises on
the day of the police raid, mistakenly believing he was the cause, and he
responded that it was not him, but the police.
¶8 After an eight-day trial, a jury unanimously found Santos
guilty as charged. For each offense, the jurors also found three aggravating
factors―multiple victims, Santos poses an ongoing danger to society, and
Santos committed the offenses while on felony probation. After finding
numerous prior felony convictions, the superior court sentenced Santos to
concurrent, aggravated terms of 20 years’ imprisonment on each count.
Among other fines and orders, the court ordered Santos to submit to DNA
testing and pay the associated cost.
¶9 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects that Santos was
represented by counsel at all critical stages of the proceedings against him.
The evidence presented supports the convictions, and the sentences
imposed fall within the range permitted by law. As far as the record reveals,
these proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure and Santos’ constitutional and statutory rights.
Therefore, we affirm Santos’ convictions and sentences. However, because
there is no statutory basis to assess the cost of DNA testing to a defendant,
we vacate the portion of the sentencing order requiring Santos to pay for
his DNA testing. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14 (App. 2013).
¶10 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, her obligations are
fulfilled once she informs Santos of the outcome of this appeal and his
future options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Santos has 30
1 The State also charged Santos with one count of misconduct
involving weapons, but that count was later dismissed without prejudice
on the State’s motion.
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STATE v. SANTOS
Decision of the Court
days from the date of this decision to proceed, if he wishes, with a pro per
motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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