State v. Larrazolo ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GUILLERMO LARRAZOLO, Appellant.
No. 1 CA-CR 21-0149
FILED 3-15-2022
Appeal from the Superior Court in Yavapai County
No. V1300CR201980107
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Diane L. Hunt
Counsel for Appellee
Countryman Law, Tempe
By Kenneth Countryman
Counsel for Appellant
STATE v. LARRAZOLO
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.
W I L L I A M S, Judge:
¶1 Guillermo Larrazolo appeals his convictions and sentences
for disorderly conduct, aggravated assault, and two counts of aggravated
domestic violence. For the following reasons, we affirm.
FACTUAL1 AND PROCEDURAL HISTORY
¶2 Late one January 2019 evening, Larrazolo and Jenny2 got into
an altercation. It wasn’t the first time the couple, who have a child together,
had physically fought during their on-again/off-again relationship that
spanned more than a decade.
¶3 After their first argument that evening, the two left separately
from Jenny’s mother’s home, where they lived. Jenny visited with her
friend Sheila3 and drank “two shots” of “Fireball.” Larrazolo also visited a
friend and consumed alcohol before returning home. When Larrazolo
arrived home, Jenny and Sheila were already there.
¶4 Larrazolo and Jenny again began to argue, this time while
Larrazolo attempted to pack his clothes and leave for a second time. At
some point, Larrazolo took Jenny’s cell phone and threw it. Jenny hit him
in response. A “scuffle” ensued. Larrazolo hit Jenny multiple times,
bloodied her nose, and “choke slammed” her onto the bed. Sheila tried to
intervene but Larrazolo “pushed [her] out of the way and hit [Jenny] some
more.” During the melee, Jenny bit Larrazolo’s thumb, causing it to bleed.
Before police arrived, Larrazolo left the home.
1 We view the evidence in the light most favorable to upholding the
verdicts. State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015).
2 “Jenny” is a pseudonym used to protect the victim’s privacy.
3 “Sheila” is a pseudonym used to protect the victim’s privacy.
2
STATE v. LARRAZOLO
Decision of the Court
¶5 Jenny was seen by a forensic nurse examiner who observed
scrapes and/or bruising to Jenny’s jaw, face, arm, and thigh, and “torn”
skin behind one ear. Jenny had two areas of broken blood vessels on her
neck, which the nurse examiner opined was the result of “a significant
amount of force . . . for those injuries to be visible at all.” Larrazolo suffered
scratches to his chest and a cut to his thumb.
¶6 The State charged Larrazolo with three felony domestic
violence offenses for his conduct against Jenny, including aggravated
assault, a Class 4 felony (Count 1), and two counts of aggravated domestic
violence, Class 5 felonies (Counts 2 and 3). The State also charged Larrazolo
with two misdemeanors for his conduct against Sheila, including disorderly
conduct, a Class 1 misdemeanor (Count 4), and assault, a Class 3
misdemeanor (Count 5).
¶7 Before trial, the State alleged Larrazolo had eight prior felony
convictions. After an Arizona Rule of Evidence 609 hearing, the trial court
ordered the convictions sanitized and allowed the State to impeach
Larrazolo with the prior convictions should he testify at trial.
¶8 At trial, Larrazolo’s former probation officer testified
Larrazolo had at least two domestic violence convictions – a felony from
2012 and misdemeanors from 2016. Larrazolo also testified, confirmed
those convictions, and admitted to having three felony convictions from
2009, two from 2011, and three from 2014.
¶9 At the conclusion of trial, Larrazolo asked the court to provide
a self-defense jury instruction (a defense he had not raised before trial). The
court refused. The jury found Larrazolo guilty as charged on the felony
counts. As for the misdemeanors, the court found him guilty of Count 4,
but not guilty of Count 5.
¶10 The court then held a trial on Larrazolo’s prior convictions
and found the State had proven by clear and convincing evidence Larrazolo
had at least three prior felony convictions from 2014. The court sentenced
Larrazolo as a category three repetitive offender to the presumptive term of
imprisonment on each felony count – ten years for Count 1, and five years
for Counts 2 and 3 – with all sentences running concurrently. See A.R.S.
§ 13-703(C), (J). The court sentenced Larrazolo to time already served on
Count 4.
¶11 This appeal followed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).
3
STATE v. LARRAZOLO
Decision of the Court
DISCUSSION
I. Reference to prior felony convictions under Rule 609
¶12 Larrazolo contends the trial court erred by allowing the State
to impeach him with his eight prior felony convictions at trial. But Larrazolo
never objected to the State’s use of his prior felony convictions before or
during trial, and only raises it now for the first time on appeal. Our review,
therefore, is limited to fundamental prejudicial error. See State v. Henderson,
210 Ariz. 561, 567, ¶¶ 19-20 (2005).
¶13 Generally, when a defendant testifies at trial, the State may
attack the defendant’s character for truthfulness by introducing evidence of
the defendant’s prior felony convictions so long as “the probative value of
the evidence outweighs its prejudicial effect to th[e] defendant.” Ariz. R.
Evid. 609(a)(1)(B).
¶14 Larrazolo does not argue that his eight prior felony
convictions were not independently admissible under Rule 609, rather, he
argues that allowing reference to all eight of his convictions in the aggregate
constituted an abuse of discretion. The trial court’s admission of prior
convictions for impeachment purposes is discretionary, State v. King, 110
Ariz. 36, 39 (1973), and Larrazolo provides no legal support that there is a
limit on the number of prior convictions a trial court may allow. The court
properly made the required balancing finding and concluded that “the
probative value of admitting the evidence of the . . . prior convictions
outweigh[ed] any prejudicial effect.” See Ariz. R. Evid. 609(a)(1)(B). Further,
the court sanitized the prior convictions and Arizona case law “has
consistently approved of sanitization as a means of limiting prejudicial
effect.” State v. Montano, 204 Ariz. 413, 426, ¶ 66 (2003). Larrazolo has shown
no error, fundamental or otherwise.
II. Prior misdemeanor domestic violence convictions admitted as substantive
evidence
¶15 Larrazolo also contends the State improperly impeached him
with evidence of his prior misdemeanor domestic violence convictions.
¶16 Rule 609(a)(2) allows for the admission of a prior
misdemeanor conviction “only if the conviction is for an offense which
involved an element of deceit or falsification.” State v. Malloy, 131 Ariz. 125,
128-29 (1981). Larrazolo’s misdemeanor convictions did not involve deceit
or falsification. However, the prior misdemeanor convictions were not
4
STATE v. LARRAZOLO
Decision of the Court
admitted for impeachment purposes, but rather as a substantive element of
both aggravated domestic violence charges (Counts 2 and 3).
¶17 A person is guilty of aggravated domestic violence if he
“within a period of eighty-four months commits a third or subsequent
violation of domestic violence offense or is convicted of a violation of a
domestic violence offense and has previously been convicted of any
combination of convictions of a domestic violence offense or acts in another
state.” A.R.S. § 13-3601.02(A). “The dates of the commission of the offenses
are the determining factor in applying the eighty-four month
provision . . . .” A.R.S. § 13-3601.02(D). Because the offense commission
dates are elements of the charged offense, the jury must hear the evidence
“to decide a defendant’s guilt.” State v. Newnom, 208 Ariz. 507, 508, ¶¶ 4-5
(App. 2004).
¶18 Larrazolo’s former probation officer testified Larrazolo was
convicted of a prior domestic violence felony from 2012 and prior domestic
violence misdemeanors from October 2016. Testimony of those convictions
was elicited as substantive evidence to prove Larrazolo had committed two
or more domestic violence offenses within eighty-four months of Counts 2
and 3. See A.R.S. § 13-3601.02(A), (D). The trial court did not err in allowing
the State to introduce this evidence.
III. Self-Defense Jury Instruction
¶19 Larrazolo’s final challenge stems from the trial court’s refusal
to provide a self-defense justification jury instruction under A.R.S. § 13-404.
“We review a trial court’s refusal to instruct on self-defense for an abuse of
discretion, viewing the evidence in the light most favorable to the
defendant.” State v. Carson, 243 Ariz. 463, 467, ¶ 17 (2018).
¶20 “[A] person is justified in threatening or using physical force
against another when and to the extent a reasonable person would believe
that physical force is immediately necessary to protect himself against the
other’s use or attempted use of unlawful physical force.” A.R.S. § 13-404(A).
A defendant “is entitled to a self-defense instruction if the record contains
the ‘slightest evidence’ that he acted in self defense.” State v. King, 225 Ariz.
87, 90, ¶ 14 (2010). However, a defendant “must provide written notice to
the State specifying all defenses the defendant intends to assert at trial,
including . . . self-defense,” no later than “40 days after arraignment, or 10
days after the State’s disclosure . . . whichever occurs first.” Ariz. R. Crim.
P. 15.2(b)(1), (d)(1).
5
STATE v. LARRAZOLO
Decision of the Court
¶21 Though Larrazolo asked the trial court to provide a
justification jury instruction at the end of trial, he had never previously
raised justification as a defense. Because Larrazolo did not timely disclose
the defense he sought a jury instruction for, the trial court did not err in
refusing to provide the jury with the instruction.
CONCLUSION
¶22 For the foregoing reasons, we affirm Larrazolo’s convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
6