State v. Pacheco ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MANUEL PACHECO, Appellant.
No. 1 CA-CR 16-0905
FILED 12-28-2017
Appeal from the Superior Court in Maricopa County
No. CR2014-155711-001 DT
The Honorable Margaret M. Mahoney, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Kerri L. Chamberlin
Counsel for Appellant
STATE v. PACHECO
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.
C R U Z, 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 Manuel
Pacheco has advised this Court that counsel found no arguable questions
of law and asks us to search the record for fundamental error. Pacheco was
convicted of first-degree murder; Arizona Revised Statute (“A.R.S.”)
section 13-1105(A)(1). Pacheco was given an opportunity to file a
supplemental brief in propria persona; he has not done so. After reviewing
the record, we affirm Pacheco’s conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Pacheco. See State
v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 In mid-November 2014, Pacheco came to believe that his
cousin, the victim, had inappropriately touched his mentally challenged
older brother, Jose. Pacheco searched for and found his father’s gun, with
a plan to kill the victim. On November 23, Pacheco biked to Los Olivos Car
Wash where the victim worked, walked up to the victim, and shot and
killed him. Witnesses described Pacheco’s demeanor as determined, but
otherwise calm. After shooting his cousin, Pacheco told witnesses to call
the police, walked towards Central, and sat waiting until the police arrived.
Pacheco waved down police, stated he shot the victim, and was arrested; a
gun was found by him. Pacheco was interviewed and admitted he shot the
victim. Pacheco was indicted on one count of first-degree murder.
¶4 At trial, the victim’s coworkers and witnesses testified,
identifying Pacheco as the shooter. Shell casings and bullet fragments
recovered at the scene matched the gun and magazine found by Pacheco at
the time of his arrest. Bullet fragments recovered from the victim’s body
also matched the type of gun, although the examiner could not match the
fragments with the gun due to their condition. Pacheco presented a defense
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STATE v. PACHECO
Decision of the Court
that he shot the victim as justification. Pacheco’s relatives testified that
Pacheco shot the victim because the victim had sexually touched Pacheco’s
mentally challenged older brother, Jose. The detective who interviewed
Jose stated that Jose never indicated he was touched inappropriately, and
Pacheco’s mother testified that she never saw anything inappropriate
between the victim and Jose. The interviewing detective testified that
Pacheco stated he could read minds, and that was how he determined the
victim had inappropriately touched Jose. Jose testified that the morning of
the incident, he had a conversation with Pacheco in his room before Pacheco
left and that Pacheco told Jose he was going to shoot the victim. Due to his
mental state, Jose had trouble testifying, but did reference that the victim
would touch him inappropriately, although Jose also said that he believed
if he said that the victim touched him then Pacheco would be able to go
home. The jury was presented verdict forms for first-degree murder,
second-degree, and manslaughter. At the close of trial, the jury returned a
verdict of guilty as to first-degree murder.
¶5 The superior court conducted the sentencing hearing in
compliance with Pacheco’s constitutional rights and Arizona Rule of
Criminal Procedure 26. The State submitted the following aggravating
factors: that the offense involved a deadly weapon; the offense caused
physical, emotional, or financial harm to the victim or his family; the offense
involved lying in wait; and the offense involved domestic violence; all of
which were found to be proven by the jury. Although the court recognized
mitigating factors, the court properly sentenced Pacheco for natural life
pursuant to A.R.S. § 13-752(A). Pacheco timely appealed.
DISCUSSION
¶6 We review Pacheco’s conviction and sentence for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Counsel for Pacheco 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
Pacheco at all stages of the proceedings, and the sentence imposed was
within the statutory guidelines. We decline to order briefing and affirm
Pacheco’s conviction and sentence.
¶7 Upon the filing of this decision, defense counsel shall inform
Pacheco of the status of the appeal and of his future options. Counsel has
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STATE v. PACHECO
Decision of the Court
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). Pacheco 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
¶8 For the foregoing reasons, we affirm Pacheco’s conviction and
sentence.
AMY M. WOOD • Clerk of the Court
FILED: JT
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