State v. Cortez ( 2015 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    RONALD GREG CORTEZ, Appellant.
    No. 1 CA-CR 14-0177
    FILED 4-9-2015
    Appeal from the Superior Court in Maricopa County
    No. CR2012-010207-001
    The Honorable Warren J. Granville, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Jeffrey L. Force
    Counsel for Appellant
    STATE v. CORTEZ
    Decision of the Court
    MEMORANDUM DECISION
    Judge Donn Kessler delivered the decision of the Court, in which Presiding
    Judge Jon W. Thompson and Judge Kent E. Cattani joined.
    K E S S L E R, Judge:
    ¶1            Ronald Greg Cortez filed this appeal in accordance with
    Anders v. California, 
    386 U.S. 738
     (1967), and State v. Leon, 
    104 Ariz. 297
    , 
    451 P.2d 878
     (1969), following his conviction of first degree murder, a class one
    dangerous felony. Finding no arguable issues to raise, Cortez’s counsel
    requested that this Court search the record for fundamental error. Cortez
    was given the opportunity to but did not file a pro per supplemental brief.
    For the reasons that follow, we affirm Cortez’s conviction and sentence.
    FACTUAL AND PROCEDURAL HISTORY
    ¶2            In 1996, S.M.’s body was found off of Lower Buckeye Road.
    At the scene, Phoenix police officers collected two cigarette butts, and took
    photographs of several shoe impressions. One set of shoe impressions
    matched the footwear of S.M. Another set matched the impressions left by
    a pair of Nike Air Triax shoes. Detective R.R., a homicide detective at the
    Phoenix Police Department, interviewed several people during his
    investigation, and learned of a rumor that S.M. had been involved in
    robbing a drug dealer named Dan Bittle. R.D.B. told Detective R.R. about
    drugs in the home of Cortez, a suspected associate of Bittle.
    ¶3            Upon obtaining a search warrant, Police searched Cortez’s
    house and found drugs and guns, which Cortez claimed to be his own.
    Additionally, Detective R.R. recovered a pair of Nike Air Max Triax shoes
    in Cortez’s bedroom. After advising Cortez of his Miranda1 rights, Detective
    R.R. questioned him about the murder of S.M. and several of the
    individuals Detective R.R. believed to be involved in her murder. At the
    time, Cortez claimed he knew nothing about S.M.’s murder and had been
    shocked when S.M.’s friend had told him about it.
    ¶4            The investigation did not lead to any charges being filed and
    in 1997, the case was categorized as inactive. In February of 2009, a police
    1   Miranda v. Arizona, 
    384 U.S. 436
     (1966).
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    STATE v. CORTEZ
    Decision of the Court
    detective reviewed the case and submitted the cigarette butts found at the
    scene for DNA analysis.2 The DNA analysis of one of the cigarette butts
    matched S.M. and the other matched Cortez’s record in the DNA database.
    ¶5            Given this match, Detective C.S., a cold case investigator with
    the Phoenix Police Department, interviewed Cortez. After being advised
    of his Miranda rights, Cortez stated that although he had been told what
    had happened to S.M., he was not present during the murder. However,
    when confronted with the DNA evidence that placed him at the scene,
    Cortez stated he had actually been kidnapped at gunpoint along with S.M.
    According to Cortez, Martin Rivera and Jesse Aguilar forced Cortez and
    S.M. into a vehicle and drove them to the crime scene where Rivera and
    Aguilar directed Cortez and S.M. to get out and smoke a cigarette. Cortez
    told Detective C.S. that when he and S.M. were instructed to return to the
    vehicle, Rivera grabbed Cortez and threw him up against the truck while
    Aguilar shot S.M. several times. Cortez claimed he never told anyone about
    the events because he feared for his life.
    ¶6             Cortez was charged with first degree murder and pled not
    guilty. At trial, the State presented two witnesses, R.D.B. and B.P., who
    testified regarding the events leading up to the murder of S.M. According
    to these witnesses, several people were searching for S.M. because they
    believed she was responsible for robbing a drug dealer. Those searching
    for S.M. included Rivera, Aguilar, Bittle, and Cortez, who were involved in
    a small drug operation that transported and sold methamphetamines and
    marijuana. According to the testimony at trial, on the day of her murder,
    S.M. showed up at B.P.’s trailer, where R.D.B. was also present, that S.M.
    planned to make a deal with Rivera to repay him, and that S.M. believed
    some members of the Aryan Brotherhood would supply her with enough
    drugs to do that.
    ¶7            At some point, Cortez was summoned to the trailer to hear
    S.M.’s proposal. Rivera, Aguilar, and Bittle also arrived at the trailer, but
    Bittle was forced to leave. S.M.’s plan was explained to Rivera, and shortly
    thereafter Rivera and Aguilar left the trailer. Thereafter Cortez supplied
    S.M., R.D.B., and B.P. with methamphetamine. After Rivera and Aguilar
    returned, Cortez and S.M. willingly left with them.3 S.M. was murdered
    2 In 1996, DNA analysis was not available to police.
    3 Although the witnesses’ testimony about how S.M. left the trailer conflicts,
    both R.D.B. and B.P. testified that the last time they saw S.M. was when she
    left the trailer and got into a truck with Rivera, Aguilar, and Cortez, who
    appeared to go willingly.
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    STATE v. CORTEZ
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    later that night. Both R.D.B. and B.P. testified that the next time each of
    them spoke to Cortez, Cortez blamed S.M.’s murder on the Aryan
    Brotherhood.
    ¶8           The jury convicted Cortez of first degree murder. The court
    sentenced Cortez to life imprisonment with the possibility of parole after 25
    years, and awarded Cortez 447 days of presentence incarceration credit.
    ¶9            Cortez filed a timely appeal. We have jurisdiction pursuant
    to Article 6, Section 9, of the Arizona Constitution, as well as Arizona
    Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010),
    and -4033(A)(1) (2010).
    STANDARD OF REVIEW
    ¶10            In an Anders appeal, this Court must review the entire record
    for fundamental error. State v. Richardson, 
    175 Ariz. 336
    , 339, 
    857 P.2d 388
    ,
    391 (App. 1993). Fundamental error is “error going to the foundation of the
    case, error that takes from the defendant a right essential to his defense, and
    error of such magnitude that the defendant could not possibly have
    received a fair trial.” State v. Henderson, 
    210 Ariz. 561
    , 567, ¶ 19, 
    115 P.3d 601
    , 607 (2005) (quoting State v. Hunter, 
    142 Ariz. 88
    , 90, 
    688 P.2d 980
    , 982
    (1984)). To obtain a reversal, the defendant must also demonstrate that the
    error caused prejudice. Id. at ¶ 20.
    DISCUSSION
    ¶11            After careful review of the record, we find no grounds for
    reversal of Cortez’s conviction or sentence. The record reflects Cortez had
    a fair trial and all proceedings were conducted in accordance with the
    Arizona Rules of Criminal Procedure. Cortez was present and represented
    by counsel at all critical stages of trial except when his presence was waived,
    was given the opportunity to speak at sentencing, and the sentence
    imposed was within the range for Cortez’s offense.
    I.     Sufficiency of the Evidence
    ¶12           In reviewing the sufficiency of evidence at trial, “[w]e
    construe the evidence in the light most favorable to sustaining the verdict,
    and resolve all reasonable inferences against the defendant.” State v. Greene,
    
    192 Ariz. 431
    , 436, ¶ 12, 
    967 P.2d 106
    , 111 (1998). “Reversible error based
    on insufficiency of the evidence occurs only where there is a complete
    absence of probative facts to support the conviction.” State v. Soto-Fong, 
    187 Ariz. 186
    , 200, 
    928 P.2d 610
    , 624 (1996) (quoting State v. Scott, 
    113 Ariz. 423
    ,
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    STATE v. CORTEZ
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    424-25, 
    555 P.2d 1117
    , 1118-19 (1976)). Given the evidence presented at trial,
    a reasonable fact-finder could have concluded either that Cortez murdered
    S.M. or intentionally aided those who did.
    A.     First Degree Murder
    ¶13            “A person commits first degree murder if . . . [i]ntending or
    knowing that the person’s conduct will cause death, the person causes the
    death of another person . . . with premeditation . . . .” A.R.S. § 13-1105(A)(1)
    (2010).4 DNA evidence, shoe print evidence, and Cortez’s own admission
    place Cortez at the scene of S.M.’s murder. According to the testimony at
    trial, Cortez’s DNA matched the cigarette butt found at the scene and a pair
    of shoes matching the impression left at the scene were found in his home.
    Moreover, the jury heard the recording of Detective C.S.’s interview of
    Cortez wherein he first stated that he was not present at the scene but then,
    after being confronted with the DNA evidence placing him there, claimed
    Rivera and Aguilar kidnapped him and S.M.
    ¶14            Further, the record shows that Cortez actively participated in
    the events leading up to S.M.’s death including that: (1) Cortez, as a member
    of the drug operation, was one of the people looking for S.M. in connection
    with her rumored involvement in the robbery of a drug dealer, (2) Cortez
    was summoned to B.P.’s trailer on the day of S.M.’s murder, along with
    Rivera and Aguilar, (3) Cortez heard S.M.’s plan to pay Rivera back, (4) after
    Rivera and Aguilar left, Cortez supplied S.M., R.D.B., and B.P. with
    methamphetamine, and (5) upon their return, Cortez willingly left with
    Rivera, Aguilar, and S.M. The State established premeditation with such
    evidence, because such action by Cortez demonstrates that he “acted with
    either the intent or knowledge that he [or his associates] would kill [S.M.]
    and that such intent or knowledge preceded the killing by a length of time
    permitting reflection.” State v. Ellison, 
    213 Ariz. 116
    , 134, ¶ 66, 
    140 P.3d 899
    ,
    917 (2006) (internal quotation marks and citation omitted); see also A.R.S. §
    13-1105(A)(1).
    B.     Accomplice Liability
    ¶15          Further, even if Cortez did not pull the trigger of the gun
    which killed S.M., there was sufficient evidence that he was liable for first
    degree murder as an accomplice. Cortez “is criminally accountable for the
    conduct of another if . . . [a]cting with the culpable mental state sufficient
    4 We cite to the current versions of statutes when no changes material to
    this decision have since occurred.
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    STATE v. CORTEZ
    Decision of the Court
    for the commission of the offense, such person causes another person . . . to
    engage in such conduct.“ A.R.S. § 13-303(A)(2) (2010). “If causing a
    particular result is an element of an offense, a person who acts with the kind
    of culpability with respect to the result that is sufficient for the commission
    of the offense is guilty of that offense if . . . [t]he person aids, counsels, agrees
    to aid or attempts to aid another person in planning or engaging in the
    conduct causing such result.” A.R.S. § 13-303(B)(2). Given that the record
    reflects Cortez was present at the scene when S.M. was murdered and that
    Cortez actively participated in the events leading up to S.M.’s death, the
    evidence was sufficient for a reasonable fact-finder to conclude that Cortez
    intentionally acted with premeditation in aiding those who murdered S.M.5
    ¶16           Therefore, in comparing the evidence in the record to the
    elements listed in A.R.S. §§ 13-1105(A)(1) and 13-303(B)(2), we find there
    was sufficient evidence to support Cortez’s conviction for first degree
    murder.
    II.    Presentence Incarceration Credit
    ¶17           Presentence incarceration credit is given for time spent in
    custody beginning on the day of booking, State v. Carnegie, 
    174 Ariz. 452
    ,
    454, 
    850 P.2d 690
    , 692 (App. 1993), and ending on the day before sentencing,
    State v. Hamilton, 
    153 Ariz. 244
    , 246, 
    735 P.2d 854
    , 856 (App. 1987). Here,
    the presentencing report indicated that Cortez had served 446 days of
    presentence incarceration. At sentencing, the trial court gave Cortez credit
    for 447 days. By our calculation, Cortez was incarcerated for 447 days prior
    to sentencing, and thus, was awarded the appropriate credit.
    CONCLUSION
    ¶18           For the foregoing reasons, we affirm Cortez’s conviction and
    sentence. Upon the filing of this decision, defense counsel shall inform
    Cortez of the status of his appeal and his future appellate options. Defense
    5Although Cortez claimed he did not shoot S.M. and that he did not report
    the murder to the police because he feared for his life, this Court has
    declined “to recognize duress as a defense to accomplice liability for
    murder.” Ellison, 
    213 Ariz. at 134, ¶ 69
    , 
    140 P.3d at 917
    ; see also A.R.S. § 13-
    412(C) (2010) (“The defense provided by subsection A is unavailable for
    offenses involving homicide or serious physical injury.”). Further, none of
    the evidence recovered at the scene, nor any of the testimony from
    witnesses, suggests that Cortez was an unwilling participant in the death of
    S.M.
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    STATE v. CORTEZ
    Decision of the Court
    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, 
    684 P.2d 154
    , 156-57
    (1984). Upon the Court’s own motion, Cortez shall have thirty days from
    the date of this decision to proceed, if he so desires, with a pro per motion
    for reconsideration or petition for review.
    :ama
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