                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                       JODON MARTINEZ, Appellant.

                             No. 1 CA-CR 17-0068
                             No. 1 CA-CR 17-0393
                               (Consolidated)
                               FILED 8-30-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-131399-001
                The Honorable Michael W. Kemp, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
                          STATE v. MARTINEZ
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Maria Elena Cruz joined.


C A T T A N I, Judge:

¶1            Jodon Martinez appeals his convictions and sentences for
second-degree murder, attempt to commit second-degree murder,
aggravated assault, and unlawful discharge of a firearm. He argues the
superior court erred by sentencing him—a juvenile when he committed the
offenses—to a total of 38 years in prison. He further argues that the court
incorrectly instructed the jury that his punishment was within the judge’s
sole discretion, and that his due process rights were violated when the court
allowed a victim’s family member to present what Martinez claims was an
unduly prejudicial video at sentencing. For reasons that follow, we affirm
Martinez’s convictions and sentences.

                FACTS AND PROCEDURAL HISTORY

¶2          Martinez was 17 years old when he fired a handgun
numerous times at people in a park. The gunfire killed D.S. and injured
M.W.

¶3            Martinez was charged as an adult, and a jury found him
guilty of the crimes listed above. The superior court sentenced him to a
total of 38 years’ imprisonment: consecutive terms of 20 years for second-
degree murder, 10.5 years for attempted second-degree murder, and 7.5
years for aggravated assault, as well as a concurrent term of 2.25 years for
unlawful discharge of a firearm.

¶4          Martinez timely appealed his convictions and sentences, and
we have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-
4033(A).

                              DISCUSSION

I.    Cruel and Unusual Punishment.

¶5           Martinez argues that his 38-year prison sentence violates his
rights under the Eighth Amendment to the United States Constitution,


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                           Decision of the Court

which prohibits the imposition of cruel and unusual punishments. U.S.
Const. amend. VIII. He argues that his sentence is the functional equivalent
of life without parole and is thus improper under Miller v. Alabama, 567 U.S.
460, 465 (2012), which held that a mandatory life sentence without the
possibility of parole imposed on a person who was a juvenile at the time of
the offense violates the Eighth Amendment. Because Martinez failed to
object to the sentences, we review only for fundamental, prejudicial error.
State v. Henderson, 210 Ariz. 561, 567–68, ¶¶ 19–20 (2005).

¶6             Martinez has not shown error in sentencing, fundamental or
otherwise. The Eighth Amendment case law on which Martinez relies does
not apply to a juvenile serving consecutive term-of-years sentences. See
State v. Kasic, 228 Ariz. 228, 232–34, ¶¶ 20, 26 (App. 2011) (noting that
“different considerations apply to consecutive term-of-years sentences
based on multiple counts and multiple victims”). And all of the relevant
United States Supreme Court cases finding Eighth Amendment concerns in
this context involve juvenile offenders sentenced to life in prison without
the possibility of parole or other early release, and all addressed life without
parole for a single offense. See Graham v. Florida, 560 U.S. 48, 63 (2010);
Miller, 567 U.S. at 465, 468–69. Here, in contrast, Martinez was not
sentenced to life without parole; he was sentenced to consecutive prison
terms totaling 38 years. And that total term of years represented multiple
sentences for multiple offenses committed against multiple victims. Thus,
Martinez’s reliance on Miller and Graham is unavailing.

¶7            Martinez cites multiple cases from other jurisdictions that
have concluded that a term-of-years sentence can be functionally
equivalent to a sentence of life without parole. But most of those cases
involved sentences longer than 85 years.1 The shortest sentence found to
be the functional equivalent of life without parole was 45 years. Bear Cloud
v. State, 334 P.3d 132, 136, 141–42 (Wyo. 2014). Martinez’s sentence is
significantly shorter; he is eligible for release after serving 35.3 years,
because he earns one day of “earned release credit” for every six days
served for the attempted second-degree murder and the aggravated assault

1      See Moore v. Biter, 725 F.3d 1184, 1185 (9th Cir. 2013) (multiple term-
of-years sentences totaling 254 years); Budder v. Addison, 851 F.3d 1047, 1049
(10th Cir. 2017) (131.75 years); People v. Caballero, 282 P.3d 291, 293 (Cal.
2012) (110 years); State v. Riley, 110 A.3d 1205, 1206 (Conn. 2015) (100 years);
Henry v. State, 175 So. 3d 675, 676 (Fla. 2015) (90 years); People v. Reyes, 63
N.E.3d 884, 888 (Ill. 2016) (89 years); State v. Boston, 363 P.3d 453, 454 (Nev.
2015) (approximately 100 years); State v. Moore, 76 N.E.3d 1127, 1131, 1137
(Ohio 2016) (112 years).


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                           STATE v. MARTINEZ
                           Decision of the Court

convictions. A.R.S. § 41-1604.07(A). Having a release date within his
natural life expectancy, Martinez has “a meaningful opportunity to obtain
release,” which is what the Eighth Amendment requires in this context.
Graham, 560 U.S. at 75.

¶8            Finally, Martinez argues that his sentences violate Article 2,
Section 15, of the Arizona Constitution, which also protects against cruel
and unusual punishments. But the Arizona Supreme Court has declined to
interpret that section of the Arizona Constitution as providing greater
protection than that provided under the Eighth Amendment. See State v.
Davis, 206 Ariz. 377, 380–81, ¶ 12 (2003). Accordingly, Martinez’s argument
fails.

II.    Jury Instruction that Jury Must Not Consider Punishment.

¶9           The court instructed the jury that “You must not consider the
possible punishment when deciding on guilt; punishment is left to the
judge.” Martinez objected to the instruction as legally incorrect because the
Legislature—not only the judge—controls the sentence. We review this
claim of error to which Martinez timely objected for harmless error. See
Henderson, 210 Ariz. at 567, ¶ 18. An error is harmless if it did not affect the
verdict. Id.

¶10           The superior court did not err because the instruction
accurately stated the law. “The jury’s function is to determine the guilt or
innocence of a party without consideration of the possible sentence.” State
v. Allie, 147 Ariz. 320, 326 (1985). The court, not the jury, determines
punishment. Id. The instruction correctly directed the jury not to consider
the possible punishment in determining guilt, given that the court (not the
jury) imposed the sentence.

III.   Victim Impact Evidence at Sentencing.

¶11           During the sentencing hearing, the decedent victim’s family
played a video memorializing D.S.’s life. On appeal, Martinez argues the
presentation of the video violated due process because he did not have an
opportunity to rebut the video and because the video itself was unduly
prejudicial. Martinez did not object before the superior court, so we review
only for fundamental, prejudicial error. Henderson, 210 Ariz. at 567–68, ¶¶
19–20.

¶12          Martinez asserts that Arizona’s Victims’ Bill of Rights
prevented him from rebutting the video. See Ariz. Const. art. 2, § 2.1(A)(1)
(guaranteeing crime victims the right “[t]o be treated with fairness, respect,


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                          Decision of the Court

and dignity”). But by statute, Martinez had a right “to explain, support or
deny the victim’s statement” at sentencing. A.R.S. § 13-4426.01; see also
A.R.S. § 13-4401(19) (defining “victim” to include family members of a
deceased victim).

¶13            Moreover, presentation of the video was not unduly
prejudicial. Generally, victim impact evidence is admissible at sentencing
unless it is “so unduly prejudicial that it renders the trial fundamentally
unfair.” Payne v. Tennessee, 501 U.S. 808, 824–25 (1991). The video, which
was viewed only by the court and not by the jury, is a montage of images
depicting various points in D.S.’s life, with music playing in the
background. Neither the images nor the music was inflammatory. And the
images were relevant to assessing the emotional harm to the victim’s
family, an aggravating factor the jury found at trial and that the court
properly could consider at sentencing. See A.R.S. § 13-701(D)(9). The
presentation of the video thus was not “so unduly prejudicial” as to
constitute a due process violation.

                             CONCLUSION

¶14          Martinez’s convictions and sentences are affirmed.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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