                             NOTICE: NOT FOR PUBLICATION.
      UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
             LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                       IN THE
                ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                          STATE OF ARIZONA, Appellee,

                                           v.

                    CHRISTOPHER HERNANDEZ, Appellant.

                                No. 1 CA-CR 13-0708
                                 FILED 11-10-2014


              Appeal from the Superior Court in Maricopa County
                           No. CR2011-149622-001
                   The Honorable Daniel G. Martin, 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. HERNANDEZ
                               Decision of the Court


                          MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge
John C. Gemmill and Judge Patricia A. Orozco joined.


S W A N N, Judge:

¶1             Defendant Christopher Hernandez appeals from his conviction and
sentence for manslaughter. This case comes to us as an appeal under Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969).
Defendant’s appellate counsel has searched the record on appeal and found no
arguable, nonfrivolous question of law, and asks us to review the record for
fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000);
State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the
opportunity to file a supplemental brief in propria persona but did not do so, despite
our grant of an extension of time.

¶2           We have searched the record for fundamental error and find none.
Accordingly, we affirm.

                     FACTS AND PROCEDURAL HISTORY

¶3            The state indicted Defendant on two counts of second-degree
murder for allegedly causing the deaths of A.S. (“Count 1”) and R.M. (“Count 2”).
Defendant pled not guilty and the case proceeded to a jury trial. Because
Defendant eventually pled guilty to an amended version of Count 1, however, we
limit the scope of our review to his conviction and sentence on Count 2, and
include facts related to Count 1 only for contextual purposes. See A.R.S. § 13-
4033(B) (“In noncapital cases a defendant may not appeal from a judgment or
sentence that is entered pursuant to a plea agreement . . . .”).

¶4            At trial, the state presented evidence of the following facts. In the
early morning of July 24, 2011, a number of cars were stopped in the eastbound
lanes of an intersection. A black Cadillac Escalade was stopped in the inside
through-lane, a maroon Chevrolet Monte Carlo was stopped in the outside
through-lane and to the right of the Escalade, and Defendant’s white Chevrolet
Avalanche was stopped behind the Monte Carlo. Defendant’s girlfriend was
driving the Avalanche, with Defendant seated in the front passenger seat and their
friend R.M. seated in the rear seat.

¶5          During the stop at the intersection, a verbal altercation arose
between occupants of the Escalade and the Monte Carlo. At one point A.S. exited


                                          2
                             STATE v. HERNANDEZ
                              Decision of the Court

the Escalade through the rear passenger door and positioned himself between the
door and the vehicle. As the altercation intensified, the drivers of the Escalade and
the Monte Carlo both brandished handguns and began shooting in each other’s
direction.

¶6             Defendant and R.M. exited the Avalanche just before the shooting
commenced, and shortly thereafter Defendant fatally shot A.S. with his handgun.
As Defendant and R.M. returned to the Avalanche, an argument arose between
them about possession of Defendant’s gun. While the Avalanche was still stopped
at the intersection, Defendant suddenly told his girlfriend that R.M. had been shot
and that she needed to drive to the hospital. Defendant’s girlfriend later testified
that R.M. had tried to grab Defendant’s gun from the center console once they
were back in the Avalanche, but because she had been ducking under the
dashboard, she never saw R.M. actually touch the gun and never heard or saw a
gun discharge inside the vehicle. R.M. was deceased when the Avalanche arrived
at a hospital shortly after the shooting.

¶7            An autopsy confirmed that R.M. died from a gunshot wound to his
head. Police eventually found a handgun with bloodstains on it hidden in a
toolshed connected to Defendant’s residence. Defendant then admitted that his
gun had been inside the Avalanche on July 24, but claimed that R.M. had grabbed
it from the center console and denied any knowledge of how R.M. had been shot.
Defendant further admitted that he had hidden his gun outside of the hospital
before police arrived and later moved it to his toolshed.

¶8             The ensuing police investigation confirmed that the bullet that killed
R.M. had been fired from Defendant’s gun inside the Avalanche. A detective with
experience in bloodstain interpretation opined that R.M. had to have been seated
in the rear driver-side seat when he was shot, and that it was impossible for his
head to have been anywhere near the center console of the vehicle. The medical
examiner who performed the autopsy on R.M. opined that the tears along R.M.’s
entry wound coupled with the surrounding soot deposit indicated that the fatal
shot was fired less than an inch away from R.M.’s head. A forensic investigator
similarly opined that the gun was fired no more than four inches away from R.M.’s
head. The forensic investigator also opined that based on his analysis of the blood
pattern, R.M. did not hold any object in his right hand when the shot was fired.
The investigator could not, however, rule out that R.M. had held something in his
left hand or that he had let go of something in his right hand before the shot was
fired. Finally, a criminologist testified that Defendant’s gun was working properly
and that the force required to pull the trigger was between ten and ten-and-a-half
pounds.




                                         3
                            STATE v. HERNANDEZ
                             Decision of the Court

¶9           Defendant moved for judgment of acquittal on both charges, which
the court denied. Defendant proceeded to testify in his defense, confirming that
he owned the gun that killed R.M., but again asserting that it had accidentally
discharged as R.M. grabbed for it near the center console. Defendant also admitted
to repeatedly lying to law enforcement during the investigation about what had
happened on July 24, and about the location and caliber of his gun.

¶10            The jury deadlocked as to Count 1 and the court ultimately declared
a mistrial on that charge. As to Count 2, the jury returned a verdict of guilty on
the lesser-included offense of manslaughter. During the aggravation phase, R.M.’s
mother testified about the emotional and financial impact of Defendant’s offense.
The jury found that the crime committed was a dangerous offense, and also found
the presence of two aggravating factors: (1) the offense involved the use of a
deadly weapon; and (2) the offense caused emotional or financial harm to the
victim’s immediate family.

¶11           Defendant moved for a new trial based on alleged juror misconduct,
but withdrew the motion. Before sentencing, Defendant pled guilty to
manslaughter on Count 1 and agreed to be sentenced to a concurrent prison term
based on his sentence on Count 2. After weighing the aggravating and mitigating
factors presented, the court sentenced Defendant to concurrent prison terms of 15
years on each count and granted him 161 days of presentence incarceration credit.
Defendant timely appeals.

                                 DISCUSSION

¶12           Our review of the record reveals no fundamental error. Defendant
was present and represented at all critical stages. The record shows no evidence
of jury misconduct, and the jury was properly comprised of 12 jurors. See A.R.S.
§ 21-102(A); Ariz. R. Crim. P. 18.1(a). The state’s closing and rebuttal arguments
were proper.

¶13           The evidence that the state presented at trial was properly
admissible and was sufficient to support Defendant’s conviction for manslaughter.
Although Defendant was charged with second-degree murder, the jury was
properly instructed on the lesser-included offense of manslaughter. A person
commits manslaughter by recklessly causing the death of another person. A.R.S.
§ 13-1103(A)(1). In this context, “recklessly” means that the person who caused
the death was “aware of and consciously disregard[ed] a substantial and
unjustifiable risk [of death],” and that “the risk [was] of such nature and degree
that disregard[ing it] constitute[d] a gross deviation from the standard of conduct
that a reasonable person would observe in the situation.” Id. § 13-105(10)(c).




                                        4
                              STATE v. HERNANDEZ
                               Decision of the Court

¶14            Here, the state presented ample evidence from which the jury could
reasonably conclude that Defendant recklessly caused R.M.’s death by discharging
his gun less than four inches from R.M.’s head. See State v. West, 226 Ariz. 559, 562,
¶ 16, 250 P.3d 1188, 1191 (2011) (“[T]he relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
(citation omitted)); see also State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-
19 (1976) (“Reversible error based on insufficiency of the evidence occurs only
where there is a complete absence of probative facts to support the conviction.”).
The jury could reasonably disbelieve Defendant’s account of the incident in light
of the circumstances and testimony presented, including Defendant’s repeated lies
to law enforcement during the investigation. See State v. Cox, 217 Ariz. 353, 357,
¶ 27, 174 P.3d 265, 269 (2007) (holding that jury resolves witness credibility). The
evidence presented was also sufficient to support the jury’s findings of
dangerousness and aggravating factors. See A.R.S. §§ 13-105(13) (offense
involving use of deadly weapon constitutes “dangerous offense”), -701(D)(2) (use
of deadly weapon may constitute aggravating circumstance), -701(D)(9) (physical,
emotional or financial harm to victim’s immediate family as a result of victim’s
death constitutes aggravating circumstance).

¶15           Before imposing sentence, the court ordered and considered a
presentence report. Defendant was given an opportunity to speak at the
sentencing hearing, and the court stated on the record the evidence and materials
it considered and the factors it found in imposing sentence. The court imposed
legal sentences for the offenses, see A.R.S. §§ 13-704(A), -1103(C), and correctly
calculated Defendant’s presentence incarceration credit under A.R.S. § 13-712(B).

                                   CONCLUSION

¶16           We have reviewed the record for reversible error and find none. See
Leon, 104 Ariz. at 300, 451 P.2d at 881. We therefore affirm.




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                             STATE v. HERNANDEZ
                              Decision of the Court

¶17            Defense counsel’s obligations pertaining to this appeal have come to
an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
Unless, upon review, counsel discovers an issue appropriate for petition for
review to the Arizona Supreme Court, counsel must only inform Defendant of the
status of this appeal and Defendant’s future options. Id. Defendant has 30 days
from the date of this decision to file a petition for review in propria persona. See
Ariz. R. Crim. P. 31.19(a). Upon the court’s own motion, Defendant has 30 days
from the date of this decision in which to file a motion for reconsideration.




                                       :gsh




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