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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             LUIS ENRIQUE MENDOZA-SARAVIA, Appellant.

                              No. 1 CA-CR 15-0394
                                FILED 5-24-2016


            Appeal from the Superior Court in Maricopa County
                         No. CR2012-152676-001
                 The Honorable Karen A. Mullins, Judge

                         AFFIRMED AS MODIFIED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Chris DeRose
Counsel for Appellee

Ballecer & Segal, Phoenix
By Natalee E. Segal
Counsel for Appellant
                      STATE v. MENDOZA-SARAVIA
                          Decision of the Court



                       MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


G O U L D, Judge:

¶1            Luis Enrique Mendoza-Saravia appeals his convictions for
second degree murder, attempted second degree murder, unlawful
discharge of a firearm, and two counts of aggravated assault. He further
appeals his sentence to two years’ imprisonment for unlawful discharge of
a firearm. Mendoza-Saravia argues the trial court erred when it (1)
sentenced him for unlawful discharge of a firearm as a dangerous offense,
(2) admitted the testimony of a medical examiner who based his opinions
on an autopsy report prepared by another medical examiner, and (3)
admitted four photographs of the deceased victim. For the following
reasons, we affirm Mendoza-Saravia’s convictions and sentences as
modified.

I.     Background

¶2             “We 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 (1998) (citation omitted).
On the night of the incident, Mendoza-Saravia’s girlfriend (“Girlfriend”)
and her sister (“Sister”) went to Mendoza-Saravia's residence. Girlfriend
and Mendoza-Saravia argued and decided to end their relationship, after
which Mendoza-Saravia told Girlfriend and Sister to leave. Mendoza-
Saravia then retrieved a handgun and approached Girlfriend, who had sat
down just outside. Mendoza-Saravia fired a shot into the ground beside
her. When Girlfriend stood, Mendoza-Saravia pushed her to the ground.
Sister told Girlfriend they should leave and then told Mendoza-Saravia he
was a bad person. Mendoza-Saravia told Sister to shut up, shot her in the
face, and killed her. He then fired the gun at Girlfriend as she lay on the
ground, shooting her in the hand. A nearby surveillance camera recorded
the incident.

¶3             Mendoza-Saravia admitted to police that he pointed the gun
at Sister and fired it at her at least once, possibly twice. He never told police
it was an accident. At trial, however, Mendoza-Saravia claimed the


                                       2
                      STATE v. MENDOZA-SARAVIA
                          Decision of the Court

shootings were an accident. A jury acquitted Mendoza-Saravia of first
degree murder but found him guilty of the lesser-included offense of
second degree murder. The jury otherwise found Mendoza-Saravia guilty
as charged, and the trial court sentenced him to an aggregate term of
twenty-three years’ imprisonment.1 Mendoza-Saravia now appeals. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(2016), 13-4031 (2010) and 13-4033 (2010).

II.    The Sentence for Unlawful Discharge of a Firearm

¶4           The jury found the count of unlawful discharge of a firearm
was a dangerous offense. This made Mendoza-Saravia subject to the
enhanced “Dangerous Offenders” sentencing provisions of A.R.S. § 13-
704(A) (2012). The trial court sentenced Mendoza-Saravia to two years’
imprisonment pursuant to this section. As the first issue on appeal,
Mendoza-Saravia argues the trial court could not impose a sentence for
unlawful discharge of a firearm as a dangerous offense because the State
never alleged the offense was dangerous as required by A.R.S. § 13-3107(B)
(2012).

¶5             Mendoza-Saravia raised no objection below to the sentencing.
A failure to raise an issue at trial waives all but fundamental error. State v.
Gendron, 168 Ariz. 153, 154 (1991). “To establish fundamental error, [a
defendant] must show that the error complained of goes to the foundation
of his case, takes away a right that is essential to his defense, and is of such
magnitude that he could not have received a fair trial.” State v. Henderson,
210 Ariz. 561, 568, ¶ 24 (2005). Even if a defendant establishes fundamental
error, the defendant must still demonstrate the error was prejudicial. Id. at
¶ 26.

¶6            We find no error, fundamental or otherwise. While the record
on appeal does not contain a formal allegation by the State, any notice of an
allegation of dangerousness is sufficient so long as the defendant is not
“‘misled, surprised, or deceived in any way by the allegations.’” State v.
Pesqueira, 235 Ariz. 470, 478 ¶ 30 (App. 2014) (quoting State v. Benak, 199
Ariz. 333, 337, ¶ 16 (App. 2001)). “[F]or Sixth Amendment purposes, courts
look beyond the indictment to determine whether defendants received


1      Mendoza-Saravia pled guilty to an additional count of misconduct
involving weapons based on the same incident and received a concurrent
sentence of 2.5 years’ imprisonment.



                                       3
                      STATE v. MENDOZA-SARAVIA
                          Decision of the Court

actual notice of charges[.]”2 State v. Freeney, 223 Ariz. 110, 114, ¶ 24 (2009).
Notice can come from information contained in the State’s disclosures. Id.
at 114, ¶ 27. More importantly for purposes of this case, notice can come
from “the parties’ joint pretrial statement[.]” Id. Approximately two weeks
before trial, the parties filed a joint pretrial statement that identified the
count of unlawful discharge of a weapon as a dangerous offense.
Therefore, Mendoza-Saravia acknowledged before trial that he knew the
State would seek to prove the count of unlawful discharge of a firearm was
a dangerous offense. Mendoza-Saravia was not “misled, surprised or
deceived” when the State subsequently sought to prove the offense was
dangerous. Finally, Mendoza-Saravia does not argue he suffered any
prejudice from the lack of formal notice or that the lack of formal notice
otherwise adversely affected in any way his defense or the manner in which
he tried the case.

III.   The Medical Examiner’s Testimony

¶7            Mendoza-Saravia argues the trial court erred when it
admitted the testimony of a medical examiner who did not perform the
autopsy of Sister, but who referred during his testimony to the report of the
medical examiner who performed the autopsy. Mendoza-Saravia argues
this violated his right to confront the medical examiner who performed the
autopsy and prepared the report. Mendoza-Saravia, however, did not raise
any objection below to the testimony he now challenges.

       A.     Background

¶8             The medical examiner who performed the autopsy of Sister
and prepared the report was no longer employed by the county by the time
of trial. The testifying medical examiner reviewed the autopsy report and
all the associated photographs. The medical examiner was familiar enough
with the materials that at one point he told the prosecutor there were
photographs that showed Sister’s wounds more clearly than the
photographs the prosecutor was attempting to use at that time.

¶9           The medical examiner testified that he was able to determine
the cause and manner of Sister’s death based on his review of the autopsy
report and photographs. The State, however, then asked the medical
examiner “what was noted” as the cause and manner of death. The medical


2     Mendoza-Saravia does not contend the trial court constructively
amended the indictment pursuant to Arizona Rule of Criminal Procedure
13.5.


                                       4
                      STATE v. MENDOZA-SARAVIA
                          Decision of the Court

examiner responded, “The cause of death was listed as [a] gunshot wound
of the head, and the manner is homicide.”

¶10             Regardless, the medical examiner then explained his review
of the photographs from the autopsy and how they depicted two wounds
to Sister’s head. Based on his training and experience, those wounds were
consistent with gunshot wounds. Further, the wound on Sister’s right
cheek was consistent with an entrance wound and the wound on the upper
left side of her head was consistent with an exit wound. He further testified
that based on the locations of the entry and exit wounds, a single bullet
entered Sister’s right cheek and traveled upwards from right to left. The
State did not offer the autopsy report itself into evidence.

       B.     Discussion

¶11            “[A]n expert may testify to otherwise inadmissible evidence,
including the substance of a non-testifying expert's analysis, if such
evidence forms the basis of the expert's opinion and is reasonably relied
upon by experts in the field.” State v. Superior Court (Karp), 236 Ariz. 120,
124, ¶ 13 (App. 2014). This is because “the facts underlying an expert's
opinion are admissible only to show the basis of that opinion and not to
prove their truth[.]” State v. Joseph, 230 Ariz. 296, 298, ¶ 8 (2012). Therefore,
“an expert does not admit hearsay or violate the Confrontation Clause by
revealing the substance of a non-testifying expert's opinion.” Id. The
testifying expert must ultimately testify to the expert's own conclusions,
however, and not be a “mere conduit” for the conclusions of the non-
testifying expert. Karp, 236 Ariz. at 124-25, ¶¶ 17-18. Our supreme court
has recognized that so long as these requirements are met, one medical
examiner may provide testimony and opinions based on an autopsy
performed by another, non-testifying medical examiner, and in doing so,
may reveal the substance of the non-testifying medical examiner’s analysis.
See Joseph, 230 Ariz. at 298, ¶ 8; State v. Smith, 215 Ariz. 221, 228-29, ¶¶ 23-
26 (2007).

¶12            We find no error. The testifying medical examiner was not a
mere conduit for the analysis or conclusions of the examiner who
performed the autopsy. The medical examiner testified that he personally
determined the cause and manner of death based on his review of the
autopsy report and photographs. It is unfortunate, but not reversible error,
that the State then inartfully asked the medical examiner “what was noted”
as the cause and manner of death. The State should have asked the medical
examiner his opinion of the cause and manner of death based on his review
of the materials. Regardless, the medical examiner explained that his


                                       5
                     STATE v. MENDOZA-SARAVIA
                         Decision of the Court

review of the photographs revealed two gunshot wounds caused by a
single bullet that entered Sister's right cheek, passed through her head from
right to left on an upward trajectory and then exited the upper left portion
of her head. This testimony, coupled with the testimony that he determined
the cause and manner of death based on his review of the autopsy materials,
sufficiently communicated to the jury that it was the testifying medical
examiner’s opinion that Sister died as a result of a bullet that passed
through her head, and that he was not simply regurgitating the information
contained in the autopsy report.

¶13           Mendoza-Saravia’s reliance on Bullcoming v. New Mexico is
unavailing. In Bullcoming, the trial court admitted a non-testifying expert's
written report into evidence to prove the truth of the matters asserted
therein, and did so through someone who was nothing more than a
surrogate witness. Bullcoming v. New Mexico, 564 U.S. 647, 659-60 (2011).
That is not what occurred here. Finally, even if we assume arguendo that
error occurred, any error was harmless. Mendoza-Saravia’s sole defense
was that the shooting was an accident. He admitted to police that he shot
Sister and never claimed otherwise, and he never contested the fact that
Sister died because Mendoza-Saravia shot her through the head.

IV.   The Photographs of Deceased Victim

¶14         As the final issue on appeal, Mendoza-Saravia argues the trial
court erred when it admitted four post-mortem photographs of Sister.
Those photographs depicted Sister’s head and face as well as the entry and
exit wounds. Mendoza-Saravia argues the photographs were irrelevant
because he did not deny he shot Sister and that the danger of unfair
prejudice substantially outweighed any probative value of the
photographs. Mendoza-Saravia did not object to the admission of the
photographs at trial.

¶15           “Photographs may be relevant ‘to prove the corpus delecti, to
identify the victim, to show the nature and location of the fatal injury, to
help determine the degree or atrociousness of the crime, to corroborate state
witnesses, to illustrate or explain testimony, and to corroborate the state’s
theory of how and why the homicide was committed.’” State v. Anderson,
210 Ariz. 327, 339-340, ¶ 39 (2005) (quoting State v. Chapple, 135 Ariz. 281,
288 (1983)). A trial court may admit relevant photographs into evidence
even if those photographs may tend to prejudice the jury against the
defendant. State v. Bocharski, 200 Ariz. 50, 55, ¶ 21 (2001). In determining
whether a trial court erred in admitting a photograph, we examine “’the
photograph's relevance, its tendency to inflame the jury, and its probative


                                     6
                      STATE v. MENDOZA-SARAVIA
                          Decision of the Court

valued compared to its potential to cause unfair prejudice.’“ State v. Morris,
215 Ariz. 324, 339, ¶ 69 (2007) (emphasis added) (quoting State v. Hampton,
213 Ariz. 167, 173, ¶ 17 (2006)). A trial court may admit even gruesome or
inflammatory photographs so long as they are not admitted for the sole
purpose of inflaming the jury. Morris, 215 Ariz. at 339, ¶ 70; see also
Anderson, 210 Ariz. at 340 ¶¶ 41-42 (determining that “quite gruesome”
photographs depicting human decomposition, bloating, skin slippage and
discoloration, injuries which resulted in death and a severed head with a
knife through its ear and emerging through the nose were not unduly
prejudicial).

¶16            We find no error, fundamental or otherwise.                   The
photographs at issue were relevant to (1) identify Sister, (2) show the nature
and location of her injuries, (3) corroborate witness testimony, (4) illustrate
or explain the medical examiner’s testimony, and (5) corroborate the State's
theory of how Mendoza-Saravia shot Sister. That the photographs were
unpleasant is of no matter. “The state ‘cannot be compelled to try its case
in a sterile setting.’” Bocharski, 200 Ariz. at 56, ¶ 25 (citation omitted).
“There is nothing sanitary about murder, and there is nothing in Rule 403,
Ariz. R. Evid., that requires a trial judge to make it so.” State v. Rienhardt,
190 Ariz. 579, 584 (1997). “[A]ny photograph of the deceased in any murder
case [is relevant] because the fact and cause of death are always relevant in
a murder prosecution.” Anderson, 210 Ariz. at 340, ¶ 40 (quoting State v.
Spreitz, 190 Ariz. 129, 142 (1997)). Further, the photographs were admissible
even though Mendoza-Saravia did not contest that he shot Sister or that she
died from the gunshot. “Even if a defendant does not contest certain issues,
photographs are still admissible if relevant because the ‘burden to prove
every element of the crime is not relieved by a defendant’s tactical decision
not to contest an essential element of the offense.’” State v. Dickens, 187 Ariz.
1, 18 (1996) (citation omitted) (abrogated on other grounds, State v. Ferrero,
229 Ariz. 239, 242-43, ¶¶ 15-20 (2012)). Finally, it is apparent the
photographs did not have an unfairly prejudicial effect based on the fact
that the jury acquitted Mendoza-Saravia of first degree murder and
convicted him of a lesser-included offense.

V.     Presentence Incarceration Credit

¶17           The trial court sentenced Mendoza-Saravia to concurrent
sentences, the longest of which was twenty-three years’ imprisonment. He
was also awarded 965 days’ credit for time served as to Count One, but zero
days’ credit for Counts Two through Six. A trial court’s failure to credit a
defendant with presentence custody constitutes fundamental error. State v.



                                       7
                     STATE v. MENDOZA-SARAVIA
                         Decision of the Court

Ritch, 160 Ariz. 495, 448 (App. 1989). This court reviews de novo a grant of
presentence incarceration credit.

¶18           Our review of the record shows Mendoza-Saravia was
entitled to 965 days’ credit on each concurrent sentence. Accordingly,
pursuant to A.R.S. § 13-4037(B), the judgment is modified to reflect 965
days of presentence incarceration credit to be applied against the sentences
imposed on Counts Two through Six, as well as on Count One. See State v.
Stevens, 173 Ariz. 494, 496 (App. 1992) (correcting presentence incarceration
credit without remand to trial court.)

VI.   Conclusion

¶19          We affirm Mendoza-Saravia’s convictions and sentences as
modified.




                                  :ama




                                     8
