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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                                        2
                            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.


                                      3
                             STATE v. CORTEZ
                            Decision of the Court

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,


                                       4
                             STATE v. CORTEZ
                            Decision of the Court

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.


                                       5
                               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.


                                         6
                            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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