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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     DAVID BALLESTEROS, Appellant.

                             No. 1 CA-CR 14-0781
                               FILED 2-18-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-152482-001
                 The Honorable M. Scott McCoy, Judge

  CONVICTION AFFIRMED; REMANDED FOR RESENTENCING


                                   COUNSEL

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

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                         STATE v. BALLESTEROS
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.


K E S S L E R, Judge:

¶1             Appellant David Ballesteros was convicted of armed robbery,
a class 2 felony, and sentenced to twenty years imprisonment. Counsel for
Ballesteros filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Clark, 196 Ariz. 530 (App. 1999). Finding no arguable
issues to raise, counsel requested that this Court search the record for
fundamental error. Ballesteros submitted a supplemental brief in propria
persona, raising the following issues: (1) sufficiency of the evidence, (2)
ineffective assistance of counsel,1 and (3) improper admission of evidence.
In addition, pursuant to Penson v. Ohio, 488 U.S. 75 (1988) and our order, the
parties submitted supplemental briefs on whether the matter had to be
remanded for resentencing pursuant to State v. Trujillo, 227 Ariz. 314, 318-
19, ¶¶ 17-21 (App. 2011). For the reasons that follow, we affirm Ballesteros’
conviction, but remand the matter to the superior court for resentencing.

               FACTUAL AND PROCEDURAL HISTORY

¶2           Ballesteros was indicted for one count of armed robbery
under Arizona Revised Statutes (“A.R.S.”) sections 13-1902 (2010) and 13-
1904(A) (2010), to which he pled not guilty. At trial, the State presented
evidence consisting of the victim’s testimony and the testimony of three
Phoenix police officers.

¶3           The victim testified that as he was walking down the street
headed back to his Phoenix home, a car pulled up and a man called him
over. When he approached the car window, the man showed the victim a
gun, cursed and threatened him, demanded that he relinquish his property,
and took his phone, wallet, bag of tamales, and sped away. The man


1 The Arizona Supreme Court has held “that a defendant may bring
ineffective assistance of counsel claims only in a Rule 32 post-conviction
proceeding―not before trial, at trial, or on direct review.” State ex rel.
Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007). Accordingly, we do not
address this claim.


                                      2
                         STATE v. BALLESTEROS
                           Decision of the Court

threatened the victim, yelling “son of a bitch, give me what you’ve got and
don’t scream because I’ll fuck you up right here,” and warned the victim,
“don’t call the police, give me everything or you’ll be sorry.” The victim
did not freely give the man his property, but rather was “nervous,” and was
“in shock” and he relinquished his property to the man. The victim testified
that he reported what happened and gave police a physical description of
the man. In addition, the victim identified Ballesteros in court, and testified
he had previously identified Ballesteros in a photo lineup as well.2

¶4            The State presented testimony from three responding police
officers who confirmed that the victim reported to 911 the above events,
describing the assailant as a Hispanic male, wearing a white shirt and blue
shorts, with tattoos on his arms, and driving a white vehicle. This
description is consistent with what the victim told police as well. Upon
request by the State, Ballesteros stood at counsel table and displayed his
arms to the jury, showing tattoos on his arms.

¶5           One of the responding officers testified that at a nearby Circle
K he observed a Hispanic male in a white vehicle who was wearing shorts
and had a white shirt and had tattoos on his arms which the officer thought
matched the description of the assailant. The officer then arrested the man,
Ballesteros.

¶6           Ballesteros moved for a judgment of acquittal which the trial
court denied, and the jury found him guilty of armed robbery. At the
aggravation hearing, the jury found the presence of six aggravators
including the use of a dangerous weapon. In addition, the court
determined the existence of two prior felony convictions. Relying in part on




2 Police testimony established that upon viewing the six black and white
photos provided in the lineup, the victim identified Ballesteros’ photo
claiming, “That’s the guy who robbed [me] at gunpoint,” and “that’s the
guy who was in the car except he had longer hair on top,” and “that’s the
guy who took my wallet.” The victim signed and dated the photo he
selected depicting Ballesteros.



                                      3
                          STATE v. BALLESTEROS
                            Decision of the Court

the use of a dangerous weapon aggravating factor, the court sentenced
Ballesteros to an aggravated sentence of twenty years’ imprisonment.3

¶7            Ballesteros filed a timely appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-
120.21(A)(1) (2003), 13-4031 (2010), 13-4033(A)(1) (2010).

                         STANDARD OF REVIEW

¶8            In an Anders appeal, this Court must review the entire record
for fundamental error. See State v. Banicki, 188 Ariz. 114, 117 (App. 1997).
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 (2005) (quoting State v. Hunter,
142 Ariz. 88, 90 (1984)). To obtain a reversal, the defendant must also
demonstrate that the error caused prejudice. Id. at ¶ 20.

                               DISCUSSION

¶9           After careful review of the record, we find no meritorious
grounds for reversal of Ballesteros’ conviction. The record reflects
Ballesteros had a fair trial and all proceedings were conducted in
accordance with the Arizona Rules of Criminal Procedure. Ballesteros was
present and represented by counsel at all critical stages of trial, and was
given the opportunity to speak at sentencing. However, as discussed
below, we remand the matter to the superior court for resentencing.

I.     There is sufficient evidence to support Ballesteros’ conviction for
       armed robbery.

¶10           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 (1998). “Reversible error based on insufficiency of
the evidence occurs only where there is a complete absence of probative

3The State requested to “sentence the defendant as a Category 3 [repetitive]
offender . . . not as a dangerous offender, and [to] . . . utilize dangerousness
as an aggravating factor.” We note that the trial court sentenced Ballesteros
in accordance with the range for a category 3 offender (two historical priors)
for a class 2 non-dangerous felony conviction. However, the trial court’s
minute entry and the order of confinement also state that the offense is a
class 2 dangerous felony.


                                       4
                          STATE v. BALLESTEROS
                            Decision of the Court

facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)).

¶11            Armed robbery requires proof that “in the course of taking
any property of another from his person or immediate presence and against
his will, [the defendant] threatens or uses force against any person with
intent either to coerce surrender of property or to prevent resistance to such
person taking or retaining property,” while armed with a deadly weapon,
or using or threatening to use a deadly weapon. A.R.S. §§ 13-1902(A), 13-
1904(A)(1), (2).

¶12           Here the victim testified that after being summoned to
Ballesteros’ car, Ballesteros began yelling at him, cursing, and threatening
him. Ballesteros had a gun and demanded that the victim hand over his
property, which the victim did. The evidence is sufficient to support the
conviction.

II.    The photo lineup was not unduly suggestive or improper
       evidence.

¶13         In his supplemental brief, Ballesteros argues the photo lineup
was unduly suggestive, and thus, improper evidence at his trial.

¶14            In accordance with the Due Process Clause of the Fourteenth
Amendment, when police conduct pretrial identification procedures, they
are required to do so “in a manner that is fundamentally fair and secures
the suspect’s right to a fair trial.” State v. Nottingham, 231 Ariz. 21, 24, ¶ 5
(App. 2012) (internal quotation marks and citation omitted). “To determine
whether a defendant has been denied due process of law because of a
pretrial identification procedure, the trial court must first determine
whether the pretrial identification procedure was unnecessarily
suggestive.” State v. Dixon, 153 Ariz. 151, 154 (1987). Subtle differences in
photographs contained in a photo lineup are not “unduly suggestive,” as
photo lineups generally cannot be ideally created. Id. “The law only
requires that [the photo lineups] depict individuals who basically resemble
one another such that the suspect’s photograph does not stand out.” Id.
(citing State v. Alvarez, 145 Ariz. 370, 373 (1985)); see State v. Martinez, 121
Ariz. 62, 64-65 (App. 1978).

¶15           A Dessureault hearing was not conducted by the trial court in
this case because Ballesteros never challenged the pretrial photo lineup
identification. See generally State v. Dessureault, 104 Ariz. 380 (1969). Upon
viewing the six black and white photos provided in the lineup, the victim
readily identified Ballesteros. See supra n.2. All the photos in the lineup


                                       5
                         STATE v. BALLESTEROS
                           Decision of the Court

depict people similar to one another with bald heads and facial hair, similar
skin tone, eye color, and facial features. The lineup was not unduly
suggestive of Ballesteros because Ballesteros’ photo does not stand out. See
Dixon, 153 Ariz. at 154.

¶16          In reviewing the pretrial identification procedure, and the
photo lineup presented to the victim, we find no fundamental error.

III.   Resentencing is required.

¶17           At the aggravation hearing, the State presented evidence of
Ballesteros’ probation status at the time of the crime through the testimony
of his probation officer. The jury found the following aggravating factors
beyond a reasonable doubt: (1) the threatened use or possession of a gun,
(2) the threatened infliction of a serious physical injury, (3) Ballesteros
committed the offense for pecuniary gain, (4) physical, emotional, or
financial harm to the victim, (5) Ballesteros left the scene of the crime, and
(6) Ballesteros committed the crime while on probation. [RA 87 1-2.] See
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”).

¶18            At sentencing, the trial court imposed an aggravated sentence
relying in part on the aggravator found by the jury that the crime involved
the use, threatened use, or possession of a deadly weapon. A.R.S. § 13-
701(D)(2) (Supp. 2015). The use of a deadly weapon is also an element of
the offense of armed robbery. See supra ¶ 11. However, a court may not
impose an aggravated sentence based on the use of a deadly weapon if that
is also “an essential element of the offense . . . .” Id. As we explained in
Trujillo, 227 Ariz. at 318, ¶ 15, imposing an aggravated sentence based in
part on consideration of a prohibited aggravating factor constitutes
fundamental error. When that occurs, we will remand for resentencing
“when we cannot be certain that [the trial court] would have imposed the
same sentence absent that factor . . . .” State v. Munninger, 213 Ariz. 393,
396, ¶ 9 (App. 2006) (internal quotation marks and citation omitted).
Moreover, we will find prejudice if, after a review of the record, appellant
shows the court could have reasonably imposed a lighter sentence had it
not improperly considered the prohibited factor, that is, if the record
indicates that the improper factor influenced the sentencing decision.
Trujillo, 227 Ariz. at 318-19, ¶¶ 16, 21. Here, the trial court balanced a
number of aggravators against several mitigators to impose an aggravated
sentence, noting that it was the totality of the aggravating factors weighed


                                      6
                         STATE v. BALLESTEROS
                           Decision of the Court

against mitigating factors that led to the sentence imposed. On this record,
we cannot be certain the superior court would have imposed the same
sentence absent the prohibited aggravator and the appellant has shown
prejudice. Cf. Munninger, 213 Ariz. at 397, ¶¶ 12, 14 (determining no
fundamental error or prejudice when the judge expressly found that each
of the aggravating factors alone would have outweighed the mitigating
factors). Accordingly, we remand for resentencing without that
aggravating factor.4

                              CONCLUSION

¶19           After careful review of the record, we affirm Ballesteros’
conviction. However, for the reasons stated above, we remand this matter
to the superior court for resentencing. Insofar as Ballesteros’ conviction is
concerned, defense 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
(1984). Ballesteros 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 based upon our affirmance of his armed robbery
conviction.




                                 :ama




4 On remand, the court should also reconsider its decision to label the
offense as a dangerous crime given that the State requested the court not to
sentence Ballesteros as a dangerous offender. See supra n.3.


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