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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   GABRIEL JOHN SANCHEZ, Appellant.

                              No. 1 CA-CR 13-0920
                                   FILED 3-24-15


            Appeal from the Superior Court in Maricopa County
                         No. CR2011-008279-001
                 The Honorable Roland J. Steinle, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Office of the Legal Advocate, Phoenix
By Sara Xochitl Orozco, Frances J. Gray
Counsel for Appellant
                            STATE v. SANCHEZ
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Randall M. Howe joined.


N O R R I S, Judge:

¶1            Gabriel John Sanchez appeals his convictions and sentences
for first-degree murder and related charges, arguing the superior court
should have excluded improper opinion evidence, was biased, and
imposed an illegal sentence for his conviction for first-degree murder. We
disagree with each argument and affirm his convictions and sentences.

             FACTS AND PROCEDURAL BACKGROUND1

¶2            At trial, the State presented substantial evidence Sanchez shot
and killed the victim, Angel, in the doorway of Sanchez’s estranged wife’s
house. Sanchez then threatened at gunpoint others at the house who had
witnessed him approach the house, heard the gunshot, and saw Angel lying
dead on the floor. Sanchez’s sister helped Sanchez put Angel’s body in the
trunk of her car and then drove Sanchez to the Salt River Pima Maricopa
Indian Reservation, where he left Angel’s body.

¶3           The jury found Sanchez guilty of premeditated murder,
aggravated assault, and other related charges. The superior court
sentenced Sanchez to natural life for the first-degree murder.

                                DISCUSSION

I.     Evidentiary Error

¶4            Sanchez first argues the superior court committed reversible
error in overruling his objection to what he argues on appeal was improper
opinion evidence because it was not based on the witness’s personal
knowledge or observation. During cross-examination by defense counsel,
the witness testified Sanchez had telephoned him “the day that he
murdered Angel.”        Sanchez objected, asserting the testimony was


              1We  view the trial evidence in the light most favorable to
sustaining the jury’s verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150
P.3d 769, 769 (App. 2007).


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                             STATE v. SANCHEZ
                             Decision of the Court
“unresponsive” to his question, “When was that day you talked with your
brother? Do you remember the day?”

¶5           Because Sanchez failed to object at trial on the ground he
argues on appeal, we review for fundamental error only. See State v.
Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); State v. Hamilton,
177 Ariz. 403, 408, 868 P.2d 986, 991 (App. 1993) (“[A]n objection to the
admission of evidence on one ground will not preserve issues relating to
the admission of that evidence on other grounds.”). Further, Sanchez bears
the burden of establishing fundamental and prejudicial error. See
Henderson, 210 Ariz. at 567-68, ¶¶ 22, 26, 115 P.3d at 607-08.

¶6             Here, even assuming the witness’s testimony was improper,
Sanchez has failed to show resulting prejudice. To prove prejudice, a
defendant must show that absent the error, a reasonable jury could have
reached a different result. Id. at 569, ¶ 27, 115 P.3d at 609. On this record,
a reasonable jury could not have reached a different result. Other trial
evidence overwhelmingly demonstrated Sanchez had murdered Angel and
dumped his body in the desert. Further, the witness had testified in the
State’s case-in-chief that during the telephone call, Sanchez had told him he
did not have to worry about Angel’s relationship with his daughter
because, “I took care of him so you never have to see him again.” On this
record, the witness’s statement could not have caused the prejudice
necessary for reversal on fundamental error review.

II.    Judicial Bias

¶7             Sanchez next argues the trial judge was biased—as evidenced
in the aggregate—by threatening to remove Sanchez from the courtroom if
he continued to talk to defense counsel while the judge was speaking;
overruling defense counsel’s objections and criticizing defense counsel
regarding the propriety of his questions to several witnesses; and
instructing the jury it should take into account the victims’ right to attend
trial in setting its deliberation schedule. Although the parties dispute
which standard of review we should apply to this issue, we do not need to
resolve that question because the record fails to demonstrate prejudice or
bias as necessary for reversal under any applicable standard of review.

¶8              A defendant has a due process right “to have the trial
presided over by a judge who is completely impartial and free of bias or
prejudice.” State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989); see
also State v. Ellison, 213 Ariz. 116, 128, ¶ 35, 140 P.3d 899, 911 (2006). A trial
judge is presumed to be free from bias and prejudice, and a defendant bears
the burden of establishing bias and prejudice by a preponderance of the


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                             STATE v. SANCHEZ
                             Decision of the Court
evidence. See Ellison, 213 Ariz. at 128, ¶ 37, 140 P.3d at 911. To overcome
the presumption of judicial impartiality, the record must demonstrate “a
hostile feeling or spirit of ill-will, or undue friendship or favoritism” toward
one of the parties. State v. Myers, 117 Ariz. 79, 86, 570 P.2d 1252, 1259 (1977).

¶9             First, the record does not demonstrate the judge was
prejudiced or biased when, outside the presence of the jury, he became
exasperated because Sanchez was speaking to his lawyer at the same time
the judge was speaking. The judge told Sanchez, “When I’m speaking, sir,
you better pay attention to me,” and then, “If you’re going to show me
disrespect and you’re not going to act appropriate in this courtroom, then
I’ll just go over to the Central Court Building and put you in a room in the
back and you can view the proceedings on T.V.”

¶10            The next morning, at Sanchez’s request, defense counsel
requested clarification as to how Sanchez had acted inappropriately, and
for reassurance that the court could still be fair and impartial and was “not
totally biased against [Sanchez].” The judge responded, “I was talking, and
he was engaging in a conversation with you[,] distracting you. . . . When
I’m talking, I expect people to pay attention. It’s rude behavior. As a Judge
of the Superior Court, I’m entitled to respect, and lawyers are not to engage
in that kind of conduct. . . . But throughout this case, when I’m ruling, he’s
talking to you all the time. And you can’t listen to both.” The judge insisted
he could be fair and impartial, and stated, “just because I’m enforcing the
rules does not mean that I can’t be fair and impartial.” The judge revisited
the issue later that morning, telling defense counsel, “If you want to accuse
me of being unfair in the future, you better have some facts to support it.”

¶11           On this record, the judge’s remarks did not evidence bias or
prejudice; they represented annoyance and exasperation at having his
impartiality questioned. Annoyance and exasperation, however, do not
equal judicial bias. See Liteky v. United States, 510 U.S. 540, 555-56, 114 S. Ct.
1147, 1157, 127 L. Ed. 2d 474 (1994) (“Not establishing bias or partiality,
however, are expressions of impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of what imperfect men and women
. . . sometimes display.”).

¶12           Second, the record does not demonstrate the judge was
prejudiced or biased because he overruled defense counsel’s objections and
questioned the propriety of defense counsel’s questions. “Within reason, a
judge does not display bias or cause prejudice when acting sua sponte to
control the courtroom and the trial.” State v. Bible, 175 Ariz. 549, 595, 858
P.2d 1152, 1198 (1993); see also Liteky, 510 U.S. at 556, 114 S. Ct. at 1157 (“A
judge’s ordinary efforts at courtroom administration—even a stern and


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                            STATE v. SANCHEZ
                            Decision of the Court
short-tempered judge’s ordinary efforts at courtroom administration” do
not establish bias or prejudice.). The instances in which the judge overruled
defense counsel’s objections, or interrupted defense counsel’s examination
of a witness, appear to have occurred in an effort to control the evidence
that would be admitted at trial. Moreover, “judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion, without
showing either an extrajudicial source of bias or any deep-seated
favoritism.” Ellison, 213 Ariz. at 129, ¶ 40, 140 P.3d at 912 (citations omitted)
(internal punctuation omitted). Sanchez makes no claim of “extrajudicial
source of bias” and the record fails to show the judge’s conduct in
controlling the trial represented the “deep-seated favoritism” required to
constitute a valid basis for claims of bias or prejudice.

¶13           Third, the record does not demonstrate the judge was
prejudiced or biased when, in explaining the deliberation schedule to the
jury, he instructed it to consider the victims’ right to attend the trial,
including when it returned its verdict, as it would take time to “get
everybody back into the [court]room.” The court explained it usually
required 45 minutes to an hour to notify everyone of a verdict and this could
pose a problem if the jury reached a verdict late in the afternoon. The
court’s instruction was, under the circumstances, appropriate and practical.

¶14            In summary, the record fails to support Sanchez’s claim of
judicial bias.

III.   Sentencing Error

¶15            Finally, Sanchez argues the superior court imposed an illegal
sentence when it sentenced him to natural life for first-degree murder
without first finding a “valid” aggravating circumstance. Because Sanchez
did not raise this objection in the superior court, we review for fundamental
error, see supra ¶ 5, although we acknowledge an illegal sentence constitutes
fundamental error. See State v. Kasic, 228 Ariz. 228, 231, ¶ 15, 265 P.3d 410,
413 (App. 2011). The superior court did not, however, impose an illegal
sentence when it sentenced Sanchez to natural life because of his “criminal
history.”

¶16           When Sanchez murdered Angel on April 27, 2011, Arizona
law authorized a court to decide whether to impose a natural life or a life
sentence when a person had been convicted of first-degree murder but not
sentenced to death. See generally Ariz. Rev. Stat. (“A.R.S.”) § 13-752(Q)
(2010). Section 13-752(Q) provided:




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                            STATE v. SANCHEZ
                            Decision of the Court
              If the death penalty was not alleged or was
              alleged but not imposed, the court shall
              determine whether to impose a sentence of life
              or natural life. In determining whether to
              impose a sentence of life or natural life, the
              court:

              1. May consider any evidence introduced
              before sentencing or at any other sentencing
              proceeding.

              2.    Shall consider the aggravating and
              mitigating circumstances listed in § 13-701 and
              any statement made by a victim.

¶17           On its face, A.R.S. § 13-752(Q) did not require a court to make
any explicit finding of any aggravating circumstance before imposing a
natural life sentence. Instead, it authorized a court to “consider” any
“evidence introduced before sentencing” and any of the aggravating and
mitigating circumstances “listed in § 13-701.” Id. Further, in State v. Fell,
the Arizona Supreme Court held that a guilty verdict of first-degree murder
alone authorized a natural life sentence, without any additional factual
finding. 210 Ariz. 554, 558, ¶ 15, 115 P.3d 594, 598 (2005). In so holding, the
court emphasized that under Arizona’s sentencing statutes, a court had
“discretion to sentence an offender within a range—from life to natural
life—for non-capital first-degree murder,” and the Legislature’s
enumeration of factors a court could consider when imposing a sentence
within that range did not render life imprisonment the “statutory
maximum” for purposes of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004). Fell, 210 Ariz. at 558-59, ¶¶ 14-18, 115
P.3d at 598-99. Although, as Sanchez notes, in 2009 the Legislature
amended the sentencing statutes at issue in Fell, those amendments—which
are applicable here—are still controlled by Fell. Here, as in Fell, the jury’s
verdict alone exposed Sanchez to a possible sentence of natural life. See
A.R.S. § 13-751(A) (2010). And, here, as in Fell, it was within the superior
court’s discretion to impose a natural life sentence without making any
additional factual findings. See A.R.S. § 13-752(Q).

¶18            Further, we reject Sanchez’s argument that the United States
Supreme Court essentially overruled Fell in Miller v. Alabama, __ U.S. __, 132
S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and Graham v. Florida, 560 U.S. 48, 130
S. Ct. 2011, 176 L. Ed. 2d 825 (2010). In Miller, the Supreme Court held “the
Eighth Amendment forbids a sentencing scheme that mandates life in


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                           STATE v. SANCHEZ
                           Decision of the Court
prison without possibility of parole for juvenile offenders.” __ U.S. at __,
132 S. Ct. at 2469. And, in Graham, the Supreme Court held the Eighth
Amendment “prohibits the imposition of a life without parole sentence on
a juvenile offender who did not commit homicide.” 560 U.S. at 82, 130 S. Ct.
at 2034. These cases have no impact on the continuing vitality of Fell.

                             CONCLUSION

¶19          For the foregoing reasons, we affirm Sanchez’s convictions
and sentences.




                                   :jt


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