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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                  CHRIS MICHAEL ALONSO, Petitioner.

                         No. 1 CA-CR 13-0818 PRPC
                             FILED 9-29-2015


           Appeal from the Superior Court in Maricopa County
                      No. CR2004-137144-001 DT
                The Honorable Paul J. McMurdie, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent

Kimerer & Derrick, P.C., Phoenix
By Michael D. Kimerer
Counsel for Petitioner
                           STATE v. ALONSO
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.



P O R T L E Y, Judge:

¶1            Petitioner Chris Michael Alonso petitions this court to review
the dismissal of his petition for post-conviction relief. We have considered
the petition for review and grant review, but for the reasons stated, deny
relief.

I.     Background

¶2             Alonso was tried and a jury found him guilty of first degree
murder, drive-by shooting, and five counts of attempted first degree
murder. He was subsequently sentenced to life in prison with a possibility
of release after twenty-five years for first degree murder; 12.5 years in
prison for the first count of attempted first degree murder; and 10.5 years
in prison for each remaining count. The trial court ordered the sentence for
the first count of attempted first degree murder and the sentence for drive-
by shooting to run concurrently, and all other sentences to run
consecutively. The court also ordered that Alonso serve the sentence for
murder last. Finally, the court ordered that Alonso serve all of the sentences
in this case consecutive to the sentences imposed in two other unrelated
cases.

¶3           Alonso filed an appeal and we affirmed his convictions and
sentences on direct appeal. Alonso now seeks review of the summary
dismissal of his first petition for post-conviction relief as well as a
supplemental petition for post-conviction relief.1 We have jurisdiction
pursuant to Arizona Rules of Criminal Procedure (“Rule”) 32.9(c) and
Arizona Revised Statutes (“A.R.S.”) section 13-4239(C) (2010).




1The trial court found Alonso presented one colorable claim for relief and
held an evidentiary hearing on that issue. The court denied relief but
Alonso does not present that issue for review.


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                            STATE v. ALONSO
                            Decision of the Court

II.    Issues Presented for Review

¶4             Alonso presents three issues for review. He argues: (1) the
trial court erred by denying his motion to change counsel; (2) both his trial
counsel were ineffective when they failed to request a “second shooter”
instruction before jury deliberations began; and (3) his appellate counsel
was ineffective when counsel failed to raise an issue regarding the trial
court’s refusal to give a “second shooter” instruction after deliberations
began.

III.   Denial of the Motion to Change Counsel

¶5            Alonso argues the trial court erred by denying his motions for
new counsel during his trial. He raised the issue on direct appeal, and we
found no error. As a result, any claim a defendant raised or could have
raised on direct appeal is precluded. Ariz. R. Crim. P. 32.2(a).

¶6            Alonso, however, attempts to circumvent preclusion by
arguing the record on appeal was not sufficient to permit this court to fully
address the issue and, therefore, he can re-litigate the issue in a subsequent
post-conviction relief proceeding.2 Alonso relies on State v. Bell, 23 Ariz.
App. 169, 531 P.2d 545 (App. 1975), to support his proposition.

¶7             Alonso’s reliance on Bell is unavailing because Bell is not only
distinguishable, but the post-conviction procedural world in which we
decided Bell no longer exists. The Bells pled guilty to various charges and
filed a direct appeal in which they raised claims of ineffective assistance of
trial counsel. They argued in the opening brief that they could not
adequately present a factual basis to support the issue absent an evidentiary
hearing because the ineffectiveness occurred before they pled guilty and
the only transcripts in the record were for the change of plea hearing and
sentencing. Id. at 170, 531 P.2d at 546-47. The Bells raised the same claims
of ineffective assistance in a concurrent post-conviction relief proceeding
and sought an evidentiary hearing to establish the ineffective assistance.
The State argued the issue was precluded pursuant to Rule 32.2 because it
was pending on direct appeal. The trial court in turn denied relief. Id.

¶8           We held the Bells were entitled to an evidentiary hearing in
the post-conviction relief proceeding. Id. at 171, 531 P.2d at 548. We
recognized that the Rules of Criminal Procedure as they existed at that time
contemplated that the issue of ineffective assistance could be pending

2Alonso does not present this issue in the context of newly discovered
evidence or ineffective assistance of appellate counsel.


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                            STATE v. ALONSO
                            Decision of the Court

simultaneously in both a post-conviction relief proceeding in the trial court
and in a direct appeal. We explained the circumstances placed the Bells in
the position of properly raising a claim of ineffective assistance on direct
appeal for which the record on appeal contained no factual basis, yet they
could not develop the factual basis in a Rule 32 proceeding because the
issue was pending on direct appeal. We held that preclusion of an issue
that is “still raisable” on direct appeal applies only when there is a sufficient
factual basis in the record for the appellate court to resolve the issue. Id. at
170-71, 531 P.2d at 547. This is the language Alonso relies upon.

¶9            Bell, however, does not help Alonso. We decided Bell at a time
when the rules permitted defendants such as the Bells to not only file a
direct appeal after they pled guilty, but to raise issues of ineffective
assistance of counsel in that appeal. A defendant may no longer do either.
A.R.S. § 13-4033(B) (2008) (a defendant may not appeal a judgment or
sentence entered pursuant to a plea agreement); State v. Spreitz, 202 Ariz. 1,
3, ¶ 9, 39 P.3d 525, 527 (2002) (a defendant may not present claims of
ineffective assistance of counsel in a direct appeal). Further, in Bell we
addressed preclusion in the context of an issue “[s]till raisable on direct
appeal” as provided in the former Arizona Rules of Criminal Procedure,
Rule 32.2(a)(1).3 Bell, 23 Ariz. App. at 170 n.2, 531 P.2d at 547 n.2. And that
procedural rule no longer exists.

¶10           Rule 32.2(a)(2), the rule in effect at the time of Alonso’s
conviction, provides that any issue “[f]inally adjudicated on the merits on
appeal” is precluded. Moreover, in Bell we based our ruling, in part, on a
comment to the rule. That comment, like the rule is no longer part of the
comments to the current, applicable rule. See Ariz. R. Crim. P. 32.2, cmt.
(“This [2002] Comment consolidates and replaces prior comments.”).

¶11            Here, the issue of whether the trial court erred by denying
Alonso’s motion for new counsel before the jury’s verdict was addressed
and resolved on the merits on direct appeal. The issue, as a result, cannot
be raised because it is precluded pursuant to Rule 32.2(a)(2). Consequently,
the trial court properly found the issue precluded when reviewing Alonso’s
petition for post-conviction relief.




3The current version of Rule 32.2(a)(1) is worded slightly differently but is
substantively the same.


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                            STATE v. ALONSO
                            Decision of the Court

IV.    Failure to Timely Request a “Second Shooter” Instruction

¶12           Alonso also argues both his lawyers at trial were ineffective
when they failed to request a “second shooter” instruction. To state a
colorable claim of ineffective assistance of counsel, a defendant must show
that counsel’s performance fell below objectively reasonable standards and
that the deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To show prejudice, a defendant must
show that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. If a defendant fails to make a sufficient showing on
either prong of the Strickland test, the trial court need not determine
whether the defendant satisfied the other prong. State v. Salazar, 146 Ariz.
540, 541, 707 P.2d 944, 945 (1985).

       A.     Background

¶13           During jury deliberations, the jury sent out a note that stated,
in relevant part, that a “juror is introducing a theory that there was a second
shooter” in a vehicle that fired a gun at the exact same time as Alonso, and
that this shot could have killed the murder victim. The presiding juror
indicated he or she did not recall that Alonso presented this theory. The
note then asked, “For this situation is there anything that should be done
aside from referring them to the instructions that you have given us?”

¶14            Alonso’s lawyer asked the court to instruct the jury that
Alonso raised the issue during trial and it is up to the jury to determine the
facts of the case and whether any facts support that claim. After noting that
Alonso did not request an instruction on a “second shooter” theory before
deliberations began, the court stated one would have been given if timely
requested, but that it would not give such an instruction in the middle of
deliberations. The court then stated it would inform the jury that Alonso
presented a second shooter theory and it was an issue the jury needed to
resolve. Both of Alonso’s lawyers responded, “That’s fine” and “Perfect.”

¶15            Alonso did not raise his argument that his lawyers should
have asked for the “second shooter” instruction before deliberations began
in his petition for post-conviction relief. He raised the argument for the first
time in his second supplement to his petition for post-conviction relief. He
contends the following instruction should have been requested:

       The Defendant’s theory of the case is that another person may
       have caused the death of [the murder victim] and you may
       consider any evidence that supports that theory. You may


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                            STATE v. ALONSO
                            Decision of the Court

       consider the means and opportunity of such person, the
       character of such person, and the motive of this person to
       commit the crime. You may also consider any physical
       evidence admitted at trial and the testimony of any witness.
       You must determine whether any of this evidence creates a
       reasonable doubt as to Defendant’s guilt. If you think there is
       a real possibility that Defendant is not guilty, you must give
       him the benefit of that doubt and find him not guilty.4

The trial court summarily dismissed the issue.

       B.     Discussion

¶16            Generally, a party is entitled to an instruction on any theory
reasonably supported by the evidence. But, a party is not entitled to an
instruction when it is adequately covered in other instructions. State v.
Martinez, 196 Ariz. 451, 460, ¶ 36, 999 P.2d 795, 804 (2000). The omission of
an instruction does not result in reversible error where the instructions,
read as a whole, sufficiently set forth the applicable law. State v. Barr, 183
Ariz. 434, 442, 904 P.2d 1258, 1266 (App. 1995). It is only when the
instructions, taken as a whole, are such that it is reasonable to suppose the
instructions misled the jury that we should reverse for error in the
instructions. State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986).
Finally, “[I]n evaluating the jury instructions, we consider the instructions
in context and in conjunction with the closing arguments of counsel.” State
v. Johnson, 205 Ariz. 413, 417, ¶ 11, 72 P.3d 343, 347 (App. 2003) (citation
omitted).

¶17           In his trial closing argument, Alonso asserted the evidence
demonstrated there was a second shooter. The jury, as a result, knew that
one of his defenses was that a second shooter, not Alonso, shot and killed
the victim. And although Alonso did not ask for the “second shooter”
instruction, the final instructions more than adequately addressed the
applicable law even when considered in the context of a “second shooter”
theory. The trial court instructed the jury that to convict Alonso of first
degree murder, the jury must find that he caused the death of the victim;
that he intended or knew he would cause the death of the victim; and that
he acted with premeditation. The court instructed the jury that to convict
Alonso of any of the lesser-included offenses of second degree murder,


4Because Alonso’s proposed instruction addressed only the charge of first
degree murder, we address this issue only in the context of the murder
charge and conviction.


                                      6
                            STATE v. ALONSO
                            Decision of the Court

manslaughter or negligent homicide, the jury must also find Alonso caused
the death of the victim. And the court instructed the jury regarding the
burden of proof and reasonable doubt.

¶18            The trial court properly instructed the jury. Moreover, we
presume, in the absence of evidence to the contrary, that jurors follow their
instructions. State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App.
1996). If the jury believed that a “second shooter” may have caused the
death of the victim, and in the absence of the State asking for an accomplice
instruction, the jury was free to find, especially after the court responded to
the juror note, that Alonso was not guilty because the State did not prove
beyond a reasonable doubt that Alonso caused the death of the victim;
regardless of whether his lawyers requested and the trial court gave the
“second shooter” instruction before the start of jury deliberations.

¶19            Finally, even if we were to presume that the failure to timely
request the “second shooter” instruction fell below the standard of care for
a trial lawyer, we find no evidence of prejudice. The fact that the jury could
have acquitted Alonso based on the instructions, and if the facts warranted,
without the “second shooter” instruction, demonstrates that the failure of
his trial lawyers to timely request the instruction did not cause him
prejudice. Similarly, the failure of his appellate lawyer to raise on appeal
the issue that the trial court erred by not giving the instruction when it was
raised by the note did not cause any prejudice. Consequently, we deny
relief because Alonso suffered no prejudice from counsels’ failure to request
the instruction.

V.     Conclusion

¶20           We grant review of the denial of the petition for post-
conviction relief, and deny relief.




                                   :ama




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