                             NOTICE: NOT FOR PUBLICATION.
      UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
             LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                       IN THE
                ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                          STATE OF ARIZONA, Appellee,

                                           v.

                       RICK JUAN JARAMILLO, Appellant.

                                No. 1 CA-CR 13-0880
                                  FILED 11-20-14


              Appeal from the Superior Court in Maricopa County
                           No. CR2012-160520-001
                   The Honorable Teresa A. Sanders, Judge

                                     AFFIRMED


                                      COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant

Rick Juan Jaramillo, Kingman
Appellant
                              STATE v. JARAMILLO
                               Decision of the Court



                          MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding
Judge John C. Gemmill and Judge Patricia A. Orozco joined.


S W A N N, Judge:

¶1             Defendant Rick Juan Jaramillo appeals his conviction and sentence
for resisting arrest.

¶2            This case comes to us as an appeal under Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant’s
appellate counsel searched the record on appeal, found no arguable nonfrivolous
question of law, and asks us to review the record for fundamental error. See
Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz.
530, 2 P.3d 89 (App. 1999). Defendant has filed a supplemental brief in propria
persona in which he raises several issues for appeal. Pursuant to Penson v. Ohio,
488 U.S. 75, 83 (1988) we ordered and received supplemental briefing from the
state and defense counsel regarding Defendant’s sentence.

¶3         Having searched the record and considered the briefing, we discern
no fundamental error. We therefore affirm Defendant’s conviction and sentence.

                    FACTS AND PROCEDURAL HISTORY

¶4            The state charged Defendant with one count of resisting arrest, a
class 6 felony under A.R.S. § 13-2508, and alleged that Defendant had two
historical prior felony convictions. Defendant pled not guilty and the matter
proceeded to a jury trial.

¶5            At trial, the state presented evidence of the following facts. On
November 28, 2012, detectives from the Phoenix Police Department’s Fugitive
Apprehension Detail were searching for Defendant with the intent to arrest him
for an outstanding misdemeanor arrest warrant. That evening, Detective Joseph
Newbern drove an unmarked police vehicle through the well-lit parking lot of an
apartment complex where Defendant was known to stay. Observing Defendant
park his vehicle in the lot, Det. Newbern promptly notified his squad members
of Defendant’s location. Moments later, Det. Brandon Cozad drove his
unmarked police vehicle into the lot, parked behind Defendant’s vehicle, and
activated the red-and-blue lights mounted on his windshield. Defendant exited
his vehicle and began walking toward the apartment complex. Det. Cozad, who


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                            STATE v. JARAMILLO
                             Decision of the Court

was wearing a vest labeled “Phoenix Police,” followed suit, announced himself
as a police officer, and commanded Defendant to stop.

¶6             Defendant looked back at Det. Cozad and began to run. Det.
Cozad, followed by Det. Newbern, gave chase and Defendant ran into an
apartment. The detectives attempted to kick in the apartment door but were
unsuccessful. Yelling, they repeatedly announced themselves as police officers
and commanded that the door be opened. Eventually, a woman opened the
door. The detectives ordered the woman and her children to exit the apartment
and yelled from the doorway for Defendant to come out. Det. Cozad, assisted by
other detectives who had since arrived on the scene, then conducted a protective
sweep of the apartment. They did not find Defendant. But when Dets. Cozad
and Newbern re-checked the living room, Det. Cozad noticed that the living
room couch was angled slightly away from the wall. When Det. Cozad looked
over the edge of the couch, he could see part of a person’s arm. Working
together, Dets. Cozad and Newbern lifted the couch and found Defendant lying
flat beneath it.

¶7           Exposed, Defendant scrambled on his hands and knees toward the
apartment door, his upper body making contact with Det. Newbern’s left leg.
Knocked off balance, Det. Newbern stepped back. According to Det. Newbern,
had he not stepped back he probably would have fallen and hit his head on the
wall. Regaining his balance, Det. Newbern grabbed Defendant’s shirt and
pushed down on his upper body while Det. Cozad pushed down on his lower
body. Defendant struggled to rise and flailed his arms as the detectives
attempted to handcuff him. During this encounter, the detectives repeatedly
identified themselves as police officers and instructed Defendant to stop
resisting. After about thirty to sixty seconds, the detectives were able to
handcuff Defendant. Defendant, who sustained a broken nose, was then
provided medical treatment and booked.

¶8           At the conclusion of the state’s case-in-chief, Defendant moved for
a judgment of acquittal. The court denied the motion and Defendant rested.
After considering the evidence, the jury found Defendant guilty.

¶9            At sentencing, Defendant admitted that he had two prior felony
convictions, for: (1) aggravated assault, a class 3 felony, committed on November
28, 2002; and (2) endangerment, a class 6 felony, committed on April 15, 2007.
The court entered judgment on the jury’s verdict and sentenced Defendant as a
category three repetitive offender under A.R.S. § 13-703, imposing the minimum
term of three years in prison and crediting Defendant with 34 days of
presentence incarceration. Defendant timely appeals.




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                             STATE v. JARAMILLO
                              Decision of the Court

                                  DISCUSSION

¶10          We discern no fundamental error.

¶11          Defendant was present and represented by counsel at all critical
stages. The jury was comprised of eight jurors in accordance with A.R.S. § 21-
102(B) and Ariz. R. Crim. P. 18.1(a), and the evidence presented at trial was
properly admissible and sufficient to support the jury’s verdict.

      A person commits resisting arrest by intentionally preventing or
      attempting to prevent a person known to him to be a peace officer,
      acting under color of such peace officer’s official authority, from
      effecting an arrest by . . . using . . . physical force against the peace
      officer . . . [or by u]sing any other means creating a substantial risk
      of causing physical injury to the peace officer.

A.R.S. § 13-2508(A)(1)-(2). The state presented evidence that Det. Cozad used
red-and-blue vehicle lights and wore a “Phoenix Police” vest when he contacted
Defendant in the parking lot in an attempt to arrest him, and both he and Det.
Newbern repeatedly identified themselves to Defendant as police officers. The
state also presented evidence that Defendant ran, hid, and, when discovered,
knocked Det. Newbern off balance and flailed his arms as the detectives
attempted to control him. Defendant contends that this evidence was based on
perjured testimony. Witness credibility, however, was for the jury to decide.
State v. Cox, 217 Ariz. 353, 357, ¶ 27, 174 P.3d 265, 269 (2007).

¶12            The state’s closing and rebuttal arguments do not provide grounds
for reversal. Defendant moved for mistrial based on the prosecutor’s remark that
“If the Defense wanted, they could have subpoenaed a witness to say there was
something else going on that night.” The court’s denial of the motion was not
error. Mistrial is “the most dramatic remedy for trial error and should be
granted only when it appears that justice will be thwarted unless the jury is
discharged and a new trial granted.” State v. Dann, 205 Ariz. 557, 570, ¶ 43, 74
P.3d 231, 244 (2003) (citation omitted). Though the prosecutor’s remark arguably
suggested that Defendant bore the burden of proof, this incorrect implication
was tenuous at best. Further, the jury was properly instructed on the burden of
proof, and we presume that jurors follow their instructions. State v. Newell, 212
Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). We further find no error based on
the prosecutor’s comments in rebuttal that “Defendant didn’t want to be
interviewed . . . [because h]e was upset, because of the injury he received[,
and] . . . didn’t want to discuss anything.” These statements did not constitute
improper commentary on Defendant’s right to remain silent; the comments




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                              STATE v. JARAMILLO
                               Decision of the Court

merely provided an explanation for the failure to conduct an interview that
Defendant emphasized in his closing argument.

¶13            Defendant contends that the questions that the jury submitted
during the trial and their deliberations demonstrated that they were “unclear
and did not understand the case,” and that their questions remained
“unanswered.” Defendant’s argument presumably refers to the several fact-
related questions that the jury submitted during deliberations, and the court’s
response that “[y]ou will have to make your decisions based on what you recall
of the evidence.” Contrary to Defendant’s contention, the questions did not
demonstrate a misunderstanding of the case, and the jury was properly
instructed to base its decisions on the evidence presented. Further, we discern
no error in the court’s instructions to the jury regarding the deliberation
schedule. On the afternoon that deliberations began, the court instructed the
jurors that security protocol required them to leave the building by 5:00 p.m. and
they could determine when they wanted to return, which could be after one of
the jurors completed an upcoming vacation. This instruction was appropriate
and there is no indication that it influenced the verdict -- the jury continued to
deliberate after the instruction was given, and was in fact allowed to render its
verdict past the 5:00 p.m. deadline.

¶14           At sentencing, Defendant was given an opportunity to speak and
the court stated on the record the evidence and materials it considered and the
factors it found in imposing the sentence. The sentence imposed was for a
defendant with two historical prior felony convictions under A.R.S. § 13-703.
Defendant admitted to the fact of two prior felony convictions after an
appropriate colloquy. See Ariz. R. Crim. P. 17.6; State v. Carter, 216 Ariz. 286, 289,
¶¶ 13-14, 165 P.3d 687, 690 (App. 2007). His admission to the prior conviction for
aggravated assault established the existence of one historical prior felony
conviction under A.R.S. § 13-105. But under that statute, his admission to the
prior conviction for endangerment could establish a historical prior felony
conviction only if he also admitted, or the state otherwise proved, that he was on
absconder status while on probation, on escape status, or incarcerated for at least
228 days between the dates of commission for the prior conviction and the trial
offense. Defendant made no such admission. On this record, however, there is
no reversible error and no need for a remand because the evidence is sufficient to
disprove prejudice. See State v. Morales, 215 Ariz. 59, 61-62, ¶¶ 10-13, 157 P.3d
479, 481-82 (2007) (holding that when colloquy required by Rule 17.6 is not given,
remand to determine prejudice is not required if record contains sufficient
evidence of prior convictions). Defendant was sentenced to a one-year prison
term for the endangerment conviction on August 29, 2007, with credit for 36 days




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                              STATE v. JARAMILLO
                               Decision of the Court

of presentence incarceration.1 Though the record does not directly state how
much of this sentence Defendant actually served, Defendant told the court at
sentencing that “[t]he last time I was in prison . . . was March 16th, 2008.”
Defendant’s statement, combined with the minute entry imposing sentence for
the endangerment conviction and his criminal history report’s failure to reflect
any arrests for different offenses between August 29, 2007, and March 16, 2008,2
adequately shows that he was subject to uninterrupted incarceration for more
than 228 days between the day he committed endangerment and the day he
committed the trial offense. Accordingly, the court did not commit reversible
error by sentencing Defendant as a repetitive offender with two historical prior
felony convictions. The court imposed a legal sentence under A.R.S. § 13-703(A),
and correctly calculated Defendant’s presentence incarceration credit under
A.R.S. § 13-712(B).

                                  CONCLUSION

¶15           We have reviewed the record for fundamental error and find none.
See Leon, 104 Ariz. at 300, 451 P.2d at 881. Accordingly, we affirm Defendant’s
conviction and sentence.




1     We take judicial notice of the superior court’s minute entry imposing
sentence for the endangerment conviction. See Ariz. R. Evid. 201; In re Sabino R.,
198 Ariz. 424, 425, ¶ 4, 10 P.3d 1211, 1212 (App. 2000).

2      We may rely on the information set forth in the unobjected-to criminal
history report to disprove prejudice from Defendant’s failure to clearly admit to
the intervening incarceration required to qualify his admitted-to prior conviction
as a historical prior felony conviction. See State v. Gonzales, 233 Ariz. 455, 458-59,
¶¶ 11-12, 314 P.3d 582, 585-86 (App. 2013). But, as in Gonzales, “we caution trial
courts against affording such unobjected-to presentence reports dispositive effect
as to prior convictions during sentencing, thereby obviating the need to conduct
the required colloquy or put the state to its proof.” Id. at 459, ¶ 13, 314 P.3d at
586.



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                               STATE v. JARAMILLO
                                Decision of the Court

¶16            Defense counsel’s obligations pertaining to this appeal have come
to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
Unless, upon review, counsel discovers an issue appropriate for petition for
review to the Arizona Supreme Court, counsel must only inform Defendant of
the status of this appeal and his future options. Id. Defendant has 30 days from
the date of this decision to file a petition for review in propria persona. See Ariz. R.
Crim. P. 31.19(a). Upon the court’s own motion, Defendant has 30 days from the
date of this decision in which to file a motion for reconsideration.




                                         :jt


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