                          NOTICE: NOT FOR PUBLICATION.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.

                        PEDRO ESPINOZA, Appellant.

                             No. 1 CA-CR 12-0811
                               FILED 3-18-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2010-127952-001
               The Honorable Roger E. Brodman, Judge

                                  AFFIRMED


                                   COUNSEL

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

The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant

Pedro Espinoza, San Luis
Appellant
                           STATE v. ESPINOZA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Donn Kessler joined.


B R O W N, Judge:

¶1             Pedro Espinoza appeals his convictions and sentences for six
counts of kidnapping, one count of armed robbery, one count of
aggravated assault, one count of burglary in the first degree, and one
count of criminal trespass in the first degree. Counsel for Espinoza filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State
v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the
record on appeal, he was unable to find any arguable grounds for
reversal. Espinoza was granted the opportunity to file a supplemental
brief in propria persona, and he has done so. 1

¶2             Our obligation is to review the entire record for reversible
error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We
view the facts in the light most favorable to sustaining the convictions and
resolve all reasonable inferences against Espinoza. State v. Guerra, 161
Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we
affirm.

¶3           The State charged Espinoza with three counts of kidnapping
(Counts 1-3: victims L.B., M.V., and D.G.), class 2 dangerous felonies, in
violation of Arizona Revised Statutes (“A.R.S.”) section 13-1304; three

1      In addition to his supplemental brief, Espinoza filed a “Motion for
Court of Appeals Order to Trial Court and Appellant Counsel to Produce
Trial Court Record” and a “Motion to Amend Supplemental Brief within
60 Days After the Whole Trial Court Record is Produced.” Because
Espinoza is represented by counsel in this appeal, except for his initial
supplemental brief, he has no right to submit filings on his own behalf.
See State v. Cook, 170 Ariz. 40, 48, 821 P.2d 731, 739 (1991) (“Arizona does
not recognize a right to hybrid representation.”); State v. Stone, 122 Ariz.
304, 308, 594 P.2d 558, 562 (App. 1979) (“[T]here is no constitutional right
to hybrid representation under either the federal or our state
constitution.”). Accordingly, it is hereby ordered striking both motions.



                                      2
                           STATE v. ESPINOZA
                           Decision of the Court

counts of kidnapping (Counts 4-6: victims F.R., N.B., and A.B.), class 2
dangerous felonies and dangerous crimes against children, in violation of
A.R.S. § 13-1304; one count of armed robbery (Count 7: victim L.B.), a class
2 dangerous felony, in violation of A.R.S. § 13-1904; one count of
aggravated assault (Count 8: victim L.B.), a class 3 dangerous felony, in
violation of A.R.S. § 13-1204, one count of burglary in the first degree
(Count 9: victim L.B.); a class 2 dangerous felony, in violation of A.R.S. §
13-1508; and one count of criminal trespass (Count 11), a class one
misdemeanor, in violation of A.R.S. § 13-1504. The following evidence
was presented at trial.

¶4           In the early morning hours of May 30, 2010, L.B. was asleep
in her home when she was awakened by the sound of breaking glass. She
immediately ran to the balcony to look downstairs. She saw someone
enter through a window and begin climbing up the stairs. L.B. retreated
to her bedroom, grabbed her phone, and dialed 9-1-1. Before she was able
to speak with the 9-1-1 operator, the intruder entered her bedroom and
took the phone from her. Espinoza, who L.B. later identified in court, then
grabbed L.B. by the hair and forced her out of her bedroom.

¶5            Upon leaving her bedroom, L.B. found that others had also
entered her home. Espinoza placed a handgun to L.B.’s head and ordered
her to give them “whatever valuables [she] had.” Shortly thereafter,
another intruder permitted L.B. to retrieve her two-year-old daughter and
take her to the bedroom where L.B.’s parents were being detained along
with L.B.’s two older children, ages six and four. Espinoza then grabbed
L.B. by the hair and dragged her from room to room demanding all
valuables. Frightened, L.B. gave defendant all the jewelry and money she
had. At some point, Espinoza escorted L.B. to the bedroom closet where
her parents and children were being held and demanded that L.B.’s
parents give him more valuables. L.B.’s father ordered Espinoza not to
hurt the children and Espinoza struck him “to shut him up.” Espinoza
threatened to take L.B.’s daughter and L.B. pled with him not to take her
children. At that point, a third person demanded the keys to the truck
parked outside, so L.B. retrieved the keys for him. Law enforcement
eventually arrived at the scene and the intruders fled from L.B.’s home.

¶6            L.B.’s neighbor, J.R., testified that in the early morning hours
of May 30, 2010, his roommate alerted him after she heard the sound of
breaking glass at a neighboring home. He went outside to investigate and
noticed a car that “didn’t belong” parked in front of L.B.’s house and men
loading things into the vehicle. He called the police. Shortly after hearing



                                      3
                           STATE v. ESPINOZA
                           Decision of the Court

sirens approaching, J.R. saw Espinoza jump over a fence and enter J.R.’s
backyard. J.R. tackled Espinoza and held him until police arrived.

¶7              Espinoza was taken into custody, read his Miranda 2 warning,
and escorted to the police station. During questioning, Espinoza admitted
he participated in the home invasion and acknowledged having a weapon
on his person, but denied removing it from his waistband. Espinoza did
not testify at trial.

¶8          A jury found Espinoza guilty of all charges. Espinoza was
sentenced to a cumulative total of fifty-eight and one-half years
imprisonment, with 446 days of presentence incarceration credit.
Espinoza timely appealed.

                               DISCUSSION

¶9             In his supplemental brief, Espinoza raises four issues for
review: (1) his right to counsel on appeal was violated; 3 (2) his right to a
fair trial was violated by the admission of certain “prejudicial pictures”;
(3) his right to due process was violated when the trial court determined
the aggravating factors used to enhance his sentence; and (4) the
indictment included multiplicitous and duplicitous charges.

¶10            Espinoza objected to the admission of the pictures in the trial
court, but did not raise any of the other claims below. Therefore, we
review his challenge to the evidentiary ruling for harmless error and the
remaining claims for fundamental error. State v. Rutledge, 205 Ariz. 7, 13,
¶ 30, 66 P.3d 50, 56 (2003) “Harmless error review places the burden on
the state to prove beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” State v. Henderson, 210
Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005). Under fundamental error
review, however, the burden is placed on the defendant to prove both that
“fundamental error exists and that the error . . . caused him prejudice.” Id.
at 567, ¶ 20, 115 P.3d at 607. We address each claim in turn.


2      Miranda v. Arizona, 384 U.S. 436 (1966).

3       Espinoza claims his constitutional right to counsel has been
violated by his attorney’s decision to file an Anders brief. Espinoza’s
claim, however, is a challenge to the effectiveness of his appellate counsel,
which we will not address on direct appeal. See State v. Spreitz, 202 Ariz.
1, 3, ¶ 9, 39 P.3d 525, 527 (2002).



                                      4
                           STATE v. ESPINOZA
                           Decision of the Court

      A.     Admission of Photographs

¶11            Espinoza argues that his right to a fair trial was denied when
the court admitted photographs of the child victims in this case,
specifically exhibits 24, 25, and 26.

¶12             “The trial court has discretion to decide whether to admit
photographs, and we will not disturb its ruling absent a clear abuse of that
discretion.” State v. Amaya-Ruiz, 166 Ariz. 152, 170, 800 P.2d 1260, 1278
(1990). In determining whether to admit photographic evidence, the court
first considers whether it is relevant. Id.; see also Ariz. R. Evid. P. 401
(explaining evidence is relevant if “it has any tendency to make a fact
more or less probable” and “the fact is of consequence in determining the
action”). Then, the court must consider “whether the photographs would
tend to incite passion or inflame the jury.” “In the event that they are
inflammatory, the court balances their probative value against their
potential to cause unfair prejudice.” Id.; Amaya-Ruiz, 166 Ariz. at 170, 800
P.2d at 1278; see also Ariz. R. Evid. P. 403 (stating a court “may exclude
relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice”).

¶13          At trial, the State was required to prove that three of the
kidnapping counts were dangerous crimes against children.             The
photographs were offered into evidence to show the age of the victims.
None of the pictures reflected any trauma or injuries to the victims.
Nonetheless, Espinoza objected to their admission, claiming the
photographs were being shown solely to “[e]voke emotion and sympathy
from the jurors.” After viewing the photographs, the court overruled
Espinoza’s objection, finding the photographs “corroborate[d] [L.B.’s]
testimony concerning the age of the children” and were not “particularly
emotional.” We conclude the court did not abuse its discretion by finding
the photographs were relevant and not unduly prejudicial.

      B.     Aggravating Factors

¶14           Espinoza asserts the court violated his right to due process
by determining the aggravating factors used to enhance his sentence,
arguing that the jury should have made those findings.

¶15          When defense counsel stipulates to a prior conviction, or
other aggravating factors, for purposes of sentence enhancement, Arizona
Rule of Criminal Procedure 17.6 requires that the court conduct a plea-
type colloquy with the defendant before accepting the stipulation. To
ensure such admissions and stipulations are made knowingly and


                                     5
                           STATE v. ESPINOZA
                           Decision of the Court

voluntarily, Rules 17.6 and 17.2 require the court to advise the defendant
of his or her right to a hearing and the effects that prior convictions may
have on sentencing. State v. Morales, 215 Ariz. 59, 61, ¶¶ 6-8, 157 P.3d 479,
481 (2007). The failure to provide this colloquy deprives the defendant of
due process and constitutes fundamental error. Id. at 61, ¶¶ 8, 10, 157 P.3d
at 481.

¶16           Near the end of trial, defense counsel notified the court that
Espinoza would stipulate to three aggravating factors: a prior felony
conviction, the emotional and financial harm to the victims, and that the
offenses were committed for pecuniary gain, avowing as follows:

      I have conferred with my client regarding this issue, and he
      understands he has an absolute right to put these
      aggravating factors before a jury. I’ve explained to him
      entirely and after explaining everything to him, of course
      with the assistance of the court interpreter, he’s willing to
      stipulate to those three aggravators, Your Honor.

After conducting a thorough plea-type colloquy with Espinoza, the trial
court found that he knowingly, intelligently, and voluntarily entered into
the stipulation. Accordingly, we find no error.

      C.     Multiplicitous and Duplicitous Charges

¶17           Espinoza suggests that the indictment was multiplicitous
and duplicitous because there were “multiple counts based on the same
occasion.” An indictment is duplicitous when it charges more than one
crime in the same count. State v. Anderson, 210 Ariz. 327, 335, ¶ 13, 111
P.3d 369, 377 (2005). An indictment is muliplicitous when it charges a
single offense in multiple counts. State v. Barber, 133 Ariz. 572, 576, 653
P.2d 29, 33 (App. 1982). “Indictments need not specify the precise act
constituting the crime if there is no reasonable basis” for distinguishing
multiple acts. State v. Payne, 233 Ariz. 484, 508, ¶ 85, 314 P.3d 1239, 1263
(2013) (quoting State v. Klokic, 219 Ariz. 241, 246, ¶ 25, 196 P.3d 844, 849
(App. 2008)). “In such a case, ‘the defendant is not entitled to a
unanimous verdict on the precise manner’ in which the act is committed.”
Id. (quoting State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982)).

¶18         Espinoza has failed to show how any of the counts in the
indictment are duplicitous or multiplicitous. Although Espinoza was
charged with six counts of kidnapping, each count alleged that the crime
was committed against a different victim: L.B., M.V., D.G., F.R., N.B., and
A.B. The evidence shows Espinoza physically restrained L.B. while


                                     6
                          STATE v. ESPINOZA
                          Decision of the Court

dragging her from room to room in search of valuables and the other five
victims were rounded up and confined to a bedroom closet during the
home invasion. See A.R.S. § 13-1304 (“A person commits kidnapping by
knowingly restraining another person with the intent to . . . aid [] the
commission of a felony[.]”). Espinoza was charged with one count of
armed robbery against L.B. and the evidence reflects that he held a
handgun to her head and demanded that she give him money and other
valuables. See A.R.S. §§ 13-1902, -1904 (stating a person commits armed
robbery by “taking any property of another from his person or immediate
presence and against his will” while using a deadly weapon). Espinoza
was also charged with one count of aggravated assault against L.B. The
evidence reflects that Espinoza repeatedly pointed a handgun at L.B.’s
head and threatened to kill her. See A.R.S. § 13-1204(A)(2) (stating a
person commits aggravated assault by intentionally placing another
person in reasonable apprehension of imminent physical injury while
using a deadly weapon). The State also charged Espinoza with one count
of burglary in the first degree. The record reflects that Espinoza, armed
with a handgun, entered L.B.’s residence with the intent to take her
property. See A.R.S. §§ 13-1507, -1508 (stating a person commits burglary
in the first degree by entering a residential structure with the intent to
commit a felony therein while knowingly possessing a deadly weapon).
Finally, Espinoza was charged with one count of criminal trespass in the
first degree. The evidence reflects that Espinoza jumped J.R.’s fence and
entered J.R.’s yard, without permission, in an attempt to elude police
officers. See A.R.S. § 13-1504 (stating a person commits criminal trespass
in the first degree by knowingly entering or remaining unlawfully in a
fenced residential yard). Thus, we find no error.

                            CONCLUSION

¶19         We have searched the entire record for reversible error and
find none. All of the proceedings were conducted in accordance with the
Arizona Rules of Criminal Procedure. The record shows Espinoza was




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                          STATE v. ESPINOZA
                          Decision of the Court

present and represented by counsel at all pertinent stages of the
proceedings, was afforded the opportunity to speak before sentencing,
and the sentences imposed were within statutory limits. Accordingly, we
affirm Espinoza’s convictions and sentences.

¶20            Upon the filing of this decision, counsel shall inform
Espinoza of the status of the appeal and his options. 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, 684 P.2d 154, 156-57
(1984). Espinoza 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.




                                   :mjt




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