                          NOTICE: NOT FOR PUBLICATION.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.

                      FERNANDO CORTEZ, Appellant.

                             No. 1 CA-CR 13-0511
                              FILED 07-29-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-150561-001
                The Honorable Karen A. Mullins, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant

Fernando Cortez, Tucson
Appellant
                            STATE v. CORTEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.


S W A N N, Judge:

¶1            Defendant Fernando Cortez appeals his convictions and
sentences for aggravated assault.

¶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 has searched the record on appeal and
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.

¶3           We have searched the record and considered the issues
raised by Defendant. We affirm his convictions and sentences.

                FACTS AND PROCEDURAL HISTORY

¶4           In October 2012, Defendant was indicted on one count of
aggravated assault against S.F. and one count of aggravated assault
against S.R. Defendant pled not guilty and the matter proceeded to a jury
trial.

¶5            At trial, the state presented evidence of the following facts.
On the afternoon of September 24, 2012, Defendant accused S.R., his on-
and-off girlfriend, of having stolen his other girlfriend’s vehicle. The
couple began arguing in S.R.’s bedroom but then exited S.R.’s apartment,
where Defendant swung a folding knife at S.R.’s friend, S.F., from behind.
Defendant stabbed S.F. several times, lacerating his neck, arm, cheek, and
forehead. S.R. pulled Defendant off of S.F., falling with Defendant in the
process. When Defendant and S.R. rose, Defendant swung the knife at
S.R. and lacerated her arm. He then fled, and S.R.’s daughter called 911.

¶6          Officers who responded to S.R.’s apartment found S.F.
supine and bleeding on the kitchen floor, supported by S.R. They also


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                            STATE v. CORTEZ
                           Decision of the Court

found blood spatter outside of the apartment near S.F.’s vehicle and on the
walkway leading into the apartment. A protective sweep of the residence
and the area surrounding the vehicle revealed no weapons. S.F. was
transported to a hospital and received medical care requiring a two-night
stay. Paramedics cleaned S.R.’s wound at the scene.

¶7            Law enforcement soon encountered Defendant walking
against traffic on the shoulder of a nearby interstate, and detained him
because he matched the description of the person who had stabbed S.F.
and S.R. Officers recovered a knife from the area where Defendant had
been walking and facilitated a one-on-one identification by S.R.’s
daughter. Defendant was then placed under arrest.

¶8           Based on the state’s evidence, Defendant moved for
judgments of acquittal. The court denied the motion.

¶9            For his case, Defendant testified that he had approached S.F.
to ask whether S.F. knew anything about Defendant’s girlfriend’s missing
vehicle, and to tell S.F. to stay out of his disputes with S.R. According to
Defendant, he swung at S.F. with a knife only after S.F. pointed a gun at
him, and stabbed S.F. repeatedly because he was unable to loosen the gun
from S.F.’s grip. Defendant further testified that when S.R. knocked him
down from behind, he swung the knife at her before he realized who she
was, tried to stop when he did realize, and fled because he was afraid of
S.F.’s gun. Defendant presented the testimony of a witness who stated
that he had seen a woman push Defendant toward a man who had a gun
in his hand, and Defendant’s girlfriend testified that S.R. had told her that
Defendant had reacted to a gun.

¶10           After considering the evidence and hearing closing
arguments, the jury found Defendant guilty on both counts. The jury also
found that the state had proven several aggravating factors. With respect
to both of the aggravated assaults, the jury found that the state had
proven that Defendant was previously convicted of a felony within the ten
years preceding the date of the offenses, that the offenses involved the use
or possession of a dangerous instrument, and that the offenses were
dangerous offenses. The jury further found that with respect to the
assault against S.F., the offense involved the infliction of serious physical
injury and caused emotional harm to the victim.

¶11          The court entered judgment on the jury’s verdicts and,
balancing the aggravating factors against mitigating factors, sentenced
Defendant to concurrent aggravated prison terms of 9.5 years for the



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                            STATE v. CORTEZ
                           Decision of the Court

assault against S.F. and 8.5 years for the assault against S.R., with credit
for 291 days of presentence incarceration. Defendant timely appeals.

                               DISCUSSION

I.     DEFENDANT’S  ARGUMENTS                   DO      NOT       IDENTIFY
       FUNDAMENTAL ERROR.

¶12          In his supplemental brief, Defendant contends that the state
acted improperly in several respects. We conclude that none of
Defendant’s arguments describe fundamental error.

       A.     The State’s Failure to Pursue a Domestic Violence Allegation
              Was Not Error.

¶13          Defendant contends that the state improperly “alter[ed]” the
indictment by failing to pursue its allegation that the aggravated assault
against S.R. was a domestic violence offense. This, however, was well
within the prosecutor’s discretion and caused no prejudice to Defendant.
We discern no error, much less fundamental error.

       B.     Defendant’s Brady Claims Are Unsupported.

¶14            Defendant next contends that the state violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose that S.F. had previously
been charged with a gun-related crime and that S.F.’s urine tested positive
for amphetamines at the time he received treatment for his wounds.
Defendant also contends that the state failed to disclose its interviews of
S.F., and disclosed a recording of the prosecutor’s interview of S.R. too late
to allow Defendant a reasonable opportunity to review it before deciding
whether to accept a plea offer.

¶15           Under Brady and Ariz. R. Crim. P. 15.1, the state is required
to timely disclose exculpatory evidence. This includes evidence affecting
witness credibility. Giglio v. United States, 405 U.S. 150, 154 (1972). There
is no showing in this case of the prejudicial suppression of material
evidence. Defendant provides no support for his contentions that
evidence was withheld from him. Further, the record shows that
Defendant was able to elicit testimony at trial regarding S.F.’s urine-test
results and previous gun ownership. The record also shows that
Defendant was provided with a recording of S.R.’s interview well in
advance of trial, within two days after it was conducted. And contrary to
Defendant’s argument, the timing of the interview in relation to the



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                            STATE v. CORTEZ
                           Decision of the Court

expiration of the state’s first plea offer (others were made in the following
months) does not implicate error.

       C.     The Record Reveals No Prosecutorial Misconduct.

¶16            Defendant finally contends that the state engaged in
misconduct because the prosecutor: (1) elicited testimony from S.R. and
S.F. that was inconsistent with what they had told the grand jury and
police; (2) referred to Defendant’s incarceration; (3) went “overboard”
when questioning Defendant about his prior felony convictions, thereby
prejudicing at least one juror; and (4) misstated the facts in her closing
statements. Prosecutorial misconduct will warrant a mistrial if the
misconduct “permeates the entire trial and deprives the defendant of a
fair trial.” State v. Trani, 200 Ariz. 383, 384, ¶ 6, 26 P.3d 1154, 1155 (App.
2001). We discern no such misconduct here.

¶17          First, the claimed variations in the victims’ testimony pertain
to the precise subject matter of Defendant’s verbal argument with S.R.,
whether S.F. was “visiting” or “staying with” S.R., and what S.F. was
doing immediately before the incident. These inconsistencies were not
material to the determination of guilt. The prosecutor was under no
obligation to correct the minor variations, and Defendant had ample
opportunity to impeach the victims with their prior statements if he so
desired.

¶18              Second, the prosecutor’s references to Defendant’s
incarceration did not require a mistrial. Defendant elicited testimony
from his eyewitness that the witness was incarcerated and met Defendant
in jail because they “live in the same pod.” Later, the state, in cross-
examining Defendant’s girlfriend, asked the girlfriend whether she was
still in a relationship with Defendant and whether “[y]ou visit him in jail.”
Defendant moved for a mistrial. The court denied the motion but
instructed the jury that it was not to consider “testimony that the
defendant was incarcerated at some point in time.” This limiting
instruction was sufficient to cure the prosecutor’s improper reference to
Defendant’s incarceration -- and to negate the effect of Defendant’s own
presentation of evidence on the matter.

¶19          Third, we find nothing improper in the prosecutor’s cross-
examination of Defendant regarding his prior felony convictions.
Defendant’s contention that the prosecutor asked about the convictions
multiple times is unsupported by the record. The prosecutor asked about
each conviction only once, through a brief series of questions regarding



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                            STATE v. CORTEZ
                           Decision of the Court

the dates and locations of each. Defendant next contends that the
questions “biased and prejudiced” the jury because his answers led a juror
to submit the question of whether the prior offenses, which were
committed in California, motivated him to move to Arizona in an attempt
to avoid California’s “three strikes” law. This question, though not
relevant (and therefore not asked), did not demonstrate any bias or
prejudice.

¶20           Fourth, we find no fundamental error in the prosecutor’s
closing statements.        Defendant contends that the prosecutor
mischaracterized his eyewitness’s testimony. The witness testified: “[The
man fighting with Defendant] had, it looked to be like a gun. I don’t
know if it was real or fake or whatnot, but it was -- it resembled a gun,”
and “it was a gun, whether it was real or not, I’m not sure.” In
summarizing this testimony, the prosecutor stated that the witness
“thought he saw a gun, but he said it wasn’t clear.” This description was
materially faithful to the testimony and did not constitute misconduct.
Further, contrary to Defendant’s contention, the prosecutor’s description
of possible limitations on the witness’s field of view did not constitute
misconduct.

      D.     Claims of Ineffective Assistance of Counsel Are Not
             Properly Before This Court.

¶21             Defendant repeatedly suggests that his trial counsel was
deficient. We do not consider claims for ineffective assistance of counsel
on direct appeal; they must instead be raised in a petition for
postconviction relief under Ariz. R. Crim. P. 32. State v. Spreitz, 202 Ariz.
1, 3, ¶ 9, 39 P.3d 525, 527 (2002).

II.   OUR INDEPENDENT REVIEW OF THE RECORD REVEALS NO
      FUNDAMENTAL ERROR.

¶22          Our review of the record reveals no fundamental error.
Defendant was present and represented at all critical stages. The record
shows no evidence of jury misconduct and the jury was properly
comprised of 12 jurors. See A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a).

¶23          The evidence that the state presented at trial was properly
admissible and was sufficient to support Defendant’s convictions.
Defendant was charged with aggravated assault against each of S.F. and
S.R. under A.R.S. §§ 13-1203(A) and -1204(A)(1) or (2), which required the
state to prove that Defendant intentionally, knowingly, or recklessly
caused physical injury to the victim, and that the injury was serious as


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                            STATE v. CORTEZ
                           Decision of the Court

defined in § 13-105(39) or involved Defendant’s use of a deadly weapon or
dangerous instrument as defined in § 13-105(12) and (15). The state
produced evidence that Defendant fought and swung a knife at the
victims, cutting them both and causing S.F. to suffer potentially life-
threatening injuries. This evidence was sufficient to allow the jury to find
Defendant guilty of aggravated assault against both S.F. and S.R. The
evidence was also sufficient to support the jury’s findings of aggravating
factors and dangerousness.

¶24          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 sentence. The court
imposed legal sentences for the offenses, see A.R.S. §§ 13-704(A), -1204(D),
and correctly calculated Defendant’s presentence incarceration credit
under A.R.S. § 13-712(B).

                             CONCLUSION

¶25          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 convictions and sentences.

¶26            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.




                                   :gsh




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