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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JESUS MANUEL SOTO, JR., Appellant.

                             No. 1 CA-CR 17-0336
                               FILED 4-26-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-145077-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Steams
Counsel for Appellant
                             STATE v. SOTO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.


J O N E S, Judge:

¶1             Jesus Soto, Jr. appeals his convictions and sentences for one
count each of first-degree burglary, kidnapping, armed robbery,
aggravated assault, possession of marijuana, and threatening or
intimidating. After searching the entire record, Soto’s defense counsel
identified no arguable question of law that is not frivolous. Therefore, in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), Soto’s counsel asked this Court to search the record for
fundamental error. Soto was granted an opportunity to file a supplemental
brief in propria persona but did not do so. After reviewing the entire record,
we find no error. Accordingly, Soto’s convictions and sentences are
affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2           Around 7:30 a.m. on September 24, 2015, Eduardo G. awoke
when Soto entered his bedroom with a crowbar in hand.1 Soto told
Eduardo to sit on the corner of the bed and threatened to kill Eduardo if he
moved. Eduardo was scared and did as he was told. Meanwhile, Soto went
from room to room, gathering items into bags and throwing things around.

¶3            Eduardo’s roommate, Juana V., returned from a walk a few
minutes later to find Soto in the home. When Soto refused to leave, Juana
left to contact the police. As she was leaving, Juana saw Soto holding a
knife next to Eduardo through the bedroom window. When the police
arrived and announced their presence, Soto told Eduardo that if he talked
to the police, Soto would return in two weeks to kill him. Eduardo




1      “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).


                                      2
                             STATE v. SOTO
                           Decision of the Court

eventually ran for the door and escaped, still trembling in fear. Eduardo
confirmed Soto was still inside the residence.

¶4            Police then observed Soto jump out of a window and over a
short chain-link fence. In doing so, he threw a gray shirt and a clear plastic
baggie containing a leafy green substance believed to be marijuana on the
ground. Subsequent testing revealed the substance was a usable quantity
of marijuana.

¶5             After a brief pursuit, Soto was detained and arrested. A
search incident to arrest revealed Soto was in possession of Eduardo’s
wallet, cell phone, and credit card. The police also found items in the home
— including a knife and crowbar — that did not belong to either Juana or
Eduardo. Subsequent testing revealed Soto was a major contributor of
deoxyribonucleic acid (DNA) found on the knife.

¶6           Soto was indicted on one count each of first-degree burglary,
kidnapping, armed robbery, aggravated assault, possession of marijuana,
and threatening or intimidating. After an unsuccessful motion for
judgment of acquittal, the jury convicted Soto as charged. The jury also
found the State proved that Soto committed the first four offenses in order
to obtain something of pecuniary value and that those offenses caused
emotional harm to Eduardo.

¶7            The trial court found Soto had three prior historical felony
convictions and sentenced him as a non-dangerous, repetitive offender to:
concurrent, slightly aggravated terms of sixteen years’ imprisonment for
burglary, kidnapping, and armed robbery; twelve years’ imprisonment for
aggravated assault; and four years’ imprisonment for possession of
marijuana; and a six-month term of imprisonment for threatening or
intimidating. The court also credited Soto with 595 days of presentence
incarceration. Soto timely appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 13-4031,
and -4033(A)(1).

                               DISCUSSION

¶8            Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). A person commits first-degree burglary “by entering
or remaining unlawfully in or on a residential structure with the intent to

2     Absent material changes from the relevant date, we cite a statute’s
current version.


                                      3
                               STATE v. SOTO
                             Decision of the Court

commit any theft or any felony therein” while “knowingly possess[ing] . . .
a deadly weapon or dangerous instrument.”                      A.R.S. §§ 13-
1507(A); -1508(A).      A person commits kidnapping “by knowingly
restraining another person with the intent to . . . aid in the commission of a
felony.” A.R.S. § 13-1304(A)(3). A person commits armed robbery “if in the
course of taking any property of another from his person or immediate
presence and against his will, such person threatens or uses force against
any person with intent either to coerce surrender of property or to prevent
resistance to such person taking or retaining property” and “[u]ses or
threatens to use a deadly weapon or dangerous instrument.” A.R.S. § 13-
1902(A), -1904(A)(2). As relevant here, a person commits aggravated
assault by “[i]ntentionally placing another person in reasonable
apprehension of imminent physical injury” and “the person uses a deadly
weapon or dangerous instrument.” A.R.S. §§ 13-1203(A)(2); -1204(A)(2).
A person commits possession of marijuana if he “knowingly . . .
[p]ossess[es] or use[s] marijuana.” A.R.S. § 13-3405(A)(1). And a person
commits threatening or intimidating “if the person threatens or intimidates
by word or conduct . . . [t]o cause physical injury to another person.” A.R.S.
§ 13-1202(A)(1). Sufficient evidence was presented for the jury to conclude
beyond a reasonable doubt that Soto committed these crimes.

¶9              All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Soto was
represented by counsel at all stages of the proceedings and was present at
all critical stages, including the entire trial and the verdict. See State v.
Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages) (citations
omitted); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical
stages). The jury was properly comprised of twelve jurors, and the record
shows no evidence of jury misconduct. See Ariz. Const. art. 2, § 23; A.R.S.
§ 21-102(A); Ariz. R. Crim. P. 18.1(a). The trial court properly instructed the
jury on the elements of the charged offenses, the State’s burden of proof,
and Soto’s presumption of innocence. At sentencing, Soto 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 sentences.3

3      Although the record does not contain a presentence report, it is
apparent the trial court ordered the report and that both the court and the
parties received and considered the report, as well as the mitigation report
submitted by Soto, in advance of the sentencing hearing. Under these
circumstances, the absence of the presentence report in the appellate record
does not amount to fundamental error. See State v. Maese, 27 Ariz. App. 379,
379-80 (1976); see also Ariz. R. Crim. P. 26.4(c) (requiring the presentence



                                        4
                              STATE v. SOTO
                            Decision of the Court

See Ariz. R. Crim. P. 26.9, 26.10. Additionally, the sentence imposed was
within the statutory limits.4 See A.R.S. §§ 13-703(C), (J), (K); -707(A)(1).

                               CONCLUSION

¶10           Soto’s convictions and sentences are affirmed.

¶11            Defense counsel’s obligations pertaining to Soto’s
representation in this appeal have ended. Defense counsel need do no more
than inform Soto of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).

¶12            Soto has thirty days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. See Ariz. R. Crim.
P. 31.21. Upon the Court’s own motion, we also grant Soto thirty days from
the date of this decision to file an in propria persona motion for
reconsideration.




                          AMY M. WOOD • Clerk of the Court
                           FILED: AA




report to be “delivered to the sentencing judge and to all counsel” but not
filed).

4      The record reflects Soto was arrested and incarcerated on September
24, 2015 and held until sentencing on May 10, 2017, for a total of 594 days
of presentence incarceration. Although the trial court erroneously gave
Soto credit for 595 days of presentence incarceration, the error was in Soto’s
favor and is, therefore, not fundamental because it did not prejudice him.
See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005) (explaining that
fundamental error is error that both goes to the foundation of the case and
prejudices the defendant).


                                         5
