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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                JOSE DE JESUS MONTELONGO, Appellant.

                             No. 1 CA-CR 14-0479
                                FILED 4-23-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-129868-001
              The Honorable Margaret R. Mahoney, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                         STATE v. MONTELONGO
                           Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Michael J. Brown joined.


T H U M M A, Judge:

¶1            This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for defendant
Jose De Jesus Montelongo has advised the court that, after searching the
entire record, he has found no arguable question of law and asks this court
to conduct an Anders review of the record. Montelongo was given the
opportunity to file a supplemental brief pro se, but has not done so. This
court has reviewed the record and has found no reversible error.
Accordingly, Montelongo’s convictions and resulting sentences are
affirmed as modified.

                 FACTS1 AND PROCEDURAL HISTORY

¶2           While D.N. was getting gas on June 4, 2012 at a Phoenix gas
station, Montelongo rode up on a bicycle, took D.N.’s wallet, broke her nose
and then rode off.2 P.C., the store clerk, called the police. Both D.N. and P.C.
identified Montelongo as the perpetrator from a six-person photo lineup.

¶3           While T.C. was getting gas on June 5, 2012 at a Phoenix gas
station, Montelongo took him to the ground, demanded his wallet, stabbed
him and fled. A.C. saw the attack. T.C. had been stabbed numerous times,
was bleeding profusely and was taken to the hospital by paramedics.
Responding police officers reviewed video surveillance of the attack and
took fingerprints from the gas station, which were later identified as




1This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588–89, 951 P.2d 454, 463–64 (1997) (citation
omitted).

2Initials are used to protect the victims’ and witness’ privacy. See State v.
Maldonado, 206 Ariz. 339, 341 n.1 ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003).


                                       2
                        STATE v. MONTELONGO
                          Decision of the Court

Montelongo’s fingerprints. A.C. identified Montelongo as T.C.’s assailant
from the same six-person photo lineup D.N. used to identify Montelongo.

¶4           On June 6, 2012, Montelongo was arrested and charged by
Indictment with four counts: (1) robbery, a Class 4 felony, (2) attempt to
commit armed robbery, a Class 3 felony and dangerous offense, (3) attempt
to commit second-degree murder, a Class 2 felony and dangerous offense
and (4) misconduct involving weapons, a Class 4 felony and dangerous
offense. While in custody, Montelongo made incriminating statements
captured on recorded telephone calls.

¶5            The State timely alleged aggravating circumstances, that
Montelongo had two prior felony convictions and that he committed the
offenses while on release. The State did not offer Montelongo a plea. At a
nine-day jury trial, D.N. and T.C. testified and identified Montelongo.
Other trial witnesses included A.C., P.C., police officers and Montelongo’s
parole officer. After the State rested, Montelongo moved for a judgment of
acquittal, arguing no substantial evidence supported a conviction, which
the court denied. Montelongo did not testify or call any witnesses.

¶6            After final instructions and closing arguments, the jury found
Montelongo guilty as charged. The jury found the robbery and attempt
offenses were committed for pecuniary gain and that Montelongo caused
the victim physical, emotional or financial harm. The jury found the attempt
offenses also involved the threat or infliction of serious physical injury;
involved “the use, threatened use or possession of a deadly weapon or
dangerous instrument” and were dangerous offenses.

¶7             At sentencing, Montelongo knowingly, voluntarily and
intentionally stipulated to having two historical prior felony convictions.
After hearing argument and considering mitigating and aggravating
factors, the court sentenced Montelongo to the following prison terms (each
sentenced as a non-dangerous but repetitive offense): an aggravated prison
term of 12 years on Count 1; an aggravated prison term of 20 years on Count
2; an aggravated prison term of 28 years on Count 3 and a presumptive
prison term of 10 years on Count 4. The court ordered Counts 2–4 to be
served concurrently and Count 1 to be served consecutive to Counts 2–4.
The court also gave Montelongo 764 days of presentence incarceration
credit. From Montelongo’s timely appeal, this court has jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona




                                     3
                         STATE v. MONTELONGO
                           Decision of the Court

Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A)(1)
(2015).3

                               DISCUSSION

¶8            This court has reviewed and considered counsel’s brief and
has searched the entire record for reversible error. See State v. Clark, 196
Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App. 1999). Searching the record and brief
reveals no reversible error. The record shows Montelongo was represented
by counsel at all stages of the proceedings and counsel was present at all
critical stages. The evidence admitted at trial constitutes substantial
evidence supporting Montelongo’s convictions. From the record, all
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. The sentences imposed were within the statutory
limits and permissible ranges. This review of the record does reveal six
issues that merit further discussion.

¶9             First, Montelongo expressed concern about the jury learning
he was in custody when the recorded telephone calls were played to the
jury. Montelongo did not, however, object on this ground or tender a
limiting instruction, meaning review on appeal is for fundamental error. See
Ariz. R. Crim. P. 21.3(c); State v. Henderson, 210 Ariz. 561, 567–68 ¶¶ 19–20,
115 P.3d 601, 607–08 (2005). “Accordingly, [the defendant] ‘bears the
burden to establish that “(1) error exists, (2) the error is fundamental, and
(3) the error caused him prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11,
297 P.3d 182, 185 (App. 2013) (citations omitted). The calls were relevant as
they contained statements by Montelongo indicating he committed the
offenses—statements that were critical given that identity was a significant
issue presented to the jury. Moreover, Montelongo has failed to establish
that the fact he was in custody when the calls were recorded prejudiced
him. See State v. Apelt, 176 Ariz. 349, 361, 861 P.2d 634, 646 (1993) (requiring
showing of actual prejudice to reverse on basis that jurors were
inadvertently exposed outside of courtroom to handcuffed or shackled
defendant).

¶10            Second, while being questioned by Montelongo’s counsel, his
parole officer testified Montelongo was “released from prison” in 2012. The
reference was brief and responsive, and the jury was instructed it could
only consider the prior felony conviction for purposes of “determining


3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                       4
                         STATE v. MONTELONGO
                           Decision of the Court

whether the defendant was a ‘prohibited possessor.’” As such, this
reference did not result in fundamental error causing prejudice. See James,
231 Ariz. at 493 ¶ 11, 297 P.3d at 185.

¶11           Third, Montelongo was not present when the superior court
discussed with counsel releasing a juror mid-trial in order so he could take
his wife to the hospital. Without objection, the court released the juror.
Montelongo has not shown the court erred in addressing, in Montelongo’s
absence, this emergency situation that arose before the final jury began
deliberations. See State v. Dann, 205 Ariz. 557, 575 ¶ 69, 74 P.3d 231, 249
(2003).

¶12           Fourth, the jury saw video surveillance from the gas station
showing Montelongo in the store stealing beer a few hours before the June
5 stabbing. This evidence properly was used for identification, see Ariz. R.
Evid. 404(b), and the State made no mention of the act of stealing beer.
Montelongo did not request a limiting instruction and, although the jury
heard that Montelongo’s prior presence at the gas station was a “beer run,”
that reference came from Montelongo’s counsel. On this record, allowing
the video surveillance evidence was not error, let alone fundamental error
resulting in prejudice.

¶13           Fifth, during closing arguments, the State without objection
made reference to the evidence being undisputed, adding that “not one
person came in here and said, ‘No, all the victims got it wrong, the jail calls
are somebody else,’ you heard nothing like that.” Montelongo did not call
any witnesses or testify, was not required to do so and the State could not
comment on his decision not to testify. See State v. Hughes, 193 Ariz. 72, 86–
87 ¶¶ 63–64, 969 P.2d 1184, 1198–99 (1998). To the extent this statement
could be construed as commenting on Montelongo’s decision not to testify,
the evidence against him was overwhelming. See State v. Ramos, 235 Ariz.
230, 236 ¶¶ 16–18, 330 P.3d 987, 993 (App. 2014). In addition, the jury
properly was instructed that what the attorneys said was not evidence.
Accordingly, Montelongo has not shown fundamental error resulting in
prejudice by the State during closing arguments. See id.

¶14           Finally, Montelongo was given 764 days of presentence
incarceration credit. The record shows he was arrested on June 6, 2012 and
held in custody continuously until the July 11, 2014 sentencing,
representing 765 days under A.R.S. § 13-712(B). Accordingly, his sentence
is modified to reflect 765 days of presentence incarceration credit.




                                      5
                         STATE v. MONTELONGO
                           Decision of the Court

                               CONCLUSION

¶15            This court has read and considered counsel’s brief, and has
searched the record provided for reversible error and has found none. See
State v. Leon, 104 Ariz. 297, 300, 451 P.2d 878, 881 (1969); State v. Clark, 196
Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App. 1999). Accordingly, Montelongo’s
convictions and resulting sentences are affirmed as modified to reflect 765
days of presentence incarceration credit.

¶16            Upon filing of this decision, defense counsel is directed to
inform Montelongo of the status of the appeal and of his future options.
Defense counsel has no further obligations unless, upon review, counsel
identifies 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). Montelongo shall have 30 days from the date of this
decision to proceed, if he desires, with a pro se motion for reconsideration
or petition for review.




                                     :ama




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