                          NOTICE: NOT FOR PUBLICATION.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.

                  JOSEPH JOHN SANDOVAL, Appellant.

                             No. 1 CA-CR 13-0123
                              FILED 4-29-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-159975-001
                The Honorable Karen A. Mullins, 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 Kerri L. Chamberlin
Counsel for Appellant
                          STATE v. SANDOVAL
                           Decision of the Court



                      MEMORANDUM DECISION

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


G O U L D, Judge:

¶1           Joseph John Sandoval (“Defendant”) appeals from his
convictions and sentences for attempted first degree murder, aggravated
assault, misconduct involving weapons, discharge of a firearm at a
structure, endangerment, and tampering with physical evidence.
Defendant’s counsel 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 this Court that after a search of the entire appellate record, no
arguable ground exists for reversal. Defendant was granted leave to file a
supplemental brief in propria persona, and did so.

¶2            Our obligation in this appeal 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 have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031 and 13-4033(A)(1) (West 2014).1             Finding no
reversible error, we affirm.

                       Facts and Procedural History2

¶3            On November 26, 2011, shortly after midnight, Phoenix
Police Officers Anthony Daley and Travis Aguirre responded to a
trespassing call at a trailer park. As they approached the trailers, several
people scattered and fled the area. Officer Daley noticed a vacant trailer


1      Unless otherwise specified, we cite to the current version of the
applicable statutes because no revisions material to this decision have
occurred.

2      We view the evidence in the light most favorable to sustaining the
convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293,
778 P.2d 1185, 1189 (1989).




                                      2
                          STATE v. SANDOVAL
                           Decision of the Court

with an open door. Approaching the trailer, Officer Daley announced,
“Phoenix Police Department. If you’re inside, make yourself known.”
After receiving no response, Officer Daley climbed into the trailer, and
saw Defendant in front of him, pointing a handgun at him. As Officer
Daley went for his gun, Defendant shot him in the stomach and the leg,
and Officer Daley jumped out of the trailer to take cover. Officers Daley
and Aguirre retreated to the southwest corner of the trailer, and radioed
for assistance. Upon the arrival of additional police officers, Defendant
sprayed two bursts of gunfire through the walls of the trailer, hitting a
nearby trailer and vehicles, and narrowly missing residents of the trailer
park and police officers.

¶4            Defendant remained inside the trailer for several hours and,
after a lengthy standoff with police, eventually surrendered. The police
subsequently recovered a disassembled Glock inside the trailer that
matched cartridge casings found at the scene, and both of Defendant’s
hands tested positive for gunshot residue.

¶5             The State charged Defendant with one count of attempted
first-degree murder, a class two dangerous felony; five counts of
aggravated assault, class two dangerous felonies; one count of misconduct
involving weapons, a class four felony; two counts of discharge of a
firearm at a structure, class three dangerous felonies; one count of
discharge of a firearm at a structure, a class two dangerous felony; six
counts of endangerment, class six dangerous felonies; and one count of
tampering with physical evidence, a class six felony.3 The State alleged
that Defendant was on community supervision at the time of the subject
offenses and had previously been convicted of three historical felonies; the
State also alleged multiple aggravating circumstances.

¶6            The State presented the testimony of several police officers
and witnesses at trial. Defendant did not testify and did not present any
evidence. On November 26, 2012, the jury found Defendant guilty on all
counts, with multiple aggravators, and the court subsequently found that
Defendant had three historical prior felony convictions and committed the
subject offenses while on community supervision from the Department of
Corrections (“DOC”). On February 15, 2013, the court sentenced



3      Defendant was also charged with one count of threatening or
intimidating, a class 6 felony; this count was dismissed prior to trial.




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                          STATE v. SANDOVAL
                           Decision of the Court

Defendant to a total of 87.75 years of imprisonment. Defendant filed a
timely appeal.

                                 Discussion

¶7           Defendant argues the State knowingly withheld material
information concerning the bullet count of Officer Daley’s weapon.
Defendant contends that the police knew a bullet was missing from
Officer Daley’s magazine, but they did not disclose this fact prior to trial.
In addition, Defendant asserts that several officers who testified at trial
lied when they testified there was no missing bullet.

¶8             According to Defendant, the missing bullet is a material fact
because it supports his claim that Officer Daley fired his weapon first, and
that Defendant, who asserts he did not know Daley was a police officer,
shot Daley in self defense. Defendant also appears to claim that the
missing bullet proves that Officer Daley’s gunshot wound to his leg was
the result of an accidental, self-inflicted gunshot wound from Daley’s own
weapon.

¶9           We note there was no evidence presented at trial that Officer
Daley fired his weapon at Defendant, or that he shot himself in the leg.
Defendant’s allegations regarding the relevancy of the missing bullet were
presented for the first time by Defendant at his sentencing.

¶10            It is a violation of due process if the State fails to disclose
clearly exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963).
Clearly exculpatory evidence is evidence that is favorable to the defendant
and would have created reasonable doubt if it had been presented to a
jury. State v. Montano, 204 Ariz. 413, 424, ¶ 52, 65 P.3d 61, 72 (2003); State
v. O'Dell, 202 Ariz. 453, 457, ¶ 10, 46 P.3d 1074, 1078 (App. 2002).

¶11           Our review of the record shows that there is no Brady
violation in this case. The State provided Defendant with photographs
documenting the bullet count in Officer Daley’s spare magazine prior to
trial. Defendant advised the court at sentencing that he was aware the
photographs showed there was a bullet missing from one of Officer
Daley’s magazines, and that he had discussed this fact with his attorney.

¶12          Defendant also asserts that the police officers falsely testified
at trial when they claimed (1) there was no bullet missing from Officer
Daley’s magazine and (2) Officer Daley did not fire his gun. We disagree.
Defendant has made no showing that the officers were lying or that the
prosecutor knowingly presented false testimony. Rather, the record


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                          STATE v. SANDOVAL
                           Decision of the Court

reflects that the officers made inconsistent statements and were mistaken
about the bullet count; such testimony does not, as Defendant claims,
amount to perjury. State v. Linden, 136 Ariz. 129, 140, 664 P.2d 673, 684
(App. 1983); State v. Ferrari, 112 Ariz. 324, 334, 541 P.2d 921, 931 (1975).

¶13             In support of his perjury claim, Defendant directs our
attention to an October 13, 2013 letter from the Phoenix Police
Department’s Professional Standards Bureau. This letter summarizes the
police department’s investigation of Defendant’s claim that the officers
testified falsely at trial.

¶14            The letter does not support Defendant’s allegations. The
letter explains that Detective Roe, the officer who conducted the bullet
count on Officer Daley’s weapon, “did not inspect the spare magazines
using the standard protocol by visually inspecting and photographing
them in an unloaded configuration.” The letter goes on to state that by
failing to follow this protocol, the inspecting officer did not observe that
one bullet was missing from Officer Daley’s spare magazine. However,
the letter concludes that “at the time of trial, any discrepancies relating to
the bullet count by officers have been attributed to information they
believed to be true and accurate.”

¶15            We also note that the officers were cross-examined by
defense counsel about the bullet count at trial. State v. Rivera, 210 Ariz.
188, 190, ¶ 11, 109 P.3d 83, 85 (2005) (stating that while prosecutors may
not knowingly allow witnesses to falsely testify, “cross-examination is the
appropriate tool for probing the truthfulness of a witness’s statements”).
Thus, the credibility of the officers on this issue was left for the jury to
determine. Linden, 136 Ariz. at 140, 664 P.2d at 684. Indeed, the jury was
instructed by the trial court that it was their duty to determine the
credibility of all witnesses. See Hoffa v. United States, 385 U.S. 293, 311-12
(1966) (holding that it was not a due process violation to permit the
testimony of an informant whom defendant contended offered perjured
testimony at trial where the informant was “subjected to rigorous cross-
examination, and the extent and nature of his dealings with federal and
state authorities were insistently explored”; “The established safeguards
of the Anglo-American legal system leave the veracity of a witness to be
tested by cross-examination, and the credibility of his testimony to be
determined by a properly instructed jury”).

¶16          Finally, Defendant argues that the prosecutor’s statements
during closing arguments constituted prosecutorial misconduct.
Prosecutors have wide latitude in their closing arguments to the jury.


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                          STATE v. SANDOVAL
                           Decision of the Court

State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). “To prevail on a
claim of prosecutorial misconduct, a defendant must demonstrate that the
prosecutor’s misconduct so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” State v. Harrod, 218 Ariz.
268, 278, ¶ 35, 183 P.3d 519, 529 (2008) (internal citation omitted). “We
will not reverse a conviction because of a prosecutor’s improper
comments during closing argument unless there is a reasonable likelihood
the misconduct could have affected the jury’s verdict.” State v. Edmisten,
220 Ariz. 517, 524, ¶ 23, 207 P.3d 770, 777 (App. 2009) (internal citations
omitted).

¶17          Our review of the record does not reveal any prosecutorial
misconduct. The State’s closing arguments did not constitute a denial of
due process. Harrod, 218 Ariz. at 278, ¶ 35, 183 P.3d at 529.

       Sentencing: Release of Community Supervision from DOC

¶18           After trial, the court determined, by both clear and
convincing evidence and beyond a reasonable doubt, that Defendant was
on community supervision from DOC at the time of the subject offenses.
At sentencing, the court stated that “because [Defendant] was on parole4
at the time the present offenses were committed, no sentence may be
imposed that is less than the presumptive sentence pursuant to A.R.S.
section 13-708(A), and [D]efendant is not eligible for suspension or
commutation or release on any basis until the sentence imposed is
served.” The court then sentenced Defendant to aggravated prison terms
on counts one through six, and eleven through sixteen; the court imposed
presumptive prison terms as to counts seven through ten, and count
eighteen. Further, the court ordered that Defendant was eligible for a
term of community supervision after serving approximately eighty-five
percent of each prison term imposed.

¶19           A defendant sentenced under A.R.S. § 13-708(A) must serve
a flat-time sentence, e.g., as opposed to being eligible for release after
serving eighty-five percent of a prison sentence. See A.R.S. § 41-


4       While A.R.S. § 13-708(A) refers to release from prison on “parole”
and ”community supervision,” and the trial court used the term “parole”
at sentencing, the legislature eliminated the possibility for parole from
prison for crimes committed after January 1, 1994, and replaced it with
eligibility for “community supervision.” State v. Rosario, 195 Ariz. 264, 268,
¶ 26, 987 P.2d 226, 230 (App. 1999).



                                      6
                           STATE v. SANDOVAL
                            Decision of the Court

1604.07(A). The trial court did not, however, impose flat-time sentences in
Defendant’s case; rather, it ordered Defendant to serve the usual eighty-
five percent prison terms.

¶20            Thus, pursuant to A.R.S. § 13-708(A), the court’s failure to
sentence Defendant to flat-time for each prison term constituted an
illegally lenient sentence. However, because the State has not filed an
appeal or a cross-appeal on this issue, we do not have jurisdiction to
address it. State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990).

¶21            The trial court also stated that based on A.R.S. § 13-708(A), it
lacked the discretion to impose less than a presumptive prison term in
Defendant’s case. Unlike the imposition of an illegally lenient sentence,
based on Defendant’s appeal we do have jurisdiction to review whether
the trial court imposed an illegally harsh sentence. Clark, 196 Ariz. at 537,
¶ 30, 2 P.3d at 96; Dawson, 164 Ariz. at 284, 792 P.2d at 747.

¶22          This court recently held that the sentencing enhancements
contained in A.R.S. § 13-708(A) must be proved to a jury beyond a
reasonable doubt. State v. Large, 2014 WL 1226731, *4, ¶ 16 (Ariz. App.
Div. 1, March 25, 2014); see Alleyne v. United States, __U.S. __, 133 S.Ct.
2151, 2163-64 (2013) (holding that “facts that increase mandatory
minimum sentences must be submitted to the jury” and established
“beyond a reasonable doubt” pursuant to the 5th and 6th Amendments).
Moreover, although Alleyne had not been decided at the time Defendant
was convicted and sentenced, its holding is applicable here because
Alleyne presented a new rule of constitutional law and Defendant’s case
was pending on direct review at the time Alleyne was decided. Large, 2014
WL 1226731 at *4, ¶ 16.

¶23           We review sentencing error under A.R.S. § 13-708(A) for
fundamental error. Large, 2014 WL 1226731 at *5, ¶ 18. In establishing
fundamental error, a defendant must show “both that fundamental error
exists and that the error in his case caused him prejudice.” State v.
Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 608 (2005). Here, for
Defendant to show prejudice, he must establish that “a reasonable jury,
applying the appropriate standard of proof, could have reached a
different result than did the trial judge.” Id. at 569, ¶ 27, 115 P.3d at 609.

¶24          Because a jury was required to determine the sentencing
enhancement under A.R.S. § 13-708(A), the trial court erred in failing to
submit this issue to a jury. However, despite this error, we conclude
Defendant suffered no prejudice.



                                      7
                         STATE v. SANDOVAL
                          Decision of the Court

¶25           Based on our review of the record, there is overwhelming
evidence showing that Defendant was on community supervision at the
time he committed these offenses. At Defendant’s February 2013 hearing
regarding his prior felony convictions, the State proved beyond a
reasonable doubt that Defendant had been convicted of three prior
felonies, and that Defendant was sentenced to prison for all three felonies
on October 31, 2007. Based on Defendant’s DOC records, it was
established that Defendant was placed on community supervision on July
19, 2011. Defendant’s DOC records further showed that he absconded
from community supervision on November 11, 2011, fifteen days before
he committed the current offenses. There is no evidence in the record
challenging the accuracy of these DOC records.

¶26            Accordingly, we conclude there was no reversible error, and
therefore affirm Defendant’s sentences.5

                               Conclusion

¶27            We have read and considered counsel’s brief, carefully
searched the entire record for reversible error and found none. Clark, 196
Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure and substantial
evidence supported the finding of guilt. Defendant was present and
represented by counsel at all critical stages of the proceedings. At
sentencing, Defendant and his counsel were given an opportunity to
speak.




5     We also note that with respect to counts one through six and counts
eleven through sixteen, the trial court imposed aggravated sentences.
Thus, whether or not the trial court concluded it had the authority to
impose less than a presumptive sentence as to these counts is essentially
moot.



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                           STATE v. SANDOVAL
                            Decision of the Court

¶28           Counsel’s      obligations    pertaining      to    Defendant’s
representation in this appeal have ended. Counsel need do nothing more
than inform Defendant of the status of the appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz.
582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days
from the date of this decision to proceed, if he so desires, with an in propria
persona motion for reconsideration or petition for review.




                                 :MJT




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