State v. Padilla

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FREDDY AVERY PADILLA, Appellant.

No. 1 CA-CR 19-0210
FILED 4-7-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-100001-001
The Honorable John Christian Rea, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
 STATE v. PADILLA
Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz
joined.

G A S S, Judge:

¶1 Freddy Padilla (Padilla) appeals a conviction from the
superior court on one count of misconduct involving weapons. Because
the superior court did not abuse its discretion when it denied Padilla’s
request for a mere presence jury instruction, this court affirms Padilla’s
conviction and sentence.

FACTUAL AND PROCEDURAL HISTORY

¶2 On the evening of December 31, 2017, Phoenix police officers
Ivan Villafana (Villafana) and Seth Fretheim (Fretheim) responded to a
911 call reporting a subject with a gun. The officers responded to the call
and found a man and car matching the description in the 911 call. The car
was parked at a gas station’s southernmost pump. Officer Jeremy Ennis
(Ennis) pulled alongside the patrol car and assisted Villafana and
Fretheim in a high-risk stop.

¶3 Padilla appeared to be the sole occupant of the car. The
officers ordered Padilla out of the car. After Villafana gave several loud
commands to Padilla to come out with his hands up, Padilla hesitated to
leave the car. Padilla opened the door partially and bent his upper body
over at the waist “either manipulating or reaching or dropping something
in between his feet” or in the general area. Padilla was arrested upon
exiting the car.

¶4 After Padilla was detained, Ennis approached the car from
the driver’s side to clear it and make sure no one else was inside. Ennis
could plainly see a black and gray handgun underneath the seat from the
outside of the vehicle. The gun was in the same area Villafana saw Padilla
reach and drop something.

¶5 Padilla was taken to the Central City Precinct Station and
advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966).
Padilla agreed to speak to Ennis first at the scene of the arrest and later

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while he was detained at the Central City Precinct Station. While he was
interviewed at the scene of the arrest, Padilla acknowledged the gun lying
underneath the front driver’s seat was his. Padilla further acknowledged
he was not supposed to have a gun. In a subsequent interview by
Detective George Fulton, Padilla admitted he got the gun “off the street”
and paid “roughly 200” for it.

¶6 On January 10, 2018, the State indicted Padilla on one count
of misconduct involving weapons, a class 4 felony. The State alleged
Padilla knowingly possessed a deadly weapon while being a prohibited
possessor. The State subsequently filed an allegation of historical prior
felony convictions. The parties later stipulated Padilla was a prohibited
possessor when he was arrested.

¶7 At trial, the defense requested a jury instruction on “mere
presence.” The defense argued the mere presence instruction was relevant
for the jury to consider in a weapon possession case. The superior court
found the instruction did not apply to Padilla’s case and could potentially
mislead the jury. The superior court, therefore, denied Padilla’s request.

¶8 The trial lasted three days. Padilla did not testify. The jury
found Padilla guilty of misconduct involving weapons. During a
subsequent hearing, the superior court determined Padilla had two
historical prior felonies. Padilla was sentenced to a minimum term of eight
years in prison with 88 days pre-sentence incarceration credit.

¶9 Padilla filed a timely notice of appeal. This court has
jurisdiction under A.R.S. § 120.21(A)(1).

ANALYSIS

¶10 This court reviews the denial of a requested jury instruction
for an abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12 (2006). This
court “will only reverse the superior court’s decision if the jury
instructions, taken together, would have misled the jurors.” State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998). No reversible error occurs if the instructions
as a whole adequately cover the law. Id. A requested jury instruction is
proper so long as the evidence reasonably supports it. State v. Shumway, 137 Ariz. 585, 588 (1983).

¶11 The RAJI mere presence instruction states:

Guilt cannot be established by the defendant’s mere
presence at a crime scene, mere association with another

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person at a crime scene or mere knowledge that a crime is
being committed. The fact that the defendant may have been
present, or knew that a crime was being committed, does not
in and of itself make the defendant guilty of the crime
charged. One who is merely present is a passive observer
who lacked criminal intent and did not participate in the
crime.

RAJI (Criminal) Stand. 43 (4th ed. 2016).

¶12 The mere presence instruction, if requested, is required in
accomplice liability cases based on actual presence. State v. Noriega, 187
Ariz. 282, 286 (App. 1996). The mere presence instruction may be used in
cases not involving accomplice liability, but is not required. See id. Here,
the superior court denied Padilla’s request for a mere presence instruction
because the jury instructions were adequate and the mere presence
instruction had the potential to mislead the jury.

¶13 The crux of Padilla’s defense is he did not knowingly
possess a firearm because he did not know the gun was in the car. The
jury instructions stated they could find Padilla guilty of misconduct
involving weapons only if the they found “[t]he defendant knowingly
possessed a deadly weapon.” The jury instructions further provided a
definition of “knowingly” and identified different types of “possession.”
As such, the instructions adequately took Padilla’s defense into account.
By its verdict, the jury found Padilla “acted with awareness” when he
“exercised dominion and control over” the gun. Given the facts here, the
jury instructions were sufficient, and a mere presence instruction was
unnecessary.

¶14 The superior court also found the mere presence instruction
could potentially mislead the jury. The superior court “need not give an
instruction that is covered adequately by other instructions, and should
reject a proffered jury instruction that misstates the law or has the
potential to mislead or confuse the jury.” State v. Musgrove, 223 Ariz. 164,
167, ¶ 6 (App. 2009) (citation omitted); see also Doerr, 193 Ariz. at 65, ¶ 35.

¶15 The wording of the mere presence instruction here implied a
crime was already committed, or the defendant happened to be present at
a crime scene. This wording did not apply to this case. Padilla was
convicted of misconduct involving weapons because he was a prohibited
possessor who was in possession of a firearm. He did not come across a
crime scene or associate with someone committing a crime. Padilla’s

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Decision of the Court

possession of the weapon was the crime. The mere presence instruction
potentially could confuse the jury, leaving it to wonder whether a second
crime was involved. The superior court, therefore, did not abuse its
discretion when it found the mere presence instruction could mislead the
jury.

CONCLUSION

¶16 Because the superior court did not abuse its discretion when
it denied Padilla’s request for a mere presence instruction, this court
affirms Padilla’s conviction and sentence.

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

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