State v. Santistevan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHAUN MICHAEL SANTISTEVAN, Appellant.

No. 1 CA-CR 17-0175
FILED 6-5-2018

Appeal from the Superior Court in Maricopa County
No. CR2016-125565-001
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

Wendy L. Mays, Attorney at Law, Phoenix
By Wendy L. Mays
Counsel for Appellant

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

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.

B E E N E, Judge:

¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969)
following Shaun Michael Santistevan’s (“Santistevan”) conviction for
aggravated assault, a class 3 dangerous felony. Santistevan’s counsel
searched the record on appeal and found no arguable question of law that
is not frivolous. See State v. Clark, 196 Ariz. 530 (App. 1999). Counsel now
asks us to search the record for fundamental error. After reviewing the
entire record, we affirm Santistevan’s conviction and sentence.

FACTS1 AND PROCEDURAL HISTORY

¶2 On May 29, 2016, S.W., the victim, was walking through a
parking lot behind several buildings when he encountered Santistevan.
Santistevan asked S.W. for a cigarette. S.W. sat next to Santistevan and was
rolling a cigarette from his pouch of tobacco when Santistevan said, “Just
let me get the whole pouch.” S.W. responded, “I don’t owe you anything.
This is all I got.” S.W. then noticed Santistevan was wearing brass knuckles.
When S.W. stood up to leave, Santistevan hit him in the back of the head.
S.W. fell to the ground, and Santistevan struck S.W. in the head several
more times before he could run away.

¶3 S.W. fled to a nearby Circle K where the cashier called the
police to inform them of the incident. When the police arrived at the scene,
S.W. was “actively bleeding.” One officer felt the lacerations on the back of
S.W.’s head and determined that it was consistent with being hit with brass
knuckles. S.W. gave the police a description of Santistevan. Another officer
located Santistevan based on that description and several officers detained

1 “We review 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, ¶¶ 2-3 (App. 2015) (citation omitted).

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him. While Santistevan was detained, S.W. identified him as the assailant.
Santistevan was then arrested.

¶4 Santistevan was charged with one count of aggravated
assault, a class 3 dangerous felony. Santistevan proceeded to trial and was
found guilty on that count. Santistevan was sentenced to a mitigated term
of 6.5 years’ incarceration for aggravated assault. Santistevan timely
appealed his conviction. We have jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution, and Arizona Revised Statutes sections 12-
120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶5 The record reflects no fundamental error in pretrial or trial
proceedings. Santistevan either waived his right to counsel or was
represented by counsel at all critical stages of the proceedings. He was also
present at all critical stages of the proceedings. The superior court
conducted a Donald2 hearing in Santistevan’s presence.

¶6 Having waived his right to counsel, Santistevan represented
himself at trial and was assisted by advisory counsel. The jury was properly
composed of eight jurors and two alternates. The State presented direct and
circumstantial evidence sufficient for a reasonable jury to convict. The
court appropriately instructed the jury on the elements of the charge. The
key instructions concerning burden of proof, presumption of innocence,
reasonable doubt, and the necessity of a unanimous verdict were also
properly administered. The jury returned a unanimous guilty verdict.

¶7 The superior court received a presentence report, accounted
for aggravating and mitigating factors, and provided Santistevan an
opportunity to speak at sentencing. The court properly imposed a legal
sentence for the crime of which he was convicted.

CONCLUSION

¶8 We have reviewed the entire record for reversible error and
find none; therefore, we affirm the conviction and resulting sentence.

¶9 After the filing of this decision, defense counsel’s obligation
pertaining to Santistevan’s representation in this appeal will end. Defense
counsel need do no more than inform Santistevan of the outcome of this
appeal and his future options, unless, upon review, counsel finds “an issue

2 State v. Donald, 198 Ariz. 406 (App. 2000).

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appropriate for submission” to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the Court’s own
motion, Santistevan has 30 days from the date of this decision to proceed, if
he wishes, with a pro per motion for reconsideration. Further, Santistevan
has 30 days from the date of this decision to proceed, if he wishes, with a
pro per petition for review.

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

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