State v. Fausto

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 17-0661
FILED 9-27-2018

Appeal from the Superior Court in Maricopa County
No. CR 2014-149889-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge James P. Beene joined.

C A M P B E L L, Judge:

¶1 Jose Luis Frausto timely appeals from his convictions and
sentences for two counts of aggravated driving while under the influence
of intoxicating liquor or drugs, both class four felonies. After searching the
record on appeal and finding no arguable question of law that was not
frivolous, Frausto’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), asking
this court to search the record for reversible error. This court granted
counsel’s motion to allow Frausto to file a supplemental brief in propria
persona, but Frausto did not do so. After reviewing the entire record, we
find no reversible error and therefore affirm Frausto’s convictions and
sentences.

BACKGROUND1

¶2 Late in the evening, state Trooper Reed was on patrol in
downtown Phoenix. Reed observed a tan Infinity with what appeared to be
an expired registration sticker. To be sure, Reed slowed his vehicle to allow
the car to pass his patrol car. Upon confirmation that the registration had
expired, Reed pulled the car over. Reed approached the driver side of the
car, and as soon as the driver, Frausto, rolled down his window, Reed
noticed a strong smell of alcohol. He further noted the driver had bloodshot
and watery eyes. Reed asked Frausto if he had anything to drink, and he
admitted to having consumed two or three beers. When Reed asked him for
his driver license, Frausto explained it was suspended.

¶3 Based on the multiple indicators of intoxication, Trooper Reed
asked Frausto to exit the car and join him on the sidewalk to complete some
field sobriety tests. Frausto agreed and, while performing a test, exhibited
signs of impairment. Reed then placed Frausto under arrest, and a

1We view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all reasonable inferences against Frausto. State v. Guerra, 161 Ariz. 289, 293 (1989).

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Decision of the Court

subsequent blood test revealed that he had a blood alcohol concentration
between 0.096 and 0.136 within two hours after driving.

¶4 After trial, the jury found Frausto guilty on both counts. After
finding that Frausto had two prior felony convictions for aggravated
driving under the influence, the court sentenced him to a term of 10 years
for each count and awarded 293 days of presentence incarceration credit.2

DISCUSSION

¶5 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. Frausto received a fair trial. He was
represented by counsel at all stages of the proceedings and was present at
all critical stages.

¶6 The evidence presented at trial was substantial and supports
the jury’s verdicts. The jury was properly comprised of eight members and
the court properly instructed the jury on the elements of the charges,
Frausto’s presumption of innocence, the State’s burden of proof, and the
necessity of a unanimous verdict. The superior court received and
considered a presentence report. Frausto was given an opportunity to speak
at sentencing. Frausto’s sentences were within the range of acceptable
sentences for his offenses.

CONCLUSION

¶7 We affirm Frausto’s convictions and sentences. Unless
defense counsel finds an issue that may be appropriately submitted to the
Arizona Supreme Court, his obligations are fulfilled once he informs

2 The record reflects Frausto should have received 292 days of presentence
incarceration credit. Although the trial court erroneously gave Frausto
credit for 293 days of presentence incarceration, the error is in Frausto’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
fundamental error is error that both goes to the foundation of the case and
prejudices the defendant).

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Decision of the Court

Frausto of the outcome of this appeal and his future options. See State v.
Shattuck, 140 Ariz. 582, 584-85 (1984). Frausto has 30 days from the date of
this decision to proceed, if he wishes, with a pro per motion for
reconsideration or petition for review.

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

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