State v. Miramontes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARLOS ALEJANDRO MIRAMONTES, Appellant.

No. 1 CA-CR 17-0665
FILED 12-4-2018

Appeal from the Superior Court in Maricopa County
No. CR2016-123835-001
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 Jesse Finn Turner
Counsel for Appellant
 STATE v. MIRAMONTES
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.

P E R K I N S, Judge:

¶1 Carlos A. Miramontes timely filed this appeal in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), following his conviction of resisting arrest, a class 6 felony.
Miramontes's counsel has searched the record and found no arguable
question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000);
Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530 (App. 1999). Miramontes
was given the opportunity to file a supplemental brief but did not do so.
Counsel now asks this court to search the record for fundamental error.
After reviewing the entire record, we affirm Miramontes's convictions and
sentences.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On May 19, 2016, two Phoenix police officers responded to a
call about a car with a flat tire in the parking lot of a strip mall. The officers
found Miramontes, the sole occupant, slumped over in the car and believed
he was intoxicated. Because the car was running, they boxed it in with their
patrol cruisers before trying to rouse the sleeping Miramontes. The officers
pulled the keys from the ignition and attempted to wake Miramontes by
tapping him and giving him commands in both English and Spanish. They
also identified themselves as Phoenix police officers. Miramontes was “in
and out,” mumbling random, incoherent words before falling back asleep.

¶3 Miramontes awoke and slapped one of the officers in the
chest. The officers then began pulling on Miramontes and asking him to
leave the car. Instead, Miramontes braced his leg on the car’s center pillar
and began flailing his other leg at the officers, kicking one in the leg. After
officers pulled him from the car, Miramontes grabbed at the tactical vest
and belt of one of the officers. The officers and Miramontes then scuffled,
with officers striking Miramontes several times to subdue and handcuff
him.

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 STATE v. MIRAMONTES
Decision of the Court

¶4 On May 23, 2016, the State charged Miramontes via direct
complaint with one count of aggravated assault and one count of resisting
arrest. Miramontes proceeded to trial on August 30 and 31, and September
5, 2016. At trial, the court heard from one of the arresting officers and the
State entered video from his body camera into evidence. Miramontes then
moved for a judgment of acquittal under Arizona Rule of Criminal
Procedure 20. The court ruled that the evidence was substantial because the
officers had “announced themselves loudly and repeatedly” and that jurors
could infer Miramontes’s mental state from his continued struggle with
officers after he awoke.

¶5 The jury found Miramontes guilty of resisting arrest, but
hung on the aggravated assault charge. The State and Miramontes then
agreed to a deal: the State moved to dismiss the assault charge with
prejudice after Miramontes admitted to his prior felonies. The court granted
the motion and subsequently sentenced Miramontes to 3.75 years’
imprisonment. Miramontes timely appealed.

DISCUSSION

¶6 The record reflects Miramontes received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The court held appropriate pretrial hearings.

¶7 The court did not conduct a voluntariness hearing; however,
Miramontes did not request a voluntariness hearing and accordingly
waived his right to challenge the voluntariness of his statements to police.
State v. Bush, 244 Ariz. 575, 589–90, ¶¶ 59–61 (2018) (noting that courts are
never required to sua sponte hold voluntariness hearings and disavowing
previous contradictory Arizona cases).

¶8 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members. The court properly instructed the jury on the elements of
the charges, the State's burden of proof, and the necessity of a unanimous
verdict. The jury returned a unanimous verdict, which it affirmed in open
court. The court received and considered a presentence report, addressed
its contents during the sentencing hearing, and imposed legal sentences for
the crimes of which Miramontes was convicted.

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 STATE v. MIRAMONTES
Decision of the Court

CONCLUSION

¶9 We have reviewed the entire record for reversible error and
find none, and therefore affirm the convictions and resulting sentences. See
Leon, 104 Ariz. at 300.

¶10 Defense counsel's obligations pertaining to Miramontes's
representation in this appeal have ended. Counsel need do no more than
inform Miramontes of the outcome of this appeal and his future options,
unless, upon review, counsel finds “an issue appropriate for submission”
to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court's own motion, Miramontes has 30
days from the date of this decision to proceed, if he wishes, with a pro per
motion for reconsideration. Miramontes 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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