State v. Arellano

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SUN BENEDICT ARELLANO, Appellant.

No. 1 CA-CR 18-0327
FILED 4-23-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-118414-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore

AFFIRMED

COUNSEL

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

Kerrie M. Droban, Phoenix
Counsel for Appellant

Sun Benedict V. Arellano, Florence
Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined.

P E R K I N S, Judge:

¶1 Sun Benedict Valentino Arellano appeals his convictions and
sentences for first degree burglary and aggravated assault. After searching
the record, Arellano’s defense counsel identified no arguable question of
law that is not frivolous. Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), defense counsel
asks this Court to search the record for fundamental error. Arellano has
filed a supplemental brief in propria persona. After reviewing the entire
record, we reject the arguments raised in Arellano’s supplemental brief and
find no error. We affirm his convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 On April 20, 2017, M.P., a university student, arrived home
from class around 8:00 p.m. After entering the home, M.P. noticed an
unfamiliar bike on the floor, a backpack that did not belong to her or her
roommates, and damage to her kitchen cabinets. A few moments later, a
man entered the kitchen with a knife. Terrified, M.P. dropped her phone,
keys, and backpack and ran out of the house. She saw her assailant for only
a second. M.P. then ran to a parking lot a few blocks away, yelled for help,
and another student called 9-1-1 on her behalf. A police officer arrived
shortly after. In his report, the officer stated M.P. described her assailant as
a black male, 5’8”, medium build, and possibly wearing a white shirt.
Arellano is not black.

¶3 After the 9-1-1 call, another police officer arrived at the home
and found Arellano in the front yard pushing a bicycle. Arellano was also
carrying M.P.’s backpack, a six-pack of alcohol from M.P.’s fridge, and the
unfamiliar backpack M.P. saw on her kitchen floor, all of which M.P.
identified later that evening. The officer asked Arellano to stop, but
Arellano responded that the officer could not do anything to him and began
to walk away. The officer placed Arellano in handcuffs, and a kitchen knife
fell onto the roadway. M.P. later identified the knife as one from her
kitchen. The officer asked Arellano to provide identification. Arellano

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answered that he had not had time “to go through her things,” but the
officer had yet to even mention a victim or the victim’s gender. The officer
then advised Arellano of his Miranda rights, and Arellano consented to
questioning. Arellano eventually confessed, telling the officer that he went
into the home through a window, ate meatballs left on the stove, and took
things from the home (including a knife from the kitchen).

¶4 The State charged Arellano with first-degree burglary, a class
two dangerous felony, and aggravated assault, a class three dangerous
felony. The trial court ordered an Arizona Rule of Criminal Procedure 11
evaluation due to Arellano’s mental health issues. The parties eventually
stipulated competency.

¶5 The case proceeded to a jury trial, and M.P. testified about the
burglary. She could not remember telling the officers that her assailant was
a black male. During the arresting officer’s testimony, the State played body
cam footage showing Arellano’s confession. Arellano asked the court to
allow him to play other portions of the footage from his arrest, including
footage of Arellano’s saying he was insane. The court ruled that those
portions of the footage contained self-supporting statements and were
inadmissible hearsay.

¶6 Arellano testified at trial. He claimed that, on the night of the
burglary, he had been walking by M.P.’s house when Ray Ray, his black
“street father[,]” ran out of the house. Arellano testified that Ray Ray put a
knife to his chest and threatened to kill him unless he took the fall for the
crime. Before Ray Ray left, Arellano claimed that Ray Ray allowed him to
go into the house and eat some meatballs. He testified that he then went
into the house, ate the meatballs on the stove, and took M.P.’s backpack and
alcohol.

¶7 Arellano told the jury that when the arresting officer
confronted him, he initially said he was not from this world, he was from
hell, and he was the devil. He also testified that he broke his hand with a
rock earlier that day so God would forgive him and let him out of hell.
Because Arellano had a splint on his hand the night of the burglary, he
claimed he could not have committed the crime because was unable to hold
a knife.

¶8 The jury found Arellano guilty as charged. It also found that
the State proved, beyond a reasonable doubt, four aggravating
circumstances for the first-degree burglary and two aggravating
circumstances for the aggravated assault. The trial court found that

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Arellano had nine prior out-of-state felony convictions and sentenced him
as a category three repetitive offender. It sentenced Arellano to slightly
aggravated concurrent terms of 18 years for the burglary and 14 years for
the aggravated assault.

DISCUSSION

¶9 The record reveals sufficient evidence upon which the jury
could determine that Arellano is guilty of the charged offenses beyond a
reasonable doubt. The record further reflects that all proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure,
that Arellano was represented by counsel at all stages of the proceedings,
and that he was present at all critical stages. See State v. Conner, 163 Ariz. 97,
104 (1990) (right to counsel); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to
be present at critical stages). At sentencing, Arellano had the opportunity
to speak on his behalf and the court stated on the record the factors it
considered in imposing the sentence. See Ariz. R. Crim. P. 26.9, 26.10. The
sentence was within statutory limits. See A.R.S. §§ 13-701 to -709.

¶10 Arellano’s supplemental brief raises no issues of fundamental
error, as they are either not properly before us or are without merit. His
brief contains ineffective assistance of counsel claims, but those claims “are
to be brought in Rule 32 proceedings” and may not be considered on direct
appeal. State ex rel. Thomas v. Rayes, 214 Ariz 411, 414, ¶ 16 (2007) (quoting
State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002)). He also contends the trial court
had an agenda to find him guilty and that the State coached M.P.’s
testimony. The record does not support these claims.

¶11 Arellano challenges the trial court’s evidentiary ruling
concerning the body cam footage. Because we review the trial court’s ruling
for fundamental error, the ruling must have prejudiced Arellano. See State
v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018); State v. Henderson, 210 Ariz. 561,
567, ¶ 20 (2005). Assuming, without deciding, the trial court erred here,
Arellano has not demonstrated prejudice for two reasons. First, Arellano
sought to introduce the body cam footage to show he was mentally
unsound during his arrest, but his mental state is irrelevant to the charged
crimes. A.R.S. §§ 13-2014, -1508. Second, Arellano elected to testify at trial,
and he recounted to the jury the same statements he sought to introduce
through the body cam footage. Arellano has thus failed to show that “a
reasonable jury could have plausibly and intelligently returned a different
verdict” absent the trial court’s alleged error. Escalante, 245 Ariz. at 144, ¶
31.

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¶12 Finally, Arellano argues the trial court erred in its sentence by
considering an out-of-state prior felony conviction that was more than ten
years old at the time of the crime. We disagree. The trial court sentenced
Arellano as a category-three repetitive offender, which requires a showing
of two historical prior felony convictions. A.R.S. § 13-703(C). It found that
Arellano had nine prior out-of-state felony convictions. Under A.R.S. § 13-
105(22), if a defendant has been convicted of more than two out-of-state
felonies, then the third and each additional out-of-state felony are
considered historical priors, regardless of when those crimes were
committed. State v. Johnson, 240 Ariz. 402, 405, ¶ 14 (App. 2016). The trial
court did not err in its sentencing by considering out-of-state prior felony
convictions that were more than ten years old.

CONCLUSION

¶13 This Court has read counsel’s brief and searched the record
for reversible error but has found none. Leon, 104 Ariz. at 300; State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Accordingly, we affirm Arellano’s
convictions and sentences.

¶14 Upon filing of this decision, defense counsel is directed to
inform Arellano of the status of the appeal and his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an appropriate issue to submit to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Arellano has
30 days from the date of this decision to proceed, if he desires, with a pro
se motion for reconsideration or petition for review.

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

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