State v. Carrillo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANCISCO NUNEZ CARRILLO, Appellant.

No. 1 CA-CR 19-0492
FILED 7-16-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-146733-001 DT
The Honorable Kathleen H. Mead, Judge

AFFIRMED IN PART AS MODIFIED, VACATED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant
 STATE v. CARRILLO
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie1 delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.

M c M U R D I E, Judge:

¶1 Francisco Nunez Carrillo appeals from his convictions and
sentences for two counts of aggravated assault and one count of unlawful
discharge of a firearm. Carrillo’s counsel filed a brief under Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
certifying that, after a diligent search of the record, he found no arguable
question of law that was not frivolous. We allowed Carrillo to file a
supplemental brief, but he did not do so. Counsel asks this court to search
the record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we
vacate Carrillo’s second conviction for aggravated assault but affirm
Carrillo’s other convictions and sentences as modified.

FACTS2 AND PROCEDURAL BACKGROUND

¶2 On September 21, 2018, Carrillo, Carrillo’s sister (Z.C.), and
her husband (P.O.), were gathered at Carrillo’s aunt’s apartment. Z.C. and
P.O. began to argue, and Z.C. left the apartment in the couple’s car.
Unwilling to walk home, P.O. walked to a nearby convenience store to
purchase alcohol. When he returned to the apartment, P.O. noticed his
phone battery was nearly dead, so he went into a bedroom to charge his
phone. As P.O. did so, Carrillo entered the bedroom with a handgun and
shot him. The bullet penetrated through P.O.’s abdomen, burying itself into

1 Judge McMurdie replaces the Honorable Kenton D. Jones, who was
originally assigned to this panel. Judge McMurdie has read the briefs and
reviewed the record.

2 We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

2
 STATE v. CARRILLO
Decision of the Court

the drywall behind him. Carrillo attempted to fire the gun again, but it
jammed.

¶3 When police arrived at the scene, they arrested Carrillo
nearby and found the handgun, its slide still jammed open, lying on the
concrete outside the open apartment door. Inside the apartment, officers
discovered P.O. in the bedroom in severe medical distress and sent him to
a hospital for emergency treatment. Officers photographed the scene,
recovered the bullet that had struck P.O. from the drywall, and found a
spent casing and a box of ammunition. The ammunition in the box and
within the handgun was the same caliber and brand as the spent casing and
bullet that struck P.O.

¶4 At the police station, Carrillo consented to an interview with
Detective David Thompson after receiving Miranda3 warnings. During the
interview, Carrillo initially claimed that P.O. shot himself. Eventually,
Carrillo admitted that he had shot P.O.

¶5 P.O. underwent emergency surgery. Due to the damage
caused by the gunshot, doctors removed P.O.’s kidneys, adrenal glands,
spleen, and gallbladder, as well as a portion of his liver. P.O. also suffered
a spinal fracture that required neurosurgery. Although P.O. survived the
surgeries, his treating physicians believed there was a genuine risk that he
would die from his injuries. Around a week later—when P.O. had
recovered enough to speak—Detective Thompson interviewed him about
the shooting. P.O. claimed he did not know who shot him.

¶6 A grand jury indicted Carrillo for: (1) one count of aggravated
assault with a deadly weapon, a class 3 felony; (2) one count of aggravated
assault causing a serious physical injury, a class 3 felony; (3) one count of
unlawful discharge of a firearm, a class 6 felony; and (4) one count of
misconduct involving weapons, a class 4 felony. The State filed allegations
of aggravating circumstances under Arizona Revised Statutes (“A.R.S.”)
section 13-701(D) and that Carrillo had prior historical and non-historical
felony convictions under A.R.S. § 13-105(22) and -703. The court severed the
trial on the misconduct-involving-weapons charge from the other charges.

¶7 In February 2019, while Carrillo’s trial was still pending, P.O.
contacted Detective Thompson and requested to make a statement. During

3 Miranda v. Arizona, 384 U.S. 436 (1966).

3
 STATE v. CARRILLO
Decision of the Court

this second interview, P.O. admitted he had lied in the first interview and
then identified Carrillo as the shooter.

¶8 The court held a six-day jury trial in May and June 2019.
During the trial, the State called P.O., the law-enforcement officers who
investigated the shooting, and P.O.’s treating physicians to testify about the
circumstances surrounding the crimes and the extent of P.O.’s injuries.
When questioned about changing his statement to the police, P.O.
explained that he initially refused to identify Carrillo to avoid betraying his
wife and to protect her family. When his wife failed to support him in the
wake of the assault, however, P.O. decided to come forward and identify
Carrillo as the shooter. P.O. also testified that, because of his injuries, he
was unable to work, could not drive or play sports, and would be forced to
undergo regular medical treatments for the rest of his life. After the State’s
case, Carrillo declined to testify or present evidence in his defense. The jury
found Carrillo guilty as charged. After an aggravation trial, the jury found
the State had proven two aggravating circumstances for each of the
aggravated-assault convictions and found that all three offenses were
dangerous.

¶9 Before sentencing, the State dismissed the
misconduct-involving-weapons charge. The court conducted a sentencing
hearing and found the State had proven beyond a reasonable doubt that
Carrillo had five prior felony convictions, three of which were historical.
The court held that Carrillo would, therefore, be sentenced as a category
three repetitive offender. See A.R.S. § 13-703(C). On the State’s motion, the
court dismissed the dangerous-offense designation for each charge. After
considering the aggravating and mitigating circumstances, the court
sentenced Carrillo to aggravated terms of 24 years’ imprisonment for the
aggravated-assault convictions and a presumptive term of 3.75 years’
imprisonment for unlawful-discharge, all to run concurrently with 335
days’ presentence incarceration credit. Carrillo appealed, and we have
jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶10 We have read and considered counsel’s brief and have
reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300.

¶11 Carrillo was present and represented by counsel at all stages
of the proceedings against him. The record reflects the superior court
afforded Carrillo all his constitutional and statutory rights, and the
proceedings were conducted following the Arizona Rules of Criminal

4
 STATE v. CARRILLO
Decision of the Court

Procedure. The court held appropriate pretrial hearings, and the evidence
presented at trial and summarized above was sufficient to support the
jury’s verdicts. Carrillo’s sentences fall within the range prescribed by law,
with proper credit given for presentence incarceration.

¶12 However, we note two errors that we can resolve without a
remand. First, the sentencing minute entry erroneously stated that
Carrillo’s sentence for the second count of aggravated assault was made
under the statutory scheme for dangerous offenses, A.R.S. § 13-704. “When
a discrepancy between the trial court’s oral pronouncement of a sentence
and the written minute entry can be clearly resolved by looking at the
record, the ‘[o]ral pronouncement in open court controls over the minute
entry.’” State v. Ovante, 231 Ariz. 180, 188, ¶ 38 (2013) (alteration in original)
(quoting State v. Whitney, 159 Ariz. 476, 487 (1989)). If the intended sentence
can be identified, this court can order the minute entry corrected. See id.;
State v. Veloz, 236 Ariz. 532, 538, ¶ 21 (App. 2015). Here, the transcript of the
sentencing hearing makes clear that the court intended to sentence Carrillo
as a category three repetitive offender under A.R.S. § 13-703(J) for all
counts. Thus, Carrillo was sentenced for the second aggravated-assault
count under A.R.S. § 13-703(J).

¶13 However, Carrillo’s two convictions for aggravated assault
are multiplicitous. Multiplicity occurs when an indictment charges a single
offense in multiple counts. State v. O’Brien, 123 Ariz. 578, 582 (App. 1979).
A multiplicitous prosecution violates the double jeopardy protections of the
United States Constitution and Article 2, § 10 of the Arizona Constitution,
even when the court ultimately imposes concurrent sentences. See Ball v.
United States, 470 U.S. 856, 865 (1985) (“The separate conviction, apart from
the concurrent sentence, has potential adverse collateral consequences that
may not be ignored.”). Because aggravated assault, as defined in A.R.S.
§ 13-1204(A), constitutes a single offense that may be committed in several
ways, see State v. Pena, 209 Ariz. 503, 506, ¶ 12 (App. 2005), a defendant
cannot be convicted twice of aggravated assault arising from a single act.
See, e.g., State v. Steel, 1 CA-CR 16-0545, 2018 WL 3358998, at *2-3, ¶¶ 12–14
(Ariz. App. July 10, 2018) (mem. decision); State v. Mack, 1 CA-CR 16-0803,
2017 WL 3597406, at *2–4, ¶¶ 7–14 (Ariz. App. Aug. 22, 2017) (mem.
decision).

¶14 Here, Carrillo’s two aggravated-assault charges stemmed
from only one act—shooting P.O. The State alleged that Carrillo performed
a single act (firing the handgun) that resulted in a single wound to a single
victim (P.O.). Thus, Carrillo committed only one act of aggravated assault,
and his two aggravated-assault convictions are multiplicitous. Typically,

5
 STATE v. CARRILLO
Decision of the Court

we would provide the State an opportunity to brief the court regarding an
issue of fundamental error before issuing our decision. But given the State’s
willingness to concede error concerning this exact issue in recent cases, we
do not believe such action is necessary in this case. See e.g., Steel, 2018 WL
3358998, at *2, ¶ 12; Mack, 2017 WL 3597406, at *3, ¶ 12.

¶15 “We generally vacate the ‘lesser’ of two convictions when
double jeopardy is violated.” State v. Braidick, 231 Ariz. 357, 360, ¶ 13 (App.
2013). But both aggravated-assault convictions, in this case, carry identical
sentences as corrected, see supra ¶ 12. Had the superior court intended to
sentence Carrillo for the aggravated-assault convictions under different
sentencing schemes, we would remand for it to determine which conviction
should be vacated. Because the court sentenced Carrillo under the same
sentencing scheme, we choose to vacate the second of the convictions,
aggravated assault causing serious physical injury. Cf. State v. Powers, 200
Ariz. 123, 127, ¶ 16 (App. 2001) (choosing to vacate second conviction in
double-jeopardy case); Braidick, 231 Ariz. at 361, ¶ 13 (same).

¶16 Finally, the court erred by ordering Carrillo to pay for his
DNA testing under A.R.S. § 13-610. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14
(App. 2013); State v. Coulter, 236 Ariz. 270, 276, ¶ 17 (App. 2014).
Accordingly, Carrillo’s sentences are modified to delete the requirement
that he pay for the cost of DNA testing.

CONCLUSION

¶17 We vacate the requirement that Carrillo pay for DNA testing
and modify the sentencing minute entry to reflect that Carrillo was
sentenced under A.R.S. § 13-703(J) for his convictions. We also vacate the
second of Carrillo’s aggravated-assault convictions, aggravated assault
causing serious physical injury. We otherwise affirm Carrillo’s convictions
and sentences. After the filing of this decision, defense counsel’s obligations
pertaining to Carrillo’s representation in this appeal will end after
informing Carrillo of the outcome of this appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584–85 (1984).

AMY M. WOOD • Clerk of the Court
FILED: AA
6