PATRICIA K. NORRIS
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule
111, Rules of the Arizona
Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR 2011-005191-001
The Honorable Susan M. Brnovich, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Kerri L. Chamberlin, Deputy Legal Advocate
and Bruce Peterson, Legal Advocate
Attorneys for Appellant
Phoenix NORRIS, Judge ¶1 Jose Solis-Apodaca timely appeals from his convictions and sentences for first degree murder, robbery, and trafficking in stolen property. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-1105 (2011), -1902 (2011), -2307 (2011). After searching the record on appeal and finding no arguable question of law that was not frivolous, Solis-Apodaca's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Solis-Apodaca to file a supplemental brief in propria persona, but Solis-Apodaca did not do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Solis-Apodaca's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 In the early evening of March 30, 2011, the 16-year-old victim was sitting outside her apartment complex in Glendale using her new laptop. At around 7 P.M., a Nissan Xterra SUV quickly left the apartment complex. As the Xterra headed south, witnesses testified the victim was hanging on the driver's side of the Xterra and then fell in a "somersault" fashion, hitting her head on the ground. The victim was immediately taken to the hospital and died on April 5, 2011. The victim sustained multiple abrasions on her legs and a blunt force trauma to her head that caused her death. ¶3 On March 31, 2011, Solis-Apodaca asked a friend, J.C., if he was interested in buying a stolen laptop. J.C. went to Solis-Apodaca's home with his girlfriend and paid around $280 for the laptop. At trial, J.C. testified Solis-Apodaca said he ran up to a girl with a laptop, "snatched" the laptop, and ran back to the Xterra; but because the Xterra was stalled, the girl caught up and attempted to get into the Xterra. Solis-Apodaca also told J.C. that at one point, he tried to "get [the victim's] fingers" off the window. ¶4 On April 5, 2011, Glendale police interviewed Solis-Apodaca. During the interview, he admitted he had grabbed a laptop from a girl sitting outside an apartment complex and then had sold it to J.C.'s girlfriend. Solis-Apodaca stated the girl said "give it back" or something to that effect, and tried to jump onto the Xterra when it was taking off, but fell off. He denied pushing the girl off the Xterra. ¶5 A jury convicted Solis-Apodaca of first degree murder, a class 1 felony; robbery, a class 4 felony; and trafficking in stolen property in the second degree, a class 3 felony. The superior court sentenced Solis-Apodaca to the presumptive terms of life imprisonment without possibility of release until 25 years for first degree murder, with 306 days of presentence incarceration credit; 2.5 years for robbery with 306 days of presentence incarceration credit, to run concurrently with the sentence for first degree murder; and 3.5 years for trafficking in stolen property, consecutive to the other two terms of imprisonment.
The State alleged the first degree murder offense was a dangerous felony and the court instructed the jury on the dangerous nature of the offense. Enhanced punishment for dangerous offenses does not apply to first degree murder, a class 1 felony. See A.R.S § 13-704 (2011) (dangerousness statute applies only to class 2 to class 6 felonies). The jury found the first degree murder offense was, however, non-dangerous.
DISCUSSION
¶6 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Solis-Apodaca received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶7 The evidence presented at trial was substantial and supports the verdicts. The jury was properly comprised of 12 members and the court properly instructed the jury on the elements of the charges, Solis-Apodaca'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, Solis-Apodaca was given an opportunity to speak -- and did speak -- at sentencing, and his sentences were within the range of acceptable sentences for his offenses.
The court judicially noticed the time for sunset on March 30, 2011 and instructed "[t]he jury must accept that fact as conclusive," as requested by defense counsel. In a criminal case, the court cannot instruct the jury to accept a noticed fact as conclusive; it must instruct the jury that it may or may not accept the noticed fact as conclusive. Ariz. R. Evid. 201(f). Because Defendant invited this error and the witnesses' testimonies were otherwise consistent, the court's instruction did not constitute reversible error.
We also note that neither the trial transcript nor the materials comprising the remainder of the record on appeal contain the superior court's exact responses to questions submitted by the jury to the court during its deliberation. Although we are able to determine with sufficient certainty the court's responses to the questions, the court should have ensured the record included the specifics of its communications with the jury.
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CONCLUSION
¶8 We decline to order briefing and affirm Solis-Apodaca's convictions and sentences. ¶9 After the filing of this decision, defense counsel's obligations pertaining to Solis-Apodaca's representation in this appeal have ended. Defense counsel need do no more than inform Solis-Apodaca 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). ¶10 Solis-Apodaca has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court's own motion, we also grant Solis-Apodaca 30 days from the date of this decision to file an in propria persona motion for reconsideration.
________________________
PATRICIA K. NORRIS, Presiding Judge
CONCURRING: __________________
DIANE M. JOHNSEN, Judge
____________
JON W. THOMPSON, Judge