Opinion
No. 2 CA-CR 2016-0266
05-18-2017
THE STATE OF ARIZONA, Appellee, v. RAYMOND MARTINEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Flores & Clark PC, Globe By Daisy Flores Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201500579
The Honorable Richard T. Platt, Judge
AFFIRMED AS CORRECTED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee Flores & Clark PC, Globe
By Daisy Flores
Counsel for Appellant
MEMORANDUM DECISION
Judge Miller authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred. MILLER, Judge:
¶1 A jury found Raymond Martinez guilty of aggravated assault and the trial court sentenced him to an enhanced, minimum term of four years' imprisonment. On appeal, he argues the court erred by denying his request for a self-defense instruction and by failing to conduct a colloquy to ensure his admission of prior convictions was knowing and voluntary. We affirm as corrected for the reasons stated below.
Factual and Procedural Background
¶2 As to the justification instruction issue, we view the facts in the light most favorable to Martinez, the proponent of the instruction. See State v. King, 225 Ariz. 87, ¶ 13, 235 P.3d 240, 243 (2010). We otherwise view the facts in the light most favorable to sustaining Martinez's convictions and sentences. See State v. Delgado, 232 Ariz. 182, ¶ 2, 303 P.3d 76, 79 (App. 2013).
¶3 On October 22, 2014, correctional officer A.V. was supervising inmate recreation at an Arizona Department of Corrections (ADOC) facility in Florence where Martinez was incarcerated. Martinez knew A.V. was a correctional officer. Another inmate, N.N., asked A.V. to move him from one recreation enclosure to another so that he could join a friend there, which was "an everyday occurrence." A.V. testified that, as he was walking N.N. over, Martinez started yelling at A.V. "Hey, buddy. Come here. Come here. Come over here with me." Martinez denied making these statements, saying he would not use the word "buddy."
A pseudonym.
¶4 According to A.V., there was no reason to believe Martinez and N.N. should be separated, and both had told him "they were okay with" sharing the enclosure. But Martinez testified N.N. had threatened him in the past, he was afraid of him, and he did not want N.N. in the same enclosure. Martinez stated he had told A.V. "I don't want [N.N.] in here."
¶5 A.V. opened the door to the enclosure, directing N.N. to enter. Martinez was not in restraints, but N.N. was handcuffed behind his back. According to A.V., as soon as N.N. went in, Martinez "got in . . . N.N.'s face" and an altercation ensued. N.N. and Martinez were cursing at each other, and according to Martinez, N.N. was kicking at him. Martinez tried to push N.N. out of the enclosure, "[n]ot to cause him harm, but to keep him away." A.V. tried to push N.N. back outside of the enclosure, but as he turned around to finish doing so, Martinez punched A.V. in the face near his left eye.
¶6 A.V. got outside of the enclosure and was trying to close the door when Martinez moved toward him. A.V. then pepper sprayed Martinez, who closed his eyes, stepped back, and lay down on the ground as A.V. instructed. A.V. handcuffed Martinez and summoned other officers to the scene. A.V. sustained a bloody nose, facial bruises, and headaches and did not return to full duty for three or four workdays. N.N. had no visible injuries. Martinez's only visible injury was a reddened face that an officer testified was consistent with the effects of pepper spray. Martinez later told a detective "If - - - ed up," but he testified he had only said this because he knew A.V. would never "back [him] up" anyway.
¶7 Martinez was convicted and sentenced as described above. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Justification Instruction
¶8 Martinez argues the trial court erred by denying his request for a self-defense justification instruction. A party is entitled to such instruction upon the "slightest evidence" of justification, but "the instruction need not be given 'unless it is reasonably and clearly supported by the evidence.'" State v. Vassell, 238 Ariz. 281, ¶ 9, 359 P.2d 1025, 1028 (App. 2015), quoting State v. Ruggiero, 211 Ariz. 262, ¶ 10, 120 P.3d 690, 692 (App. 2005); see also State v. Carson, 241 Ariz. 775, ¶ 19, 391 P.3d 1198, 1203 (App. 2017) ("[I]f there is no evidence for a necessary aspect of a prima facie case of justification, then there is not the slightest evidence of justification.").
¶9 "[A] person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force." A.R.S. § 13-404(A) (emphasis added). There was no evidence here that the victim used or attempted physical force against Martinez at any point before Martinez punched him. The evidence indicated there had been no prior issues or problems between Martinez and A.V. Martinez repeatedly testified he had "not [been] worried about" A.V. because A.V. was not going to do anything to him. He testified "[A.V.] was not a threat to me" and "was not attacking me." Because there was no evidence A.V. ever threatened or used physical force against Martinez before Martinez punched him, there was not the slightest evidence of justification as to A.V. § 13-404(A); see Carson, 241 Ariz. 775, ¶¶ 17-21, 391 P.3d at 1203-04.
¶10 Martinez also asserts a justification instruction was necessary as to A.V. because self-defense could have been "transferred" to A.V. based on Martinez's purportedly justified use of force against N.N. Even if we assume the punch was intended for N.N. and Martinez would have been justified in using physical force against N.N., there is no "transferred justification." The state cites A.R.S. § 13-401(A), which provides:
Even though a person is justified under this chapter in threatening or using physical force or deadly physical force against another, if in doing so such person recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.We agree it would have been error to instruct the jury on justification in this circumstance. See State v. Ruiz, 236 Ariz. 317, ¶ 21, 340 P.3d 396, 403 (App. 2014).
¶11 To prove aggravated assault under A.R.S. § 13-1204(A)(10), the state needed to show (1) Martinez was an inmate in the ADOC, (2) he knew A.V. was acting in an official capacity as an ADOC employee, and (3) he intentionally, knowingly, or recklessly caused physical injury to A.V. See A.R.S. §§ 13-1203(A)(1), 13-1204(A)(10). If Martinez struck A.V. merely negligently or accidentally, he would be acquitted with no need for a justification instruction. See §§ 13-1203(A)(1), 13-1204(A)(10). If, on the other hand, Martinez struck A.V. at least recklessly, then § 13-401(A) would foreclose a justification defense. The trial court was correct to deny Martinez's attempt to conflate a justification theory as to N.N. with a justification argument about the innocent victim. See §§ 13-401(A), 13-404(A). The court did not abuse its discretion in denying the self-defense instruction.
Defendant's Admission of Prior Convictions
¶12 Martinez argues the trial court committed fundamental error by not engaging in a colloquy to confirm that his admission of prior felony convictions was knowing and voluntary. Because he did not object below, our review is for fundamental error; therefore, it is Martinez's burden to show an error both fundamental and prejudicial. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005).
¶13 Before trial, the state alleged Martinez had four historical prior felony convictions and provided dates, offenses, cause numbers, and courts of conviction for each allegation. At trial, Martinez testified and admitted he had been convicted of "[a]t least four" prior felonies. After the jury had returned its verdict, the prosecutor expressed his willingness to waive an aggravation hearing "based on the assumption that there's a stipulation as to the prior felony convictions for aggravation purposes." The trial court asked if the defense wished to stipulate on the record, and defense counsel said, "Defense, at this point, would stipulate that Mr. Martinez has prior—has prior felony convictions." The court asked whether counsel was referring to "the prior felony convictions as alleged by the State previously in the pleadings," and defense counsel said yes. The prosecutor asked "whether or not the waiving of the aggravation stage requires any sort of colloquy with the defendant or not," and the court said it did not. The prosecutor also expressed his belief that he would still have to "prove the prior convictions to get into Category 3" at sentencing, but the court said, "I think there's a stipulation that he does have four prior convictions within 10 years." The state said it would "bring the witness" to sentencing "[j]ust in case that stipulation doesn't follow through," but would proceed under the "assumption that we have a stipulation."
¶14 The presentence report noted "the defendant acknowledged that he had at least four prior felony convictions," and it specifically mentioned three of the four cause numbers set forth in the state's pretrial allegation. Martinez did not object to the presentence report as he was entitled to do under Rule 26.8, Ariz. R. Crim. P.
¶15 At sentencing, the prosecutor reminded the trial court of Martinez's admission on the stand that he had "at least four prior felony convictions." "I'm happy to read off four of them from the [ADOC] web site that he does have," the prosecutor continued, "but I don't believe that is an issue at this point, unless defense counsel says otherwise." Defense counsel said, "No, your Honor." The court then sentenced Martinez as a category three repetitive offender.
The sentencing minute entry says Martinez was sentenced pursuant to A.R.S. § 13-702, but the sentencing transcript and the sentence actually imposed conclusively establish that the trial court intended to and did sentence him as a category three repetitive offender pursuant to A.R.S. § 13-703(C) and (J). We hereby correct the sentencing minute entry to reflect the appropriate sentencing statute. See State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211 (App. 1992) (where discrepancy between oral pronouncement of sentence and minute entry can be resolved by reference to record, remand for clarification unnecessary).
¶16 In general, Rule 17, Ariz. R. Crim. P., "requires the judge to engage in a plea-type colloquy with [a] defendant to ensure that the admission [of a prior conviction] is voluntary and intelligent." State v. Morales, 215 Ariz. 59, ¶ 1, 157 P.3d 479, 480 (2007). A complete failure to afford such a colloquy where required is fundamental error because waiver of a constitutional right must be voluntary and intelligent. Id. ¶ 10. However, a Rule 17 colloquy is not required where the prior conviction is "admitted by the defendant while testifying on the stand." Ariz. R. Crim. P. 17.6; Morales, 215 Ariz. 59, ¶ 7, 157 P.3d at 481 (Rule 17.6 colloquy required "unless the defendant makes [the] admission while testifying"). An admission of a prior conviction for enhancement purposes "may occur either in accordance with the provisions of rule 17 or during the defendant's testimony." State v. Hunter, 137 Ariz. 234, 238, 669 P.2d 1011, 1015 (App. 1983) (emphasis added); accord State v. Woratzeck, 130 Ariz. 499, 502, 637 P.2d 301, 304 (App. 1981).
¶17 Martinez has not shown any error, let alone fundamental error. He admitted while testifying at trial that he had been convicted of at least four prior felonies. Thus, by its terms, Rule 17.6 did not require a plea-type colloquy. And because, by definition, the third and fourth prior felony convictions are historical prior felony convictions, the trial court did not err in sentencing him as a category three repetitive offender. See A.R.S. §§ 13-105(22)(d), 13-703(C).
¶18 Martinez argues his admissions on the witness stand were not sufficiently particular because they did not include the "dates, locations, or cause number[s]" of the prior convictions. He cites no authority for the proposition that an admission on the stand is only effective if it includes these specifics. Yet even assuming for the sake of argument that Martinez's testimonial admission was not specific enough, his counsel confirmed in his presence that the four particular prior felony convictions the state had alleged in the pleadings were accurate. Moreover, Martinez did not raise a Rule 26.8 objection to the presentence report, which stated that he had "at least four prior felony convictions" and specifically mentioned three of the cause numbers alleged in the indictment. See State v. Gonzales, 233 Ariz. 455, ¶ 11, 314 P.3d 582, 585 (App. 2013) (failure to object to contents of presentence report constitutes waiver of objections as to accuracy and completeness of report, and "conclusively precludes prejudice" from failure to provide Rule 17.6 colloquy). Martinez has not met his burden of showing fundamental prejudicial error.
Our supreme court arguably has suggested otherwise, noting that a defendant who chooses to testify is "bound to know" that he will be cross-examined about the particular prior convictions "alleged in the [indictment or] information." See Seymour, 101 Ariz. 498, 500, 421 P.2d 517, 519 (1966); but cf. State v. Pacheco, 121 Ariz. 88, 90, 588 P.2d 830, 832 (1978) (prior felony may be established by testifying defendant's admission of prior felony for "the same crime alleged, on the same date alleged, and at the same place alleged"). --------
Disposition
¶19 For the foregoing reasons, we affirm Martinez's conviction and sentence as corrected.