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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BENJAMIN FABIAN PITA,
Appellant.
No. 1 CA-CR 19-0528
FILED 9-10-2020
Appeal from the Superior Court in Yavapai County
No. V1300CR201880096
The Honorable Christopher L. Kottke, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee
The Zickerman Law Office, PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
STATE v. PITA
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.
M O R S E, Judge:
¶1 Benjamin Pita appeals from his convictions and sentences for
one count each of endangerment and criminal damage. After searching the
entire record, Pita'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 asked
this Court to search the record for fundamental error. Pita was granted an
opportunity to file a supplemental brief in propria persona but did not do
so. After reviewing the entire record, we find no error. Accordingly, Pita's
convictions and sentences are affirmed.
FACTS AND PROCEDURAL BACKGROUND
¶2 On December 8, 2017, Brent E. drove his mother's Jeep from
Camp Verde to Cottonwood with Chelsey L. and Pita, where the trio ran
some errands. On the return trip to Camp Verde, Chelsey and Pita were in
the backseat when Brent was stabbed seven times from behind while
driving fifty-five miles per hour. After Brent was able to stop the vehicle,
Pita took off.
¶3 Chelsey called 9-1-1, then helped Brent into the passenger seat
and drove him back toward Cottonwood to meet emergency medical
services because he "was bleeding bad." By the time the police arrived,
Brent and the Jeep were covered with blood. A paramedic observed
multiple one-inch puncture wounds on Brent's cheek, neck, wrist, and torso
and Brent was flown to Flagstaff for treatment. Both Brent and Chelsey
identified Pita as the assailant. The Jeep was a total loss.
¶4 Pita moved unsuccessfully for a judgment of acquittal, the
jury convicted Pita of one count each of endangerment—a dangerous
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STATE v. PITA
Decision of the Court
offense—and criminal damage of less than $250.1 After an aggravation
hearing, the jury found the State had proved beyond a reasonable doubt
that the endangerment caused Chelsea to suffer physical, emotional or
financial harm and was committed while Pita was released on parole for a
felony offense.
¶5 The trial court found Pita had committed two non-dangerous
historical felony offenses and sentenced him as a non-dangerous, repetitive
offender to the presumptive term of 3.75 years' imprisonment for
endangerment and 120 days' imprisonment for criminal damage. The court
also gave Pita credit for 425 days of presentence incarceration. Pita timely
appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),2
13-4031, and -4033(A).
DISCUSSION
¶6 Our review reveals no fundamental, prejudicial error. See
Leon, 104 Ariz. at 300 ("An exhaustive search of the record has failed to
produce any prejudicial error."). Although the record does not contain a
presentence report, the record reflects that the trial court ordered the report
and considered it and other mitigation information submitted by Pita.
Under these circumstances, the absence of the presentence report in the
appellate record does not amount to fundamental error. See State v. Maese,
27 Ariz. App. 379, 380 (1976); see also Ariz. R. Crim. P. 26.4(c) (requiring the
presentence report to be "delivered to the sentencing judge and to all
counsel" but not filed).
¶7 Under Arizona law, "[a] person commits endangerment by
recklessly endangering another person with a substantial risk of imminent
death or physical injury." A.R.S. § 13-1201(A). "Endangerment involving a
substantial risk of imminent death is a class 6 felony." A.R.S. § 13-1201(B).
"A person commits criminal damage by . . . [r]ecklessly defacing or
damaging property of another person." A.R.S. § 13-1602(A)(1). The offense
is a class 2 misdemeanor if the damage is in an amount less than two
hundred fifty dollars. A.R.S. § 13-1602(B)(6). The record contains sufficient
1 The jury was unable to agree on a verdict for aggravated assault
against Brent, and a mistrial was declared as to that count. A jury acquitted
Pita of the charge in a subsequent retrial.
2 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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STATE v. PITA
Decision of the Court
evidence upon which a reasonable jury could determine beyond a
reasonable doubt that Pita was guilty of these crimes.
¶8 All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Pita was
present for and represented by counsel at all stages of the proceedings. See
State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages);
State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages).
The jury was properly comprised of twelve jurors, and the record shows no
evidence of jury misconduct. See Ariz. Const. art. 2, § 23; A.R.S. § 21-102(A);
Ariz. R. Crim. P. 18.1(a). The trial court properly instructed the jury on the
elements of the charged offenses, the State's burden of proof, and Pita's
presumption of innocence. At sentencing, the trial court stated the evidence
and materials it considered and the factors it found in imposing the
sentences. Although the court did not specifically invite Pita to speak at
sentencing, see Ariz. R. Crim. P. 26.10(b)(1), the error is not prejudicial
where, as here, Pita did not ask to speak, and the court imposed the
minimum possible sentence, see A.R.S. §§ 13-703(C), (J) (outlining the
available sentences for a category three repetitive offender), -708(C)
(prohibiting imposition of a sentence less than the presumptive when the
defendant commits a felony offense while on parole for conviction of a prior
felony offense); State v. Hinchey, 181 Ariz. 307, 313 (1995) (concluding the
court's failure to invite the defendant to speak at sentencing did not require
resentencing where the defendant did not ask to speak and failed to
establish what he would have offered in mitigation that had not already
been presented).
CONCLUSION
¶9 Pita's convictions and sentences are affirmed.
¶10 Defense counsel's obligations pertaining to Pita's
representation in this appeal have ended. Defense counsel need do no more
than inform Pita of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).
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STATE v. PITA
Decision of the Court
¶11 Pita has thirty days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. See Ariz. R.
Crim. P. 31.21. Upon the Court's own motion, we also grant Pita thirty days
from the date of this decision to file an in propria persona motion for
reconsideration. See Ariz. R. Crim. P. 31.20.
AMY M. WOOD • Clerk of the Court
FILED: AA
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