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State v. Peralta

Court of Appeals of Arizona, First Division, Department B

July 18, 2013

STATE OF ARIZONA, Appellee,
v.
ROBERT CARLOS PERALTA, Appellant.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2010-117219-001 The Honorable Carolyn K. Passamonte, Judge Pro Tempore

Thomas C. Horne, Arizona Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Linley Wilson, Assistant Attorney General Attorneys for Appellee

James J. Haas, Maricopa County Public Defender Phoenix by Louise Stark, Deputy Public Defender Attorneys for Appellant

MEMORANDUM DECISION

SAMUEL A. THUMMA, Judge

¶1 Robert Carlos Peralta timely appeals his convictions and sentences for discharge of a firearm at a structure, a dangerous offense, and aggravated assault, a domestic violence and dangerous offense. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A).[1] Finding no reversible error, Peralta's convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY[2]

¶2 The evidence at trial showed that Peralta fired two shots through the door of M.C.'s (his girlfriend's) home while she was in a nearby hallway. After being arrested, Peralta admitted reporting a false carjacking to 9-1-1 immediately after the shooting to "divert [the officers] out of the area." Peralta told the police a friend nicknamed "Chavo" (sometimes appearing in the transcript as "Chabo") fired the gun, apparently because Chavo recognized M.C. as "someone who may have robbed him in the past." Peralta admitted to having the nickname "Chavo, " although he told the police he had not been called that name in a long time. Peralta did not testify and did not call any witnesses at trial.

DISCUSSION

I. Impeachment Of M.C.'s Trial Testimony.

¶3 Peralta first argues the superior court abused its discretion in precluding impeachment of M.C. through testimony from police officers about M.C.'s purported prior inconsistent statements that she did not recall making.[3] Applying an abuse of discretion standard, State v. Robinson, 165 Ariz. 51, 58, 796 P.2d 853, 860 (1990), the superior court's ruling is affirmed if correct for any reason, State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) .

¶4 At trial, M.C. testified that she: (1) saw Peralta pull out what she thought was a gun immediately before the shots were fired (and she recalled telling one police officer that the gun was in his waistband, but did not recall telling another officer the gun was in his pocket); (2) did not recall what she and Peralta had been arguing about and (3) recalled hearing two gunshots, but she might have told a police officer she heard three or four shots because of echoes she heard.

¶5 Peralta sought to impeach M.C.'s testimony with testimony from police officers regarding whether M.C. previously had said Peralta pulled the gun out of his pants' waistband or pocket; what Peralta and M.C. had been arguing about prior to the incident and whether M.C. heard two or four gunshots. The State moved to preclude Peralta from impeaching M.C. on these details that she could not remember during her trial testimony. In granting the State's motion, the superior court stated it was

not satisfied that any of the . . . statements that [M.C.] made were so crystal-clear denials of what she had said in the previous interviews with police officers. I think they were either she agreed that yes, she said that at the time, or she doesn't recall what she said at the time ...

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