Court of Appeals of Arizona, First Division, Department A
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2008-005847-001 The Honorable Julie P. Newell, Judge Pro Tem
Thomas C. Horne, Attorney General, Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee
James J. Haas, Maricopa County Public Defender, Charles R. Krull, Deputy Public Defender Attorneys for Appellant
JOHN C. GEMMILL, Judge
¶1 Ed Zavala Trujillo appeals the sentences imposed on him after remand following this court's decision in State v. Trujillo, 227 Ariz. 314, 257 P.3d 1194 (App. 2011). Trujillo argues that the superior court abused its discretion by not finding Trujillo's background was a mitigating factor and by not reducing the sentences accordingly. For the reasons set forth below, we disagree and affirm the sentences.
¶2 In November 2008, a jury found Trujillo guilty on three counts of felony aggravated assault. At a hearing in December 2008, the State also established that Trujillo had two prior felony convictions. At his initial sentencing in February 2009, the superior court found that the "environment in which he was raised" had a "devastating effect" on Trujillo and considered this a mitigating factor when imposing sentences. The court also considered four aggravating factors during sentencing. First, at trial, the jury found beyond a reasonable doubt the aggravating factor of emotional harm to the victim. Pursuant to Arizona Revised Statute ("A.R.S.") section 13-701(D), the court further determined that Trujillo's criminal history, the short length of time between his last incarceration and the crimes in question, and his lack of remorse were aggravating factors. The court sentenced Trujillo to three aggravated prison terms: seventeen years on Count 1, ten and one-half years on Count 2, and twenty years on Count 3. All sentences were ordered to be served concurrently.
¶3 In Trujillo's initial appeal, this court found that the superior court violated Trujillo's Fifth Amendment rights against self-incrimination when it considered his failure to "own up" to the crime as an aggravating factor: "in considering Trujillo's lack of remorse and failure to admit guilt, the trial court deprived him of a right essential to his defense." Trujillo, 227 Ariz. at 318, ¶ 15, 257 P.3d at 1198. As a result of this error, we vacated the sentences and remanded the case for resentencing. Id. at 319, ¶ 21, 257 P.3d at 1199.
¶4 Trujillo was resentenced at a hearing in July 2012. In making its sentencing decisions, the superior court explained that it had examined the 2009 presentence report, all letters and recommendations, two mitigation reports, and statements from Trujillo and his family. It "considered all the possible mitigating circumstances" and found that the "aggravating circumstances [were] sufficiently substantial to warrant an aggravat[ed] sentence." The court did not find any mitigating factors. The court resentenced Trujillo to concurrent, aggravated sentences of fifteen years on Count 1, ten and one- half years on Count 2, and eighteen years on Count 3.
¶5 On appeal, Trujillo argues that the superior court abused its discretion by failing to consider his background and upbringing as a mitigating factor. This court has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21 (2003), 13-4031 (2010), and -4033 (2010).
¶6 The determination of mitigating circumstances is entirely within the discretion of the sentencing court. State v. Carbajal, 177 Ariz. 461, 463, 868 P.2d 1044, 1046 (App. 1994). In determining whether mitigating factors exist, the trial court is bound to consider "[a]ny other factor that is relevant to the defendant's character or background . . . ." A.R.S. § 13-701(E)(6). The court is not, however, obligated to find any mitigating factors. See State v. Long, 207 Ariz. 140, 148, ¶ 41, 83 P.3d 618, 626 (App. 2004). We will find abuse of discretion if a sentencing decision is "arbitrary or capricious, or when the court fails to conduct an adequate investigation into the facts relevant to sentencing." State v. Ward, 200 Ariz. 387, 389, ¶ 6, 26 P.3d 1158, 1160 (App. 2001); see also State v. Fillmore, 187 Ariz. 174, 184-85, 927 P.2d 1303, 1313-14 (App. 1996) (finding that a court's sentencing decision was arbitrary and capricious because it was determined by an "inflexible, mechanical process").
¶7 Trujillo argues that the superior court's failure to find Trujillo's background to be a mitigating factor for sentencing purposes constitutes fundamental error. He presents no authority to support this claim, however. Contrary to Trujillo's contentions, the superior court is not bound by the determinations of the court in a prior sentencing. Rather, when a reviewing court vacates the sentence imposed and remands for reconsideration, the resentencing court sentences anew and is ...