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State v. Flores

Court of Appeals of Arizona, First Division

August 21, 2018

STATE OF ARIZONA, Appellee,
v.
OSCAR MANUEL MONTES FLORES, Appellant.

          Appeal from the Superior Court in Maricopa County No. CR2016-117755-001 The Honorable Lauren R. Guyton, Judge Pro Tempore

          Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee

          Maricopa County Public Defender's Office, Phoenix By Mark E. Dwyer Counsel for Appellant

          Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.

          OPINION

          JOHNSEN, JUDGE

         ¶1 Oscar Manuel Montes Flores told the employee behind the counter of a convenience store that he had a gun and moved his hand beneath his shirt and waistband as if he was holding a weapon. He demanded money, and the employee gave him what there was in the cash register. A jury convicted Montes Flores of armed robbery and other charges. We affirm, holding that it did not matter that the victim of the robbery did not see him use his hand to simulate a weapon.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Montes Flores entered a convenience store before dawn one morning, selected some sunflower seeds and a bottle of water and paid for them at the front counter.[1] His transaction complete, Montes Flores looked toward the front door, then turned again in the direction of the assistant manager behind the counter. Sliding his hand beneath his shirt and under the waistband of his pants, Montes Flores leaned forward and demanded, "Give me all your money, I have a gun." Not immediately understanding, the victim responded, "Excuse me?" After Montes Flores repeated his statement, the victim quickly opened the register and began to pull money from the drawer. Montes Flores told him to put the money in a bag. As soon as the victim handed him the bag, Montes Flores walked out of the store and drove off in a stolen SUV. Surveillance cameras captured the robbery in its entirety.

         ¶3 Police arrested Montes Flores after he crashed the SUV not far away. The State charged him with armed robbery, theft of a means of transportation and criminal damage caused in connection with the theft of the SUV. The State also alleged aggravating circumstances and that Montes Flores had historical prior felony convictions.

         ¶4 The jury found Montes Flores guilty as charged. At sentencing, he admitted two historical prior felony convictions. The superior court sentenced him to concurrent terms of incarceration, the longest of which was 14 years. Montes Flores timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018), and -4033(A)(1) (2018).[2]

         DISCUSSION

         A. Constitutional Validity of A.R.S. § 13-1904.

         ¶5 Montes Flores was convicted under A.R.S. ยง 13-1904(A) (2018), which provides that an armed robbery ...


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