2 CA-CR 2012-0478 STATE OF ARIZONA v. ALBERT LEON MARISCAL

Department: A
County: Pima
Cause Numbers: CR20114254001

Howard Fell

Submitted: 02/18/2014 At Issue Date: 02/14/2014 At Issue Number: 2012-05967

Party/Attorney Information
Party Information Attorney Information
THE STATE OF ARIZONA,
Appellee

Amy Pignatella Cain
ASSISTANT ATTORNEY GENERAL
Appointed

Joseph T. Maziarz
ASSISTANT ATTORNEY GENERAL
Appointed

PIMA COUNTY ATTORNEY
Appointed

ARIZONA ATTORNEY GENERAL
Appointed

ALBERT LEON MARISCAL
Appellant

Lori J. Lefferts
PIMA COUNTY PUBLIC DEFENDER
Appointed

Katherine A. Estavillo
Assistant Pima County Public Defender
Appointed

Filings, Dues and Continuances
Document Type Due Date Document Title Filing Date Attorney/Firm Type
Transmittal Letter    Notification of Appeal  11/20/2012    Filing
Notice of Appeal    Notice of Appeal  11/13/2012    Filing
Minute Entry    PRIORS TRIAL/SENTENCE OF IMPRISONMENT  11/16/2012    Filing
Notice of Appearance    Notice of Counsel  12/13/2012  Maish, Kristine   Filing
Record    NOTIFICATION OF ELECTRONIC RECORD  12/26/2012    Filing
Motion for Extension to File Opening Brief    Motion for Extension for Filing Opening Brief  03/13/2013  Maish, Kristine   Filing
Motion to Expand the Record    MOTION TO EXPAND RECORD/MOTION TO SUSPEND FILING DATE OF OPENING BRIEF  04/08/2013  Maish, Kristine   Filing
Notice of Change of Counsel    Notice of Change of Counsel  05/29/2013  Estavillo, Katherine A.   Filing
Motion for Extension to File Opening Brief    Motion for Extension for Filing Opening Brief  07/11/2013  Estavillo, Katherine A.   Filing
Motion for Extension to File Opening Brief    Motion for Extension to File Opening Brief  08/13/2013  Estavillo, Katherine A.   Filing
Opening Brief    Appellants Opening Brief  08/21/2013  Estavillo, Katherine A.   Filing
Notice of Appearance    Notice of Appearance  09/03/2013  Cain, Amy Pignatella   Filing
Motion for Extension to File Answer Brief    Motion for Extension to File Answer Brief  10/03/2013  Cain, Amy Pignatella   Filing
Motion for Extension to File Answer Brief    Motion for Extension to File Answer Brief  11/05/2013  Cain, Amy Pignatella   Filing
Answering Brief    Answering Brief  11/19/2013  Cain, Amy Pignatella   Filing
Motion for Extension to File Reply Brief    MOTION TO EXTEND DUE DATE OF REPLY BRIEF  12/16/2013  Estavillo, Katherine A.   Filing
Motion for Extension to File Reply Brief    MOTION TO EXTEND DUE DATE OF REPLY BRIEF  01/16/2014  Estavillo, Katherine A.   Filing
Reply Brief    Appellants Reply Brief  01/30/2014  Estavillo, Katherine A.   Filing
OA Acknowledgment    OA Acknowledgment  03/24/2014  Cain, Amy Pignatella   Filing
OA Acknowledgment    OA Acknowledgment  03/21/2014  Estavillo, Katherine A.   Filing
Trial Court Record  12/28/2012  Trial Court Record      Due
Opening Brief  08/21/2013  Opening Brief      Due
Answering Brief  11/20/2013  Answering Brief      Due
Reply Brief  01/30/2014  Reply Brief      Due
Petition for Review to Supreme Court  05/19/2014  Petition for Review to Supreme Court      Due
VERIFY STATUS  01/19/2015  VERIFY STATUS    Lefferts, Lori J.   Due
Calendar and Decision Information
OA Request Due OA Request By OA Request Result OA Filed OA Date OA Time OA Type Decision Type Decision Date Result Type
02/13/2014        04/08/2014  11:00 a.m. In Court  Memorandum Decision  04/18/2014  Affirmed  
Mandate
Mandate Date Mandate Vacated Date
05/27/2014   
MR/PR Outcome
MR Outcome MR Outcome Date PR Outcome PR Outcome Date
    Denied  12/02/2014 
Ticklers
Tickler Date Due Date Description
No ticklers available for this case.
Proceedings
Type Date Proceeding
Record  12/12/2012  Filed: Transcript, MOTION TO CONTINUE, Transcript date: 09/26/2012. (Filed by Vivian L. Spencer) (e-filer) 
Record  12/21/2012  Filed: Transcript, Judgment and Sentence, Transcript date: 11/13/2012. (Filed by David Christy) (e-filer) 
Record  12/26/2012  Filed: NOTIFICATION OF ELECTRONIC RECORD. (Filed by Clerk, Pima County) 
Record  12/28/2012  G.J. TRANS. - 1 Vol. and trans. letter; PRESENTENCE REPORT - 2 Vol.; LETTERS SUBMITTED FOR SENTENCING - 1 Vol.; JUROR QUESTIONS - 1 Vol.; EXHIBITS - 2 Vol. 
Record  01/28/2013  Filed: Transcript, Jury Trial - Day Two, Transcript date: 10/03/2012. (Filed by Barbara K. Smith) (e-filer) 
Record  01/28/2013  Filed: Transcript, Jury Trial - Day One, Transcript date: 10/02/2012. (Filed by Barbara K. Smith) (e-filer) 
Record  05/28/2013  Filed: Transcript, Jury Trial - Day One, Voir Dire , Transcript date: 10/02/2012. (Filed by Barbara K. Smith) (e-filer) 
Briefs  08/21/2013  Filed: Appellants Opening Brief. (Filed by Katherine A. Estavillo) (e-filer) 
Briefs  11/19/2013  Filed: Answering Brief. (Filed by Amy Pignatella Cain) (e-filer) 
Briefs  01/30/2014  Filed: Appellants Reply Brief. (Filed by Katherine A. Estavillo) (e-filer) 
All Other  12/04/2012  Filed: First Notice of Appeal. Transmittal Letter dated 11/20/2012, Notice of Appeal dated, 11/13/2012 and Sentencing Minute Entry dated 11/16/2012. 
All Other  12/13/2012  Filed: Notice of Counsel. (Filed by Kristine Maish) (e-filer) 
All Other  01/16/2013  It appearing that the transcript(s) of the proceedings of: Barbara Smith 10/2/2012 - Jury Trial Day 1 10/3/2012 - Jury Trial Day 2 10/2/2012 - Settlement/Reading of Jury Instructions 10/2/2012 - Opening Statements 10/2/2012 - Closing Statements 10/2/2012 - Rule 20 Motion 10/2/2012 - Motion in Limine 10/2/2012 - Motion Re: Instructions is/are not included in the record on appeal as required by Ariz. R. Crim. P. 31.8(b)(2), ORDERED: The court reporter(s) shall prepare and file the required transcript(s) in this court, with requisite copies for counsel on or before January 28, 2013. Regardless of whether the transcript(s) are filed electronically with this court, the court reporter(s) shall prepare a paper copy of the transcript(s) for both prosecution counsel and defense counsel and file the transcript(s) in the office of the Managing Court Reporter unless defense counsel notifies the reporter that a paper copy is NOT necessary. FURTHER ORDERED: The cost of the transcript(s) shall be paid by Pima County. FURTHER ORDERED: If the transcripts are not filed on or before the due date of January 28, 2013, court reporter(s) shall be fined Fifty Dollars ($50.00) each day thereafter until the transcripts are filed.  
All Other  02/01/2013  It appearing that transcripts in accordance with Rule 31.8(b)(2), Rules of Criminal Procedure having been filed, and pursuant to Rule 31.10 Rules of Criminal Procedure, notice is hereby given that the record on appeal was completed on January 28, 2013. ORDERED: Appellant's Opening Brief shall be filed on or before March 13, 2013. Please refer to Rule 31.13 concerning the preparation of your brief. FURTHER ORDERED: BRIEFS NOT FILED IN COMPLIANCE WITH RULE 31.13 WILL BE STRICKEN. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  03/13/2013  Filed: Motion for Extension for Filing Opening Brief. (Filed by Kristine Maish) (e-filer) 
All Other  03/20/2013  Pursuant to Motion for Extension for Filing Opening Brief, and there being no objection, ORDERED: The time for filing Appellant's Opening Brief is extended to and including April 12, 2013. FURTHER ORDERED: Any further requests for extension must explain the exceptional circumstances necessitating the request and will be considered by the presiding judge. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  04/08/2013  Filed: MOTION TO EXPAND RECORD/MOTION TO SUSPEND FILING DATE OF OPENING BRIEF. (Filed by Kristine Maish) (e-filer) 
All Other  04/10/2013  Pursuant to Motion to Expand the Record and Suspend Due Date of Opening Brief, ORDERED: Court Reporter shall transcribe the proceedings of: Barbara Smith 10/02/2012 - Voir Dire Requested transcript(s) to be filed with this court, with requisite copies for counsel to be filed simultaneously, on or before May 28, 2013. If the transcript(s) are filed electronically with this court, the court reporter(s) shall prepare a paper copy of the transcript for prosecution counsel. If the transcript(s) are filed electronically with this court, AND IF DEFENSE COUNSEL NOTIFIES THE COURT REPORTER THAT A PAPER COPY WILL BE NEEDED, the court reporter shall prepare a paper copy for defense counsel and file the transcript(s) in the office of the Managing Court Reporter. FURTHER ORDERED: The cost of the transcript(s) shall be paid by Pima County. FURTHER ORDERED: If the transcripts are not filed on or before the due date of May 28, 2013, court reporter Barbara Smith shall be fined Fifty Dollars ($50.00) each day thereafter until the transcripts are filed. FURTHER ORDERED: Time for filing Appellant's Opening Brief is extended to 40 days after this court's notice expanded record is complete. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  05/29/2013  Filed: Notice of Change of Counsel. (Filed by Katherine A. Estavillo) (e-filer) 
All Other  06/04/2013  The following action was taken by the Court of Appeals of the State of Arizona, Division Two, on May 28, 2013, in regard to the above-entitled cause: TRANSCRIPT FILED ORDERED: Appellant's Opening Brief shall be filed on or before July 15, 2013. FURTHER ORDERED: BRIEFS THAT DO NOT COMPLY WITH RULE 31.13 WILL BE STRICKEN. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  07/11/2013  Filed: Motion for Extension for Filing Opening Brief. (Filed by Katherine A. Estavillo) (e-filer) 
All Other  07/16/2013  Pursuant to Motion for Extension for Filing Opening Brief, and good cause having been shown, ORDERED: The time for filing Appellant's Opening Brief is extended to and including August 14, 2013. FURTHER ORDERED: Any further requests for extension must explain the exceptional circumstances necessitating the request and will be considered by the presiding judge. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  08/13/2013  Filed: Motion for Extension to File Opening Brief. (Filed by Katherine A. Estavillo) (e-filer) 
All Other  08/13/2013  Pursuant to Motion for Extension to File Opening Brief, and good cause having been shown, ORDERED: The time for filing Appellant's Opening Brief is extended to and including August 21, 2013. FURTHER ORDERED: Any further requests for extension must explain the exceptional circumstances necessitating the request and will be considered by the presiding judge. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  09/03/2013  Filed: Notice of Appearance. (Filed by Amy Pignatella Cain) (e-filer) 
All Other  10/03/2013  Filed: Motion for Extension to File Answer Brief. (Filed by Amy Pignatella Cain) (e-filer) 
All Other  10/11/2013  Pursuant to Motion for Extension to File Answer Brief, and good cause having been shown, ORDERED: The time for filing Appellee's Answering Brief is extended to and including November 06, 2013. FURTHER ORDERED: Any further requests for extension must explain the exceptional circumstances necessitating the request and will be considered by the presiding judge. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  11/05/2013  Filed: Motion for Extension to File Answer Brief. (Filed by Amy Pignatella Cain) (e-filer) 
All Other  11/08/2013  Pursuant to Motion for Extension to File Answer Brief, and good cause having been shown, ORDERED: The time for filing Appellee's Answering Brief is extended to and including November 20, 2013. FURTHER ORDERED: Any further requests for extension must explain the exceptional circumstances necessitating the request and will be considered by the presiding judge. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  12/16/2013  Filed: MOTION TO EXTEND DUE DATE OF REPLY BRIEF. (Filed by Katherine A. Estavillo) (e-filer) 
All Other  12/17/2013  Pursuant to MOTION TO EXTEND DUE DATE OF REPLY BRIEF, and good cause having been shown, ORDERED: The time for filing Appellant's Reply Brief is extended to and including January 16, 2014. FURTHER ORDERED: Any further requests for extension must explain the exceptional circumstances necessitating the request and will be considered by the presiding judge. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  01/16/2014  Filed: MOTION TO EXTEND DUE DATE OF REPLY BRIEF. (Filed by Katherine A. Estavillo) (e-filer) 
All Other  01/21/2014  Pursuant to MOTION TO EXTEND DUE DATE OF REPLY BRIEF, and good cause having been shown, ORDERED: The time for filing Appellant's Reply Brief is extended to and including January 30, 2014. FURTHER ORDERED: Any further requests for extension must explain the exceptional circumstances necessitating the request and will be considered by the presiding judge. ***** Counsel should be aware that most briefs filed with the court are sent to Thomson-West Publishing for inclusion in its Arizona brief bank service. Briefs in the following case types will NOT be sent to Thomson-West: juvenile court cases; domestic relations cases; criminal cases involving sexual offenses or child abuse offenses; and mental health cases. In OTHER types of cases, if counsel prefer that a brief not be included in the brief bank service, they must contact: Paul Pendergrass Thomson-West 651-687-4994 or west.westbriefsnotification@thomson.com  
All Other  02/18/2014  SUBMITTED 
All Other  03/11/2014  Pursuant to Supreme Court Administrative Order No. 2012-104, the Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty and is assigned to serve on the above-captioned case.  
All Other  03/11/2014  Pursuant to Supreme Court Administrative Order No. 2012-104, the Hon. Boyd T. Johnson, a retired judge of the Arizona superior court, is called back to active duty and is assigned to serve on the above-captioned case. 
All Other  03/20/2014  This appeal is at issue. ORDERED: Oral argument shall be conducted before Division Two of the Court of Appeals in its third-floor Courtroom in the State Office Complex, 400 West Congress Street, North Building, Tucson, Arizona, on April 08, 2014 at 11:00 a.m. Each side may have twenty-five minutes to be heard. ****** FURTHER ORDERED: Counsel may stipulate to a telephonic oral argument and shall file with the Court any such stipulation and notify the Clerk of the Court in writing within ten days from the date of this order. The Court will reset the matter for telephonic oral argument. ORAL ARGUMENTS ARE NOW DIGITALLY RECORDED AND WILL BE AVAILABLE ONLINE THE DAY AFTER ARGUMENT ON THE WEBSITE http://www.appeals2.az.gov DATED: March 20, 2014 ____________________________ Jeffrey P. Handler Clerk of the Court COUNSEL MUST RETURN A COPY OF THIS ORDER, SIGNED AND DATED, TO THE CLERK OF THE COURT TO ACKNOWLEDGE RECEIPT OF SAME. DATE: __________________ COUNSEL'S NAME PRINTED: _____________________________ COUNSEL'S SIGNATURE: _____________________________ E-MAIL ADDRESS: _____________________________ One judge may prepare a draft decision prior to oral argument. The draft is not binding and may be changed entirely after oral argument. If a draft is prepared, it will be sent to all counsel when it becomes available. It will be sent to the e-mail address provided by counsel above. Persons with a disability may request a reasonable accommodation by contacting Jeffrey P. Handler at (520)628-6954 (voice phone). Requests should be made as early as possible to allow time to arrange the accommodation.  
All Other  03/21/2014  Filed: OA Acknowledgment. (Filed by Katherine A. Estavillo) (e-filer) 
All Other  03/24/2014  Filed: OA Acknowledgment. (Filed by Amy Pignatella Cain) (e-filer) 
All Other  04/08/2014  SIGN-IN SHEET 
All Other  04/18/2014  MEMORANDUM DECISION - AFFIRMED - Miller with Brammer and Johnson. (11) 
All Other  05/27/2014  FINAL DISPOSITION REPORT. 
All Other  05/27/2014  MANDATE ISSUED; RECEIPT REQUESTED.  
All Other  06/20/2014  It appearing a Petition for Review to the Arizona Supreme Court having been filed on June 18, 2014, ORDERED: This court's mandate issued on May 27, 2014, is VACATED. DATED: June 23, 2014  
All Other  06/20/2014  FINAL RECEIPT. 
All Other  12/02/2014  Copy of minute letter by Arizona Supreme Court re action taken December 2, 2014; ORDERED: Petition for Review to Arizona Supreme Court = DENIED. [CR-14-0154-PR]