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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

JESUS ALONZO VELETA,

Appellant.

No. 1 CA-CR 19-0570

Appeal from the Superior Court in Maricopa County

No. CR2006-116603-001

The Honorable Jay R. Adleman, Judge

The Honorable A. Craig Blakey II, Judge (retired)

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael T. O’Toole

Counsel for Appellee

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant

FILED 10-8-2020
STATE v. VELETA

Decision of the Court

2

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding 

Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Jesus Veleta1 appeals his convictions and sentences for two 

counts of armed robbery. For the following reasons, we affirm.

FACTS2 AND PROCEDURAL BACKGROUND

¶2 Veleta robbed two pharmacies in Phoenix in March of 2006.

Grand jurors indicted Veleta for two counts of armed robbery involving the 

threatening exhibition of a gun, each a class 2 dangerous felony. Before the 

trial, the State moved to dismiss the dangerousness allegation for the 

second count, and the superior court granted the motion. In January 2007, 

the court conducted a trial in absentia after Veleta failed to appear.

¶3 At the trial, the pharmacist victim for the first count testified 

she saw Veleta carrying a gun. Officers found the gun in a bush near the 

store. The pharmacist victim for the second count testified that she assumed

Veleta had a gun based on how he held his hand to his side, but she did not 

see a weapon.

¶4 The final jury instructions during the guilt phase defined

“dangerous offense.” The instruction stated that if the jurors found Veleta

guilty of the first count of armed robbery, they must determine whether it 

was a dangerous offense. The instruction stated a dangerous offense 

involved the threatening exhibition of a deadly weapon, which included a 

firearm. Likewise, the verdict forms required the jurors to determine for the 

1 On the court’s motion, the caption in this matter has been amended 

to correct the spelling of Veleta’s last name. This amended caption shall be 

used on any future filings.

2 We view the facts in the light most favorable to upholding the verdict 

and resolve all reasonable inferences against the defendant. State v. 

Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
STATE v. VELETA

Decision of the Court

3

first count whether, if guilty, the offense was dangerous. Veleta did not 

object to the instructions or verdict form. After the guilt phase, jurors found 

Veleta guilty of armed robbery for both counts and found the first count 

was a dangerous offense.

¶5 Officers arrested Veleta pursuant to a bench warrant in April 

2019 after he surrendered to the Department of Homeland Security. The 

court sentenced him to a less-than-presumptive term of eight years’ 

imprisonment for count one and a presumptive term of five years’ 

imprisonment for count two, ordering that the sentences be served 

concurrently with 214 days’ presentence incarceration credit.

¶6 Veleta appealed, and we have jurisdiction under Arizona 

Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, 

and -4033(A)(1).

DISCUSSION

¶7 Veleta argues the superior court committed fundamental 

error by defining “dangerous offense” in the final jury instructions and 

permitting the jurors to determine whether the first count was a dangerous 

offense during the trial’s guilt phase. He alleges the error prejudiced him 

by infringing his right to a fair trial, claiming the error tainted the trial’s 

entire guilt phase.

¶8 “[W]e will consider a matter not raised below only if it is a 

matter of fundamental error.” State v. Bolton, 182 Ariz. 290, 297 (1995). We 

will reverse a decision based on fundamental error only if the defendant 

proves: (1) trial error exists; (2) the error went to the foundation of the case, 

took away a right essential to the defense, or was so egregious that the 

defendant could not have possibly received a fair trial; and (3) the error 

caused prejudice. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

¶9 “When the State alleges a non-capital sentencing aggravator 

such as dangerousness, the aggravator should not be mentioned in jury 

instructions or otherwise during the guilt phase of the trial.” State v. 

Patterson, 230 Ariz. 270, 277, ¶ 29 (2012) (citation omitted). An exception to 

the general rule applies when dangerousness is a necessary element of the 

crime charged, thereby making the crime inherently dangerous. State v. 

Larin, 233 Ariz. 202, 212–13, ¶¶ 36, 41 (App. 2013).

¶10 Here, the indictment for count one alleged Veleta was armed 

with a deadly weapon or simulated deadly weapon. Thus, when the jurors 

found Veleta guilty of count one, they did not necessarily decide the issue 
STATE v. VELETA

Decision of the Court

4

of dangerousness. See A.R.S. § 13-105(13) (definition of dangerous offense); 

Larin, 233 Ariz. at 213, ¶ 41 (“[A] defendant could be convicted of armed 

robbery for using a simulated deadly weapon without that offense being 

dangerous.”). However, the State did not present evidence to the jury that 

Veleta used a simulated deadly weapon. Therefore, no reasonable juror 

could have found Veleta committed the armed robbery with a simulated 

deadly weapon.

¶11 Even if the court erred by instructing the jurors to determine 

whether the first count was a dangerous offense during the guilt-phase,

Veleta has produced no evidence showing how the court’s failure to 

bifurcate the dangerous finding between the guilt and aggravation phases

created an unfair trial. The evidence presented at the trial concerning count 

one included the pharmacist’s testimony that Veleta possessed a gun 

during the robbery and evidence that the officers discovered the weapon in 

a bush near the store. This evidence was necessary to prove the 

armed-robbery offense in this case. It was also sufficient for the jurors to 

conclude count one was a dangerous offense, regardless of whether they 

heard the evidence during the guilt or aggravation phase. Veleta has not 

met his burden of proving prejudice. Thus, no fundamental error occurred.

CONCLUSION

¶12 We affirm Veleta’s convictions and sentences.