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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JODON MARTINEZ, Appellant.

No. 1 CA-CR 17-0068

No. 1 CA-CR 17-0393

(Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2014-131399-001

The Honorable Michael W. Kemp, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Nicholaus Podsiadlik

Counsel for Appellant

FILED 8-30-2018
STATE v. MARTINEZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Maria Elena Cruz joined.

C A T T A N I, Judge:

¶1 Jodon Martinez appeals his convictions and sentences for 

second-degree murder, attempt to commit second-degree murder,

aggravated assault, and unlawful discharge of a firearm. He argues the 

superior court erred by sentencing him—a juvenile when he committed the 

offenses—to a total of 38 years in prison. He further argues that the court 

incorrectly instructed the jury that his punishment was within the judge’s 

sole discretion, and that his due process rights were violated when the court 

allowed a victim’s family member to present what Martinez claims was an 

unduly prejudicial video at sentencing. For reasons that follow, we affirm 

Martinez’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 Martinez was 17 years old when he fired a handgun 

numerous times at people in a park. The gunfire killed D.S. and injured 

M.W.

¶3 Martinez was charged as an adult, and a jury found him 

guilty of the crimes listed above. The superior court sentenced him to a 

total of 38 years’ imprisonment: consecutive terms of 20 years for seconddegree murder, 10.5 years for attempted second-degree murder, and 7.5 

years for aggravated assault, as well as a concurrent term of 2.25 years for 

unlawful discharge of a firearm.

¶4 Martinez timely appealed his convictions and sentences, and

we have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-

4033(A).

DISCUSSION

I. Cruel and Unusual Punishment.

¶5 Martinez argues that his 38-year prison sentence violates his 

rights under the Eighth Amendment to the United States Constitution, 
STATE v. MARTINEZ

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which prohibits the imposition of cruel and unusual punishments. U.S. 

Const. amend. VIII. He argues that his sentence is the functional equivalent 

of life without parole and is thus improper under Miller v. Alabama, 567 U.S. 

460, 465 (2012), which held that a mandatory life sentence without the 

possibility of parole imposed on a person who was a juvenile at the time of 

the offense violates the Eighth Amendment. Because Martinez failed to 

object to the sentences, we review only for fundamental, prejudicial error. 

State v. Henderson, 210 Ariz. 561, 567–68, ¶¶ 19–20 (2005).

¶6 Martinez has not shown error in sentencing, fundamental or 

otherwise. The Eighth Amendment case law on which Martinez relies does 

not apply to a juvenile serving consecutive term-of-years sentences. See

State v. Kasic, 228 Ariz. 228, 232–34, ¶¶ 20, 26 (App. 2011) (noting that 

“different considerations apply to consecutive term-of-years sentences 

based on multiple counts and multiple victims”). And all of the relevant 

United States Supreme Court cases finding Eighth Amendment concerns in 

this context involve juvenile offenders sentenced to life in prison without 

the possibility of parole or other early release, and all addressed life without 

parole for a single offense. See Graham v. Florida, 560 U.S. 48, 63 (2010); 

Miller, 567 U.S. at 465, 468–69. Here, in contrast, Martinez was not 

sentenced to life without parole; he was sentenced to consecutive prison 

terms totaling 38 years. And that total term of years represented multiple 

sentences for multiple offenses committed against multiple victims. Thus, 

Martinez’s reliance on Miller and Graham is unavailing.

¶7 Martinez cites multiple cases from other jurisdictions that 

have concluded that a term-of-years sentence can be functionally 

equivalent to a sentence of life without parole. But most of those cases 

involved sentences longer than 85 years.1 The shortest sentence found to 

be the functional equivalent of life without parole was 45 years. Bear Cloud 

v. State, 334 P.3d 132, 136, 141–42 (Wyo. 2014). Martinez’s sentence is 

significantly shorter; he is eligible for release after serving 35.3 years, 

because he earns one day of “earned release credit” for every six days 

served for the attempted second-degree murder and the aggravated assault

 

1 See Moore v. Biter, 725 F.3d 1184, 1185 (9th Cir. 2013) (multiple termof-years sentences totaling 254 years); Budder v. Addison, 851 F.3d 1047, 1049

(10th Cir. 2017) (131.75 years); People v. Caballero, 282 P.3d 291, 293 (Cal. 

2012) (110 years); State v. Riley, 110 A.3d 1205, 1206 (Conn. 2015) (100 years); 

Henry v. State, 175 So. 3d 675, 676 (Fla. 2015) (90 years); People v. Reyes, 63 

N.E.3d 884, 888 (Ill. 2016) (89 years); State v. Boston, 363 P.3d 453, 454 (Nev. 

2015) (approximately 100 years); State v. Moore, 76 N.E.3d 1127, 1131, 1137

(Ohio 2016) (112 years).
STATE v. MARTINEZ

Decision of the Court

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convictions. A.R.S. § 41-1604.07(A). Having a release date within his 

natural life expectancy, Martinez has “a meaningful opportunity to obtain 

release,” which is what the Eighth Amendment requires in this context.

Graham, 560 U.S. at 75.

¶8 Finally, Martinez argues that his sentences violate Article 2, 

Section 15, of the Arizona Constitution, which also protects against cruel 

and unusual punishments. But the Arizona Supreme Court has declined to 

interpret that section of the Arizona Constitution as providing greater 

protection than that provided under the Eighth Amendment. See State v. 

Davis, 206 Ariz. 377, 380–81, ¶ 12 (2003). Accordingly, Martinez’s argument 

fails.

II. Jury Instruction that Jury Must Not Consider Punishment.

¶9 The court instructed the jury that “You must not consider the 

possible punishment when deciding on guilt; punishment is left to the 

judge.” Martinez objected to the instruction as legally incorrect because the 

Legislature—not only the judge—controls the sentence. We review this 

claim of error to which Martinez timely objected for harmless error. See 

Henderson, 210 Ariz. at 567, ¶ 18. An error is harmless if it did not affect the 

verdict. Id.

¶10 The superior court did not err because the instruction 

accurately stated the law. “The jury’s function is to determine the guilt or 

innocence of a party without consideration of the possible sentence.” State 

v. Allie, 147 Ariz. 320, 326 (1985). The court, not the jury, determines 

punishment. Id. The instruction correctly directed the jury not to consider 

the possible punishment in determining guilt, given that the court (not the 

jury) imposed the sentence.

III. Victim Impact Evidence at Sentencing.

¶11 During the sentencing hearing, the decedent victim’s family

played a video memorializing D.S.’s life. On appeal, Martinez argues the 

presentation of the video violated due process because he did not have an 

opportunity to rebut the video and because the video itself was unduly 

prejudicial. Martinez did not object before the superior court, so we review 

only for fundamental, prejudicial error. Henderson, 210 Ariz. at 567–68, ¶¶

19–20.

¶12 Martinez asserts that Arizona’s Victims’ Bill of Rights 

prevented him from rebutting the video. See Ariz. Const. art. 2, § 2.1(A)(1) 

(guaranteeing crime victims the right “[t]o be treated with fairness, respect, 
STATE v. MARTINEZ

Decision of the Court

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and dignity”). But by statute, Martinez had a right “to explain, support or 

deny the victim’s statement” at sentencing. A.R.S. § 13-4426.01; see also

A.R.S. § 13-4401(19) (defining “victim” to include family members of a 

deceased victim).

¶13 Moreover, presentation of the video was not unduly 

prejudicial. Generally, victim impact evidence is admissible at sentencing 

unless it is “so unduly prejudicial that it renders the trial fundamentally 

unfair.” Payne v. Tennessee, 501 U.S. 808, 824–25 (1991). The video, which 

was viewed only by the court and not by the jury, is a montage of images 

depicting various points in D.S.’s life, with music playing in the 

background. Neither the images nor the music was inflammatory. And the 

images were relevant to assessing the emotional harm to the victim’s 

family, an aggravating factor the jury found at trial and that the court 

properly could consider at sentencing. See A.R.S. § 13-701(D)(9). The 

presentation of the video thus was not “so unduly prejudicial” as to 

constitute a due process violation.

CONCLUSION

¶14 Martinez’s convictions and sentences are affirmed.